student sought Respondent's assistance when another student made a vulgar remark to her. Specifically, with respect to the charge of incompetence, it is alleged that Respondent failed to have disciplinary control of her classes, permitted disruptions by students in the class, allowed inappropriate behavior in class, failed to handle discipline in the classes, maintained poor communications with her students, was unable to cope with complaints of parents of students in her classes, permitted excessive disturbance which spilled over to disturb other classes, and failed to render proper professional help to a student when requested by the student.
At the hearing Petitioner called fifteen witnesses, Respondent called two witnesses, including herself, and five exhibits were offered into evidence. Respondent's other witness was called as a polygraph expert. Ruling on the objection to this testimony was reserved and the testimony of this witness was allowed as a proffer. That objection is now sustained as is the objection to exhibit five. All other exhibits were admitted into evidence.
Proposed findings submitted by Respondent, to the extent incorporated herein, are adopted; otherwise they are rejected as not supported by the evidence, cumulative, immaterial or unnecessary to the results reached.
Respondent's argument regarding the standard of proof applicable to these proceedings is adopted. Other arguments inconsistent with the conclusions herein expressed are specifically rejected.
Respondent graduated from high school in Indiana in 1946, was married in 1947 and worked as a secretary until 1949 when she stopped working to raise a family. In 1964 she started extension courses at Indiana University and obtained her B.A. degree in biology in 1971. She later obtained a masters degree in science education from Purdue University. She taught science in a middle school in Hammond, Indiana for about 7 years. She and her husband moved to Florida in 1980 and she became certified in Florida in 1984. She applied to the Hernando County School System for employment and was given an annual contract to teach science at West Hernando Middle School for the school year starting in August 1984.
Respondent was assigned a homeroom class of seventh graders and her science classes were seventh graders, but for one eighth grade class. Shortly after the commencement of the school year it became evident that Respondent was having difficulty controlling the students in her classes.
Early in the school year Respondent went over with and assigned to her students the first chapter of the science book containing definitions and announced they would be quizzed on this chapter at the end of the week. When the papers were graded Respondent found a high rate of failures. She repeated these procedures for the following week for the second chapter and obtained the same or greater failure rate. Respondent concluded the text was too difficult for her students and opted to change textbooks. After initiating the change she learned there were only 40 to 50 of this text available and a textbook could not be issued to each child other than while in the classroom. Accordingly, none of her students had a science book to take home.
The dean of students, assistant principal, and principal became aware that Respondent was having disciplinary problems. She was issuing more detention slips than other teachers, a greater volume of noise eminated from her classes than from other classes comprising the same students and a large number of requests for transfers from her class were being received.
At an open house for parents of children at West Hernando Middle School, Ronald C. LaCourt inquired of respondent about the lack of textbooks which precluded his son from having one to bring home and asked if the parents could pressure the school board to get additional books. His son had told him that Respondent's class was noisy, that there was a lot of horseplay, and that the son had trouble concentrating in Respondent's class. LaCourt spoke to the principal who confirmed there was a problem in Respondent's class and LaCourt requested his son be transferred to another class. Exhibit 1 is a composite exhibit of seven requests for transfers out of Respondent's classes because of the students' inability to learn in her classes.
On or about October 3, 1984 Shonda Bruin, a 14- year old seventh grader in Respondent's science class, was
one of many disorderly students. The science lab was used for class that day and Respondent was attempting to teach the students about microscopes. When Shonda asked Respondent a question she was grabbed by the arm and pulled back to where she was supposed to be in the lab. Shonda testified that fingernail marks were made on her arms which resulted in a very thin scar two and one-half inches long on her upper left arm which she exhibited at the hearing.
Shonda testified the scratches did not bleed when made on her arm but the resultant single scar was caused by Respondent's fingernails. Other witnesses, including her mother, had earlier observed several scratches on Shonda's upper left arm shortly after the alleged incident. Mrs.
Bruin and Shonda both testified that the scar was not on her arm before she was grabbed by Respondent. Respondent has no recollection of grabbing Shonda by the arm but, if she did, it was without any intent to punish her.
Lance Fann, another 7th grade student in Respondent's class, observed Respondent grab Shonda's arm; and, on one occasion when he was out of his seat, talking while he should have been paying attention to his teacher, Mrs. Lewis grabbed him by the arm to return him to his seat. Both Lance and his mother observed finger marks on his arm after this incident. Fann was one of those who asked to be transferred out of Respondent's class.
Kimberly de Francesco, another 14 year old seventh grader, testified that Respondent struck her on the hand with a text book. The events surrounding this incident also involved a disorderly classroom with Respondent berating one of the suspected culprits. Kimberly interrupted Respondent to tell her she was berating the wrong person and pointed her finger at one who, according to Kimberly, was the culprit. Respondent pushed Kim's hand away with a book Respondent was holding. No injury was sustained by Kim and Respondent had no intention to cause pain and discomfort to Kim when her book made contact with Kim's hand. Kim subsequently reported this incident to her mother who relayed it to the principal. Mrs. de Francesco also requested Kim be transferred out of Respondent's class.
Although no one who witnessed the incident, other than Respondent, testified, Respondent acknowledged that she had hit Carter Calhoun on the head with some test
papers "to get his attention." She also testified this contact was in no way intended as a punishment or with intent to cause any discomfort to Carter.
No evidence was submitted relative to the charge of making an embarrassing statement to a student.
Other teachers, parents, students and Respondent all testified that Respondent's classes were noisy, unruly and the students paid little attention to Respondent's efforts to control them. The one eighth grade science class taught by Respondent, in Respondent's own words "planned together better how to harass me" than did the seventh grade classes.
Respondent admitted that she had a disciplinary problem in her classes. She attributes this to her students not being able to comprehend what they were reading and "goofed" off, got up out of their chairs and "didn't seem to respect me." Her instructions to sit down and be quiet "went in one ear and out the other".
Dennis McGeehan is dean of students at West Hernando Middle School and one of his principal duties is to oversee discipline in the school. He spoke to Respondent about the numerous disciplinary slips she prepared and suggested she contact the students' parents. He discussed with the Respondent the disciplinary problems she was experiencing and observed that her class was noisier than other classes, that there was more movement in the class and more talking between the students. McGeehan also discussed this problem with the principal, Dan McIntyre. McGeehan feels most of the disciplinary problems could have been prevented had Respondent taken appropriate action sooner. However, once the students in her class obtained the upper hand and realized they could upset Mrs. Lewis and get away with it, more students entered the game.
West Hernando Middle School principal, Dan McIntyre, interviewed Respondent and recommended she be assigned to his school as science teacher. She was the only certified science teacher who applied for a teaching position at this school and her resume showed that she had eight years experience as a teacher. McIntyre began to receive complaints about Respondent within two weeks after school opened, and requests from parents and students for transfers out of Respondent's classes. School opened
August 22, 1984 and after two visits to her class on September 18 and September 27, McIntyre met with Respondent to discuss her problems. On October 4, 1984, he prepared an Evaluation Report (Exhibit 3) and discussed this report with her. McIntyre told Respondent he would give her a list of things she should do to get on track. Immediately thereafter reports of physical abuse from Bruin and de Francesco came in and the emphasis shifted to investigating those complaints. Accordingly, the list promised by McIntyre had not been presented to Respondent when she was suspended. When the complaints of abuse were investigated and appeared to have substance, McIntyre advanced the timetable of notice, evaluations, activities and timeframe (NEAT) procedures contained in the union contract between the teachers and Hernando County School Board. Absent the complaints of abuse Respondent would have been given more time to demonstrate she was competent to maintain order and teach science to her classes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 231.36(1)(a) Fla. Stat. provides:
Each person employed as a member of the instructional staff in any district school system shall be properly certified and shall be entitled to and shall receive a written contract as specified in Chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the terms of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or
conviction of a crime involving moral turpitude.
Rules pertaining to dismissal of instructional personnel are contained in Chapter 6B-4, Florida Administrative Code. Rule 6B-4.08 entitled Criteria for Dismissal Procedures provides in pertinent part:
When an action or other matter appears to exist which may possibly result in the future dismissal of any employee, the immediate supervisor of the individual
should take appropriate action to advise
the employee of the matter and the potential consequences if not corrected.
Every possible helpful effort should be made by the immediate supervisor to aid the employee to correct the matter which could cause his or her dismissal if not corrected.
Except in extremely serious circumstances, the employee should be given sufficient time, following notification, for improvement.
Rule 6B-4.09 headed Criteria for Suspension and Dismissal provides in pertinent part:
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 these charges is hereby defined:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on
a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties described by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children
in a classroom to such an extent that pupils are deprived of minimum education experience....
Incapacity: (1) lack of emotional
stability; 2) lack of physical ability; (3) lack of general educational background; or
(4) lack of adequate command of his or her area of specialization.
* * *
(3) Misconduct in office is defined as a violation of the code of ethics of the education profession of the CEENP as adopted in Rule 6B-1.01, Florida Administrative Code, and the Principals of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.06, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.
THE MISCONDUCT CHARGES
Rule 6B-1.01, Florida Administrative Code, contains those philosophical concepts to which a teacher should conform but establishes no specific criteria applicable to the facts here presented. Rule 6B-1.06, Florida Administrative Code, establishes specific principles the violation of which shall subject the individual holding a teaching certificate to those penalties provided by law. Those principles are contained in 6B 1.06(3)(a) through (i) [obligations to the student]; in 6B 1.06(4)(a) through (e) [obligation to the public] and in 6B 1.06(5)(a) through (o) [obligations to the profession].
Presumably those acts alleged to constitute misconduct by Respondent relate to those obligations to the student in subsection (3). Those obligations require the teacher to make reasonable efforts to protect the student, not unreasonably restrain the student, or intentionally expose the student to unnecessary embarrassment or disparagement.
The evidence presented will not support a finding that Respondent is guilty of misconduct as defined in Rule 6B-1.06, Florida Administrative Code. Accepting as fact that Respondent grabbed two unruly students by the arm to induce them to return to their seats, or to where they were supposed to be, in a desperate attempt to institute control, and squeezed tighter than was necessary or appropriate does not equate to misconduct; especially so
since no intent to cause discomfort to the students existed. Likewise, striking Kimberly de Francesco's hand with a book to tell her, don't interrupt me, when no pain was intended or caused by the use of the book does not constitute misconduct as defined by Rule 6B-1.06, Florida Administrative Code, nor does tapping Carter Calhoun on the head with a test paper to get his attention constitute misconduct as defined above.
THE INCOMPETENCY CHARGE
This is a much more difficult concept because incompetency of a teacher is usually associated with lack of knowledge of a subject by the teacher or inability of the teacher to explain, or teach, the subject matter to the pupil. In the instant case no evidence was submitted to even suggest that Respondent is not knowledgeable in the subject (science) she was attempting to teach to her classes at West Hernando Middle School; or that, if they paid attention, the students would not learn.
It is evident that shortly after school commenced on August 22, 1984 at West Hernando Middle School, the students in Respondent's classes learned they could rattle her, upset her, and thereafter forsake the rules of decorum generally prevailing in classrooms. Once on student succeeded others quickly followed. By the time the school administration became aware that a serious problem existed Respondent had totally lost control of her classes - never to be regained. Under these circumstances Respondent had demonstrated a repeated failure to communicate with and relate to children in the classroom to such an extent that her pupils were deprived of minimum educational experience. Respondent simply could not keep the disruptions and noise levels down in her classes such that those wanting to listen and learn could do so. In short, absent her ability to get her pupils to listen, Respondent could not teach.
As noted above no evidence was presented that Respondent's knowledge of the subject she was scheduled to teach was inadequate or that, in another setting, she would not be a successful teacher. However, so long as her pupils know they can "rattle her cage" and do so, she will not be able to control them and effectively teach. The incompetency here found is limited strictly to Respondent's inability to control her classes. So long as her students
feel free to talk, leave the room, throw objects across the classroom, and exercise such other disruptive behavior, Respondent must be deemed incompetent. Once this problem is surmounted Respondent presents all other evidences of competence as a science teacher in a middle grade or junior high school.
From the foregoing it is concluded that Claire Lewis is not guilty of misconduct as alleged; but, due to her inefficiency in controlling her students in class, she has been unable to communicate with them to such an extent that the pupils are deprived of minimum educational experience and as a result she has demonstrated incompetency as a teacher.
