STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2992

)

EVA IRENE MOSLEY PUGH, )

)

Respondent. )

) SCHOOL BOARD OF COLLIER COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3431

)

IRENE PUGH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on October

13 1988, at Naples, Florida, before Veronica E. Donnelly, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

For Petitioner: J. David Holder, Esquire Castor Rigsby & Holder

1408 North Piedmont Way, Suite 200

Tallahassee, Florida 32312

For Petitioner: James H. Siesky, Esquire School Board Siesky & Lehman, P.A.

791 Tenth Street South, Suite B Naples, Florida 33940

For Respondent: Ronald G. Meyer, Esquire Pugh Meyer, Brooks & Cooper

2544 Blairstone Pines Drive Tallahassee, Florida 32302

Betty Castor, as Commissioner of Education, filed an administrative complaint before the Education Practices Commission alleging that the Respondent, Eva Mosley Pugh, violated state law during the 1987-1988 school year in the following manner: by administering improper corporal punishment to a second grade student by pinching him on the leg and on another occasion slapping him on the arm; by administering improper corporal punishment to another student by pinching him on his leg; by making inappropriate and profane comments in the

classroom in that children were told they would "go to hell" if they did not complete reading assignments; by describing to the class a tatoo she had seen of a man and a woman "doing it," and further announcing that she was going to have a similar tatoo placed upon her "titty;" by falsifying students' grades in her grade book on or about November 17, 1987.

The Commissioner of Education seeks to discipline the Respondent's teaching certificate for the misconduct alleged in the administrative complaint.

The Respondent disputes the allegations of fact contained in the administrative complaint and has requested a formal administrative hearing.

The School Board of Collier County filed a Notice of Intent to Take Action in which the Respondent Irene Pugh was notified of the following allegations of misconduct: the falsification of student grades in her grade book; the abuse of children in her charge, physically and mentally; and the use of inappropriate language in the classroom.

The School Board, based upon the Superintendent's recommendation, seeks to terminate the Respondent's employment because of the allegations of misconduct set forth in the Notice of Intent to Take Action.

The Respondent, who is also known as Eva Mosley Pugh, and who is the same person as the Respondent in Case No. 88-2992) disputes the allegations set forth in the School Board's Notice of Intent to Take Action. The Respondent has filed a petition and has requested a formal administrative hearing to determine whether or not the factual allegations of misconduct were true, and to challenge the action proposed by the school Board.

On August 10, 1988, the Hearing Officer consolidated Case No. 88-2992 and Case No. 88-3431 as both cases involve the same Respondent and the same subject matter.

On October 13, 1988, the Petitioner School Board and the Respondent, Pugh, stipulated that the Respondent's administrative challenge would be amended to include the issue of whether the Petitioner School Board properly suspender the Respondent without pay.

During the hearing, the Petitioners presented eight witnesses and jointly submitted seven exhibits. The Respondent submitted five exhibits and testified in her own behalf. All of the exhibits were admitted into evidence. Official Notice was taken of the file of Steven Pricer from the Professional Practices Commission.

A transcript of the hearing was filed on November 4, 1988. The completed transcript was received on December 16, 1988. The parties waived the ten day requirement for filing proposed findings of fact due to the calendars of the attorneys during November and early December. Rulings on the proposed findings of fact submitted by the parties are in the Appendix to the Recommended Order.

After the hearing, the School Board and the Commission submitted psychological reports prepared by Dr. Julio D. Nunez and Psychologist Robert B. Silver in which the Respondent was evaluated. The Respondent's Motion in Limine regarding these reports is granted. The reports will not be considered by the Hearing Officer in any phase of these proceedings, for any purpose. These reports contain prejudicial information which is outside of the purview of these

proceedings. The probative value, if any, is far outweighed by the prejudice and the unreliable hearsay contained in the reports.

ISSUES

Whether the Respondent's teaching certificate should be suspended, revoked, or otherwise disciplined based upon the allegations of Petitioner Castor's Administrative Complaint executed on May 26, 1988.

Whether Respondent's continuing contract with the Collier County School Board should be terminated based upon the allegations set forth in the Notice of Intent to Take Action dated June 10, 1988.

Whether the School Board properly suspended the Respondent without pay.

FINDINGS OF FACT

1. The Respondent holds Florida Teaching Certificate #117082.

   
   

2. During the August 1987-June 1988 school year, the Respondent was employed as a second grade teacher at Highlands Elementary school by the School Board of Collier County. The Respondent had continuing contract status which she had received prior to July 1, 1984.

   
   

3. The Respondent was suspended as an employee with pay effective January 1, 1988. The reason for this suspension by the School Board was the pending investigation by the Department of Health and Rehabilitative Services regarding alleged child abuse to a child in the Respondent's classroom. A second suspension without pay for which no reasons were given occurred on September 1, 1988, and was made retroactive to August 16, 1988. The Respondent was not given prior notice the School Board's plan to consider her employment status during a meeting in September 1988. She was notified after the fact, by letter dated September 2, 1988.

   
   

4. On November 17, 1987, the principal asked to see the Respondent's grade book.

   
   

5. The grade book, as reviewed by the principal on November 17, 1987, contained very few recorded grades for the initial marking period and the portion of the second quarter which had already passed.

   
   

6. After the grade book was returned on November 17, 1987, the Respondent made additional entries for the second marking period. The principal reviewed the grade book again on November 18, 1987. Shortly thereafter, when the principal asked the Respondent to demonstrate that the new entries were related to exams or class work evaluated by her, the Respondent was unable to do so.

   
   

7. During the administrative hearing, no evidence was presented which would justify the assigned grades on the report cards or in the grade book. It was not demonstrated that there was a correlation between the marks given and the level of skills demonstrated by students on either exams or seatwork for the dates recorded.

   
   

8. The Respondent did not administer corporal punishment to any second grade students during the 1987-1988 school year. The Respondent did pinch the child Lucretio Gutierrez on his outer lower left thigh while he was seated in a reading group session on December 7, 1987. The general location where the child

   was touched was the outer seam of his long dungarees. The Respondent did not slap this child on the arm on another occasion during the 1987-1988 school year.

   
   

9. The pinching of the child Lucretio Guiterrez did not occur in a setting where the child was being punished. The child was reading out loud for the teacher. During the performance, the Respondent reached over and squeezed his leg in a manner the child described as a "pinch." The incident did not rise to the level of child abuse, either physical or mental, as defined by Florida Statutes. No physical or mental harm occurred to the child as a result of the incident. No other children were inappropriately touched or pinched by the Respondent in the 1987-1988 school year.

   
   

10. The Respondent did not make inappropriate and profane comments to students in her second grade classroom. She did not tell the students they would "go to hell" if they did not complete their reading assignments. She did not tell the students that they would "go to hell and burn forever, but their souls would never die" if they did not abide by the rules. The children were not told that they would "go to hell" if they did not complete their reading assignments.

    
    

11. The Respondent did not describe a lurid tatoo to the students, nor did she state that she was going to have a similar tatoo place upon her "titty."

    
    

12. When a student note was confiscated by the Respondent which included the sentence "I like your dick," the Respondent did not make comments to the class such as, "This is not something you should do now, but its okay when you get older." She did not explain that "it gets better as you get older."

    
    

13. The Respondent did not mentally abuse, as defined by Florida statutes, any of the children in her classroom.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Section 231.28(1), Florida Statutes, provides that the Education Practices Commission may suspend, revoke, or otherwise discipline the teaching certificate upon a finding that such person:

    
    

    (h) Has violated rules of the State Board of Education, the penalty for which is revocation of the teaching certificate.

    
    

16. Because Section 231.28(1), Florida Statutes, is penal in nature, it should be strictly construed. School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 1980).

    
    

17. The State Board of Education rule which has been violated by the Respondent is Rule 6B-1.006(5)(g), Florida Administrative Code, which provides that an individual who holds a teaching certificate shall not submit fraudulent information on any document in connection with professional activities. The Respondent violated Rule 6B-1.006(5)(g) when she entered marks into the grade book during the second marking quarter which were not justified by test results or seat work completed by the students. Grades given to students are supposed to represent that certain skills have been mastered. If grades do not correlate

    with student progress, fraud is being committed upon the students, the parents, future teachers, and the school system as a whole.

    
    

18. The entry of the marks was also an act of dishonesty and is a violation of Rule 6B-1.006(5)(a), which requires teachers to maintain honesty in all professional dealings. However, Rule 6B-1.006(5)(g) specifically deals with fraudulent records. Although the Respondent can be found guilty for both rule violations, fundamental fairness dictates the Respondent should not receive double punishment for the one transgression which violates two rules.

    
    

19. In Ralph D. Turlington v. Elizabeth McGhee, Ed FALR 1208 (F.O. entered April 18, 1985), an assistant principal who held a teaching certificate was found guilty of having falsified a student's grades. A panel of the Education Practices Commission ordered that the Respondent be reprimanded and placed on probation for a period of two years, during which time Respondent's supervisor was required to furnish annual evaluations to the Commission for its review.

    
    

20. Although the pinching of the child Lucretio Gutierrez was inappropriate conduct, the act was not done for corporal punishment purposes, as alleged in the complaint filed by the Commissioner of Education. No children in the Respondent's classroom were physically and mentally abused by her as alleged in the School Board's Notice of Intent to Take Action. Although one child was pinched, this act was not child abuse, as defined by Florida statutes. The touching of the child did not harm or impair the child physically or mentally. As a result, child abuse did not occur. In the Interest of W.P., a child, 13 FLW 2660, (2d DCA December 16, 1988).

    
    

21. The uncorroborated hearsay presented by young children about vulgar statements purportedly made by the Respondent was given less weight than the testimony of the Respondent and her adult tutor. These two adults were present in the classroom when the statements were alleged to have occurred, and they both deny that such statements were made. The ability of the adults to recollect classroom events, the candor of the tutor, and the circumstances under which the remarks were allegedly made, all cause the Hearing Officer to find that the statements were not made by the Respondent.

    
    

22. Section 231.36(4)(c), Florida Statutes, provides that any member of the instructional staff may be dismissed if the charges are based upon "immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude."

    
    

23. Rule 6B-4.009, Florida Administrative Code, sets forth the criteria for the suspension or dismissal of instructional personnel. A violation of the Code of Ethics of the Educational Profession as adopted in Rule 6B-1.001, Florida Administrative Code, is one of the included criteria.

    
    

24. As previously stated, the Respondent violated Rules 6B-1.006(5)(a) and (5)(g) when she submitted fraudulent information on documents in connection with her professional activities. The student grades placed in her grade book on or about November 17, 1987, were unjustified and failed to demonstrate that the students had accomplished work that warranted the marks given.

    
    

25. During the 1987-1988 school year, the School Board of Collier County employed Steven Pricer, who was charged with creating grades and not abiding by regular grade book procedures. This teacher was enrolled in the Employee Assistance Program aimed at correcting his grading practices. As the only

    allegations proved against the Respondent Pugh involved the falsification of grades, it appears that the Respondent should receive comparable treatment as was given by the school Board to Steven Pricer. The Respondent should be enrolled in the same program with the same supervisory requirements.

    
    

26. In the Respondent's amendment to the petition for formal hearing, she contends that the School Board's change in her status from "leave with pay" to "leave without pay" was improper due to the lack of notice received by her. In addition, review of the letter sent to the Respondent reveals that there were no reasons given for the change in pay status.

    
    

27. Although the court in Johnson v. The School Board of Palm Beach County, 403 So.2d 520 (Fla. 1st DCA 1981), determined that a prior evidentiary hearing was unnecessary in order to suspend a teacher without pay, this precedent does not allow a school board to do so without stating the specific grounds for the suspension, which are set forth in Section 231.36(4)(c), Florida Statutes. In Johnson the letter from the Superintendent set forth the various grounds upon which the teacher had been suspended without pay. The Respondent Pugh was not given any grounds for her change in status by the Petitioner School Board.

Based upon the foregoing, it is RECOMMENDED:

1. That the Education Practices Commission enter a final order finding the Respondent guilty of having violated Rule 6B-1.006(5)(a) and (5)(g), Florida Administrative Code, and Section 231.28(1)(h), Florida Statutes. The Respondent should be placed on probation for two years and receive a written reprimand for her actions. As in the case of Ralph D. Turlington v. Elizabeth G. McGhee, the Respondent's supervisor should furnish annual evaluations to the Commission for its review during the probationary period. The Respondent should be found not guilty of the allegations set forth in paragraphs 3, 4, 5, and 6 of the administrative complaint.

   
   

2. That the School Board of Collier County enter a final order finding the Respondent guilty of having violated Rules 6B-1.006(5)(a) and (5)(g), Florida Administrative Code, and Section 231.36(4)(c), Florida Statutes. The Respondent should be reinstated to her teaching position without loss of pay or benefits. The Respondent should also be enrolled in the Employee Assistance Program aimed at correcting grading practices in the same manner with the same supervisory requirements provided for Steven Pricer.

DONE AND ENTERED this 6th day of January, 1989, at Tallahassee, Florida.

VERONICA E. DONNELLY, Hearing Officer Division of Administrative Hearings The Oakland Building

2900 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-2992 AND 88-3431

Petitioner's proposed findings of fact in Case No. 88-2992 are addressed as follows:

1. Accepted. See H.O. #1.

2. Accepted. See H.O. #2.

3. Rejected. Irrelevant.

4. Rejected. Irrelevant to the allegations set forth in the administrative complaint.

5. Accepted. See H.O. #4.

6. Accepted. See H.O. #4.

7. Accepted. See H.O. #4.

8. Accepted. See H.O. #5.

9. Accepted.

10. Accepted.

11. Accepted.

12. Rejected. Irrelevant to the allegations set forth in the administrative complaint.

13. Accepted. See H.O. #5.

14. Rejected. Irrelevant to the allegations in the administrative complaint.

15. Rejected. Improper conclusion based upon selective sample provided at hearing.

16. Rejected. Irrelevant.

17. Rejected. Irrelevant.

18. Rejected as conclusionary, but see H.O. #6 and #7.

19. Accept that the principal received complaints from Nadine Mullins. The rest is rejected as double hearsay.

20. Rejected. See H.O. #10.

21. Rejected. See H.O. #11.

22. Rejected. See H.O. #8 and #9.

23. Rejected. Irrelevant.

24. Rejected. Conclusionary.

25. Rejected. Contrary to determinations of credibility made by the Hearing Officer which are determinations expressly reserved for the trier of fact.

Petitioner's proposed findings of fact in Case No. 88-3431 are addressed as follows:

1. Accepted. See H.O. #1.

2. Accepted. See H.O. #2.

3. Rejected. Irrelevant.

4. Rejected. Irrelevant to reason set forth for the Respondent's dismissal.

5. Accepted. See H.O. #4.

6. Accepted. See H.O. #4.

7. Accepted. See H.O. #4.

8. Reject the principal's conclusion that the number of grades entered was unusual. The rest of paragraph 8 is accepted.

9. Accepted. See H.O. #6.

10. Accepted.

11. Accepted.

12. Accepted.

    
    

    #6.

13. Rejected except for the last sentence, which is accepted. See H.O.

    
    

14. Rejected. Irrelevant to the allegations which were set forth as the

    reasons for Respondent's dismissal.

15. Accepted. See H.O. #5.

16. Rejected. Improper conclusion based upon selective sample of work provided at hearing. The work is generally undated and it cannot be determined whether the work was done in the first or second quarter.

17. Rejected. Irrelevant to allegations set forth in the reasons for Respondent's dismissal.

18. Rejected. Irrelevant to the reasons set forth for dismissal

19. Rejected. Conclusionary.

20. Rejected. Conclusionary. See H.O. #6 and #7.

21. Rejected. Irrelevant.

22. Rejected. See H.O. #8.

23. Accepted that the principal received complaints from Nadine Mullins. The rest is rejected as double hearsay.

24. Rejected. See H.O. #10.

25. Rejected. See H.O. #11.

26. Rejected. See H.O. #12.

27. Rejected. Conclusionary. Contrary to the testimony of students at hearing.

28. Rejected. See H.O. #11 and #12.

29. Rejected. See H.O. #11 and #12.

30. Accepted as to the allegations concerning improper statements allegedly made by the Respondent which were found to be untrue by the Hearing Officer.

31. Accepted as to the allegations concerning improper statements allegedly made by the Respondent which were found to be untrue by the Hearing Officer.

32. Rejected. Self-serving.

33. Irrelevant as to reasons set forth for Respondent's dismissal.

34. Rejected. Conclusionary.

35. Rejected. Contrary to determinations made by the trier of fact.

36. Rejected. Contrary to determinations made by the trier of fact.

Respondent's proposed findings of fact in Case Nos. 88-2992 and 88-3431 are addressed as follows:

1. The statement that the school Board erred in effecting without notice a retroactive suspension of Ms. Pugh without pay is accepted. See H.O. #3.

2. Accepted that Ms. Pugh was previously disciplined for the alleged "inappropriate" statements made in the presence of children.

3. Rejected that Ms. Pugh did not falsify grade reports. See H.O. #7.

4. Rejected that the Respondent did not pinch Lucretio Gutierrez. See

H.O. #8.

COPIES FURNISHED:

Rigsby & Holder Suite 200

1408 North Piedmont Way Tallahassee, Florida 32312

James H. Siesky, Esquire Siesky & Lehman, P.A. Suite B

791 Tenth Street South Naples, Florida 33940

Ronald G. Meyer, Esquire Meyer, Brooks & Cooper

2544 Blairstone Pines Drive Tallahassee, Florida 32302

Karen Barr Wilde, Executive Director

Education Practices Commission

418 Knott Building Tallahassee, Florida 32399

Martin B. Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Thomas L. Richey, Superintendent Collier County Public Schools 3710 Estey Avenue

Naples, Florida 33942

Docket for Case No: 88-002992

Orders for Case No: 88-002992