) DOAH CASE NO. 83-0465
Respondent. )
The final hearing was conducted in these actions under the authority of Section 120.57, Florida Statutes. The sessions of hearing were conducted in Panama City, Florida on February 15th, 16th and 29th, 1984. This Recommended Order is being entered following the receipt and review of transcript materials filed with the Division of Administrative Hearings on May 15, 1984, and after examination of the proposed Recommended Orders of the parties, the last of which was filed with the Division of Administrative Hearings on June 18, 1984. These proposals by counsel have been considered prior to the entry of the Recommended Order. To the extent that they are consistent with the Recommended Order they have been utilized. To the extent that the proposals differ from the Recommended Order they have been rejected based upon relevance, materiality, or as being contrary to the factual impression gained `by the trier of fact.
For Petitioner Franklin R. Harrison, Esquire Pete Holman: 304 Magnolia Avenue
For Respondent: Thomas W. Brooks, Esquire
MYER, BROOKS & COOPER, P.A.
For F.T.P.N.E.A.: Pamela L. Cooper, Esquire
The matters to be determined by this Recommended Order concern administrative prosecution of the Respondent on the part of the Petitioners. The action by Commissioner Turlington is, according to an Administrative Complaint, in which the Respondent is accused of false, malicious, derogatory and profane commentary, epithets related to faculty, staff, administrators and students within the Bay County School System. By subject, these allegations pertain to accusations of illicit sexual relationships on the part of school personnel, accusations of theft by a former faculty member and general derogatory comments related to various categories of individuals within the Bay County School System. It is further alleged that the Respondent failed to properly instruct and supervise students. Respondent is accused of coercing a student, who was employed at the Haney Vocational Technical Center Business
Office, to provide the Respondent with confidential information in the personnel files of other school employees. Respondent is accused of making derogatory, demeaning and profane remarks about students while conducting class and in the presence of other students who are not the subject of those comments.
Respondent is accused of making false representations to students about political influence with the Superintendent of the Bay County School System and members of the State Board of Cosmetology. Respondent is said to have falsified student records which she submitted to the State Board of Cosmetology. Finally, Respondent is said to have willfully and intentionally refused to comply with specific instructions given to her by her supervisor, the principal of Haney Vocational Technical Center.
The accusations brought against the Respondent by Pete Holman as Superintendent of the Bay County School System are in a similar vein to those by the Education Practices Commission in the person of Commissioner Turlington.
These accusations by the co-prosecutors are more completely described and discussed in - the Findings of Fact and Conclusions of Law which follow.
Respondent, MYRTICE SHORES FLORA, is the holder of a Florida teaching certificate, number 236133 and has held that certificate at all times relevant to the inquiry. She had been a cosmetology instructor at Tom P. Haney Vocational Technical School in Bay County, Florida for fifteen years prior to her suspension in August, 1983. The suspension relates to the matters as charged by the Superintendent of the Bay County School District. Her status With Bay County is that of a continuing contract employee.
The allegations which underlie the complaints filed by the two petitioners do not pertain to her competence as an instructor. The charges which have been placed against the Respondent relate to activities within the school year 1982-83. In particular that period from late 1982 to approximately the summer of 1983. Within that time frame a number of conflicts existed
between faculty members at Haney, in the Department of Cosmetology; between students who were attending the cosmetology course at Haney; between faculty and students in that setting and between the administration of the school and the Respondent. The focus or gravamen of these administrative complaints is to the effect that the Respondent was the central player in this cast and primarily responsible for the turmoil.
One of the contentions that is made by both prosecutors, concerns what is described as false and malicious statements that were made about the principal of Haney, a Mr. Revere; other faculty members, a teacher's aide, students and the Superintendent of the Bay County School District. In that same realm, Respondent is accused of making derogatory comments and using profanity in referring to the principal, Riviere, and other principals who preceded him at Haney Vocational Technical Center; concerning assistant principals; concerning faculty members and concerning students. Respondent did make numerous derogatory remarks, with malice and at times the use of profanity, directed toward various persons at Haney and toward the Superintendent of Bay County Schools. Some examples are:
Expression of dislike of the principal of Haney, Mr. Riviere, in the sense of "hating" him, questioning his administrative ability, saying that he was the "south end of a north bound donkey", that Mr. Riviere did not know what was going on in the Cosmetology Department nor what would be best for that department. These were comments made in front of students in the class. Respondent said in front of students that Principal Riviere had gotten a girl pregnant and stolen student funds in order to pay for an abortion for the girl. In addition, Respondent in conversation with a fellow cosmetology teacher, one Sandra Sawyer, referred to Riviere as a person "who didn't know his ass from a hole in the ground", a person who was a "stupid bastard". In referring to Riviere in conversation with Ed Sullivan, the registrar at Haney Vocational, she stated that Riviere was a person who given enough rope, "the son of a bitch would hang himself". She also referred to Riviere as a "bastard" in conversation with Sullivan. In discussions with Larry Johnson, the coordinator of personnel for the Bay County School District, Respondent made remarks on the subject of Mr. Riviere to the effect that he was "a very poor administrator", "a bastard" and a "son of a bitch". Further she stated that Riviere has sexual relationships with many of the female staff members at Haney Vocational. Respondent indicated to June Roberts, who was secretary to the assistant principal at Haney, one Jim Strickland, that Respondent felt that Riviere was "out to get her" and that she was "going to get him". Respondent told the school bookkeeper at Haney, one Ami Sullivan, that Riviere was having an affair with numerous women at the Haney school. Respondent told teacher aide at Haney, Cynthia Johnson, that Riviere would sleep with anybody and had the morals of a dog. She also told Johnson that Riviere was an unfit administrator.
Respondent mentioned in front of students at Haney, during class, that Pete Holman, the Superintendent of schools in Bay County, "liked to sleep with black women". Respondent also commented to Sawyer, the co-teacher at Haney Cosmetology Department, that Holman slept with black women. Respondent made this same comment to Cynthia Johnson, the teacher's aide.
Respondent also made adverse comments about other administrators. Among them, Assistant Principal Jim Strickland at Haney Vocational, whom she called a son of a bitch in conversation with Ms. Sawyer. She further told Sawyer that Strickland could not be trusted. In conversation with Larry Johnson, the Coordinator of Personnel of Bay County Schools she referred to the Assistant Principals at Haney, Homer Jackson and James Strickland, as
incompetent, no good, and to the effect that they did not know what they were doing. She told Gail Chester, secretary in the Business Office at Haney, that assistant Principal Strickland was "a dumb ass" and that he "didn't know his ass from a hole in the ground". She referred to Assistant Principal Cheek "as an ass hole" and "a dumb ass", in conversations with Gail Chester. Respondent referred to the former Haney principal, a man named Slocum, as "a God damned son of a bitch" and stated on several occasions that Slocum and Slocum's secretary were having sexual relations.
On numerous occasions to students, faculty and the administration, Respondent referred to Daisy Jackson, a former cosmetology instructor at Haney, as having stolen supplies from Haney Vocational. She also stated to those persons that Jackson was incompetent.
In front of the class Respondent indicated that Sandra Sawyer, the co- teacher at Haney, had left her position at Haney because of emotional problems, in that Sawyer was going crazy. Respondent told Principal Riviere that Sandra Sawyer was incompetent, that she did not know what she was doing, and that she lacked enough experience to assist students in instruction.
In front of students Respondent referred to Cynthia Johnson, a teacher's aide, as incompetent, a person whom the Respondent was teaching cosmetology services at night, and further indicated her belief that Johnson was "stabbing her in the back". In conversation with the school bookkeeper at Haney, Ami Sullivan, Respondent referred to Cynthia Johnson as "a spy". Respondent told Principal Riviere that Cynthia Johnson was not competent and did not know enough to adequately assist students, and did not know what she was doing.
Respondent in conversation with Sandra Sawyer referred to some of the cosmetology students as lesbians, that some of them had learning disabilities, that some were stupid, that some were trouble makers, and that one student was a prostitute.
The remarks recounted above, as individual comments, would not be significant. These remarks taken together demonstrate a persistent pattern of malicious gossip, disruptive in its influence. The remarks made to administrative officials can not be regarded as a good faith effort at offering complaints about relations with the Respondent's immediate supervisors and fellow teachers. These findings take into account the strains placed upon the Respondent in the overcrowded situation of the classroom at Haney in the relevant period, and the tendency which others had to be willing participants in gossip. Nonetheless, the quality of remarks by others did not carry with them the same careless disregard for the feelings of fellow workers and students. Finally, in her efforts at defense the Respondent has failed to establish that these statements were true. As established by the Superintendent Holman and the Assistant Superintendent for Instruction of Bay County Schools, Milton Acton, these remarks by the Respondent have made her lose her effectiveness as an employee in the Bay County School System. Her remarks fostered a tension in the school, which can not be balanced by her ample skills as a teacher.
It is alleged that the Respondent has failed to provide proper instruction to students in her classes and failed to properly supervise their work. Having considered the testimony of students and staff and the success rate in passing the state board examination which is more than 90 percent, and the success in obtaining employment after finishing the course work at Haney Vocational, which again is more than 90 percent, Respondent is not found to have
failed to properly instruct her students in the classes nor failed to properly supervise their work, as an overview of her performance. These findings take into account the alleged problems which Anita Shealy had in a bleach touch-up demonstration. Respondent's supervision was adequate on that occasion.
Likewise, in the circumstance with a student, Kim Nelson, who experienced problems with frosting of her hair, it is found that Nelson undertook that matter against the advice of the Respondent and suffered the consequences. Other indications made by various witnesses for the Petitioner to the effect that they did not receive adequate supervision and assistance as students at
Haney, are not accepted, when considered in the context of the overall testimony of this hearing.
As reflected in the Administrative Complaint, Respondent in discussion with Rena Mabius, a student who worked in the busi- ness office at Haney, and who had access to personnel files of staff, Respondent commented that "it would be nice if you could get me some of those files so I could use them." This referred to discussion in which the student had indicated that most teachers did not accurately report their absences in the records, intimating that Respondent would not need to either. The student in the face of Respondent's remarks about obtaining the files quit her position in the business office to avoid controversy. This again, in keeping with the opinions of the educators Holman and Acton, would substantially reduce the effectiveness of Respondent as an educator.
Respondent is accused of making derogatory comments, de- meaning and profane remarks to students in her class in the pre- sence of other students.
While it is true that the Respondent
would on occasion use such language as "damn, shit and bitching" and would comment on a student's performance during class, these remarks are not found to be unacceptably derogatory or demeaning, to the extent they were proven.
Respondent is next accused of having repeatedly made false representations to her students that she possessed some substantial political influence with the Superintendent of the Bay County School System and members of the State Board of Cosmetology. Respondent did in fact make comments to her students that she had influence with the Superintendent of the Bay County School System and in effect had influence with the State Board of Cosmetology. These statements were not defamatory and Petitioner did not show that they were false. Moreover, they were not statements which were shown to have reduced her effectiveness as an instructor or otherwise to have had an adverse influence on the students.
Respondent is accused of having falsified reports which she submitted to the State Board of Cosmetology. Respondent instructed the students to write the entries of the various services given, as indicated on their monthly service sheet, in pencil. This would allow changes to be made in the entries related to the number of services done. The significance of these numbers related to the fact that a certain number of services had to be achieved prior to the students' standing examination by the Cosmetology Board. Two of those students, Peggy Harsh Singleton and Tina Mangum in the submission of their November, 1982 monthly sheet from which the total figures for students at Haney Vocational in the Cosmetology Department were extracted, modified their November 1982 records to reflect services not given. While it is not clear that the Respondent, for all students at Haney in the period in question, had a policy of allowing numbers to be added which equated to services not done in the various categories of services necessary to be accomplished before standing the state board examination, she did on the occasion of Mangum and Singleton in the face of
suspicions explained by her co-instructor Ms. Sawyer, ignore clear discrepancies within the monthly reporting by those students which would indicate false reporting by those students. Even though Sawyer explained her suspicions related to those student monthly service reports for November, 1982, Respondent's reply was to the effect that there was "a lot of things that she didn't like, that that's the way things were, and that's the way they did things" and that-Sawyer "better get used to it." In essence, it would not have been possible for the students to perform the number of services reflected in the November report and it is not possible that all changes shown in the November report reflect the reexamination of prior months reporting and the addition of services which they performed in the prior months by placing those prior services in the November report. Some of the items in the November report of the two students are bogus entries, brought to the attention of the Respondent by Sawyer and ignored. Copies of those November reports related to the students Singleton and Mangum may be found as Petitioners' Exhibits Numbers
1 and 3 respectively. Notwithstanding the stated suspicion and the evident discrepancies, Respondent filed a report with the State Board of Cosmetology that indicated Singleton and Mangum had completed the necessary services to stand the State Board examination. Respondent in speaking with student Singleton, whom the Respondent knew had not completed sufficient services to stand the examination, told Singleton she would be allowed to stand the State Board examination and complete missing services at a time subsequent to the State Board examination. As established through the testimony of the educators Holman and Acton this conduct brings about a substantial loss of effectiveness on the part of the Respondent, in that this action undermines her integrity in the eyes of the students, faculty and administration.
The final contention by the Petitioners against the Respondent concern her willful and intentional refusal to comply with specific instruction given to her by her principal. Re-spondent in November 1982 had agreed to comply with Principal Riviere's instruction to the effect that she would not take students to Tallahassee to stand the State Board of Cosmetology Examination without first obtaining his permission. Thereafter, she submitted a request for temporary duty assignment in which one of the stated reasons was "Board testing of students in Tallahassee". This duty assignment request was signed by the Principal authorizing a trip to Tallahassee on November 14th, 1982. A copy of this request form may be found as Respondent's Exhibit Number 4 admitted into evidence. Respondent then took the students to stand the examination in Tallahassee. Later when she was confronted by the Principal on the question of whether she should have taken any of the students to the State Board she first denied having done so. She then acknowledged that she had taken them. In the course of the hearing Respondent attempted to argue that she had been given permission via the request for temporary duty assignment as described. Notwithstanding the signature of the Principal on that document, Petitioner argues that the Respondent knew that she was taking the students to stand the examination without the necessary permission of the Principal, in violation of the Principal's instruction. Under the circumstances in which written permission was given to go to Tallahassee, Respondent is not shown to have been insubordinate. Nor has Petitioner shown other acts of insubordination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has juris- diction of the parties and the subject matter of these proceedings. See Section 120.57(1), Florida Statutes.
Petitioner State of Florida, Education Practices Commission, through the Commissioner of Education, has accused the Respondent of personal conduct which seriously reduces her effectiveness as an employee of the Bay County School Board, within the meaning of Section 321.28(i)(f), Florida Statutes. Respondent jointly and severally by her malicious statements about the principal of Haney, fellow faculty members, a teacher's aide, students and the Superintendent of the Bay County School Board, her derogatory comments referring to the current and former principals of Haney Vocational Center, assistant principals, faculty members and students, as these matters pertain to alleged illicit sexual relations, accusations of theft, and other matters; her efforts at coercing a student at Haney, namely Rena Mabius, into providing confidential information from the personnel files of other school employees; and her falsification of a report submitted to the State Board of Cosmetology has acted in a way which has and may be expected in the future to seriously reduce her effectiveness as an employee of the Bay County School Board, a violation of Section 231.28(1)(f), Florida Statutes. This conduct is further In violation of Rule 6B-1.06(3)(a), (5)(a)(d)(e) and (g) , Florida Administrative Code, in that she has failed to protect students from conditions harmful to learning; has failed to maintain honesty in professional dealings; has intentionally made malicious statements about colleagues; has used coercive means to influence professional judgment of colleagues and has submitted fraudulent information on a document in connection with her professional activities. By this conduct Respondent has failed to achieve and sustain the highest degree of ethical conduct called for under Rule 6B-1.01(3), Florida Administrative Code. In violating the subject rules Respondent has violated Section 231.28(1)(h) , Florida Statutes. By the violations of the various provisions of Section 231.28, Florida Statutes, Respondent is subject to suspension or revocation or other authorized disciplinary action. Moreover, in accordance with Section 231.36(1)(a), Florida Statutes, this conduct as described subjects the Respondent to removal from her position in the Bay County School System based upon just cause, namely misconduct in office. None of the other violations alleged by the Education Practices Commission and the Superintendent of Bay County Schools have been shown.
