STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4567

)

ANNIE L. FRANKLIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on November 16, 1988, in Pensacola, Florida.

APPEARANCES

For Petitioner: Betty J. Steffens, Esquire

Nabors, Giblin, Steffens & Nickerson, P.A.

106 South Monroe Street Post Office Box 11008 Tallahassee, Florida 32302

For Respondent: Annie L. Franklin, pro se

2820 Bayview Way

Pensacola, Florida 32503 INTRODUCTION

The Petitioner, Betty Castor, as Commissioner of Education, filed an Administrative Complaint against the Respondent, Annie L. Franklin, with the Educational Practices Commission on August 24, 1988. Ms. Franklin executed an Election of Rights form requesting an administrative hearing. On September 9, 1988, the dispute was forwarded to the Division of Administrative Hearings.

At the formal hearing the Petitioner presented the testimony of William M. McArthur, Chiquita Abney, Queen Freeman, Hosea Neal Jones, Tommy (Tony) Smith, Karen Mosley Walker, Sherry Ann Leonard, Tito Lett, Mary Ann Wolcott, Mary Catherine Peterson, Gayle Parc and Malachi Williams. The Petitioner also offered two exhibits which were marked as "DOE" exhibits and accepted into evidence.

Ms. Franklin testified on her own behalf and presented the testimony of Dr. Ruby Jackson Gainer. Ms. Franklin also offered 9 exhibits which were marked as "Respondent's" exhibits. Respondent's exhibits 1, 5 and 7-9 were accepted into evidence. Respondent's exhibits 2-4 and 6 were rejected.

The Petitioner has filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto. Ms. Franklin did not file a proposed recommended order.

ISSUE

Whether Annie L. Franklin's Florida Teaching Certificate should be subjected to the penalties provided for in Sections 231.262(6) or 231.28(1), Florida Statutes?

FINDINGS OF FACT

1. At all times relevant to this proceeding, the Respondent, Annie L. Franklin, held Florida Teaching Certificate No. 115111.

   
   

2. Ms. Franklin is certified in Elementary Education, Mental Retardation, Reading and Supervision.

   
   

3. At all times relevant to this proceeding, Ms. Franklin was employed by the Escambia County School District.

   
   

4. Ms. Franklin, after teaching for thirty years, is currently retired from the Escambia County school District.

   
   

5. From 1982 until her retirement, Ms. Franklin was employed at Lincoln Park Elementary School (hereinafter referred to as "Lincoln"), in Pensacola, Escambia County, Florida.

   
   

6. During the 1987-1988 school year, the Respondent taught fifth-grade students with emotional and mental handicaps.

   
   

7. In November, 1987, a fifth-grade class taught by Gayle Parc, was lined up in the cafeteria at Lincoln. Ms. Franklin brought her class into the cafeteria after Ms. Parc's class had already formed a line.

   
   

8. The students in Ms. Parc's class were standing in a line with spaces between them. The students were not misbehaving. Ms. Franklin ordered the students to move closer together so that there was no space between the children. When the students did not respond to Ms. Franklin's orders in a manner acceptable to her, Ms. Franklin began grabbing students by the arm and pushing and pulling them closer together. As soon as Ms. Franklin would turn loose of a student, the student would move back to his or her original position.

   
   

9. Following Ms. Franklin's failed attempt to move Ms. Parc's class forward in the cafeteria line, Ms. Franklin began grabbing the students in her class and pushing and pulling them into the spaces between Ms. Parc's students. After Ms. Franklin had placed her students in line, she left the cafeteria. The students in Ms. Franklin's class went to the end of the line as soon as Ms. Franklin left the cafeteria.

   
   

10. During the incident caused by Ms. Franklin in the cafeteria, Ms. Franklin pushed and pulled students, pinched one student, causing swelling on the student's arm which was treated with ice and alcohol, scratched one student, causing slight & bleeding which was covered by a band aid, and tore the shirt of one student.

11. Following the incident in the cafeteria, some of the students were taken by Ms. Parc to report what had happened to the Principal of Lincoln.

    
    

12. Ms. Franklin, upon learning that students had reported the incident to the Principal, went to Ms. Parc's classroom. Ms. Franklin went into Ms. Parc's classroom and demanded that the students who had reported the incident stand up to be identified. When the students complied with Ms. Franklin's demand, Ms. Franklin yelled at them, accusing them of being "vicious liars." Ms. Franklin also told the students that they would "burn in hell." Ms. Franklin was belligerent and intimidating to the students.

    
    

13. It is not appropriate for faculty members to grab students or use physical force with students unless there is a need to break up a fight. The physical force Ms. Franklin used on the students during the cafeteria incident was inappropriate.

    
    

14. In addition to the incident in the cafeteria, Ms. Franklin used inappropriate force with Tito Lett, a special education student in her class. On one occasion, Ms. Franklin threw a paddle at Tito. She did not hit him. On another occasion, Ms. Franklin hit Tito on the arm and back with a paddle,

    causing a welt on his back. Ms. Franklin also would not allow Tito to come back into the classroom on occasion and would yell at him.

    
    

15. Ms. Franklin also paddled other students at Lincoln. For example, Ms. Franklin paddled Karen Mosley Walker with a yardstick and a wooden paddle.

    
    

16. Faculty members have been told, during various workshops, preplanning and postplanning sessions at Lincoln which were attended by Ms. Franklin, that there is a "no hands on" discipline policy and that all students are to be referred to the Principal for any type of corporal punishment.

    
    

17. Ms. Franklin was not given permission by the Principal at Lincoln to administer corporal punishment.

    
    

18. It was inappropriate for Ms. Franklin to strike students with a yardstick or paddle.

    
    

19. Ms. Franklin received a written reprimand dated September 7, 1984, from the Principal of Lincoln for screaming at kindergarten students. This behavior was inappropriate.

    
    

20. Ms. Franklin also received a written reprimand dated April 21, 1983, for improper use of corporal punishment.

    
    

21. On January 13, 1983, Ms. Franklin was suspended by the Escambia County school District for "misconduct in office, willful neglect of duty and gross insubordination."

    
    

22. As a result of Ms. Franklin's behavior, several students and faculty members at Lincoln are afraid of Ms. Franklin. Faculty members are concerned for the safety of students who come into contact with Ms. Franklin and for their own safety.

    
    

23. Ms. Franklin's actions at Lincoln, as described in this Recommended Order, have seriously reduced Ms. Franklin's effectiveness as a teacher.

24. Ms. Franklin, in yelling at students and inflicting physical injury on students, has created conditions harmful to students' safety and their ability to learn.

    
    

25. Ms. Franklin, in yelling at the students in Ms. Parc's class, caused embarrassment and was disparaging to the students.

    
    

26. Ms. Franklin used inappropriate physical force with fifth-grade students under the circumstances found in this case.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

28. In the Administrative Complaint filed against Ms. Franklin, it is alleged that she has violated the provisions of Section 231.28(1), Florida Statutes, and Rule 6B-1.006, Florida Administrative Code.

    
    

29. Section 231.28(1), Florida Statutes, provides, in pertinent part, the following:

    
    

    1. The Education Practices Commission shall have authority to

       suspend the teaching certificate of any person as defined in s. 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:

       
       

       (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 his the revocation of the teaching

       
       

30. Rule 6B-1.006, Florida Administrative Code, provides certain obligations to be followed by persons holding teaching certificates in Florida. These obligations are designated as the Principles of Professional Conduct for

    the Education Profession in Florida. Rule 6B-1.006(1), Florida Administrative Code. In the Administrative Complaint filed against Ms. Franklin in this case it-has been alleged that Ms. Franklin has violated the following provisions of Rule 6B-1.006, Florida Administrative Code:

    
    

    1. Obligations to the student requires that the individual:

       
       

       1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety;

    * * *

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    * * *

    (5) Obligation to the profession of education requires that the individual:

    * * *

    1. Shall not intentionally make false or malicious statements about a colleague.

       
       

    2. Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.

    * * *

    (m) Shall seek no reprisal against any individual who has reported a violation of Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes.

    
    

31. The evidence in this case proved that Ms. Franklin's conduct has seriously reduced her effectiveness as a teacher in violation of the provisions of Section 231.28(1)(f), Florida Statutes. Ms. Franklin's conduct during the incident in the cafeteria and in Ms. Parc's classroom in November, 1987, and her conduct during other incidents described, supra, have seriously reduced her effectiveness as a teacher. Students are afraid of Ms. Franklin and faculty members are concerned with the safety of students under Ms. Franklin's care.

    
    

32. The evidence also proved that Ms. Franklin has violated the provisions of State Board of Education rules in violation of Section 231.28(1)(h), Florida Statutes. Ms. Franklin, during the incident in the cafeteria and Ms. Parc's classroom in November, 1987, and in administering unauthorized corporal punishment has violated the provisions of Rule 6B-1.006(3)(a), Florida Administrative Code, by failing to make reasonable efforts to protect students from conditions harmful to learning or to health and safety, and Rule 6B- 1.006(3)(e), Florida Administrative Code, by intentionally exposing students to unnecessary disparagement.

    
    

33. The evidence in this case failed to prove, however, that Ms. Franklin has violated the provisions of Rule 6B-1.006(5)(d), (e) or (m), Florida Administrative Code. Although Ms. Franklin made false or malicious statements about students in Ms. Parc's class, the evidence failed to prove that Ms.

    Franklin intentionally made false or malicious statements about a colleague, as required by Rule 6B-1.006(5)(d), Florida Administrative Code. The evidence also failed to prove that Ms. Franklin used coercive means or promised special treatment to influence colleagues, as required by Rule 6B-1.006(5)(e), Florida Administrative Code. In fact, the evidence presented in this case failed to prove that Ms. Franklin used coercive means or promised special treatment to anyone. Finally, the evidence failed to prove that Ms. Franklin sought reprisals against any person. The Petitioner has therefore, failed to prove that Ms. Franklin has violated Rule 6B-1.006(5)(d), (e) or (m), Florida Administrative Code.

    
    

34. In light of the danger to the health and safety of students caused by Ms. Franklin's behavior, revocation of her teaching certificate is appropriate in this case under Sections 231.261 and 231.28(1), Florida Statutes.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Ms. Franklin be found to have violated the provisions of

Section 231.28(1)(f), Florida Statutes. It is further

RECOMMENDED that Ms. Franklin be found to have violated the provisions of Rule 6B-1.006(a) and (e), Florida Administrative Code, in violation of Section 231.28(1)(h), Florida Statutes. It is further

RECOMMENDED that the portion of the Administrative Complaint alleging that Ms. Franklin violated the provisions of Rule 6B-1.006(5)(d), (e) and (m), Florida Administrative Code, be dismissed. It is further

RECOMMENDED that Ms. Franklin's Florida Teaching Certificate be permanently revoked.

DONE and ENTERED this 6th day of January, 1989, in Tallahassee, Florida.

LARRY J. SARTIN

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

CASE NUMBER 88-4567

The Petitioner has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason

for their rejection have also been noted. The majority of the Petitioner's proposed findings of fact constitute summaries of testimony and what transpired at the administrative hearing. To the extent that summaries of testimony support findings of fact made in this Recommended Order, the paragraph of the finding of fact will be preceded by "See."

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1 1-2.

2 4.

3 5-6

4 Summary of testimony and the administrative hearing.

5 7. See 8-9.

6-10 See 10.

11 See 8.

12 See 8, 10 and 13.

13 Cumulative and unnecessary.

14 11.

15 See 12.

16-17 Cumulative and unnecessary.

1. See 10.

2. Cumulative and unnecessary.

3. Irrelevant.

4. See 14.

22 See 14-15.

1. See 14.

2. See 15.

3. See 14.

4. See 19.

27 20.

1. See 21.

2. Hereby accepted.

3. See 22.

4. See 16.

5. See 13.

6. See 17.

34-35 Cumulative and unnecessary.

36 23.

37 24.

38 25.

39-40 Not supported by the weight of the evidence.

41 26.

COPIES FURNISHED:

Betty J. Steffens, Esquire

106 South Monroe Street Tallahassee, Florida 32301

Karen B. Wilde Executive Director

Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Annie L. Franklin 2820 Bayview Way

Pensacola, Florida 32503

Martin B. Schapp, Administrator Professional Practices Services

319 West Madison Street, Room 3 Tallahassee, Florida 32399

Docket for Case No: 88-004567

Orders for Case No: 88-004567