7 STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-657

)

FRANCES MARCUS, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above captioned matter, after due notice, at Miami, Florida on July 14 and September 20, 1978, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Michael Friend, Esquire

44 West Flagler Street, Penthouse Miami, Florida 33130

For Respondent: Elizabeth du Fresne, Esquire

1782 One Biscayne Tower

2 South Biscayne Boulevard Miami, Florida 33131

ISSUE PRESENTED

Whether Respondent should be dismissed from her employment with the Dade County School System for alleged incompetency, insubordination, and willful neglect of duty, pursuant to Section 231.36(6), Florida Statutes.

Respondent is a teacher on continuing contract status at Charles R. Drew Elementary School, Miami, Florida, where she has been employed by Petitioner since 1963. On March 10, 1978, she was advised by Petitioner's Assistant Superintendent for Personnel that charges of incompetency, insubordination, and willful neglect of duty had been brought against her by her Principal, Frederick

1. Morley, which would be presented to the Superintendent for his recommendation to the School Board of Dade County. By letter of March, 1970, Respondent was advised that the Superintendent would recommend her suspension and subsequent dismissal from the Dade County Public Schools to the Dade County School board. By letter of March 23, 1978, she was provided official notification that the School Board had suspended her on March 22, 1978, and that her dismissal would be recommended to the Board on April 12 if she did not request a hearing within ten days. She did so on March 28, and on May 8, she was provided with a Notice of Charges consisting of seventeen separate charges alleging grounds for dismissal. At the hearing, Petitioner withdrew Charge 3, 5, 6, 12 and 15.

   FINDINGS OF FACT

   
   

   1. During the 1976-77 school year, Respondent was employed as a teacher of the fifth grade at Charles R. Drew Elementary School, Miami, Florida. The Principal of the school was Frederick A. Morley. On or about October 8, 1976, the Respondent failed to pick up the children of her class at the end of their physical education period. Although Respondent admitted that she was not at the designated place on time, she could not recall why she had been delayed on that particular date. (Testimony of Respondent, Morley)

      
      

   2. At the beginning of the 1976-77 school year at Charles R. Drew Elementary School, Principal Morley distributed an "Opening of School Bulletin" to all faculty members at a meeting which was attended by Respondent. This bulletin contained school policy on student discipline and corporal punishment. It provided that if such punishment became necessary, the teacher must consult with the principal or his designee prior to its use, and that one of those individuals would determine the necessity for corporal punishment and the time, place and person to administer the same. The policy statement further included the requirement that a third party adult must be present at the time the punishment was administered. Specifications to the size of the wood "instrument" for administering such punishment were set forth in the written policy as well as other guidelines as to the amount of maximum punishment, notification of parents, and the like. (Testimony of Morley, Petitioner's Exhibit 1)

      
      

   3. On November 1, 1976, Morley saw Cynthia Blue, one of Respondent's fifth grade students, crying in the hall. She informed him that Respondent had paddled her in the classroom. Respondent admitted to him that she had administered punishment to the student and he reminded her of the school policy concerning consultation with him or his designee prior to any such action. He confirmed this admonition with a written note on the same day. Respondent conceded at the hearing that, although she could not recall the incident, it was possible that she gave the student a "lick." She further testified that Cynthia Blue was an unruly student who broke rules with impunity. (Testimony of Morley, Respondent, Petitioner's Exhibit 4)

      
      

   4. Morley had a conference with Respondent on November 8, 1976, and reminded her at that time that she was obliged to follow the school guidelines on paddling students in the future. At this conference, Respondent conceded that she had not followed the school policy in this regard. However, on three separate occasions thereafter, Respondent again physically punished students without obtaining permission of the Principal or his designee. On November 17, 1976, and on January 18, 1977, she paddled students Monica Morrison and Eddie Byrd in the classroom. On both occasions, she admitted doing so to Morley and he again reminded her by written notes of her failure to follow proper procedures. (Testimony of Morley, Petitioner's Exhibits 2-3)

      
      

   5. Approximately a year later, on January 9, 1978, Respondent advised Morley that she wished to bring her student, Laurena Butler, to his office for corporal punishment. Apparently, when she arrived with the student, Morley was not there and Respondent therefore asked a nearby aide of one of the school officials to come into Morley's office and witness the spanking. Respondent then took Butler into the Principal's office and paddled her once after first missing her entirely and knocking a wooden tray off the desk and damaging it slightly. (Testimony of Morley, Respondent, Petitioner's Exhibit 5)

   6. Respondent's explanation at the hearing for her unauthorized administration of corporal punishment was that Morley was "wishy-washy" on the subject of student discipline and would never authorize her to paddle a student, or do so himself. She claimed that 75 percent of the other teachers paddled much more frequently than she, and that none of them understood the punishment policy of the school. On the one hand, she believed that she could punish a child if a third party was present, but she also testified that she understood the guidelines that required the Principal or his designee to authorize punishment. Respondent's testimony in the above regard was partially refuted by the testimony of her former students. One stated that on two occasions when he was sent to Morley for punishment by Respondent, he was paddled. Another student stated that he had been sent by other teachers to the Principal's office and been paddled about four times. These students had never seen Respondent paddle anyone, but had seen other teachers do so. They testified that she had "bad kids" in her class who made trouble by getting into fights, throwing erasers, and the like. Respondent testified that one of her problems was that she did not have the strength to paddle a child effectively and that they would laugh at her when she attempted to do so. However, she claimed that in telephone conversations with Parents of the students, she learned that they desired that their children be disciplined at school. She further stated that Morley had observed over the years that her discipline efforts were not of the best so he placed her successively in the second, fourth, fifth, and sixth grades. She believed that this made her task more difficult by having to deal with the older children. A former principal of Drew Elementary School testified that Respondent had had difficulty as a disciplinarian, as most teachers did, but that she was more effective in that regard than some of the teachers, except in instances of paddling where she had difficulty and generally produced unsatisfactory results. (Testimony of Respondent, Ford, Jones, Trimmings, Hooks).

      
      

   7. On or about September 27, 1977, a student threw a cookie box and struck Respondent while she was writing at the blackboard. The next day school security personnel questioned her on whether she had scratched the student in the altercation. She mistakenly assumed that she, rather than the student, was being investigated and became upset when discussing the matter with Morley on the day after the incident. During the course of the conversation, she uttered a vulgar word in his presence. (Testimony of Respondent, Morley, Hooks)

      
      

   8. Respondent admitted at the hearing that on or about September 28, 1977, she permitted her sixth grade class to go to their art class unsupervised. Although she did not precisely recall the incident, she theorized that it was possible that she had walked them part of the way and then gone to the school office and let them proceed alone the remaining 100 feet to the classroom. (Testimony of Respondent)

      
      

   9. On October 6, 1977, while Respondent was out of her classroom her students were noisy and disruptive, thus interfering with instruction in an adjoining classroom. Although Respondent did not recall the specific incident at the hearing, she surmised that she had been out of the room for legitimate reasons and normally would have appointed a student monitor to take charge. (Testimony of Green, Respondent.)

      
      

   10. On January 19, 1978, Respondent was informed by one of her students that the class was supposed to attend a special program in the auditorium. Respondent took the class to the cafeteria where such programs took place and found the door locked. Respondent went to the school office to ascertain whether or not a program was to take place. During this time the children were

       left unsupervized for several minutes and became noisy and ran in the halls. While Respondent was gone, Morley arrived and restored order. He sent for Respondent and upon her arrival asked her about the matter. Respondent, in a loud voice, said "If you would paddle these children, this wouldn't happen," shaking her finger in front of his face. A number of faculty members were present at the time. (Testimony of Respondent, Morley, Knight, Jones)

       
       

   11. Teachers are required to prepare weekly lesson plans for each subject. Those on continuing contract, such as the Respondent, are called upon to turn them in to the office several times a year without prior notice. On one occasion during the 1977-78 school year, Respondent failed to turn in her lesson plans on time. Respondent testified that she customarily prepared such plans, but on the occasion in question, had simply been late in preparing them due to the fact that she had given priority to the preparation of report cards. (Testimony of Reich, Respondent)

       
       

   12. On March 13, 1978, the aunt of one of Respondent's students, Cynthia Blue, asked Respondent if she could see the "progress folder" containing homework papers of her niece. Respondent was in the process of taking the class roll at the time and therefore did not act immediately upon the request. Cynthia's aunt thereupon summoned Morley to the classroom. Morley had told Respondent earlier that day that her class had been quiet during the preceding week when a substitute teacher was present during Respondent's absence. Respondent assumed that the children had been paddled by the substitute to insure their good behavior. Therefore, on March 13, when Morley came to the classroom regarding the question of the child's homework folder, Respondent inquired of the class if they had been paddled during the previous week. They were quiet for a moment, then burst into laughter. Respondent and one of her students testified that Morley joined in the laughter, but he denied the same. In any event, Respondent felt that she was being ridiculed and, having previously received notice that she was to be suspended on March 22, she informed Morley that she was leaving the classroom. In spite of Morley's request that she remain, Respondent departed from the school and did not return thereafter. Although approximately six school days remained prior to the effective date of her suspension of March 22, Respondent made no effort to request administrative leave of absence from School Board officials. (Testimony of Lawrence, Morley, Respondent, Trimmigs)

       
       

   13. During the period 1971-77, Respondent had satisfactory ratings on her annual evaluation forms for maintaining good discipline except for the 1971-72 school year and the 1976-77 school year, at which times they were 3.0 and 2.0 respectively, out of a maximum rating of 5.0. As found heretofore, Respondent's prior Principal had indicated that Respondent was unable to physically punish students satisfactorily, but that her overall discipline efforts over the years were similar to that of other teachers. The prior Principal was also of the opinion that Respondent was well-trained and could produce results in the classroom. (Testimony of Ford, Petitioner's Composite Exhibit 7, Respondent's Composite Exhibit 1)

       
       

   14. Respondent attributed her difficulties at the school to the existence of a personality conflict with Principal Morley and her feeling that he had singled her out for adherence to standards that he did not require of other teachers. She had requested a transfer approximately a year ago, but it was denied. Morley denied any special treatment of Respondent and the evidence fails to reveal actions on his part that were not precipitated initially by Respondent. (Testimony of Respondent, Morley)

       CONCLUSIONS OF LAW

       
       

   15. Petitioner's allegations against the Respondent are predicated upon incompetency, insubordination and willful neglect of duty, pursuant to Section 231.36(6), Florida Statutes. The specified grounds for disciplinary action against a teacher are defined in Rule 6B-4.09 of the State Professional Practices Council pertinently as follows:

       
       

       6B-4.09 Criteria for Suspension and Dismissal The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

       1. Incompetency is defined as inability or lack of fitness to discharge the required

          duty as a result of inefficiency or incapacity. Such judgment shall be based on a pre- ponderence of evidence showing the existence

          of one or more of the following.

          1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience. . .

          2. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability

             1. lack of general educational background; or

             2. lack of adequate command of his area of specialization.

             (4) Gross insubordination or willful neglect of duty is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority.

             
             

   16. The Notice of Charges included seventeen (17) specific incidents that allegedly constituted acts in violation of Section 231.36(6). Five of the charges were withdrawn by Petitioner at the hearing. Of the remaining twelve charges, one is unsupported by the evidence of record. Count 18 which alleges that on March 13, 1978, the Respondent refused a parent the opportunity to view the academic folder of her child was not established factually, nor was it shown to constitute a violation of any school policy or regulation. Another charge, Count 14, alleges that in January 1978 the Respondent failed to turn in lesson plans as directed. This isolated neglect was admitted by Respondent, but is considered de minimis and too inconsequential to constitute a basis for disciplinary action. Similarly, Count 8, which alleged that Respondent failed to pick up her class at the end of a physical education period in 1976, and Count 9, which alleged that she permitted her students to go to an art class unsupervised in 1977, were conceded by Respondent. It is considered that these two incidents which occurred a year apart and were explained to some degree by the Respondent, inevitably occur during the course of a school year and do not necessarily represent inefficiency or willful neglect of duty on the part of Respondent.

   17. The remaining nine charges involve instances where Respondent committed acts constituting insubordination and willful neglect of her duties as a teacher. These charges primarily concern Respondent's ability to properly and adequately discipline her students and herself. Two of the charges (Counts 7 and 13) demonstrate a lack of instilled discipline by the actions of Respondent's students during times when they were unsupervised. Although the circumstances surrounding these two incidents, which both occurred during the 1977-78 school year, are not deemed sufficient in themselves to constitute grounds for adverse action against the Respondent, they do indicate her difficulty in the area of discipline. In one instance, she had left the class, perhaps for a legitimate reason, for a brief period of time, and the ensuing noise and disorder that followed her departure was such as to disrupt an adjoining class. On the other occasion, although she may have understandably left her class in the hall after having discovered that a school program would not take place. The actions of the children in running in the halls show their unconcern for potential consequences. Further, Respondent's emotional outburst at the principal during this occasion indicated a lack of emotional stability. In like manner, the fact that on one occasion Respondent apparently became distraught and uttered a vulgar word in the presence of the Principal further demonstrates her tendency to display a lack of control when dealing with Principal Morley.

       
       

   18. The four charges of administering corporal punishment to students without obtaining the authority the Principal or his designee (Counts 2, 10, 11, and 16) were established by the evidence. Three of these incidents occurred in the 1976-77 school year and one transpired in 1978. Although there was no showing that discipline of the children was not warranted, the fact remains that Respondent continued to ignore school directives in this respect after being repeatedly warned that it was necessary to obtain permission prior to administering such punishment. These instances must be collectively termed "gross insubordination" and a clear failure to comport with the duties of instructional personnel to follow school regulations in administering discipline, as provided in Section 231.09(3), F.S. Respondent's claim that Principal Morley was not evenhanded in authorizing the administration of corporal punishment, and that he failed to take appropriate action when children were sent to him by teachers, including Respondent, was not borne out by the evidence presented at the hearing. However, contrary to the implication that Respondent was a stern disciplinarian, the evidence shows that this was her major weakness, as shown by her past annual evaluation reports and the testimony of the prior Principal.

       
       

   19. Finally, Count 17 alleged that Respondent walked off from her place of employment without leave on March 13, 1978 in violation of Section 231.44, F.S. That statutory provision states that any member of the instructional staff who is willfully absent without leave shall forfeit compensation for the time of such absence and the teacher's contract shall be subject to cancellation. It is understandable that Respondent was undergoing a period of stress at the time of her departure from the classroom under the circumstances that might reasonably be viewed by her as justifying such action. She had been notified that she would be recommended for suspension the following week and, in her own words, "

       . . . so, the days leading up to the March 22 were very, very painful ones. Its like you were going to be laid off in three days. It is demoralizing. You have very little to offer, so I didn't think one week would make any difference" Although Respondent maintained at the hearing that leave was not available for such an absence, Section 231.43 specifically provides that "school boards must adopt regulations for prescribing conditions under which members of the instructional staff shall be granted leaves of absence for personal reasons."

       It is therefore believed that a procedure was available and should have been utilized by Respondent if she felt that she could no longer cope with the situation. It was unwarranted for her to simply walk off the job without making appropriate arrangements and obtaining authorization for any subsequent absence. Such conduct clearly shows willful neglect of duty, as well as a violation of Section 231.44.

       
       

   20. In assessing the foregoing conclusions concerning Respondent's action and taking into account the situation that prevailed at the school where she was employed, together with the fact that she had functioned satisfactorily for five years under a prior principal, her claim that her difficulties stemmed from a personality conflict with Principal Morley cannot be disregarded. Respondent had sought a transfer to another school, but had been unsuccessful in her request. Respondent is a well trained, capable teacher who obviously has a sincere desire to continue in her profession and who also has established a certain rapport with her students, as evidenced by the testimony of three of her former pupils. Although her actions cannot be condoned, it is considered that under the circumstances, dismissal is not warranted. Respondent should be able to function satisfactorily in another school in a new environment and under different supervision. It is considered that the ordeal that she has undergone as a result of this proceeding and her current suspension should be sufficient not only to instill a firm resolve to improve her methods in the future, but also to adequately censure her for past conduct. However, this should be achieved by transfer to another school within the School District of Dade County.

RECOMMENDATION

It is recommended that Respondent be reinstated without payment of back salary for the period of her suspension and that she be transferred to an appropriate instructional position in another school within the Dade County School System. It is further recommended that Respondent be issued a letter of reprimand by the School Board of Dade County for the established derelictions set forth in the foregoing conclusions of law and that she be admonished therein concerning a repetition of such conduct.

DONE and ENTERED this 26th day of October, 1978, in Tallahassee, Florida.

THOMAS C. OLDHAM

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Michael R. Friend, Esquire

44 West Flagler Street, Penthouse Miami, Florida 33130

Elizabeth du Fresne, Esquire 1782 One Biscayne Tower

2 South Biscayne Boulevard Miami, Florida 33131

Phyllis O. Douglas

Assistant School Board Attorney Lindsey Hopkins Building

1210 Northeast 2nd Avenue Miami, Florida 33132

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY,

Petitioner,

vs. CASE NO. 78-657

FRANCES MARCUS,

Respondent.

/

FINAL ORDER

THIS CAUSE came on for hearing before The School Board of Dade County, Florida, at its regular meeting on December 6,1978, upon the Hearing Officer's findings of fact, conclusionsof law and recommended order, recommending that Frances Marcusbe reinstated without back pay for the period of her suspensionfrom her position in the Dade County school system.

IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that:

1. The Hearing Officer's Findings of Fact (attached hereto) are adopted.

   
   

2. The Hearing Officer's Conclusions of Law (attached hereto) are modified to the following effect:

   1. The first and fourth paragraphs of the Conclusions of Law are accepted as correct.

   2. Paragraph 2 of the Conclusions of Law is rejected to the extent that the Hearing Of ficer concludes that Respondent's failure to pick up her class at the end of a physical edu-

      cation period on October 8, 1976 and Respondent's permitting her class to go to art class unsuper vised on September 28, 1977 do not represent inef- ficiency or willful neglect of duty. The School Board finds that these acts do represent inef-

      ficiency and willful neglect of duty.

   3. Paragraph 3 of the Conclusions of Law is rejected to the extent that the Hearing Officer finds that Respondent's lack of class management and self-control on October 6, 1977 and January

      19, 1978 are not sufficient grounds for discipline.

   4. Paragraph 5 of the Conclusions of Law is rejected to the extent that the Hearing Officer concludes the Respondent's absence without leave on March 13, 1978 and for several days thereafter might reasonably be viewed as justifiable.

      The School Board finds Respondent's actions to be gross insubordination and absence without leave.

   5. Paragraph 6 of the Conclusions of Law is rejected by the School Board except that the School Board agrees that Respondent's actions cannot be condoned.

   6. Except as hereinabove rejected, the Hearing Officer's Conclusions of Law are accepted.

      
      

3. The Hearing Officer's recommendation of suspension without pay, transfer and letter of reprimand and admonishment are rejected.

   
   

4. Frances Marcus be and is hereby dismissed from her employment with The School Board of Dade County, Florida.

   
   

5. Frances Marcus shall receive no compensa- tion from The School Board of Dade County, Florida from March 22, 1978 at 5:00 P. M.

DONE AND ORDERED this 6th day of December, 1978.

THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

By

Chairman

Docket for Case No: 78-000657

Orders for Case No: 78-000657