STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4706

)

DAWN McINTYRE )

)

Respondent. )

)

RECOMMENDED ORDER

On November 15, 1990, a formal administrative hearing was held in this case in Pinellas Park, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Pinellas County School Board Post Office Box 4688 Clearwater, Florida 4618-4688

For Respondent: Mark F. Kelly, Esquire

Kelly & McKee, P.A. 1724 East 7th Avenue Tampa, Florida 33605

STATEMENT OF THE ISSUE

The issue in this case is whether the Petitioner, the Pinellas County School Board, should suspend the Respondent, Dawn McIntyre, from her employment as a teacher for three days without pay on charges contained in the July 11,1990, letter from the School Superintendent, Scott N. Rose. 1/ The letter charges: (1) that, on one occasion during the 1987-88 school year, the Respondent pushed a teacher aide; (2) that on May 9, 1990, the Respondent struck another teacher aide with a lamp; and (3) that the Respondent also handled two students in a rough, punitive manner during May and June, 1990. The charging letter asserts that the Respondent's alleged conduct constitutes misconduct in office.

PRELIMINARY STATEMENT

At the final hearing, the School Board called 13 witnesses. 2/ The School Board also introduced eight exhibits, numbered 1 through 7 and 8. Petitioner's Exhibit 3 was a deposition transcript. The Respondent testified in her own behalf and also called four other witnesses.

At the conclusion of the final hearing on November 15, the Respondent ordered the preparation of a transcript of the hearing, and proposed recommended orders were required to be filed within ten days after the filing of the transcript. The transcript was filed on December 3, 1990, making proposed recommended orders due by December 13, 1990.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 90-4706.

FINDINGS OF FACT

1. The Respondent, Dawn McIntyre, has been a teacher at Safety Harbor Elementary School since the 1984-85 school year. Until this year, she taught pre-kindergarten emotionally handicapped children. For the 1990-91 school year, she accepted a smaller class of children with varying exceptionalities. She has an annual professional service contract, not a continuing contract. She is certified to teach early childhood, mental retardation and special learning disabilies.

   
   

2. During the 1987-88 school year, the Respondent became involved in a confrontation with an aide at school. The seeds of this confrontation were sown when the aide and the teacher with whom she worked presented flowers to the school principal in appreciation for the efforts of the principal in saving the aide's job, which was in jeopardy of being eliminated for budgetary reasons. Shortly afterwards, in conversation in the teacher's lounge, the Respondent labeled the aide as a "[expletive deleted] brown-nose." This comment was reported to the aide by a participant in the conversation, and the aide was upset by it. She decided to confront the Respondent and explain the circumstances to demonstrate that the label was unfair. When she confronted the Respondent, the Respondent did not give her an opportunity to explain but rather pushed the aide on the shoulder with the palm of her hand and rudely insisted that the label fit.

   
   

3. In January, 1990, the Respondent began working with a new aide. Although the new aide was unfamiliar with the work and needed some on-the-job training, the Respondent worked reasonably well with the aide until, in late April or early May, the aide volunteered to help another teacher who did not have an aide and needed assistance. The Respondent objected, taking the position that the Respondent needed all of the aide's available time to help in the Respondent's class. The Respondent told the aide that the aide's volunteering for another teacher would have to be put on her evaluation as an adverse comment. From that point forward, the Respondent began to treat the aide more and more poorly, and the Respondent's working relationship with the aide quickly deteriorated to the point that the aide felt compelled to seek the advice of her union representative on how to handle the situation. While the aide's handling of the situation may have contributed marginally to the deterioration of the working relationship between the two, the breakdown would not have happened without the Respondent's inappropriate behavior.

   
   

4. On or about May 9, 1990, the Respondent instructed the aide to take only half of the children's hour rest period for lunch and use the rest to do paperwork in the classroom. After her lunch, the aide began to arrange a place to do the paperwork. The Respondent objected to the way the aide set a desk lamp on the table the aide was going to work at, thinking it threw too much light on where some of the children were sleeping, and she told the aide to move the lamp. When the aide did not move fast enough for the Respondent's liking,

   the Respondent rushed over to the table in disgust and snatched the lamp off the table before the aide could move it. In the process, she shouldered and elbowed the aide out of the way, knocking her temporarily off balance and accidentally grazing the aide's elbow with the lamp. Greatly upset by the way in which the Respondent handled the situation, together with the cumulative effect of the Respondent's prior inappropriate behavior, the aide immediately left the classroom without saying anything to the Respondent and reported the incident to the administration, in accordance with the advice of her union representative.

   
   

5. The aide refused to continue to work with the Respondent and was reassigned. Two of the three other available aides also refused to work with the Respondent. One was the aide whom the Respondent had pushed and called a "[expletive deleted] brown-nose," and she refused to work with the Respondent partly because of the pushing incident. The other had not been involved personally in any unpleasant confrontations with the Respondent but was uncomfortable working with the Respondent in light of the incidents involving others that had been related to her. The third aide was only part-time and was too new to be thrust into the gap, in the opinion of the school principal. The principal had to go to the aides' union to force one of the other aides to work with the Respondent for the rest of the school year. As it turned out, the aide forced to work with the Respondent used sick leave so as to work with the Respondent as little as possible, and aides had to be put in the classroom on a rotating basis.

   
   

6. On or about May 10, 1990, while in the process of escorting her class from the lunchroom back to the classroom, the Respondent walked up to one of her more difficult pupils, who had just spent most of the lunch period in "time- out," grasped him around the chin, with her thumb on one cheek and her fingers on the other cheek, applying more pressure than necessary to merely get his attention, and spoke to him sternly. This was done in the presence of the other children in the class and within sight of other children and adults in the lunchroom.

   
   

7. On or about June 5, 1990, while again in the lunchroom, the Respondent walked up to another pupil from her class, who was sitting at the "time-out table," and reprimanded him sternly for untruthfully having told her that he had eaten his lunch. As she reprimanded the pupil, she squeezed his ear between her fingers and twisted it as part of the discipline. This, too, was done within sight of the children and adults in the lunchroom.

   
   

8. Although perhaps technically corporal punishment in violation of School Board policy, the facts described in Findings 6 and 7, above, can be described as minor, or even marginal, violations. Neither child was injured, and neither complained to any adult that the Respondent had hurt them. (The child involved in the June 5th incident said that his ear hurt a little, but that was only when directly asked by one of the adults who witnessed the incident.) The "punishment" was so minor as to leave question whether it was punishment or just a case of overdoing an effort to get and keep the children's attention. By the time of the final hearing, all of the adult witnesses to these incidents were feuding with the Respondent in some form or fashion, and their testimony describing the incidents could have been slanted by the animosity between them and the Respondent.

   
   

9. The Respondent has been and continues to be an effective teacher of pre-kindergarten children with learning disabilities. However, as reflected in the preceding Findings, she unfortunately has been susceptible to improper and unprofessional behavior which has hampered her working relationships with a

   significant number of her teaching colleagues and has created difficulties for the administration of the school. This has reduced her effectiveness as a teacher.

   
   

10. The parties stipulated on the record of the final hearing that, if the charges are proven, a three-day suspension would be the appropriate discipline.

    
    

    CONCLUSIONS OF LAW

    
    

11. Section 231.36(6)(a), Florida Statutes (1989), provides that a school board may suspend or dismiss a member of the instructional staff not under continuing contract during the term of an annual contract based on just cause as provided in paragraph (1)(a) of the statute, which states that just cause includes, but is not limited to, misconduct in office, among other things not in issue in this case.

    
    

12. The School Board is required to prove the charges against the Respondent by a preponderance of the evidence. Dileo v. School Board of Dade County, 15 FLW D2781 (Fla. 3d DCA 1990); South Florida Water Management District

    v. Caluwe, 459 So. 2d 390 (Fla. 5th DCA 1984).

    
    

13. "Misconduct in office," as used in Section 231.36(4)(c), Florida Statutes (1989), is defined in F.A.C. Rule 6B-4.009(3) 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.

    
    

14. F.A.C. Rule 6B-1.006 provides in pertinent part:

    
    

    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.

       * * *

       1. 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.

       * * *

       1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       2. Shall not intentionally violate or deny a student's legal rights.

15. F.A.C. Rule 6B-1.001 provides in pertinent part:

    
    

    1. The educator values the worth and dignity of every person . . ..

    2. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

    3. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

       
       

16. As reflected in the Findings of Fact, the Respondent is guilty of "misconduct in office," as defined by F.A.C. Rule 6B-4.009(3), and this is just cause for a three day suspension without pay.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order finding the Respondent guilty of misconduct in office and suspending her for three days without pay.

RECOMMENDED this 17th day of December, 1990, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 17th day of December, 1990.

ENDNOTES

1/ The July 11, 1990, charging letter was supplemented by a letter dated August 28, 1990, which added the charge that the Respondent previously had been given a letter of reprimand for using poor judgment. But no evidence was presented at final hearing in support of this charge.

The Superintendent's charging letter gives notice that the recommended three-day suspension, if approved by the School Board, was to be served on August 16, 17 and 20, 1990. But it is presumed that the suspension has not been served pending disposition of this proceeding and entry of final order by the School Board.

2/ The parties stipulated to the content of the cumulative testimony that a fourteenth witness whom the School Board was planning to call.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4706

To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-3. Accepted and incorporated.

4. Accepted but subordinate and unnecessary.

5.-12. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Rejected as not proven that Bobby "squirmed." Otherwise, generally accepted and incorporated.

2. Rejected as not proven that all three had "clear views" of the incident. Otherwise, accepted but subordinate to facts found.

3. Accepted but subordinate to facts found.

4. Accepted but subordinate to facts found and unnecessary.

5. Accepted and incorporated.

6. Rejected as not proven that the child "was seen to grimace and partially rise out of his seat." Otherwise, accepted and incorporated.

7. Accepted but subordinate to facts found and unnecessary.

8. Accepted but subordinate to facts found.

9. Rejected as not proven that the push was a totally separate motion. Otherwise, somewhat misleading as stated, but generally accepted and incorporated.

10. Accepted and incorporated.

11. Accepted but subordinate and unnecessary.

12. Accepted and incorporated to the extent not subordinate or unnecessary.

13. The Respondent, in her post-hearing submission, renewed a motion made on the record of the final hearing to strike the evidence on which this proposed finding is based. The motion to strike is denied.

The motion to strike correctly points out that the Respondent has not been charged with making these statements, and they only are relevant if relevant to the charges that have been made. Although not admissible over objection under the Florida Evidence Code, there is no reason why evidence of a person's propensity to act in a certain way should not be admissible in a proceeding under Section 120.57(1), Florida Statutes (1989). See Section 120.58(1)(a), Florida Statutes (1989).

However, it was not proven that the Respondent made these, or similar comments, in a way that would make them more than only marginally probative of the facts in issue in this case. The context in which the statements were made is not clear. They may have been made in direct response to questions, and they may be statements of fact, or of the Respondent's opinion, rather than as a statement of the Respondent's modus operandi. For this reason, the proposed findings are rejected as not proven.

26.-28. Accepted but subordinate to facts found.

29. Accepted and incorporated.

Respondent's Proposed Findings of Fact.

Rather than propose facts, the Respondent argued the evidence in support of her denial of the charges. Without attempting to make an explicit rulings on each part of the argument, it is ruled that the Respondent has, for the most part, argued evidence that is subordinate to facts contrary to those found. As to the "lamp incident," it is accepted and incorporated that the Respondent did not "intentionally strike" the aide with a lamp, but it is rejected that the Respondent did not intend to shove the aide aside with considerable force. As for the handling of the children, it is accepted and incorporated that the witnesses may have exaggerated what they saw, or exaggerated the force used by the Respondent, but rejected that the incidents did not occur as set out in the Findings of Fact.

The Respondent's Motion to Strike is denied. See rulings on the Petitioner's proposed findings of fact, paragraph 25, above.

COPIES FURNISHED:

Bruce P. Taylor, Esquire Pinellas County School Board Post Office Box 4688 Clearwater, Florida 4618-4688

Mark F. Kelly, Esquire Kelly & McKee, P.A. Post Office Box 75638

Tampa, Florida 33675-0638

Superintendent of Schools School Board of Pinellas County Post Office Box 4688 Clearwater, Florida 4618-4688

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE PINELLAS COUNTY SCHOOL BOARD WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE PINELLAS COUNTY SCHOOL BOARD CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 90-004706

Orders for Case No: 90-004706