STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, EDUCATION ) PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3628

)

JANIE E. BAKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this matter was held on March 23, 1988, in Orlando, Florida, before Mary Clark, Hearing Officer from the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: R. L. Caleen, Jr., Esquire

Oertel & Hoffman, P. A. Post Office Box 6507

Tallahassee, Florida 32314-6507

For Respondent: Mark Herdman, Esquire

Kelly & McKee, P. A. 1724 East 7th Avenue Post Office Box 75638

Tampa, Florida 33675-0638 BACKGROUND AND PROCEDURAL MATTERS

Petitioner's Administrative Complaint, dated July 22, 1987, alleges that Janie E. Baker, a licensed teacher, committed the following violations of Chapter 231, F.S. and the Principles of Professional Conduct for the Education Profession in Florida:

1. Section 231.28(1)(c), F.S., by being guilty of gross immorality or an act involving moral turpitude;

2. Section 231.28(1)(f), F.S., by being guilty of personal conduct which seriously reduces the person's effectiveness as an employee of the school board;

c) Section 231.28(1)(h), F.S., by otherwise violating the provisions of law or rules of the State Board of Education; and

d) Rule 6B-1.006(5)(a), F.A.C., which requires teachers to maintain honesty in a professional dealings.

Those violations are based on the allegation that Ms. Baker knowingly and intentionally provided false and misleading information to her superiors relating to her physical ability to return to work.

Ms. Baker responded to the Complaint with an Answer, a Request for Formal Hearing, and Motions to Strike and to Dismiss. The motions were denied in an Order dated September 10, 1987. A subsequent Motion to Dismiss was taken under advisement, pending final hearing, in an order dated October 15, 1987. For reasons described below that Motion to Dismiss is DENIED.

At the final hearing, the Petitioner presented the testimony of Drs.

Munson, Wicks and Scaggs. Petitioner's exhibits #1-18 have been received into evidence, including those on which ruling was taken under advisement.

Ms. Baker presented her own testimony and that of her husband, Frank Baker.

Her two exhibits, marked #3 and #5, were received into evidence.

Both parties submitted thorough written argument and proposed recommended orders. The proposed findings of fact are addressed in the attached appendix.

ISSUES

The issue for disposition is whether Ms. Baker knowingly and intentionally provided false and misleading information to her supervisors relating to her physical ability to return to work, and whether she thereby committed the violations of Chapter 231, F.S. and Rule 6B-1.006, F.A.C., alleged in the Administrative Complaint.

FINDINGS OF FACT

1. The following stipulated material facts are adopted from the parties' prehearing statement filed on March 18, 1988:

   
   

   1. The Respondent, Janie Baker, was employed as a continuing contract teacher with the Orange County School Board. The Respondent was first employed as a teacher by the Orange County School Board in August, 1965.

   2. The Respondent was suspended from her employment as a teacher on continuing contract with the Orange County school in

      November, 1984, and subsequently dismissed.

   3. Respondent was employed at the

      Gateway School at the time of her suspension Gateway is a school designed and utilized specifically to meet the educational needs of emotionally and socially handicapped (EH), specific learning disability (SLD) and severely emotionally disabled (SED) students. Its students range from four years of age through the sixth grade.

   4. EH students are educated at Gateway because they are unable to successfully attend class in regular schools with non- handicapped students. EH students have

      social and behavioral problems and occasionally may strike one another or their teachers. EH students are more prone to "act out" their emotions physically than normal children.

   5. The Respondent taught a class of approximately 10 emotionally handicapped students during the school year 1984-1985. During the school year 1983-84, the Respondent instructed specific learning disability children.

   6. On September 22, 1983, while

      employed at Gateway, the Respondent injured her back while catching a falling television set. Due to this injury, Respondent was on workmen's compensation leave from November 15, 1983 through the end of the 1983-84 school year.

   7. Dr. Munson, the Respondent's doctor, stated in a letter of August 21, 1984 that Respondent could return to school during the 1984-85 school year, but advised school officials of the need for Respondent to have a limited amount of physical activity in her work. Dr. Munson noted in his records that Respondent complained of her inability to return to work with mentally handicapped students because of the physical efforts involved.

   8. On August 24, 1984, during the pre- planning period for the 1984-85 school year, Dr. Louise Wicks, principal of Gateway School, and Velma Venrick, Senior Administrator for Employee Relations, met with the Respondent for the purpose of reviewing her physical condition and accommodations that the school would make to reduce the likelihood of Respondent suffering re-injury.

   9. Subsequent to the pre-planning meeting, Dr. Wicks drafted a memo on August

      27, 1984 setting forth certain procedures and limitations to be utilized by Respondent while teaching her class. The limitations included Respondent not moving furniture or heavy classroom equipment, not handling students who were out of control and not doing excess lifting of heavy items. The Respondent was promised a full-time aide and instructed to arrange with the office for assistance in the event the aide was unavailable.

   10. When the 1984-85 school year commenced, a permanent substitute teacher was assigned to Respondent's classroom for the

       entire day until the permanent teacher assistant was hired and placed in the classroom.

   11. On October 3, 1984, Respondent sustained an injury in the classroom when pushed by a student. The Respondent's teaching aide was working at the blackboard with his back to the students at the time of the incident. He turned around and saw Respondent lying on the floor with the student on top of her, hitting her in the stomach and all over her body. The teaching assistant immediately went over and pulled the student away from Respondent. The fire department was called and Respondent was taken to the hospital for treatment.

       
       

2. The hospital examined Ms. Baker and told her to go back to her orthopedic doctor. She returned to Dr. Munson's office and was examined by him. She complained of soreness but the x-rays taken at Winter Park Memorial Hospital revealed no fractures or dislocations. Dr. Munson felt there was a contusion and that Ms. Baker should not return to work. He suggested rest, with ice and massage and told her to return to him as needed. She was given a note that said she "... may return to work if she feels like it." (Petitioner's Exhibit #8).

   
   

3. Ms. Baker did not return to work until November 2, 1984. Between October 3, 1988, and that date, she visited Dr. Munson's office several times. On October 19, 1988, Dr. Munson felt that she could return to work and communicated that fact to Ms. Baker. Dr. Munson saw no orthopedic contraindications to her returning to work in the light duty fashion that was described to him by the School Board. He had been assured in letters from the School Board that she would not be exposed to physical activity.

   
   

4. Dr. Munson was aware of a continuing conflict between Ms. Baker and her employers even before the October 3rd classroom incident. Throughout his treatment of Ms. Baker, she complained of what she felt was a threat from violent students in the classroom and she expressed fear of reinjury. On the other hand, the letters and conversations with School Board staff reassured him that she had help and was restricted from lifting or rigorous activity.

   
   

5. On Saturday, October 20, 1984, Ms. Baker received a letter from Dr. James Scaggs, Superintendent for Administrative Services and Employee Relations, acknowledging that she had not returned to work and requiring her to immediately obtain a statement from Dr. Munson indicating a specific date on which she could return to work, or stating that she was disabled and unable to return.

   
   

6. On Monday, October 22, 1984, Ms. Baker visited Dr. Munson's office to get the work statement. Again, Dr. Munson informed her that she could return to work under the conditions described by the School Board. At that point Dr. Munson felt there was a conflict between the demands of her job, as Ms. Baker described them, and how the School Board personnel presented them. He felt that he needed to take a position as an orthopedist and that position was that she could return to work.

   
   

   Ms. Baker left Dr. Munson's office on October 22nd still upset because she thought she was exposed to injury.

   Dr. Munson dictated his opinion in an office note dated October 22nd. He discussed the opinion with Dr. Scaggs and sent him a copy of the note the following day.

   
   

7. On October 23, 1984, Dr. Wicks, Gateway School Principal, called Ms. Baker and told her to come to work or bring a doctor's statement. Dr. Wicks also informed Ms. Baker that her leave of absence had not yet been approved. Ms. Baker responded that she was still ill and would bring Dr. Munson's statement.

   
   

8. Ms. Baker then returned to Dr. Munson's office. Because she did not have an appointment and he was busy with patients, she was not able to get a note.

   
   

9. After her unsuccessful attempt to see Dr. Munson and persuade him to change his opinion, Ms. Baker took the prior October 3rd note to the Gateway School office on October 23rd. This was the same note that said she could return to work if she felt like it. As she was leaving the office Dr. Wicks saw her and asked when she would be coming back. She replied that she did not have the slightest idea, that people were telling her doctor she could work and she would need to get that straightened out.

   
   

10. By this time, Ms. Baker obviously knew the October 3rd note no longer reflected Dr. Munson's opinion. She made no effort to conceal the date on the note and was aware that Dr. Munson a had been speaking and corresponding with School Board officials. Her retort to Dr. Wicks reflected that awareness.

    
    

    Her admittedly deliberate action in leaving the outdated note was a provocative and confrontational expression of her disagreement with her employers; it was not an attempt to conceal the truth.

    
    

    In a telephone conversation with Dr. Scaggs on November 1st Ms. Baker readily admitted knowing that the note did not reflect Dr. Munson's current opinion, but she explained that she left the note because she disagreed that she could return to work.

    
    

    However sincere her belief, however correct her insistence that her duties were not the "light duties" described to Dr. Munson, Ms. Baker's lack of professionalism and disingenuousness is inexcusable. Her conduct seriously reduced her effectiveness as an employee of the School Board.

    
    

11. Mrs. Baker returned to work as directed by Dr. Scaggs, on November 2, 1984.

    
    

    On November 5, 1984 she was suspended from her position and was later charged with several violations, based in part on the School Board's assertion that she intentionally and deliberately submitted false information on her physical ability to return to work.

    
    

    After a Section 120.57(1) F.S. hearing, Hearing Officer W. Matthew Stevenson found that Ms. Baker intentionally submitted a misleading medical document to Dr. Wicks and concluded that this constituted failure to exercise appropriate professional judgement and integrity and a failure to maintain honesty in professional dealings. He recommended continued suspension until commencement of the 1987-88 school year. The School Board in its Final Order filed on June 26, 1986, adopted most of the recommended findings and conclusions, but increased the penalty to termination.

12. Ms. Baker currently holds State of Florida Teacher's Certificate #169492, covering the areas of elementary education, mental retardation, emotionally disturbed, specific learning disability, administrative supervision and junior college. She has taught in the State of Florida continually since 1965, except for brief leaves of absence to further her own education. She has been reprimanded in writing by her principal, Louise Wicks, three times for inappropriate and unprofessional behavior, on February 8, 1983, September 17, 1983, and October 15, 1984.

    
    

13. Dr. Scaggs and Dr. Wicks were aware of a conflict between Ms. Baker and her principal. Prior to working together at Gateway School the two women had been sorority sisters and friends. Their families visited socially. At some point, the relationship deteriorated. Dr. Wicks attributes this to her appointment to an administrative position that Ms. Baker wanted.

    
    

    Despite the conflict, there is insufficient evidence to establish that Ms.

    Baker's discipline was motivated by Dr. Wick's desire to remove her from Gateway.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Section 120.57(1),

    F.S. and Section 231.262(5) F.S., Florida Statutes.

    
    

15. Section 231.28, F.S. provides in pertinent part:

    
    

    1. Education Practices Commission; authority to discipline. --

       1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in Section 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

    * * *

    (c) Has been guilty of gross immorality or an act involving moral turpitude;

    * * *

    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

    * * *

    (h) Has otherwise violated the

    provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

16. The rule which Respondent is charged with violating provides: 6B-1.006 Principles of professional Conduct

    for the Education Profession in Florida.

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or other penalties as provided by law.

    * * *

    1. Obligation to the profession of education requires that the individual:

       1. Shall maintain honesty in all professional dealings.

    * * *

    
    

17. Petitioner must prove the allegations of its complaint by evidence that is clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

18. Petitioner proved that the alleged conduct did, in fact, occur: Ms. Baker knowingly and intentionally provided a note to her supervisor regarding her ability to return to work when that note no longer reflected the medical opinion of her physician.

    
    

19. As found in paragraph, 10 above, that action was not intended to deceive, but rather was a flagrant and contemptuous demonstration of Ms. Baker's disgust with what she felt was the School Board's insensitivity to her condition. This constitutes neither gross immorality nor moral turpitude.

    
    

    Gross immorality is not defined ink the statute or rules, but immorality is defined in Rule 6B-4.009(2), F.A.C., as

    
    

    ... conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

    Similarly, an act of moral turpitude is not defined, but a crime of moral turpitude is defined in Rule 6B-4.009(6), F.A.C. as

    
    

    ... a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according

    to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

    To characterize Ms. Baker's conduct here as gross immorality or moral turpitude trivializes those terms to the point of meaninglessness.

    
    

20. Ms. Baker's conduct did seriously reduce her effectiveness as an employee of the school board. Whatever her personal conflict with her supervisor may have been, Ms. Baker's lack of responsible judgement and professionalism exacerbated an already testy situation and destroyed an essential element of trust.

    
    

21. Ms. Baker was not dishonest. She knew the physician's statement was no longer valid but she also know that her employers were aware of his current opinion. She was piqued, childish and disingenuous, but her action fell short of a deliberate lie. 1/

    
    

22. The violation of Section 231.28(1)(h), F.S. which Ms. Baker committed is punishable by suspension or revocation of her certificate. See subsection 231.28(1), F.S.

    
    

23. The penalty suggested by counsel for Petitioner in his proposed recommended order is revocation. This is based on his assertion that Respondent committed all the alleged violations, including the gross immorality, moral turpitude, and dishonesty. She did not, and a lesser penalty is appropriate. Her prior record, including the three reprimands by Dr. Wicks, has been considered in my recommendation of a penalty.

RECOMMENDATION

Based on the foregoing, it is, hereby RECOMMENDED:

That Janie E. Baker, Respondent, be found guilty of violations described in Sections 231.28(1)(f) and (h), F.S. and not guilty of violations described in Section 231.28(1)(c), F.S. and Rule 6B-1.006(5)(a), F.A.C., and that her teaching certificate be suspended for one year.

DONE and RECOMMENDED this 7th day of June, 1988, in Tallahassee, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 1988.

ENDNOTE

1/ The finding of failure to maintain honesty in the prior School Board termination hearing is not res judicata in this proceeding. The parties are different, and the license revocation proceeding demands a stricter burden of proof. While the Florida Supreme Court in Ferris, supra, expressly declined to rule on the issue, the weight of authority is that employment termination proceedings require the standard civil burden of preponderence of evidence.

Ferris v. Austin, 487 So.2d 1163, 1167, (Fla. 5th DCA 1986).

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3628

The following constitute rulings on the finding of fact proposed by the parties:

Petitioner's Proposed Findings

1. Adopted in paragraph #12. 2-7. Adopted in paragraph #1.

8. Rejected as irrelevant.

9-12. Adopted in paragraph #1.

1. Adopted in paragraph #2.

2. Rejected as cumulative and unnecessary.

3. Adopted in paragraph #3.

4. Rejected as irrelevant.

5. Incorporated in paragraph #4.

6. Adopted in paragraph #3.

7. Adopted in paragraph #5.

8. Adopted in paragraph #6.

9. Adopted in paragraph #7.

10. Adopted in paragraph #9.

11. Adopted in paragraph #6.

12. Adopted in substance in paragraph #10.

25-28. Adopted in substance in paragraph #11.

1. Rejected as contrary to the weight of evidence. Under the circumstances here the act was not fundamentally dishonest or immoral.

2. Adopted in part in paragraph 10 (as to the conclusion that Ms. Baker's effectiveness was seriously reduced). The reduction of effectiveness, however, is attributed to her consummate lack of professionalism rather than immorality or dishonesty.

3. Adopted in substance in paragraph 12.

4. Rejected as immaterial.

Respondent's Proposed Findings

1. Adopted in paragraph #12.

2. Adopted in paragraph #1.

4-5. Adopted in substance in paragraph #13. 6-13. Adopted in paragraph #1.

14. Adopted in part (as to being given the aide) in paragraph #1, otherwise rejected as immaterial.

15-16. Rejected as immaterial.

1. Rejected as unsupported by credible evidence.

2. Adopted in part in paragraph 13, as to the existence of the conflict. The conclusion that the conflict caused the reprimands is unsupported by competent evidence.

3. Adopted in substance in paragraph #1. 20-21. Rejected as immaterial.

1. Adopted in substance in paragraph #3.

2. Adopted in paragraph #4.

3. Adopted in paragraph #3.

4. Rejected as immaterial.

5. Rejected as immaterial

6. Adopted in substance in paragraph #2; however, the note provides she may return if she feels like it.

7. Adopted in substance in paragraph #5.

8. Rejected as cumulative and unnecessary.

9. Adopted in paragraph #7.

10. Adopted in paragraph #8.

11. Rejected as unnecessary.

12. Adopted in substance in paragraph #9. 34-36. Rejected as unnecessary.

1. Adopted by implication in paragraph #10. She did admit that she left the note, knowing that it did not reflect the physician's current opinion.

2. Adopted in paragraph #11. 39-40. Rejected as unnecessary.

41-42. Adopted in part in paragraph #10. Her motives, however, were not due to confusion, but rather a fundamental disagreement.

1. Rejected as immaterial. See paragraph #10.

2. Rejected as unsupported by competent evidence. 45-48. Rejected as immaterial.

COPIES FURNISHED:

R. L. Caleen, Jr., Esquire OERTEL & HOFFMAN, P. A.

2700 Blair Stone Road, Suite C Post Office Box 6507 Tallahassee, Florida 32314-6507

Mark S. Herdman, Esquire KELLY & MCKEE, P. A.

1724 E. Seventh Avenue Post Office Box 75638 Tampa, Florida 33675-0638

Karen Barr Wilde Executive Director

Education Practices Commission Department of Education

Knott Building, Room 418 Tallahassee, Florida 32399

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Sydney H. McKenzie, esquire General Counsel

Department of Education Knott Building Tallahassee, Florida 32399

Docket for Case No: 87-003628

Orders for Case No: 87-003628