STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on September 10, 2009, in Clearwater, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

204 37th Avenue, Suite 190

St. Petersburg, Florida 33704

For Respondent: Robert F. McKee, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301 Post Office Box 75638

Tampa, Florida 33675-0638 STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated Subsections 1012.795(1)(c), 1012.795(1)(f)1, 1012.795(1)(i), and

1012.795(1)(k), Florida Statutes (2002-2005),2 and Florida

Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e),

6B-1.006(3)(g), and 6B-1.006(3)(i), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On November 25, 2008, Petitioner issued an Amended Administrative Complaint against Respondent, Debra E. West

(Ms. West). The Amended Administrative Complaint was forwarded to the Division of Administrative Hearings on February 4, 2009. The final hearing was scheduled for April 14, 2009, and was continued twice.

On August 17, 2009, Petitioner filed Petitioner’s Motion to Amend the Administrative Complaint, which was granted by Order dated August 18, 2009. The Second Amended Administrative Complaint was filed on August 25, 2009. The Second Amended Complaint alleged that Ms. West violated Subsections 1012.795(1)(c), 1012.795(1)(g)3, 1012.795(1)(i), and

1012.795(1)(k), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i).

At the final hearing, the parties submitted Joint Exhibits 1 and 2. Joint Exhibit 1 consists of Volumes II through IV of the Transcript of the final hearing in Pinellas County School Board v. Debra E. West, Case No. 06-1914 (DOAH

September 19, 2006). Joint Exhibit 2 consists of the exhibits of Pinellas County School Board (School Board) in DOAH Case

No. 06-1914 with the exception of the School Board’s Exhibit 32.

Petitioner presented no witnesses at the final hearing.

Ms. West testified on her own behalf.

The one-volume Transcript was filed on September 30, 2009.

The parties agreed to file their proposed recommended orders within ten days of the filing of the Transcript. The parties timely filed their proposed recommended orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Ms. West holds Florida Educator’s Certificate 666407, which covers the area of physical education and is valid through June 30, 2012. She began her teaching career in 1990.

2. At all times pertinent to this case, Ms. West was employed as a physical education teacher at Azalea Middle School in the Pinellas County School District.

3. By Final Order dated February 20, 2004, the Education Practices Commission found Ms. West guilty of violating Subsection 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e), by, among other things, making derogatory remarks to students and disclosing students’ grades without their permission. The Education Practices Commission suspended Ms. West’s educator

   certificate for the summer session for 2004 and placed her on probation for two years, effective February 20, 2004.

4. The violations for which Ms. West was disciplined occurred while Ms. West was a teacher at Gibbs High School. In an effort to give Ms. West a fresh start, she was administratively transferred from Gibbs High School to Azalea Middle School beginning August 2001. Ms. West was assigned to teach seventh-grade physical education.

5. Connie Kolosey was the seventh-grade assistant principal at Azalea Middle School who was responsible for supervising everything having to do with the seventh grade, including the seventh-grade teachers. The principal at Azalea Middle School received an anonymous letter early in the 2001- 2002 school year complaining that Ms. West was using offensive language and making derogatory remarks to students. About the same time as the arrival of the anonymous letter, Ms. Kolosey became aware that Ms. West was using her cell phone in class to call parents to talk about students’ behavior.

6. Ms. Kolosey met with Ms. West on September 7, 2001, to discuss these issues. Ms. West felt that the anonymous letter came from individuals who were involved in Ms. West’s problems at Gibbs High School. The use of the cell phone was discussed during the conference. Ms. West stated that when she was at Bay Pointe Middle School she had used the cell phone to call parents

   during class and found it to be an effective way to curb student misbehavior. Ms. West indicated that she would leave the gymnasium and make the cell phone calls in the hallway.

   Ms. Kolosey explained to Ms. West that the use of cell phones to call parents during class was not appropriate. Students could be embarrassed by having Ms. West discuss their discipline issues in front of the class or in the hallways. Additionally, it was not a safe practice to leave the students in the gymnasium while she went into the hall to make telephone calls.

7. On February 8, 2002, Ms. Kolosey had another conference with Ms. West to discuss accusations which had been made by several students that Ms. West had been making derogatory remarks to them about their physical appearance. Ms. West denied making the comments.

8. During the spring of 2002, the parents of one of Ms. West’s students demanded that their child be removed from

   Ms. West’s class for comments which Ms. West allegedly made to their child, S.B. Ms. Kolosey investigated the matter and could find no one to corroborate the allegations made by S.B. and her parents. Thus, Ms. Kolosey refused to remove the student from Ms. West’s class. The parents of S.B. continued to request that their child be removed from Ms. West’s class because S.B. had skipped Ms. West’s class, and they felt it was a result of the child having been traumatized by Ms. West’s actions.

9. Ms. Kolosey discussed the issues concerning S.B. She specifically told Ms. West not to bring the issues up to S.B. in a negative way but to attempt to mend her relationship with S.B. On March 12, 2002, Ms. Kolosey received a telephone call from S.B.’s mother again demanding that S.B. be removed from

   Ms. West’s class. Ms. West had told S.B. in front of S.B.’s classmates that S.B. could not run to Ms. Kolosey about things that were said in private because she was saying it in front of the whole class. Ms. West admitted to Ms. Kolosey that she had made the remarks to S.B. Ms. Kolosey agreed to remove S.B. from Ms. West’s class.

10. On May 16, 2002, Ms. Kolosey; Ms. West; Ms. Andrews, the principal at Azalea Middle School; and Mr. McNeil, a union representative, had a conference to discuss more allegations that Ms. West had made belittling remarks to some of her students. It was suggested to Ms. West that if she needed to discuss a student’s performance or behavior that she take the student aside rather than do it in front of other students.

    Ms. West was warned that her attitude needed to change and that she could not always say the first thing that came to her mind.

11. During the last semester of the 2001-2002 school year, Ms. West’s daughter was seriously ill, and Ms. West missed a great deal of work because of her parenting responsibilities. The first semester of the 2002-2003 school year, Ms. West was

    absent most of the time because of her daughter’s illness. Ms. West returned to teach at Azalea Middle School in January 2003.

12. After Ms. West’s return, complaints began to be made to the administration about inappropriate comments that Ms. West was alleged to have made during class. Ms. West denied making the comments. Again, Ms. West was cautioned to think about what she says to the students before she says it. Ms. West was under a great deal of stress during the early part of the second semester of the 2002-2003 school year because of her daughter’s illness. Her daughter passed away in March 2003.

13. In March 2003, Ms. West received a written reprimand from the principal at Azalea Middle School for “failing to interact appropriately with students and making inappropriate remarks to students, and for insubordination in failing to follow a previous directive to refrain from such remarks.” Again, Ms. West was directed to refrain from making inappropriate remarks to students.

14. Ms. Kolosey evaluated Ms. West for the 2002-2003 school year. Ms. West was rated ineffective for her instructional and non-instructional performance. It was noted that Ms. West’s judgment was a serious concern and that the numerous complaints which had been received regarding Ms. West’s negative interactions with students overshadowed an otherwise

    knowledgeable and organized classroom presentation. Ms. West appealed the evaluation, but the evaluation was upheld.

15. Ms. West felt that Ms. Kolosey was being unfair to her and that she was taking the word of students over Ms. West’s denials. Ms. West felt that because Ms. Kolosey believed the allegations of some of the students, the students somehow felt they were empowered and made even more accusations.

16. In order to give Ms. West another fresh start,

    
    

    Ms. West was transferred to sixth-grade classes for the 2003- 2004 school year. Dan Stevens was assigned as her supervisor, and Ms. Kolosey had no further dealings with complaints regarding Ms. West.

17. Because of the evaluation which Ms. West received at the end of the 2002-2003 school year, she was given a performance improvement plan on August 12, 2003. Among other things, the plan called for Ms. West to “[a]void use of inappropriate comments to students that they may find humiliating or demeaning in nature.” Ms. West was told to “[u]se wait time before responding to students[’] inappropriate behavior” and to “[r]emember to always praise student publicly and to correct them privately.”

18. On August 25, 2003, Mr. Stevens received an email from the Azalea Middle School sixth-grade guidance counselor, advising him that there had been a complaint by a student that

    Ms. West had disclosed his grade in class without his permission and that the parent of another student, E.M., had called to complain that her daughter’s grade had been revealed to the other students. E.M.’s mother also wrote a letter to Mr.

    Stevens regarding her allegations that Ms. West was disclosing her daughter’s grades to the class. Because E.M.’s mother felt that Ms. West was acting inappropriately, she refused to allow

    E.M. to attend Ms. West’s class.

19. On October 7, 2003, a conference was held with Ms. West to discuss the allegations made by E.M.’s mother.

    Ms. West denied disclosing E.M.’s grade. E.M. was transferred from Ms. West’s class to another class.

20. In late August 2005, J.T., a sixth-grader at Azalea Middle School, was transferred to Ms. West’s health class. On September 2, 2005, J.T. called his stepmother during class and handed the telephone to Ms. West so that she could talk to his stepmother. Ms. West discussed with the stepmother that J.T. had failed a test and that he had not returned the test to her with a signature of one of his parents. This conversation was held during class time and in a manner that the other students could hear Ms. West.

21. Ms. West called L.D. about her son, T.D., during class hours to complain that T.D. was making a failing grade. L.D. could hear students in the background.

22. Ms. West made remarks to students which were disparaging and embarrassing. One remark made by Ms. West to

    T.J. was, “You must have studied in the dark.” Ms. West had been talking to T.J. about his low grade on a test. T.J. said that he had studied for the test, and Ms. West responded that he must have studied in the dark. Ms. West has also made this comment to other students who had made low grades on tests.

23. Ms. West also told T.J. in front of other classmates to “Take your grow-up pill.” T.J. is small in stature and sensitive about his size. Ms. West denied that she was making a reference to his small size and contends that she was just trying to tell him that he was acting immaturely. Although

    Ms. West did not intend to make fun of T.J.’s small size, she should have known that such comments could embarrass him.

24. Ms. West made the comment, “Dumb boys make dumb babies” during her health class in the fall of 2005. She contends that she was trying to make the students aware that they should think about the consequences of the decisions that they make in life. Although Ms. West was trying to convey an appropriate message, she chose an inappropriate means to do so. At the final hearing, Ms. West stated that she had made the

    remark to two girls, who were discussing a particular student. In essence, she referred to the young man as being dumb, which was not appropriate.

25. Based on the numerous complaints that the administration received about Ms. West’s behavior, the Pinellas County School Board made investigations and terminated

    Ms. West’s employment with the Pinellas County School Board. Both administrators and parents found that Ms. West was an ineffective teacher. Based on the numerous complaints from parents and the necessity to transfer students from Ms. West’s classes to other classes, Ms. West was an ineffective teacher.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

27. Petitioner has the burden to establish the allegations in the Second Amended Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

28. Petitioner has alleged that Ms. West violated Subsections 1012.795(1)(c), 1012.795(1)(f), 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes, which provide:

    1. The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3)

       for a period of time not to exceed

       5 years,[4] thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:

       * * *

       (c) Has been guilty of gross immorality or an act involving moral turpitude.

       * * *

       (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.

       * * *

       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

       
       

       * * *

       (k) Has violated any order of the Education Practices Commission.

       
       

29. Petitioner also alleged in the Second Amended Administrative Complaint that Ms. West violated Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and 6B-1.006(3)(i), which provide:

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

       
       

       * * *

       
       

       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.

       
       

       * * *

       
       

       (g) Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

       
       

       * * *

       (i) Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.

       
       

30. Petitioner alleged in the Second Amended Administrative Complaint that Ms. West violated the above statutes and rules by the following actions.

    On or about March 2, 2004, the Education Practices Commission (EPC) filed a Final Order adopting a Recommended Order relating to Respondent in Professional Practices (PPS) Case Number 001-2045-C (EPC Case Number 03-0086-RT). The underlying allegations in the Administrative Complaint included disparaging remarks directed at students, calling students names and announcing student grades in front of the class. As part of the Final Order, Respondent’s educator’s certificate was suspended for a summer semester and she was placed on probation for 2 years. Included in the terms of her probation was the requirement that Respondent violates no law and fully complies with all school board regulations.

    
    

    During January 2003, Respondent made inappropriate remarks that embarrassed individual students and subjected them to the teasing of their peers. Respondent’s remarks, not covered in the previous charge, included but were not limited to: asking students if they were “gay” and warning other students to watch out for them, telling students not to wear shorts that were short enough to see their “crusty booty” or their “bulge,” teasing a girl with a last name that was slang for prostitute, and asking a girl named Michael if her father had really wanted a boy. On or about March 18, 2003, Respondent’s principal

    issued her a letter of reprimand with regard to the comments.

    
    

    During the Fall, 2005, semester, Respondent made inappropriate and embarrassing remarks to students and revealed failing student grades in front of the class. Respondent’s remarks included but were not limited to: dumb boys make dumb babies, telling a student he needed to take his grow up pills and telling one student he must have studied in the dark.

    Additionally, Respondent called parents of students who failed her exams in front of the class to discuss the student’s grades. On or about December 13, 2005, Respondent’s superintendent recommended to the school board that Respondent be terminated from her teaching position.

    
    

31. Petitioner did not establish by clear and convincing, non-hearsay evidence that Ms. West made the remarks that were attributed to her during January 2003.

32. Petitioner has proved by clear and convincing evidence that Ms. West made inappropriate remarks which embarrassed and disparaged students during the fall of 2005. Such remarks included, “you must have studied in the dark,” “you need to take your grow-up pill,” and “dumb boys make dumb babies.” These remarks were inappropriate, and, given Ms. West’s numerous conferences with school administrators and the Final Order entered by the Education Practices Commission, she should have been aware that these types of remarks could have been taken

    by the students to be disparaging and embarrassing. Thus, Petitioner has established by clear and convincing evidence

    that Ms. West violated Subsections 1012.795(1)(f) and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(1)(g).

33. Petitioner has established by clear and convincing evidence that Ms. West called parents during class time and discussed students’ grades in front of the class without the permission of the parents or the students being discussed. Thus, Petitioner has established by clear and convincing evidence that Ms. West violated Subsections 1012.795(1)(f) and 1012.795(1)(i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(3)(i).

34. Petitioner has established by clear and convincing evidence that Ms. West made disparaging and embarrassing remarks to students and inappropriately disclosed students’ grades while she was on probation based on a Final Order from the Education Practices Commission. Although the Final Order does not specifically require that Ms. West comply with the law and school board regulations, it is implicit that being placed on probation means that the probationer is to abide by the applicable laws and regulations governing teachers. Ms. West failed to abide by the laws governing teachers as set forth above. Thus, Petitioner has established by clear and convincing evidence that Ms. West violated Subsection 1012.795(1)(k), Florida Statutes.

35. Petitioner has failed to establish that Ms. West violated Subsection 1012.795(1)(c), Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that a final order be entered finding Ms. West guilty of violating Subsections 1012.795(1)(f), 1012.795(1)(i), and 1012.795(1)(k), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(g), and

6B-1.006(3)(i) and suspending Ms. West’s educator’s certificate for three years, followed by a two-year probationary period under terms and conditions set by the Education Practices Commission.

DONE AND ENTERED this 22nd day of October, 2009, in Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 2009.

ENDNOTES

1/ The Second Amended Administrative Complaint alleges that Ms. West violated Subsection 1012.795(1)(g), Florida Statutes, but both parties have treated the reference to Subsection 1012.795(1)(g) as a scrivener’s error and have cited to the language contained in Subsection 1012.795(1)(f), Florida Statutes.

2/ The Second Amended Administrative Complaint alleges incidents which occurred in January 2003 and the fall of 2005. Except for the limitation of the period of suspension, the statutory versions are similar and the violations remain unchanged.

Unless otherwise indicated, all references to the Florida Statutes are to the 2005 version.

3/ See endnote 1.

4/ The 2002 version of the Florida Statutes provides that suspension shall be limited to a period of three years.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida, 32399-0400

Robert F. McKee, Esquire Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301 Post Office Box 75638

Tampa, Florida 33675-0638

Bruce P. Taylor, Esquire

204 37th Avenue, Suite 190

St. Petersburg, Florida 33704

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: 09-000588PL

Orders for Case No: 09-000588PL