STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3064

)

KATHERINE R. SANTOS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on October 4, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Jamie C. Bovell, Esquire

1401 Ponce de Leon Boulevard Coral Gables, Florida 33134

For Respondent: William DuFresne, Esquire

2929 Southwest Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUES

Whether Respondent's annual contract should be terminated by Petitioner and, if not, the relief, if any, to which Respondent is entitled.

PRELIMINARY STATEMENT

Respondent was employed as a classroom teacher by Petitioner on an annual contract basis for the 1988-89 school year. She was assigned to teach a first grade class at Westview Elementary School, one of the schools in the Dade County public school system. On May 17, 1989, the School Board of Dade County suspended Respondent without pay and initiated proceedings to terminate her annual contract, subject to her right to an administrative hearing. The School Board's actions were premised on Respondent's alleged misconduct relating to the discipline of students. Respondent demanded a formal administrative hearing, and this proceeding followed. On September 25, 1989, Petitioner filed a Notice of Specific Charges which contains specific factual allegations and which specifically charges Respondent with misconduct.

At the formal administrative hearing, Petitioner called as witnesses four students, two substitute teachers, and two administrators. The four students, each of whom was either six or seven years of age, will be referred to in this recommended order by their initials. The two substitute teachers were Gloria

Holt and Patricia Wilson. The two administrators were Dr. Richard Artmeir, the principal of Westview Elementary School, and Dr. Joyce Annunziata, Supervisor of Petitioner's Office of Professional Standards. Dr. Annunziata was accepted as an expert witness in the area of performance assessments of teachers employed by Dade County. The Respondent testified on her own behalf, but called no other witnesses. There were no exhibits offered by either party. At Respondent's request, official recognition was taken of Section 232.27, Florida Statutes.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. Rulings on the proposed findings of fact submitted by the parties can be found in the appendix to this recommended order.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis. Respondent first began working for Petitioner in February 1987, as an elementary teacher at Westview Elementary School. She taught at Westview Elementary School from February 1987 to the end of the 1986-87 school year and at Miami Park Elementary School during the 1987-88 school year. Both Westview Elementary School and Miami Park Elementary School are public school in the Dade County School District.

   
   

2. For the 1988-89 school year, Respondent was assigned to teach a first grade class at Westview Elementary School. At the time of the final hearing, Respondent was 29 years of age.

   
   

3. Respondent had received training as to Petitioner's disciplinary policies. She was aware of Petitioner's general disciplinary policies and the specific disciplinary procedures in place for Westview Elementary. During the 1988-89 school year there was in place at Westview Elementary an assertive discipline policy which was designed to discipline students without the use of physical punishment and which prohibited the use of physical force by teachers in the discipline of students. Teachers were instructed to remove disruptive students from the classroom by referring them to the administration office. If a student would not willingly go to the administration office, the teachers were to summon an administrator to the classroom to take charge of the disruptive student.

   
   

4. In Respondent's classroom at Westview Elementary there was a coat closet that had hooks and shelves for storage. This closet was left without light when the two doors to this closet were closed.

   
   

5. S.W., D.C., and D.W. were, during the 1988-89 school year, first grade students in Respondent's class at Westview Elementary. From the beginning of the 1988-89 school year, Respondent disciplined S.W., D.C., and D.W., individually, by placing each of them at various times in the coat closet and by then closing the two doors to the closet. On each occasion, the respective student was left in darkness. Respondent administered this punishment to S.W., a student Respondent characterized as having emotional problems, on seven separate occasions. Respondent administered this punishment to D.C. on at least one occasion and to D.W. on more than one occasion. Respondent knew, or should

   have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies.

   
   

6. During the 1988-89 school year, D.N. and S.M. were first grade students at Westview Elementary School who were assigned to Ms. Ortega's class. On February 14, 1989, Respondent observed D.N. and S.M. fighting while returning to their class from lunch. Ms. Holt, a substitute teacher temporarily assigned to that class while Ms. Ortega was on maternity leave, was the teacher in charge of

   D.N. and S.M. Respondent did not think that Ms. Holt could manage D.N. and S.M. Instead of referring the two students to the administration office, Respondent, with the permission of Ms. Holt, took D.N. and S.M. to Respondent's classroom to discipline the two students. Respondent had not been asked to assist Ms. Holt in this fashion.

   
   

7. Respondent placed D.N. and S.M. in separate corners of the room and instructed them to be quiet. While Respondent attempted to teach her class,

   D.N. and S.M. continued to misbehave. D.N. began playing with a fire extinguisher and S.M. began writing and drawing on a chalkboard.

   
   

8. To discipline D.N., Respondent tied his hands behind his back with a red hair ribbon. While he was still tied, Respondent placed the end of a broom handle under D.N.'s chin, where it remained propped until it fell to the floor. Respondent then placed the fire-extinguisher into D.N.'s tied hands to show him that the heavy fire extinguisher could harm him if it fell on him. These actions took place in Respondent's classroom in the presence of Respondent's class. Respondent frightened D.N. and almost caused him to cry in front of his fellow students. Respondent exposed D.N. to embarrassment and subjected him to ridicule from his fellow students. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies.

   
   

9. To discipline S.M., Respondent placed him in the coat closet. Respondent closed one of the doors and threatened to close the other door if

   S.M. did not remain still and quiet. After S.M. did not obey her instructions, Respondent closed the other door of the closet which left the closet without light. While S.M. was in the coat closet, Respondent remained stationed by the second door and continued instructing her class. After a brief period of time, Respondent let S.M. out of the dark closet. Respondent knew, or should have known, that this form of discipline was inconsistent with Petitioner's disciplinary policies.

   
   

10. D.N. and S.M. remained in Respondent's class until a student sent by Ms. Holt summoned them to the library to participate with the rest of their class in vision and hearing testing. D.N. had to walk from Respondent's class to the library with his hands tied behind his back. This exposed D.N. to further embarrassment and ridicule. Ms. Holt untied D.N.'s hands in the library in the presence of other students. The ribbon which Respondent had used to bind D.N.'s hands behind his back left red marks on D.N.'s wrists. Ms. Holt immediately reported the incident to the principal.

    
    

11. During the course of its investigation into the incidents involving

    D.N. and S.M., Petitioner learned of the prior incidents during which S.W., D.C., and D.W. were punished by being placed in the closet. Following the investigation of the Respondent's disciplinary methods, Petitioner suspended her without pay on May 17, 1989, and instituted proceedings to terminate her annual contract. Respondent timely demanded a formal hearing of the matter and this proceeding followed.

12. The progressive discipline approach used by Petitioner in some cases involving teachers who violate disciplinary procedures usually requires that a reprimand be imposed for the first offense. Subsequent violations by the teacher would result in the imposition of progressively severe sanctions, culminating in dismissal. The progressive discipline approach is not used in a case involving a serious breach of policy such as where an established pattern of violations is established. Respondent's repeated practice of placing students in a darkened closet, which began at the beginning of the school year and continued into February when the incident involving D.N. and S.M. occurred, established a patterned breach of disciplinary procedure.

    
    

13. Respondent's effectiveness as a teacher in the school became impaired because of her repeated breaches of discipline policy.

    
    

    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 231.36, Florida Statutes, provides, in pertinent part, as follows:

    
    

    (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certificated and shall be entitled to and shall receive a written contract as specified in chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the terms of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    * * *

    (6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended of dismissed at any time during the term of the contract; however, the charges against him must be based on just cause as provided in paragraph (1)(a).

    Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid.

    
    

16. Rule 6B-4.009, Florida Administrative Code, provides, in pertinent part, as follows:

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes.

    The basis for each of such charges is hereby defined:

    * * *

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the

    individual's effectiveness in the school system.

    
    

17. The Principles of Professional Conduct for the Education Profession in Florida, found in Rule 6B-1.006, Florida Administrative Code1 provides, in pertinent part, as follows:

    
    

    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 the other penalties as provided by law.

    3. Obligation 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.

          
          

18. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Rule 6B- 1.006(3) (a), Florida Administrative Code, by failing to protect students from conditions harmful to learning of to health or safety within the meaning of Rule 6B-1.006(3)(a), Florida Administrative Code. This violation was established by Respondent's intentional exposure of students to a dangerous environment, the darkened closet.

    
    

19. Petitioner established by clear and convincing evidence that Respondent violated the provisions of Rule 6B-1.006(3)(e), Florida Administrative Code, by intentionally exposing a student to unnecessary

    embarrassment or disparagement. This violation was established by the disciplinary techniques she used on all the students, but it was most evident by her treatment of D.N.

    
    

20. Petitioner established by clear and convincing evidence that Respondent engaged in misconduct within the meaning of Section 231.36(1)(a), Florida Statutes. Respondent's serious breaches of disciplinary policy resulted in the impairment of her effectiveness in the school system.

    
    

21. It is not appropriate to administer Petitioner's progressive discipline program to this case due to the serious and repeated nature of the breaches of policy.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Katherine R. Santos guilty of misconduct, which affirms her suspension without pay, and which terminates her annual contract.

DONE AND ENTERED this 15th day of December, 1989, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

Hearing Officer

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-1550 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-3064

The following rulings are made on the proposed findings of fact submitted by Petitioner:

1. The proposed findings of fact in paragraph 1 are

   adopted in material part by paragraphs 1 and 2 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are

   adopted in material part by paragraphs 5 and 6 of the Recommended Order. The students, who are identified by initials, are described as being first grade students rather than as being a specific age.

3. The proposed findings of fact in paragraph 3 are

   adopted in material part by paragraph 3 of the Recommended Order.

4. The proposed findings of fact in paragraph 4 are

   adopted in material part by paragraph 3 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are

   adopted in part by paragraphs 5 and 9 of the Recommended Order. The proposed findings of fact relating to Respondent's having struck a student with a ruler and having twisted the ears and arms of other students are rejected as being contrary to the weight of the evidence.

6. The proposed findings of fact in paragraph 6 are rejected as being contrary to the weight of the evidence.

7. The proposed findings of fact in paragraph 7 are

   adopted in material part by paragraph 6 of the Recommended Order.

8. The proposed findings of fact in paragraph 8 are adopted in material part by paragraphs 8, 9, and 10 of the Recommended Order.

9. The proposed findings of fact in paragraph 9 are

   adopted in material part by paragraph 8 of the Recommended Order.

10. The proposed findings of fact in paragraph 10 are adopted in material part by paragraph 8 of the Recommended Order.

11. The proposed findings of fact in paragraph 11 are adopted in material part by paragraph 12 of the Recommended Order.

12. The proposed findings of fact in paragraph 12 are adopted in material part by paragraph 3 of the Recommended Order.

13. The proposed findings of fact in paragraph 13 are rejected as being subordinate to the findings made in paragraph

    13 of the Recommended Order.

14. The proposed findings of fact in paragraph 14 are adopted in material part by paragraph 13 of the Recommended Order.

15. The proposed findings of fact in paragraph 15 are adopted in material part by paragraph 12 of the Recommended Order.

16. The proposed findings of fact in paragraphs 16 and

17 are rejected as being the recitation of testimony and as being subordinate to the findings made.

The following rulings are made on the proposed findings of fact submitted by Respondent:

1. The proposed findings of fact in paragraph 1 are

   adopted in material part by paragraph 2 of the Recommended Order.

2. The proposed findings of fact in paragraph 2 are

   adopted in material part by paragraph 1 of the Recommended Order.

3. The proposed findings of fact in paragraph 3 are

   adopted in material part by paragraphs 6 and 7 of the Recommended Order.

4. The proposed findings of fact in paragraph 4 are

   adopted in material part by paragraphs 7 and 9 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are

   adopted in material part by paragraphs 7 and 8 of the Recommended Order. The proposed finding that the ribbon was tied loosely is rejected because of the marks left on the student's wrists.

6. The proposed findings of fact in paragraph 6 are rejected as being the recitation of testimony and as being subordinate to the findings made.

7. The proposed findings of fact in paragraph 7 are rejected as being conclusions and as not being findings of fact.

8. The proposed findings of fact in paragraph 8 are

   rejected. A finding that none of the students were struck or hit is rejected as being unnecessary to the conclusions reached. A finding that none of the students were abused is rejected as being a conclusion that is unnecessary to the results reached and as being unsubstantiated by the evidence.

9. The proposed findings of fact in paragraph 9 are rejected as being unsubstantiated by the evidence. The greater weight of the evidence is that Respondent had been advised as to Petitioner's disciplinary policies and that she knew or should have known that the forms of punishment she was using violated those policies.

10. The proposed finding of fact in paragraph 10 that the discipline inflicted on these students does not amount to corporal punishment is rejected as being a conclusion that is

unnecessary to the results reached and as being unsubstantiated by the evidence. The remaining proposed findings of fact in paragraph 10 are adopted in material part.

COPIES FURNISHED:

Madelyn P. Schere, Esquire

School Board of Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

Jaime C. Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

William DuFresne, Esquire 2929 Southwest Third Avenue Suite One

Miami, Florida 33129

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Dr. Joseph A. Fernandez Superintendent of Schools Dade County Public Schools

Office of Professional Standards 1444 Biscayne Boulevard, Suite 215

Miami, Florida 33132

Docket for Case No: 89-003064

Orders for Case No: 89-003064