DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION,
vs.
Respondent.
) Case No. 11-2245PL
An administrative hearing was conducted in this case on August 16, 2011, in Brooksville, Florida, before
James H. Peterson, III, Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Carol R. Buxton, Esquire
The issue in this case is whether Respondent's educator's certificate should be disciplined.
On October 18, 2010, Petitioner, Dr. Eric J. Smith, then Commissioner of Education (Petitioner), filed an Administrative Complaint against Respondent alleging that Respondent violated sections 1012.795(1)(d) and (j), Florida Statutes (2009),1/ and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), based upon the allegation that:
On or about February 16, 2010, Respondent displayed inappropriate conduct toward K.G., a seventeen-year old male student. In an effort to awaken K.G. who was sleeping at his desk, Respondent shook the desk so violently that it flipped over causing K.G. to injure his hand.
Respondent timely filed an election of rights with Petitioners seeking an administrative hearing. Petitioner forwarded the case to the Division of Administrative Hearings on May 4, 2011. The case was originally assigned to Administrative Law Judge Susan B. Kirkland, then to Administrative Law Judge Lisa Shearer Nelson, and subsequently transferred to the undersigned to conduct the administrative hearing.
At the administrative hearing in this matter, Petitioner presented the testimony of Joe Clifford, Heather Martin, Beverly Salkin, James Bowles, Jonathon Hughes, and K. G. Petitioner
offered nine exhibits which were received into evidence as Petitioner’s Exhibits P-1, P-2, P-2a, P-2b, and P-3 through P-7. Respondent testified on his own behalf, but offered no exhibits.
The proceedings were recorded and a transcript was ordered.
September 1, 2011. The parties were given until September 28, 2011, within which to file their respective Proposed Recommended Orders. Petitioner and Respondent timely filed their Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.
Respondent holds Florida Educator’s Certificate
No. 975296. He has been employed as a teacher with the Hernando County School Board for six years.
During the 2009-10 school year, Respondent taught 11th grade English III at Central High School.
As a teacher, Respondent expects his students to behave and pay attention. He expects his students to interact with him about the lesson, and he expects the students to stay awake in class.
On February 16, 2010, near the beginning of his second class of the morning, Respondent noticed several students had their heads on their desks and appeared to be sleeping. One of these students was K. G.
K. G. was 17 years old at the time and was approximately
5 feet, 8 inches tall and weighed 145 pounds. Respondent attempted to awaken K. G. by calling his name, but K. G. did not respond.
Respondent became, in his own words, "not angry," but rather “frustrated” and “perturbed” when K. G. did not wake up.
Respondent knew that K. G. would not get the material if he was not awake, and Respondent felt that it was his responsibility as the teacher to try and keep the students engaged during class.
After K. G. did not respond, Respondent went over to
K. G.’s desk, took hold of a leg of the desk with one hand, put his other hand under the desk, and shook the desk.
Respondent shook K. G.'s desk with the intention of waking K. G. Respondent did not intend to push the desk over. Nevertheless, while Respondent was shaking the desk, K. G.'s desk flipped over while K. G. was in it.
After he fell, K. G. got up and threw the desk back toward Respondent, cursed, abruptly left the classroom, and reported the incident to the assistant principal.
Respondent attempted to continue to teach, but the class was disrupted and would not settle down. Respondent then calmly asked Beverly Salkin, a substitute teacher who was assisting in Respondent's classroom that day, to please take over the classroom.
After that, Respondent went to the front office, clearly upset, and reported the incident to Principal Joe Clifford.
Respondent told Mr. Clifford that he had done something really stupid, that he was not feeling well, but there was no excuse for his behavior. Respondent reported to Mr. Clifford
that K. G. was sleeping in the classroom and that he had flipped the desk while K. G. was in it so that the student landed on the floor.
Mr. Clifford then went to the assistant principal’s office to check on K. G. to find out whether he was injured.
K. G. told Mr. Clifford that he had already hurt his hand2/ but reinjured it in the fall from his desk. The school nurse checked
K. G.’s hand and put ice on his hand. K. G. did not seek further medical treatment for his hand, and attended sports practice a day or two after the incident.
Respondent asked Mr. Clifford for permission to apologize to K. G. for what he had done. Mr. Clifford allowed Respondent to apologize to K. G., and Respondent apologized to
K. G. that same day. Respondent showed remorse and concern when he apologized to K. G.
In reaction to the incident, Mr. Clifford removed Respondent from the classroom and reported the incident to Heather Martin, the Executive Director of Business Services for the Hernando County School District. The same day, Mr. Clifford asked some of the students and Ms. Salkin who were in the classroom during the incident to write a statement regarding what had occurred.
Mr. Clifford also prepared an Employee Conference Form and a statement regarding his interviews with Respondent and
K. G.
Later that day, Mr. Clifford met with Respondent and
Respondent’s union representative. At that meeting, in the presence of his union representative, Respondent again stated that he had flipped over a student's desk while the student was in it.
Mr. Clifford completed the Employee Conference Form in the presence of Respondent and his union representative. On the form Mr. Clifford wrote “Mr. Budd self-reported that he flipped over a student while that student was sitting at his desk.”
Respondent and his union representative were given an opportunity to review the completed form and request changes if necessary. Respondent signed the form and did not state that anything on the form was incorrect.
Mr. Clifford then forwarded the Employee Conference Form, his statement, and the witness statements to Heather Martin. Heather Martin’s responsibilities include handling teacher discipline matters for the school district.
On February 17, 2010, Ms. Martin received the report from Mr. Clifford. Following her receipt of the report,
Ms. Martin scheduled a predetermination meeting with Respondent and his union representative.
On February 25, 2010, Ms. Martin met with Respondent and his union representative. During the meeting, Respondent told Ms. Martin that K. G. had fallen asleep in class, that he had tried to get K. G.’s attention, and at that when K. G. did not respond, he grabbed K. G.'s desk, shook it, and the desk flipped over and K. G. fell on the floor. During the meeting, Respondent admitted that he went to K. G.’s desk with the intent to shake the desk, and that he “took ahold of a leg here and somehow used [his] other hand under the desk.”
After the meeting, a written summary of the meeting was prepared. Copies of the summary, statements from classroom witnesses, the employee form, and Mr. Clifford’s statement were all given to Respondent. Respondent was informed that he had ten days to rebut any information in those documents, which he did not do.
After investigation, the school district determined that Respondent violated Florida Administrative Code Rule 6B- 1.006(3)(a) and (3)(e), and gave Respondent a letter of reprimand and a two-day suspension without pay. Respondent did not challenge the determination and accepted the discipline in order to put the incident behind him.
According to Mr. Clifford, the appropriate course of action to awaken a student sleeping in class is to use proximity or tap on the students’ desk. Mr. Clifford testified that he
would not recommend taking a hold of a student's desk and shaking it.
Respondent explained at the final hearing that he had already tried other methods of getting students' attention that day, including tapping on a number of desks.
Evidence of Respondent's demeanor both at the final hearing and during his earlier explanations to his superiors demonstrated that Respondent regrets the results of his actions. In his testimony at the hearing, Respondent explained, however, that he did not know how his actions resulted in the desk turning over. Respondent further explained that he would never put his hands on a student.
Prior to the instant action, Respondent did not mention that he thought K. G. might be responsible for the desk falling over. However, during depositions and at the administrative hearing in this case, Respondent suggested that K. G. may have contributed to the desk falling over by lurching when the desk was shaken. Respondent also testified that he (Respondent) may have inadvertently assisted in the desk falling over by pulling it back away from K. G. as it went over in order to avoid injury to K. G.
It is found that Respondent's other explanations for
K. G.'s desk falling over, although stated later than his initial explanations of the incident, are not inconsistencies or excuses,
but rather are reflective of Respondent's attempts to explain a result which the credible evidence showed he never intended.
It is also found that Respondent never intended to embarrass or ridicule K. G., and, further, that K. G. was not embarrassed by Respondent's actions.
While the whole school knew about the incident within an hour, some students teased K. G. and made jokes about the incident, and the incident was reported in the local newspaper,
K. G. did not testify that he was embarrassed by Respondent's actions. In fact, K. G. laughed at jokes about the incident.
Prior to the incident, Respondent had never used the technique of shaking a student's desk to awaken a student. During the final hearing, Respondent gave credible testimony that he never intends to use that technique again.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to section 120.569 and subsection 120.57(1), Florida Statutes.
Subsection 1012.796(6), Florida Statutes, authorizes the Commissioner of Education to file a formal complaint and prosecute the complaint against a teacher's certificate pursuant to the provisions of chapter 120, Florida Statutes.
Petitioner, as the party asserting the affirmative in this proceeding, has the burden of proof. See, e.g., Balino v.
Dep’t of HRS, 348 So. 2d 349 (Fla. 1st DCA 1977).
Because Respondent's teaching certificate is at risk, Petitioner has the burden to prove the allegations in the administrative complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
Clear and convincing evidence:
[r]equires that evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz
v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
Disciplinary statutes are penal in nature, and must be construed against the authorization of discipline and in favor of the individual sought to be penalized. Munch v. Dep’t of Bus. & Prof’l Reg., 592 So. 2d 1136 (Fla. 1st DCA 1992). A statute imposing a penalty is never to be construed in a manner that expands the statute. Hotel & Restaurant Comm’n v. Sunny Seas No. One, 104 So. 2d 570, 571 (1958).
Subsection 1012.795(1) gives the Education Practices Commission the power to suspend or revoke the teaching certificate of any person, either for a set period of time or
permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute.
The Administrative Complaint alleges that Respondent violated subsections 1012.795(1)(d) and (j), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e).
Section 1012.795 provides in pertinent part:
Education Practices Commission; authority to discipline.--
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 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); may revoke the educator 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); may revoke permanently the educator certificate of any person; 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:
* * *
(d) Has been guilty of gross immorality or an act involving moral turpitude.
* * *
(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Rule 6B-1.006 contains the Principles of Professional Conduct and provides, in pertinent part:
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.
Obligation to the student requires that the individual:
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.
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(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
The terms "gross immorality" and "moral turpitude," are not defined in any statute or rule applicable to the Education Practices Commission in license disciplinary cases under chapter 1012, Florida Statutes. However, the definitions in Florida Administrative Code Rule 6B-4.009, which relate to the suspension and dismissal of teachers by school districts, are instructive in defining terms as used by the Education Practices Commission in revocation actions.
Rule 6B-4.009 provides the following definitions:
(2) 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.
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(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.
"'Gross immorality' has been described as misconduct that is serious, rather than minor in nature; it is a flagrant disregard of proper moral standards." Smith, Comm'ner of Ed. v.
Malvar, Case No. 10-2784PL (DOAH Sept. 13, 2010), adopted in toto (EPC Jan. 13, 2011) (citing Education Practices Comm'n v. Knox,
3 FALR 1373-A (Fla. Dep't of Education 1981)).
Moral turpitude has also been defined by the Supreme Court of Florida as "anything done contrary to justice, honesty, principle, or good morals, although it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated." State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).
The evidence in this case was insufficient to establish that Respondent's actions constituted immorality or gross immorality, or involved moral turpitude.
Specifically, while it was shown that Respondent intended to shake K. G.'s desk, the evidence did not establish that Respondent intended to push over the desk. Rather, the evidence showed that Respondent's actions were taken in an attempt to make sure that K. G. was awake and engaged in class. In other words, Respondent's intent was consistent with his expectations that his students will behave and pay attention.
Considering Respondent's actions in light of his intent, it cannot be said that Respondent acted in a manner that was inconsistent with standards of public conscience and good morals. And the evidence was woefully inadequate to clearly and convincingly establish that Respondent engaged in any act of baseness, vileness, or depravity or any conduct evincing flagrant disregard of proper moral standards, or such as would reduce his effectiveness as an educator.
The Administrative Complaint's assertion that Respondent violated section 1012.795(1)(j) is based upon allegations that Respondent violated rule 6B-1.006(3)(a) by failing to protect K. G. from physical harm, and rule 6B- 1.006(3)(e) by intentionally exposing K. G. to unnecessary embarrassment and disparagement.
While Respondent's actions appear to be a cause of
K. G.'s desk turning over, the desk falling over was inadvertent.
Further, there is evidence that, during the incident, Respondent
attempted to keep K. G. from harm by pulling the desk away from
K. G. as it fell. See Finding of Fact 28, supra. And, while there is evidence that K. G.'s hand was hurt during the fall, other evidence indicates that K. G.'s hand was already injured and that further injury was not indicated. See Finding of Fact 13, supra. The evidence did not otherwise clearly and convincingly demonstrate that Respondent failed to "make reasonable effort to protect the student from conditions harmful to learning and/or the student's mental and/or physical health and/or safety." See rule 6B-1.006(3)(a), quoted above.
Finally, as noted in Finding of Fact 30, above, the evidence does not support a finding that Respondent intentionally exposed K. G. to embarrassment or disparagement within the meaning of rule 6B-1.006(3)(e), which, by its terms, requires intent.
In sum, Petitioner failed to prove by clear and convincing evidence counts one, two, three, and four of the Administrative Complaint, or that Respondent’s educator’s certificate should be subject to discipline.
RECOMMENDED that Petitioner enter a Final Order dismissing the Administrative Complaint.
DONE AND ENTERED this 17th day of October, 2011, in Tallahassee, Leon County, Florida.
JAMES H. PETERSON, III
Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2011.
1/ Unless otherwise stated, all references to the Florida Statutes and Florida Administrative Code are to the 2009 versions.
2/ K. G.'s hand had been out of a cast for a month or two before the incident from a previous injury K. G. had sustained when he punched someone in the face.
Carol R. Buxton, Esquire Florida Education Association
Kathleen M. Richards, Executive Director Education Practices Commission
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.
