STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF ORANGE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 75-264

)

CARL F. ATKISSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A public hearing was held in the above-captioned case, after due notice to the parties, at Orlando, Florida, on December 11, 1975.

APPEARANCES

For Petitioner: James W. Markel, Esquire

Graham, Markel and Scott, P.A. Post Office Drawer 1991 Orlando, Florida 32802

For Respondent: J. Russell Hornsby, Esquire

311 North Rosalind Avenue Orlando, Florida 32802

ISSUE

Whether the Respondent should be dismissed as a member of the instructional staff, and from any further employment by the Petitioner for misconduct in violation of Sections 231.09(2), (3), (4) & (12) and 231.36(6), Florida Statutes.

It was stipulated by the parties that depositions of the Respondent, Lisa Lineberry & Joe B. McCawley would be admitted into evidence (Exhibits 1-3). The stipulation was accepted.

Petitioner moved to amend its Petition in the following respects and, there being no objection, the motion was granted:

1. Paragraph I

   
   

   1. Strike "non-tenured" and insert therefor "continuing contract."

      
      

   2. Strike second sentence in its entirety.

      
      

2. Paragraph II B - Amend to read as follows "In the instances of student Lineberry and student Wallace; Respondent Atkisson failed to seek or gain specific parental approval for the hypnosis sessions before undertaking the hypnosis sessions."

3. Paragraph II C - Delete phrase "he does not have a license nor the authority to practice hypnotism."

FINDINGS OF FACT

1. Respondent began employment at the Edgewater High School, Orlando, Florida, during the 1970 school year as a Distributive Educational Coordinator. He remained in this position until the 1972 school year when he became a Work Experience Coordinator. In this capacity, he handled a distributive education program for 10th graders which was designed to coordinate a program of formal education and practical experience for the students in order to prepare them for gainful employment during high school or upon graduation. After annual contracts for the first three years of his employment at Edgewater, Respondent acquired continuing contract status in business education. (Deposition of Respondent, Testimony of Kent).

   
   

2. In the early 1960s while in college at the University of Texas, Respondent became interested in hypnotism as a result of a six-week block of instruction in a psychology course. Although he had no formal training in the field, he subsequently engaged in extensive private study. In 1971 he became concerned over his daughter's drug problem and discussed the possibility of using hypnotism on her with Dr. John Hood, a general medical practitioner of Orlando. After these discussions, Dr. Hood provided Respondent with a letter of recommendation that enabled him to obtain an occupational license as an ethical hypnotist from the Orange County Florida License Bureau. Respondent asserts that after working with his daughter about three times, she stopped using drugs such as marijuana, mescaline & LSD. (Deposition of Respondent)

   
   

3. During the 1973-74 school year, Respondent was invited to speak in a psychology class at the high school concerning the subject of hypnosis. At this time, he would tell the students that hypnotism could be effective in helping individuals overcome emotional problems and tension, assist in weight control and improve study habits. As a result of these talks in the classrooms, several football players sought him out, one to gain weight and the other to improve his concentration and grades in school. According to the Respondent he was successful in both of these cases by using hypnotism at the students' homes with their parents' consent. During this period, Mr. C. Norman Kent, Principal of Edgewater High School, had numerous conversations with Respondent concerning hypnotism and Mr. Kent was aware that Respondent had lectured to various classes on the subject. He permitted Respondent to continue his lectures to classes with the provison that he could not use classrooms to work with individual students. Respondent would inform the students during his lectures that he was not permitted to practice hypnotism in the classroom and therefore what he did when he worked with students was to make "high-powered suggestions." Mr. Kent asked Respondent to work with his own son to improve his study habits and permitted him to do so in Respondent's office at the school. Mr. Kent observed that his son's "organization of his life" and the use of his time was improved as a result of Respondent's efforts. (Deposition of Respondent, Testimony of Kent, Exhibit 5)

   
   

4. During the 1974-75 school year, Respondent hypnotized the following students:

   
   

   1. Karen Rife - Karen had had "spells" which were epileptic in nature since she was about 2 years old. When under one of these spells she would stare into space for a few seconds and then be very tired and emotionally drained.

      Many years ago she had had a slightly abnormal EEG. Her parents had taken her to physicians over the years without success. She heard Respondent's lecture in one of her classes and asked him if he could help her. After obtaining the permission of her parents, he held four sessions with her in an attempt to determine where and when her problem started. By going back with her in time with the use of hypnotism, he was able to pinpoint a time when she was approximately 2 1/2 years old and had to use the bathroom but was waiting for her sister to emerge from it. She leaned against the door and fell down a flight of stairs into the basement knocking over a can of kerosene which completely saturated her clothes. From that time on, Respondent discovered, there were two things that triggered her seizures, one was the smell of petroleum products and the other was the need to urinate. By giving her appropriate suggestions while in a state of hypnosis her spells decreased 90 to

      95 percent according to her parents, and she was a "brand new individual" with improved grades and attitudes. The hypnotic sessions took place in the Rife home, in Respondent's home, and in his office at Edgewater High. Although Respondent had contacted the Rife family physician and a neurosurgeon who had treated the girl to obtain information concerning her condition, he did not work under their supervision or control. Respondent acknowledged in his deposition that epilepsy is a mental disease and testified at the hearing that Karen's condition would fall under the area of medicine as a psychological problem. However, he claimed that he did not attempt to correct the problem but only determine what had caused it and make suggestions to eliminate the causes for the seizures. He emphatically denied that he "treated" her for epilepsy. (Deposition of Respondent; testimony of Respondent, Hallie E. Rife)

      
      

   2. Joe Wallace & Gregg Hanks - These were two football players who wished to gain weight and sought the assistance of Respondent after hearing his lectures in class. He asked them to obtain the permission of their parents and they both informed him later that their parents had agreed to the sessions. In fact, the Wallaces had not agreed. Respondent had two sessions with each of the boys at school and they both gained weight. Respondent testified that the technique he used was to have the students sit in a chair in the classroom and to choose a spots on either the wall or the ceiling that they could concentrate on for just a few minutes while he slowly talked them into a relaxed state (Deposition of Respondent, Testimony of Respondent, Wallace)

      
      

   3. Susan Smith - This student sought out the Respondent in order to lose weight. Her father was extremely ill and later died. She would go through periods of weight loss and gain. After receiving permission of the father, Respondent had four sessions with Susan, one of which was at school at an undisclosed place and three at his home. Respondent's efforts were temporarily successful in weight control, and assisted in handling the emotional strain of her father's death, according to the Respondent. (Deposition of Respondent)

      
      

   4. Allan Pyland - This student had problems with bed-wetting for which he had seen numerous doctors in the past, but was not currently under medical care. After securing-permission of the parents, Respondent conducted two sessions with the student at the school and, according to Respondent, the problem was alleviated "at least for awhile." (Deposition of Respondent)

      
      

   5. Lisa Lineberry - Lisa, a sixteen year-old student, came to the Respondent seeking assistance to improve her concentration in study habits, to lose weight, and to overcome the practice of smoking marijuana. According to Respondent's testimony, she had been placed in a drug rehabilitation center several times by her parents without success. Respondent sought the permission of her father, a deputy sheriff, to hypnotize her to try to get her to stop

      smoking marijuana and he agreed to the idea. The first session was held in Respondent's classroom at Edgewater High School and, after suggesting to the girl that she would not desire to smoke marijuana anymore, she did not do so for about a week and a half. Then, after reporting to the Respondent that she had again smoked marijuana, Respondent had a second session in his classroom and told her that if that attempt did not prove successful, there might be a possibility they could work while she was under the influence of marijuana, if necessary, at a further session. After the second session, she gave up smoking marijuana for about a month and then came back to the Respondent one morning and told him, "I have the equipment for another session" and informed him that the night before she had gone back to marijuana again. Respondent assumed by her statement that she had marijuana in her possession and agreed to a further session that day. She again came to his classroom and he told her that "obviously we can't work here, do you want to go to my house?" After school that day, they proceeded to Respondent's home after stopping by two houses of Lisa's girlfriends to obtain "rolling papers" and marijuana. Upon arrival, Lisa smoked a marijuana cigarette and then Respondent had her lie on his bed and stare at the ceiling while he put her in a hypnotic state. His testimony was that, although she had showed manifestations of the influence of marijuana prior to hypnosis, they had disappeared when she left his home to go back to her house. There were no longer any visible signs such as dilation of the pupils of the eyes, awkward walk and loss of balance. Respondent acknowledged that he had used "poor judgment" with regard to this incident, but that he was attempting to help her personally in a matter that had nothing to do with the classroom or her education as such. He conceded that his idea of attempting to help Lisa had come from a situation in which he had assisted prior individuals in giving up cigarettes and alcohol, and was in the form of a trial attempt to see if hypnotism would negate the desire for marijuana. (Testimony and Deposition of Respondent, Deposition of Lineberry)

      
      

5. Respondent testified that he did not attempt to cure or treat medical problems and that unless a person had a specific thyroid problem or something of that nature he did not consider it to be a medical problem. He did not view the smoking of marijuana as such a problem. It never entered his mind to consider that if Lisa Lineberry had been arrested for breaking the law by smoking marijuana that she would have had a bigger problem than she had had before. (Deposition and testimony of Respondent)

   
   

6. Although not required by law, the ethical standards of the National Association of Advanced Ethical Hypnosis require hypnotists to have at least one parent's consent when working with an individual under the age of 18 and to have a third party present if a hypnotist is dealing with a person of the opposite sex. In cases involving weight control, epileptic seizures, bed-wetting, and use of marijuana, accepted standards of practice would also require medical referral of the individual to the hypnotist because any of these conditions are considered to affect a person's health, and use of hypnotism is considered therapeutic in nature. Normally it would not be helpful in a situation where a person uses marijuana to have that individual under the influence of marijuana at the time hypnosis takes place because he would not respond as well to hypnosis as otherwise. Most hypnotists normally will not work with a subject under such circumstances. (Deposition of McCawley)

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner seeks to dismiss Respondent from employment pursuant to Section 231.36(6), Section 231.09(2), (3), (4) & (12), Florida Statutes, and

   pursuant to requirements of the code of ethics of the teaching profession of the State of Florida, upon the charge of misconduct in office.

   
   

8. The particular requirements of the code of ethics which Respondent is alleged to have violated are not specified in the petition and, in any event, are not considered pertinent to this proceeding in view of the fact that separate procedures control violations of ethical standards under Chapter 6B-2, Florida Administrative Code. In like manner, Section 231.09, which specifies the duties of instructional personnel in the school system, does not purport to provide grounds for dismissal or directly relate to misconduct in office. It does, however, state in part that members of the instructional staff of the public schools shall perform such functions as to labor faithfully and earnestly for the advancement of the pupils in their morals; treat pupils under their care kindly, considerately, and humanely; and cultivate in the pupils a regard for their responsibilities and duties as citizens.

   
   

9. Section 231.36(6) provides that any member of the instructional staff may be suspended or dismissed at any time during the school year after notice and hearing for misconduct in office. The term "misconduct in office" is not defined in Chapter 231, Florida Statutes, or in the Rules and Regulations governing the school system. There- is also a dearth of judicial authority as to the meaning of this term in relation to Section 231.36(6). However, in considering the term "misdemeanor in office" as a constitutional ground for impeachment for public officers under Section 29, Article III of the Florida Constitution, the Supreme Court of Florida held that that term is synonymous with "misconduct in office" and is something which amounts to a breach of the conditions tacitly annexed to the office, and includes any wrongful official act or omission to perform an official duty, though not necessarily implying corruption or criminal intent. In re: Investigation of a Circuit Judge of the Eleventh Judicial Circuit of Florida, 93 So.2nd 601 (1957). The official nature of Respondent's acts as alleged in the complaint, as amended, is established clearly by the fact that he used the school premises in order to bring to the attention of students the idea that hypnotism can be effective for helping individuals overcome various problems. As a result of his lectures of this nature in the classroom, although admittedly sanctioned by .the school authorities, certain students sought him out for help with respect to their particular problems. That his subsequent acts of hypnotism of students were clothed with an aura of officiality and, in fact, were condoned by the principal provided such activity did not take place in the classroom. Contrary to the instructions of the principal, hypnotic sessions were conducted by the Respondent with students in classrooms at Edgewater High and in the Respondent's school office. It therefore is concluded that Respondent was using his official position as a teacher to practice hypnosis upon students.

   
   

10. That his actions were wrongful in nature and constituted misconduct is also apparent from the fact that, although practicing hypnosis for therapeutic purposes, in no instance did he act under the supervision, direction, prescription, or responsibility of a practitioner of the healing arts as required under Chapter 456, Florida Statutes, which provides criminal penalties for the unlawful practice of hypnosis. There can be no question that Respondent's attempts to assist students in cases involving emotional problems, seizures of an epileptic nature, weight problems, and use of marijuana were designed to be therapeutic in nature and conceivably could have had far-reaching adverse medical effects when performed outside the supervision of a physician or psychiatrist. Not only did the Respondent fail to follow the law and accepted professional practices by performing his acts without such supervision, he also failed to exercise responsible judgment in placing minor female students in

    hypnotic states, in some cases in his own bedroom, without another female present. His misconduct in the foregoing respects is aggravated to the extreme by his suggestion to a sixteen year old female student that he might be able to assist her in eliminating her desire for marijuana if she were under the influence of that drug during the hypnotic session and then permitting her to smoke marijuana in his home. That a public school teacher would suggest and permit such a blatant violation of the law (Section 893.13(1)(f), F.S.) to take place under any circumstances is totally incomprehensible, and raises serious questions concerning fitness to continue in that capacity. It is concluded that Respondent performed acts constituting misconduct in office, as alleged.

    
    

11. Section 231.36(6), provides that in cases of suspension by the school board or by the superintendent, if the charges are sustained, the school board shall either dismiss the employee or fix the terms under which he may be reinstated. In considering the question of possible dismissal of Respondent, it is appropriate to note certain matters in extenuation and mitigation of his misconduct. It is unquestionable that he was sincerely attempting to assist students to overcome various problem areas in their lives. He undertook this function with no apparent thought of monetary gain nor with any improper motive. The fact that he was tacitly, if not expressly permitted to work with the students in a school setting by the principal is of significance in assessing any potential penalties. The evidence reflects that his lectures and subsequent efforts through hypnosis were well received for the most part by the school staff, students and, in some cases, the parents. Some of the latter even attested to remarkable beneficial results which he had obtained through his use of hypnotism. Accordingly, it is believed that his actions were misguided and do not necessarily demonstrate his unfitness to continue as a teacher.

Testimony of the Principal of the high school showed that he is a competent instructor and there is no evidence that he has been disciplined in the past. Under the totality of the circumstances, dismissal is not considered to be required. In arriving at the terms under which Respondent should be reinstated, his present status is pertinent. He has been suspended without loss of pay since March 20, 1975. It is believed that Respondent's misconduct warrants converting this suspension into one without pay for the remainder of the 1975-76 school year at which time Respondent should be reinstated as a member of the instructional staff. In view of the notoriety and consequent adverse impact on the Edgewater High School as a result of Respondent's case, it would serve the interest of all concerned if Respondent were reassigned to duties at another school within the school district and be admonished to cease and desist from any actions involving hypnotism in the public schools.

RECOMMENDED ORDER

It is recommended that the School Board of Orange County, Florida, issue an order converting the suspension of Carl F. Atkisson from employment as a member of the instructional staff of Edgewater High School to one without pay until the end of the 1975-76 school year, and thereupon reassign him to equivalent instructional duties in a school within the school district with the admonition to cease and desist from any actions involving hypnotism in the public schools, for committing acts constituting misconduct in office as provided in Section 231.36(6), Florida Statutes.

DONE and ENTERED this 19th day of January, 1976, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 1976.

COPIES FURNISHED:

James W. Markel, Esquire GRAHAM, MARKEL & SCOTT, P.A.

Post Office Drawer 1991 Orlando, Florida 32802

J. Russell Hornsby, Esquire

311 North Rosalind Avenue Orlando, Florida 32802

Docket for Case No: 75-000264

Orders for Case No: 75-000264