STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 88-5061

)

ELAINE DAGGAR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 21, 1989, in Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The Petitioner was represented at the hearing by Craig R. Wilson, Esquire, of West Palm Beach, Florida. There was no appearance at the hearing by or on behalf of the Respondent.

ISSUES AND INTRODUCTION

The basic issue in this case is whether the Education Practices Commission should take disciplinary action against the Respondent's teaching certificate for the reasons set forth in an Administrative Complaint dated September 1, 1988. The Administrative Complaint alleges that the Respondent is incompetent to teach and that the Respondent's personal conduct has seriously reduced her effectiveness as a School Board employee.

At the hearing, the Petitioner presented the testimony of two witnesses and offered five exhibits, all of which were received in evidence. No evidence was offered by or on behalf of the Respondent. A transcript of the hearing was filed on March 8, 1989, and on March 20, 1989, the Petitioner filed a proposed recommended order containing proposed findings of fact and conclusions of law.

The Respondent did not file any post- hearing documents. The substance of all proposed findings of fact submitted by the Petitioner has been accepted and incorporated in the findings of fact in this Recommended Order.

FINDINGS OF FACT

Based on the evidence received at the formal hearing in this case, I make the following findings of fact:

1. At all times material hereto, Respondent was employed by the Dade County School Board as a Science Teacher assigned to Kinloch Park Junior High School.

   
   

2. During the 1982-1983 school year, an incident involving the Respondent and one of her students was brought to the attention of her principal, Henry J. Pollock. The incident involves an alleged act of child abuse, wherein the Respondent was reported to have struck one of her students with a ruler. The

   incident precipitated notices being sent to the HRS and the Special Investigative Unit of the Dade County School District.

   
   

3. An investigation was ordered. During the investigation, the Respondent was requested to make contact with and participate in the Employee Assistance Program. This recommendation was based on not only the immediate incident under investigation, but also on the fact that the Respondent had shown great difficulty in coping with the work assignment. Further, the Respondent was observed losing her temper and reacting to students in a way that was not acceptable.

   
   

4. A follow up by the Respondent's principal revealed that the Respondent had refused to participate in the Employee Assistance Program. Thereafter, the Respondent sought and obtained a leave of absence. The basis of the request was for medical reasons.

   
   

5. The Respondent's initial leave of absence was scheduled to end on May 10, 1984, but was extended to June 1984 based on a physician's statement from a Dr. Strobino in Rochester, New York.

   
   

6. In June of 1984, the Dade County School District sent a letter to the Respondent informing her that in order to extend her leave of absence for the 1984-1985 school year, certain additional documentation would be required. The Respondent submitted a report from Dr. Strobino, dated July 18, 1984. In part, the doctor noted that "[Respondent] was still under his professional care, she remained ill, was unable to continue with her duties as a school teacher for a period of one year...." Leave was granted for the 1984-1985 school year.

   
   

7. The Respondent made an additional request for a leave of absence for the 1985-1986 school year. In support of this request, the Respondent submitted a report from a Dr. Agostinelli, of Rochester, New York. The report was dated May 23, 1985. Essentially, the physician diagnosed the Respondent as suffering from "a moderate situational anxiety and depression."

   
   

8. In May of 1986, the Respondent was notified by Dr. Gray's office of a scheduled "conference for the record" to be held on September 2, 1986. The Respondent appeared at the conference, and at the conclusion of the conference, she agreed to be examined by a Dr. Gail Wainger, M.S., who is a licensed psychiatrist. Dr. Wainger's report concluded that the Respondent could return to work if she remained in active psychiatric treatment.

   
   

9. The Respondent never initiated the required psychotherapy. Instead, the Respondent remained in an unauthorized absence or absent-without-leave status until she retired in lieu of dismissal. The Respondent's retirement was effective June 24, 1987.

   
   

10. During the ensuing months and up through the pleading stage of these proceedings, the Respondent has demonstrated that she not only does not wish to retain her teaching certificate and/or her eligibility to renew same, but is not emotionally stable enough to carry out her responsibilities as a member of the teaching profession. By her own admission, the Respondent is suffering from paranoid schizophrenia and is unable to teach school. This condition and the conduct associated with the condition has seriously reduced the Respondent's effectiveness as an employee of the School Board.

    CONCLUSIONS OF LAW

    
    

11. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:

    
    

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

    
    

13. Section 231.28(1), Florida Statutes, authorizes the Education Practices Commission to take disciplinary action, including suspension or revocation of a teaching certificate, upon a showing that the teacher:

    
    

    (b) Has proved to be incompetent to teach or to perform duties as an employee of the public school system or to teach in or to operate a private school;

    * * *

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

    
    

14. The Petitioner has proved by clear and convincing evidence that the Respondent is incompetent to teach or to perform duties as an employee of a public school system. Accordingly, pursuant to Section 231.28(1)(b), Florida Statutes, it is appropriate to take disciplinary action against the Respondent.

    
    

15. The evidence is insufficient to establish a violation of Section 231.28(1)(f), Florida Statutes. Although the evidence clearly shows that the Respondent's effectiveness as an employee is seriously reduced, there is no clear and convincing evidence of misconduct by the Respondent. Her lack of effectiveness flows from her incompetence, not from misconduct.

RECOMMENDATION

On the basis of all of the foregoing, it is recommended that the Education Practices Commission issue a final order in this case suspending the Respondent's teaching certificate for a period of three years.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of April 1989.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1989.

COPIES FURNISHED:

Craig R. Wilson, Esquire Flagler Court Building

215 5th Street Suite 302

West Palm Beach, Florida 33401

Ms. Elaine Daggar 605 21st Place, East

Bradenton, Florida 34208

Mr. Martin Schapp, Administration Professional Practices Services

319 West Madison Street Room 3

Tallahassee, Florida 32399

Karen B. Wilde Executive Director

Education Practices Commission

125 Knott Building Tallahassee, Florida 32399

Sydney H. McKenzie, Esquire General Counsel

Office of the Commission of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

=================================================================

AGENCY FINAL ORDER

=================================================================

Before the Education Practices Commission of the State of Florida

BETTY CASTOR, as

Commissioner of Education,

Petitioner,

vs.

ELAINE DAGGAR,

Respondent. EPC CASE NO. 88-171-RT D0AH CASE NO. 88-5061

/

FINAL ORDER

Respondent, ELAINE DAGGAR, holds Florida educator's certificate no. 351414.

Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order has been forwarded to the Commission pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on June 16, 1989 in St.

Petersburg Beach, Florida to take final agency action. The Petitioner was represented by Craig Wilson, Esquire. Respondent was neither present nor represented by counsel. The panel reviewed the entire record in the case.

The Commission adopts the Findings of Fact and Conclusions of Law of the Hearing Officer as set forth in this Recommended Order. The Commission rejects the Hearing Officer's recommendation of a three year suspension. The Hearing Officer failed to properly consider the affect of a major mental illness in fashioning his recommendation. A suspension alone will not protect students from harm when a diagnosis of a continuing condition which so severely affects performance has been made. Accordingly, the Hearing Officer failed to properly consider the significance of Petitioner's Exhibit 3. Accordingly, Respondent's educator's certificate is REVOKED for one year. Respondent shall not be recertified at the conclusion of the revocation period until such time as she presents proof of her ability to teach without danger to students which shall include an in-depth evaluation by a licensed psychiatrist. Upon Respondent's recertification and employment in a position requiring an educator's certificate, Respondent shall be placed on probation for three years. During probation, Respondent shall cause her immediate supervisor to file quarterly performance reports with the Education Practices Commission. This Order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED, this 23rd day of June, 1989. COPIES FURNISHED T0:

Martin Schaap, Administrator Professional Practices GEORGE BOWEN, Presiding Officer Services

Julia Forrester, Esquire I HEREBY CERTIFY that a copy of Attorney General's Office the foregoing Order in the matter

of BC vs. Elaine Daggar was mailed Sydney McKenzie, III to Elaine Daggar, 141 Sagamore General Counsel Circle, Rochester, New York

14617, this 27th day of June, Florida Admin. Law Reports 1989 by U.S. Mail.

Dr. Joseph A. Fernandez, Supt. Dade County Schools

1450 N. E. 2nd Avenue Miami, Florida 33132 KAREN B. WILDE, Clerk

Dr. Patrick Gray

Executive Asst. Superintendent Office of Professional Standards Dade County Schools

1444 Biscayne Blvd., Suite 215

Craig Wilson, Esquire 1201 U. S. Highway 1

Suite 315

North Palm Beach, Florida 33408-3581

Michael M. Parrish

Division of Admin. Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 88-005061

Orders for Case No: 88-005061