vs. ) CASE NO. 80-195
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 17 April 1980 at Tampa, Florida.
For Petitioner: Thomas M. Gonzales, Esquire
For Respondent: Robert J. Shapiro, Esquire
By Order entered 15 January 1980 the Hillsborough County School Board, Petitioner, referred the appeal of Minnie Chestnut, Respondent, to the Division of Administrative Hearings to resolve the factual and legal issues surrounding Respondent's dismissal from the Hillsborough County School System where she was employed as a teacher aide, a non-instructional position. Grounds given for termination of Respondent are insubordination or serious breach of discipline and conduct unbecoming an employee. After considering the testimony of the eight witnesses and the 19 exhibits produced plus Hillsborough County civil service regulations, the following, is submitted.
Minnie Chestnut was employed in 1974 by the Hillsborough County School System as a teacher aide in an Early Childhood Learning Center at Carver School (Carver). At all times relevant hereto she was a classified employee of the county and covered by the Hillsborough Civil Service Regulations. She had previously worked in the school system from 1965 until 1968 as a teacher aide in elementary school. When terminated in 1968 Respondent was told she was let go because there was inadequate funding to employ her at the school where she worked.
Early Childhood Learning Centers are the programs which followed the Head Start program. These centers take preschool age children from six months
to six years whose parents or parent qualify for Aid to Dependent Children fund, and provide day-care centers for these children. The primary function of these centers is social services rather than academic, and the primary goal of the program is to create in the child an understanding and awareness of his worth as an individual.
The program in Hillsborough County is headed by a Supervisor who has direct supervision over all centers. Most centers are located in a school with a building principal, however the centers are under the supervision of a coordinator or team leader and each class has a teacher supervising several paraprofessionals or teacher aides whose primary function is to act as surrogate mothers to these preschool age children. These aides feed the children, clean up after them, change and potty them when necessary, tell stories to the children and do some teaching when the teacher is absent. While the teacher aides have some responsibility for disciplining the children, corporal punishment may be administered only by instructional personnel.
In June 1975 Respondent was admonished for spanking a child who was fighting with and choking another child. This admonishment was memorialized in memorandum of June 17, 1975 (Exhibit 1).
In January 1978 the team leader at Carver, accompanied by the team leader at Meacham Early Childhood Learning Center (Meacham) and a teacher, while conducting a visitor through the school, observed from the doorway of the classroom what appeared to them to be Respondent striking a three-year-old boy on the knuckles with a primary pencil. The pencil used was produced by Respondent at the hearing. A primary pencil is a "fat" pencil with big lead and is 3/8 to 1/2 inch in diameter. The pencil produced by Respondent measured 4- 1/2 inches long.
By memo dated 1-31-78 this team leader sent Respondent a memorandum deploring the conduct observed, refusing to accept Respondent's explanation of the incident and stating a copy would be sent to the Supervisor and "will remain in your file like other letters of this nature." (Exhibit 3) The only other letter of this nature produced at the hearing was Exhibit 1. Exhibit 3 further reminded Respondent that she was already on warning and this, too, appears to relate to Exhibit 1 sent two-and-one-half years earlier. No other evidence of probation or warning was presented.
Respondent denied any striking with the pencil and insisted, as she did immediately following the incident, that she was using the pencil to indicate each mischievous finger as she went through the "bad finger" routine.
Respondent testified the child was laughing with the other children during the "scolding" while Petitioner's one witness who testified regarding the incident he had observed from the classroom door testified the child was crying. Another aide in the room at an adjacent table heard Respondent talking to the children and saw the pencil in her hand but saw Respondent strike no child with the pencil nor did she hear any child crying. This witness was considerably closer to the child than was the witness at the doorway.
Upon receiving a copy of the team leader's letter the Supervisor conferred with Respondent and, although Respondent denied striking the child with the pencil, decided to fire Respondent and requested the Personnel office to take the necessary steps.
Respondent contacted the General Area Director for Carver and professed her innocence. This individual concluded that the case for dismissing
Respondent was too weak and he directed the Supervisor to transfer Respondent to Meacham until a job opened up in the custodial or food services areas (Exhibit 14). At Meacham, Respondent also served as a teacher's aide.
On March 20, 1978 a Ms. Salter came to Meacham School to see Respondent about an incident reported to her by her five-year-old son. Respondent was not present that day and Ms. Salter was questioned by Team Leader Oats, a supervision of Respondent. Immediately following this conversation Oats called his immediate superior, the Admissions Coordinator, Lee Stark, and on March 27, 1978 wrote a memorandum to the Supervisor reciting the information received from Mrs. Salter (Exhibit 5).
Lee Stark, on 20 March immediately sent a memorandum to the Supervisor repeating the information Oats told her he had received from Salter (Exhibit 4). No explanation was presented why Oats' memo to the Supervisor was one week later than Stark's.
Ms. Salter testified that her son, Eldred, liked the school program and it helped him a lot, but he played too much. In March, 1978, he told her Respondent was picking on him by "hitting him beside the head" and he was scared to go back to school. She went to the school to talk to Respondent, but talked to Oats when told Respondent was not at school that day. In her testimony Ms. Salter made no reference to Respondent hitting Eldred on the hand with a pencil as reported in Exhibit 5 (but not in Exhibit 4) and no testimony was given that Eldred told her Respondent threatened to whip or "beat" him if he told his mother. Exhibits 4 and 5 contained these threats.
Eldred Salter was not in Respondent's class and she only had him under her supervision during naptime and circle time when aides have responsibility for children not necessarily in their class. One of these times Respondent had Eldred in her circle group she was showing the children how to play Duck, Duck, Goose. During this game while the children are in a circle one taps the others on the head while saying "Duck", "Duck", and "Goose" as the tapping proceeds. Apparently "Goose" then chases the tapper.
The only witness to the incident whose testimony was presented was that of Respondent. All other evidence of this incident comes from Ms. Salter, who was not a witness to the incident and can repeat only what she heard from her five-year- old son. Accordingly, Exhibit 4 is based on third-hand hearsay while Exhibit 5 is based on second-hand hearsay.
Children of tender years are not reliable reporters of events. The evidence was unrebutted that such children can be induced to report whatever an adult would like them to say.
Respondent is a 56-year-old high school graduate who raised two sons, a nephew and a niece. She is a good worker good with the children, gets to work on time, is seldom absent from work and has uniformly received high evaluation marks. On her performance rating dated January 20, 1970 covering the period 3/16/77 to 3/16/78 Respondent was rated 94, which is the top of Excellent or Better Than Average performance scale. A rating of 95 to 100 means a consistently outstanding performance (Exhibit 13). The Supervisor reviewed this evaluation on February 20, 1978, following her receipt of Exhibit 3 which formed the basis upon which she first decided to fire Respondent; and, by memorandum, reduced these rating factors to 70's.
Howard Harris, the Principal at Carver and Meacham schools, was called as a rebuttal witness. Harris signed a letter dated August 29, 1978 (Exhibit
15) in which it is stated that during the period 1967-1969 Respondent was employed as a teacher's aide at Carver and that she was dismissed from that program "because of difficulties encountered with the discipline of pupils." (This difference in the dates as testified, to by Respondent and Harris is not material.) While on the witness stand Harris testified he wrote the letter, couldn't recall the name of the administrative staffer who requested he submit the letter, that Respondent was laid off in 1969 because of insufficient funds, that she was not laid off because of any misbehavior on the job, and that she had been a good teacher's aide while under his supervision.
The fact that Exhibit 15 is dated August 29, 1978 and date-stamped into the Affirmative Action office on August 29, 1978 would indicate the letter was hand-delivered or typed and signed in the office to which addressed.
With respect to the charge of conduct unbecoming an employee of the school system one of Petitioner's witnesses, the Supervisor, testified that the only basis for terminating Respondent was because she administered corporal punishment after being specifically told teacher's aides were not to do so under any circumstances; and another witness, the Personnel Officer, testified the unbecoming conduct was the same conduct which led to the charges of insubordination or serious breach of discipline.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Pursuant to Section 8, ch. 69-1121, Laws of Florida (Hillsborough County Civil Service Law), Respondent acquired classified civil service status after satisfactorily completing her first six (6) months of employment.
Section 21 of ch. 69-1121, Laws of Florida, provides for the suspension or dismissal of a classified employee "for any cause which will promote the efficiency of the service . . ." upon compliance with certain procedural requirements.
Rule 11.3b of the Hillsborough County Civil Service Rules establishes, inter alia, the following grounds for removal of a classified employee:
incompetence or continued rendering or unsatisfactory service after instruction and/or counselling.
insubordination.
serious breach of discipline.
(16) actions or conduct detrimental to the interests of Hillsborough County.
(20) any other properly substantiated cause which will promote the efficiency of the service.
In conformity with Civil Service Rules, the School Board Policy Manual in Section G-14 (Exhibit 18) established grounds for separating employees. Respondent was charged with violation of Sections G-14.8 - Insubordination or serious breach of discipline and G-14.10 - Conduct unbecoming an employee such as to bring the service into disrepute.
Although no complaint listing the acts giving rise to the grounds for dismissal was filed, it is apparent the Respondent's dismissal is based upon the allegation that she administered corporal punishment to Eldred Salter, after far being advised that such conduct was inappropriate; and that, if she committed such acts, she would be fired. Proof of this alleged misconduct on the part of Respondent consisted entirely of witnesses who did not observe the incident.
The only witness to the alleged misconduct whose testimony was presented at this hearing was the testimony of Respondent. Her testimony was entirely exculpatory.
Eldred Salter was not called as a witness and, based upon the testimony of those experienced in dealing with young children, it appears that, largely because of his tender years, Eldred would not have been a competent witness. As such it is unlikely his testimony would have been admissible.
What we have here is an incompetent witness's testimony presented by a competent witness testifying to what the incompetent told her. Not only is this hearsay but also it is offered to prove the truth of the matter asserted by one himself incapable of testifying. The repetition of the story attributed to Eldred Salter and told by his mother to Oats, who in turn repeated it to Stark, who in turn repeated it to the Supervisor, does not enhance by one iota the admissibility or credibility of this evidence.
If Eldred Salter had been competent to testify and someone else was called to testify what Eldred had told this witness, the testimony so given would obviously be hearsay. Hearsay testimony cannot be enhanced by the declarant being incompetent. Petitioner's contention that this reported statement of Eldred Salter is admissible as a res gestae exception to the hearsay rule is without merit. No evidence was presented that the utterance by Eldred Salter was spontaneous or made contemporaneously with the event or even immediately upon his return home from school the day of the alleged occurrence. Whether Eldred Salter made the statement because he didn't want to go to school for a reason not related to the statement is not beyond reason. Here the conditions surrounding the statement attributed to Eldred Salter were not shown to have been spontaneous or without thinking and inspired by the excitement of the event. These elements are necessary to give such statements the veracity needed to constitute the res gestae exception to the hearsay rule. Absent such showing the testimony of Ms. Salter regarding Eldred's comments about Respondent are inadmissible. Actually, no evidence was presented relative to the interval of time between the alleged incident and Eldred's reporting of this incident to his mother.
Likewise, Petitioner's contention that the letters written by Oats and Stark are admissible as business entry exceptions to the hearsay rule is without merit. Business records exceptions to the hearsay rule are based upon the fact that the maker of the entry is unavailable or it would be impossible to remember the details recorded. Furthermore, when entries are made in records kept in the usual course of business, experience has shown those entries generally to accurately reflect true conditions. Here Exhibits 3, 4, and 5 were admitted as school records but not to prove the truth of hearsay material contained therein. Such hearsay cannot achieve credibility simply by reducing it to writing and placing the writing in the school's official files.
Section 120.58(1)(a), Florida Statutes, liberalizes somewhat the strict rules barring the admission of evidence, and, with respect to hearsay evidence, provides:
Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be suf- ficient in itself to support a finding unless it would be admissible over objection in civil actions. This para- graph applies only to proceedings under s. 120.57.
Since the only testimony that Respondent administered corporal punishment to Eldred Salter by hitting him on the head with her knuckles was uncorroborated hearsay, this testimony cannot sustain a finding of guilty of this offense.
With respect to the allegations and evidence submitted regarding the administering of corporal punishment, using a primary pencil on the knuckles of a 3-year-old, it is noted that this issue was considered by Petitioner in January 1978 with the conclusion of the evidence was insufficient to justify Respondent being fired. No competent evidence was presented at this hearing to warrant a reversal of that determination. To the contrary, the explanation by Respondent of her use of the 4 1/2-inch long primary pencil as a pointer and not as a bat was credible and supported by the testimony of the aide at an adjacent table that she heard no child crying.
Here the burden of probing the basis for disciplinary action against Respondent rests with the Petitioner and is not altered by the fact that Respondent had to appeal to get this hearing. Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3rd DCA 1976). The evidentiary standards for administrative tribunals has been described in Florida Depantment of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d 412, 415 (Fla. 4th DCA 1974) as follows:
As a general rule the comparative degree
of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding --that is, a preponderance of the evidence. It is not satisfied by proor creating an equipoise,
but it does not require proof beyond a reasonable doubt.
Petitioner has not met its burden of proof regarding the allegation of corporal punishment with a primary pencil and admissible evidence respecting corporal punishment of Eldred Salter is nonexistent.
From the foregoing it is concluded that Petitioner failed to sustain its burden of proving by a preponderance if the evidence that Minnie Chestnut was guilty of insubordination or serious breach of discipline or of conduct unbecoming an employee as alleged. It is therefore
RECOMMENDED that the charges be dismissed and Minnie Chestnut restored to her position with the Hillsborough County School System.
ENTERED this 30th day of May, 1980, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301
Thomas M. Gonzales, Esquire Post Office Box 3324
Robert J. Shapiro, Esquire
305 N. Morgan Street Tampa, Florida 33602
