STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL OF DADE COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6675

)

CYNATHIA D. RODGERS, )

)

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 January 22, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

For Respondent: William Du Fresne, Esquire

2929 SW Third Avenue Suite 1

Miami, Florida 33129 STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the specific notice of charges and, if so, the disciplinary action that should be taken.

PRELIMINARY STATEMENT

At the times pertinent to this proceeding, Respondent was a teacher employed by the Dade County School Board (School Board) pursuant to a professional services contract. On October 10, 1990, the School Board took action to suspend Respondent's employment without pay and to initiate proceedings to terminate her employment. Respondent timely contested the action of the School Board by requesting a formal administrative hearing, and this proceeding followed.

On November 30, 1990, the School Board filed a Notice of Specific Charges which contained certain factual allegations relating to two incidents of physical abuse by Respondent on the person of her foster daughter, a five year old female named Jessica. These incidents occurred on a school day while on the premises of the school Jessica attended as a student. Respondent was employed as a teacher in this same school. The Notice of Specific Charges sets forth the following grounds for the termination: immorality, misconduct in office, moral turpitude, and violation of School Board rules.

At the formal hearing, Petitioner presented the testimony of six witnesses and offered ten exhibits, each of which was accepted into evidence. Respondent testified on her own behalf and introduced one exhibit, which was accepted into evidence.

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 parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At the times pertinent to this proceeding, Respondent was employed as a classroom teacher by the Petitioner, Dade County School Board (School Board), pursuant to a professional services contract. Respondent was first employed by the School Board in 1984, and she had successfully completed her annual contract or probationary teaching period.

   
   

2. During the 1990 summer school session, Respondent was assigned to the Florida City Elementary School (FCE), one of the public schools within Dade County. On August 2, 1990, during the times pertinent to this proceeding, there were approximately 21 students in Respondent's classroom.

   
   

3. At the times pertinent to this proceeding, Respondent was the foster mother of Jessica, a five year old girl.

   
   

4. On August 2, 1990, Jessica was enrolled as a student at FCE and was assigned to the kindergarten class taught by Ms. Beverly Harrison.

   
   

5. Ms. Harrison's classroom and Respondent's classroom were in the same building and in the same area of that building. Respondent's classroom contained a small bathroom.

   
   

6. At the beginning of the school day of August 2, 1990, Jessica began to misbehave. Ms. Harrison wrote a note to Respondent which advised of Jessica's misbehavior. This note provided as follows:

   
   

   Jessica is behaving very badly. She has been shouting out in class since morning. I have spoken to her but she closes her eyes and sticks out her tongue at me.

   Please speak with her. My aide is not here.

   
   

7. In response to that note, Respondent removed Jessica from Ms. Harrison's classroom, took Jessica into the bathroom of her (Respondent's) classroom, and proceeded to administer corporal punishment to Jessica. The corporal punishment was administered by Respondent with an electrical cord and constituted child abuse. The door to the bathroom where this abuse occurred was closed, but the children in Respondent's classroom could hear that Jessica was being beaten in the bathroom.

8. Jessica returned to Ms. Harrison's class approximately 15 minutes after Respondent took her out of the class. Ms. Harrison was not aware that Jessica had been physically abused when Jessica returned to her class.

   
   

9. Later in the day of August 2, 1990, Jessica began to act out again in Ms. Harrison's class. When Ms. Harrison told Jessica that she would contact Respondent if she did not behave, Jessica became frightened and started to behave. Unfortunately for Jessica, Respondent had heard Jessica talking in a loud voice. In a repeat of the first incident, Respondent removed Jessica from Ms. Harrison's classroom for the second time, took Jessica into the bathroom of her (Respondent's) classroom, and proceeded to administer corporal punishment to Jessica. The corporal punishment was again administered by Respondent with an electrical cord and again constituted child abuse. The door to the bathroom where this abuse occurred was closed, but the children in Respondent's classroom could hear that Jessica was being beaten in the bathroom.

   
   

10. Jessica did not return to Ms. Harrison's classroom on August 2, 1990, after this second incident, but Ms. Harrison did see Jessica as Jessica was leaving school on that day. It was apparent to Ms. Harrison and to others who saw Jessica, including other teachers, teacher aides, and students that Jessica had been physically abused.

    
    

11. The School Board has adopted as part of its policies Rule 6Gx13-5D- 1.07, Florida Administrative Code, entitled "CORPORAL PUNISHMENT - PROHIBITED". This rule provides, in part, as follows:

    
    

    The administration of corporal punishment in the Dade County Public Schools is strictly prohibited. ...

    
    

12. The incidents of abuse were reported to the Department of Health and Rehabilitative Services (DHRS). Following its investigation, DHRS compiled an abuse report which it closed as confirmed, with Respondent being identified as the perpetrator and with Jessica being identified as the victim.

    
    

13. Because of the events of August 2, 1990, Respondent was transferred by the School Board to Homestead Senior High School pending review of her case by School Board Administrators. While at that work location, a police officer came on the school site, arrested Respondent on charges of child abuse. Respondent was handcuffed and removed from the school in a marked police vehicle. Respondent was incarcerated for a period of seven days and later entered a plea of nolo contendere to two counts of aggravated child abuse. The Circuit Court in and for Dade County, Florida, accepted Respondent's plea of nolo contendere, withheld adjudication of guilt, and sentenced her to two years of probation.

    
    

14. The South Dade Newsletter, a newspaper circulated in the Florida City area, published an article that described the incident and which identified both the school and Respondent by name.

    
    

15. Respondent's acts of excessive corporal punishment within the hearing of her 21 students created a condition harmful to learning, health or safety in the school.

    
    

16. Respondent's acts constituted a violation of the School Board's corporal punishment policy and of its rules on employee conduct.

17. Respondent's effectiveness as a teacher in the school system has been impaired.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

19. 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 term 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 or 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). ...

    
    

20. Respondent contends that she is subject to dismissal under the provisions of Section 231.36(4)(a), Florida Statutes, but not under the provisions of Section 231.36(6)(a), Florida Statutes. This contention is rejected since the evidence established that Respondent was on a professional services contract, not a continuing contract. Members of the instructional staff with a continuing contract are subject to discharge under the provisions of Section 231.36(4)(a), Florida Statutes, while those with a professional services contract are subject to discharge under the provisions of Section 231.36(6)(a), Florida Statutes. Because Respondent holds a professional services contract, she is, as alleged by the School Board, subject to discharge pursuant to the provisions of Section 231.36(6)(a), Florida Statutes.

    
    

21. The School Board has the burden of establishing by a preponderance of the evidence the allegations against Respondent. Dileo v. School Board of Dade County, 15 F.L.W. 2781 (Fla. 3d DCA Nov. 13, 1990); Allen v. School Board of Dade County, 16 F.L.W. 69 (Fla. 3d DCA Jan. 4, 1991). In this proceeding, the School Board has exceeded that burden and has established the factual predicate for its actions by clear and convincing evidence.

    
    

22. The School Board contends in this case that Respondent's acts constitute immoral conduct and that "immorality" should be considered as a basis for the termination of Respondent's employment as a professional services contract teacher because the definition of just cause found in Section 231.36(1)(a), Florida Statutes, is not all inclusive. Just cause for the

    termination of the employment of a continuing contract teacher pursuant to Section 231.36(4), Florida Statutes, includes, by statute, "immorality". The definition of just cause found in Section 231.36(1)(a), Florida Statutes, which provides the basis for the termination of the employment of a professional services contract teacher pursuant to Section 231.36(6)(a), Florida Statutes, does not contain the grounds of "immorality". The School Board's contention that "immorality" should be considered as an additional ground for termination of a professional services contract is rejected. "Immorality" is clearly included as a ground for termination of employment in the instance of a continuing contract teacher, but not the employment of a professional services contract teacher. It is concluded that the Legislature would have included "immorality" as a grounds for the termination of a professional services contract teacher had that been its intent.

    
    

23. In light of the Court's action in withholding adjudication of guilt of the charges to which Respondent entered her nolo contendere plea, it is concluded that the School Board has failed to establish that Respondent has been convicted of a crime involving moral turpitude or any other crime.

    
    

24. Rule 6B-4.009(3), Florida Administrative Code, defines "misconduct in office" as follows:

    
    

    Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, FAC, and the Principles of Professional Conduct of the Education Profession in Florida as adopted in Rule 6B-1.006, FAC, which is so serious

    as to impair the individual's effectiveness in the school system.

    
    

25. Rule 6B-1.006, Florida Administrative Code, is entitled "Principles of Professional Conduct for the Education Profession in Florida" and 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.

       * * *

       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 and safety.

       * * *

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

       
       

26. The School Board has established that Respondent's actions of August 2, 1990, constitute misconduct in office within the meaning of Section 231.36(1)(a) and (6)(a), Florida Statutes. Respondent argues that the School Board cannot dictate to her the type of punishment she administered to Jessica because she was Jessica's foster mother. Respondent further contends that the incidents of abuse should not be considered to be "misconduct in office" because

    she was acting in her role as a parent, not in her role as a teacher. These arguments are rejected. Instead of waiting until she and Jessica were at home to discipline Jessica, Respondent perpetrated this abuse to Jessica's person during regular school hours and on school premises. The abuse occurred in such a manner that other students, including those children in Respondent's class, were aware of the beatings to which Jessica was subjected by Respondent.

    Respondent's parental rights did not relieve Respondent of her obligation to comply with School Board policy and with the Principles of Professional conduct of the Education Profession in Florida.

    
    

27. The School Board established that Respondent engaged in misconduct in office that impaired her effectiveness in the school system and constituted just cause for the termination of her professional services contract.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which upholds the suspension of

Respondent's employment without pay and which terminates her professional

services contract on the grounds that she engaged in misconduct in office.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of April, 1991.

CLAUDE B. ARRINGTON

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 29th day of April, 1991.

APPENDIX TO RECOMMENDED ORDER

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 3, 6, 8 and 10 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 2 and 4 are adopted in part by the Recommended Order and are rejected in part as being subordinate to the findings made.

3. The proposed findings of fact in paragraphs 5, 9, and 11-12 are rejected as being subordinate to the findings made.

4. The proposed findings of fact in paragraph 7 are adopted in part by the Recommended Order, are rejected in part as being subordinate to the findings made, and are rejected in part as being unnecessary to the conclusions reached.

All proposed findings of fact submitted on behalf of the Respondent are adopted in material part by the Recommended Order.

COPIES FURNISHED:

James C. Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

William Du Fresne, Esquire 2929 SW Third Avenue

Suite 1

Miami, Florida 33129

Octavio J. Viciedo Superintendent

Dade County School Board 1450 N.E. 2nd Avenue Miami, Florida 33132

Madelyn P. Schere Assistant Board Attorney Dade County School Board 1450 N.E. 2nd Avenue Miami, Florida 33132

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-006675

Orders for Case No: 90-006675