STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF )

PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2291

)

ANNE CHRISTOPHER, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on September 16, 1988, in Clearwater, Florida, before Donald D. Conn, a duly assigned Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 4688 Clearwater, Florida 34618

For Respondent: Charleen C. Ramus, Esquire

Post Office Box 75638 Tampa, Florida 33675

The issue in this case is whether the School Board of Pinellas County (Petitioner) should impose a three day suspension without pay upon Anne Christopher (Respondent) based upon actions which she allegedly took constituting misconduct in office. At the hearing, the Petitioner called five witnesses and introduced eight exhibits. One additional exhibit which Petitioner sought to introduce was rejected as cumulative and unnecessary, and the testimony of a sixth witness called by Petitioner was rejected and stricken as irrelevant. The Respondent testified on her own behalf, called two additional witnesses, and introduced one exhibit.

A transcript of the final hearing was filed on October 14, 1988, and the parties were allowed to file proposed recommended orders, including proposed findings of fact, within ten days thereafter. The Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. At all times material hereto, Respondent was employed by Petitioner on a continuing contract as a physical education teacher at North Ward Elementary School in the Pinellas County school system.

   
   

2. Respondent holds a professional teaching certificate number 495697, issued by the State of Florida, Department of Education.

3. On April 6, 1988, Respondent was conducting a physical education class at North Ward Elementary School. The students were playing "T-ball" outdoors, and during the game, one student, Michelle Washington, became upset with Respondent when she told the teams to change sides in order to allow all students to have a turn at bat. The student ran up to Respondent and began screaming in her face. Respondent asked her several times to stop and to calm down, but the screaming continued for between thirty and forty-five seconds. When it became apparent that Washington would not calm down, and after trying to verbally quiet her, Respondent slapped Washington on the cheek. No marks or bruises resulted, and at the end of the class period Respondent and Washington hugged and apologized to each other. Respondent reported the incident immediately to her principal, and also called the student's mother to apologize.

   
   

4. During December, 1987 and January, 1988, Respondent grabbed Amudin (Deenie) Tzekas by the jaw, and Jason Owens by the arm in order to discipline and quiet them. These actions caused no physical injury to either student, and were not reported by Respondent or the students at the time.

   
   

5. Based upon the testimony of students involved in these incidents, as well as Respondent's own testimony, the testimony of her principal, Marcia Morgan, and a written summary prepared by Steven Crosby of a conference held within a week of the incident involving Michelle Washington, it is found that Respondent slapped Washington on the face on April 6, 1988, after having grabbed Tzekas by the jaw and Owens by the arm earlier in the school year. These actions were taken by Respondent as forms of discipline, and to maintain control in her classes.

   
   

6. Based upon the testimony of Marcia Morgan and Steven Crosby, who were accepted as experts in education, Respondent's actions involving these three students impair her effectiveness as a teacher due to the loss of respect among students and parents which has resulted. She failed to exercise good profession judgment, and instead her actions caused embarrassment to her students. This conduct by a teacher impairs the teaching profession as a whole. According to school board policy, teachers should never touch students in a punitive manner.

   
   

7. By proper notice to Respondent, Petitioner sought to impose a three day suspension without pay as a result of these incidents, and Respondent has timely sought review of this proposed action.

   
   

8. In August, 1987, prior to these incidents, Respondent was counseled by Marcia Morgan, her principal, about getting angry with people. Morgan told Respondent that if she violated school board policy, she could not help her.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

   
   

10. The Petitioner has the burden of proof in this proceeding. Section 231.36(4)(c), Florida Statutes. Since this case involves the possible loss of livelihood resulting from a suspension without pay, the elevated standard of proof of clear and convincing evidence will be applied. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

    
    

11. Section 231.36(4)(c), Florida Statutes, authorizes school boards to suspend or dismiss any member of the instructional staff who engages in

    misconduct in office. Rule 6B-4.009(3), Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Profession and the Principles of Professional Conduct, which have been adopted as Rules 6B-1.001 and 6B-1.006, that is so serious as to impair the teacher's effectiveness in the school system.

    
    

12. The Code of Ethics specifically requires the exercise of the best professional judgment and integrity, as well as maintaining the respect and confidence of students and parents. Rule 6B-1.001(2)(3), Florida Administrative Code. The Principles of Professional Conduct set forth the teacher's obligations to students, including the protection of students from conditions harmful to safety or which cause embarrassment. Rule 6B-1.006(3)(a)(e), Florida Administrative Code. The policies of Petitioner, set forth at Rule 6Gx52-6.045, require all instructional personnel to be familiar with all provisions of the Florida Statutes, and administrative rules adopted thereunder, which pertain to their responsibilities as educators.

    
    

13. Respondent's action on April 6, 1988 clearly embarrassed her student, Michelle Washington, brought her into danger and could have caused physical injury. The resulting impact on students and parents of this incident, as well as the incidents of grabbing Tzekas by the jaw and Owens by the arm, has reduced Respondent's effectiveness as a teacher and caused her to loose the confidence and respect of students and parents. Her conduct evidences very poor professional judgment. As such, the evidence in this case clearly and convincingly establishes that Respondent's actions involving these three students during the 1987-1988 school year, after having been counseled by her principal about getting angry with people, constitutes misconduct in office, a proper basis for Petitioner to impose a three day suspension without pay.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a three day suspension without pay upon Respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of October, 1988.

DONALD D. CONN

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 25th day of October, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2291

Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1.

1. Rejected as a finding of fact since this is a conclusion of law.

2. Adopted in Finding of Fact 6.

3. Rejected as not based on competent substantial evidence in the record.

6-8. Rejected since these are conclusions of law.

1. Adopted in Finding of Fact 2.

2. Adopted in Finding of Fact 8.

11-13. Adopted in Findings of Fact 3 and s.

14-15. Rejected as irrelevant and unnecessary. 16-17. Adopted in Finding of Fact 4.

18. Rejected as unnecessary.

19-20. Adopted in Finding of Fact 6.

1. Rejected as not based on competent substantial evidence.

2. Adopted in Finding of Fact 6.

Rulings on the Respondent's Proposed Findings of Fact:

1. Adopted in Findings of Fact 1, 2 and 7.

2. Adopted in Finding of Fact 7.

3. Adopted and Rejected, in part, in Findings of Fact 3, 5.

4. Rejected in Findings of Fact 4 and 5.

5. Rejected as irrelevant and unnecessary.

6. Rejected in Findings of Fact 4 and 5.

7. Rejected in Finding of Fact 8.

COPIES FURNISHED:

Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618

Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618

Charleen C. Ramus, Esquire Post Office Box 75638 Tampa, Florida 33675

Docket for Case No: 88-002291

Orders for Case No: 88-002291