STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0288

)

CAROL O. FENNER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on April 4, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, FL 32399-0400

For Respondent: William DuFresne, Esquire

DuFresne and Bradley

2929 Southwest Third Avenue Suite One

Miami, FL 33129 STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint seeking to take disciplinary action against Respondent for unprofessional conduct in her employment as a teacher, and Respondent timely requested a formal hearing regarding the allegations contained within that Administrative Complaint. This cause was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner presented the testimony of Earl Edwards, Karen Powers, Cynthia Clark, Jovon Jackson, Antwon Dixon, Rodriguez Morris, Michael Jackson, and Terrance Williams. Additionally, Petitioner's Exhibits numbered 1-3 were admitted in evidence. The Respondent testified on her own behalf and presented the testimony of Thomas Moore.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has held Florida teaching certificate number 087471 covering the areas of administration and supervision, economics, elementary education, and mentally retarded education. Her teaching certificate is valid through June 30, 1992. Respondent updated her certificate classifications to include the additional subject areas of math on April 26, 1988, and biology on June 26, 1988.

   
   

2. Respondent holds both a Bachelor's and a Master's degree in education from the University of Miami and has completed all of the requirements, except for a dissertation, for a doctorate degree in education from the University of Miami. She has also received a graduate certificate in urban education, with academic excellence, from Florida International University.

   
   

3. Respondent is 56 years old and had been a school teacher for the Dade County Public Schools for 33 years prior to her recent retirement. For the last

   20 years of her career, Respondent taught mentally retarded children, and she was employed for the last 10 of those years as a teacher at Poinciana Park Elementary School in Dade County. During the 1988-89 and the 1989-90 school years, Respondent was assigned to teach a class of educable mentally handicapped children at Poinciana Park Elementary School.

   
   

4. In February of 1989 Respondent intervened in a fight between students. She restrained one of the students involved in the fight by holding that student against a wall even though the student was kicking her.

   
   

5. Cynthia Clark, the principal at Poinciana Park Elementary School, was assigned to that school in March of 1989. Based upon what she subsequently read in an investigative report, she gave Respondent a letter of reprimand for using force in interceding in the student fight in February of 1989. Petitioner offered no evidence that Respondent's use of force to stop the fight was inappropriate.

   
   

6. On April 17, 1989, Jovon Jackson, one of Respondent's students, found a "sparker" outside of the school and brought it into the classroom with him. A "sparker" is a metal striker device which is used by students in the Dade County Public Schools to create a spark to light bunsen burners in science classes. As a certified science teacher, Respondent was familiar with the device and knew that the sparks given off were not hot or harmful and would not ignite general materials.

   
   

7. Respondent saw the sparker in Jovon's possession shortly before lunch on that day while he was showing it to some of the other students. She took the device away from him but told him that she would return it to him later that day. During the afternoon, while she was working with students on an individual basis, she returned the sparker to Jovon and permitted him to take the students with whom she was not currently working into the darkened bathroom in the classroom one at a time in order to show his classmates how the device worked. She believed that the demonstration would be educational for her students to show them that sparks can be created by pieces of metal.

8. During the demonstration, Karen Powers, the assistant principal at Poinciana Park Elementary School, came into Respondent's classroom and saw the boy taking students into the bathroom one at a time in the dark. She became concerned that Respondent would permit a boy and a girl to go into the bathroom together unsupervised and wanted to know what was occurring. Respondent explained to her and Powers went into the bathroom with Jovon so he could show her how a sparker worked. She became upset and took the sparker away from Jovon.

   
   

9. Although Powers never touched the sparker and does not know if it emits sparks which are hot, she became concerned that the children could burn themselves or catch their clothes on fire. She wrote Respondent a memorandum concerning classroom safety, chastising Respondent severely.

   
   

10. Respondent did not place her students in a harmful situation by allowing the demonstration of the sparking device in the darkened bathroom inside the classroom. Further, Respondent did not act inappropriately or unprofessionally in allowing the unplanned science lesson to occur in spite of Powers' contention that such a demonstration is not part of the Dade County curriculum.

    
    

11. It is unclear what the policy was at Poinciana Park Elementary School regarding teachers touching students subsequent to the time that Respondent was reprimanded for intervening in the fight between students. The principal of Poinciana Park testified that a teacher is permitted to touch a child but a teacher is only permitted to use reasonable force when a child is in danger. On the other hand, the assistant principal testified that there is a "hands off" policy which prohibits teachers from touching students under any circumstances. Powers admitted at the final hearing that she had specifically instructed Respondent to not touch any student. During the 1988-89 and 1989-90 school years, it was Respondent's understanding that she was not to touch students under any circumstances since she had been so specifically instructed by the assistant principal and since she had been reprimanded for intervening in a fight. Further, she was instructed during January of 1990 by her team leader that teachers were not permitted to intervene in fights, and Respondent witnessed another teacher being verbally reprimanded for intervening in a fight.

    
    

12. On January 31, 1990, Antwon Dixon, one of Respondent's students, brought a musical calculator with him to school. He kept turning on the calculator, which then automatically played music, thereby disturbing the class. Respondent instructed Antwon to give her the calculator several different times. Each time he refused. Other students began telling him to give the calculator to Respondent, and he continued to refuse.

    
    

13. One of the other boys called out "let's jump him." Five or six of the boys in Respondent's class jumped on Antwon, and the boys began fighting with each other. Respondent did nothing to instigate the fight.

    
    

14. Respondent went around the desks, which had been arranged in a semi- circle with Respondent in the center, to where the boys were wrestling and fighting on the floor. She picked up the calculator which had fallen on the floor and put it inside her cabinet. She stood next to where the boys were fighting and told them to stop and to take their seats.

    
    

15. The children stopped fighting and sat down, except for Antwon. During the fight one of the boys had taken one of Antwon's shoes and had thrown it outside the classroom.

16. Antwon ran out of Respondent's classroom, hitting several of the other boys on his way past them. He then ran semi-barefoot to his aunt's house located across the street from the school.

    
    

17. No one was physically injured in the altercation. Although Respondent testified that the incident only lasted for fifteen seconds, it is most probable that it lasted a little longer than that.

    
    

18. Respondent is five feet four inches tall. One of the boys involved in the fight is six feet one or two inches tall and weighs 229 pounds. Although the child had grown some between the time of the incident and the final hearing in this cause, on January 31, 1990, he was already a "very large person."

    
    

19. Respondent stopped the altercation as quickly as she could using verbal directives only. Even if she had been physically capable of breaking up the fight among six or seven boys, at least one of whom was substantially larger than Respondent, by doing so she would have directly violated orders given to her by her assistant principal. Respondent's actions were reasonable under the circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

21. The Administrative Complaint filed in this cause contains four counts and is based on three separate incidents: the alleged improper restraining of a fighting female student, the sparker device demonstration, and the musical calculator altercation. The first count alleges that Respondent is guilty of violating Section 231.28(1)(f), Florida Statutes, in that she is guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board. The second count alleges that Respondent is guilty of violating Section 231.28(1)(h), Florida Statutes, in that she has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of teaching certificates. The third count alleges that Respondent has violated Rule 6B-1.006(3)(a), Florida Administrative Code, in that she has failed to make a reasonable effort to protect students from conditions harmful to learning or to health or safety. The fourth count alleges that Respondent has violated Rule 6B-1.006(3)(e), Florida Administrative Code, in that she has intentionally exposed students to unnecessary embarrassment or disparagement. Each count is based upon all three incidents.

    
    

22. As to the incident wherein Respondent restrained the fighting female student, Petitioner offered no evidence except the testimony of the principal of Poinciana Park Elementary School that she issued a letter of reprimand to Respondent because she was instructed to do so. The only evidence offered regarding this incident was Respondent's testimony wherein she described how she restrained the female student by holding her against a wall during which time the student continued kicking. Based upon Respondent's testimony alone, there can be no finding that Respondent improperly restrained that student, and there can be no finding that Respondent committed an act of misconduct when she intervened in that fight between students. Accordingly, Petitioner has failed to prove that Respondent is guilty of conduct which reduced her effectiveness as an employee, that Respondent violated any provision of law or rules of the State Board of Education, that Respondent failed to make reasonable effort to protect

    students from harmful conditions, or that Respondent intentionally exposed students to unnecessary embarrassment or disparagement, based upon the fighting female student incident.

    
    

23. As to the sparker device demonstration, Petitioner has failed to prove that Respondent engaged in any improper or inappropriate conduct. A student brought to school a device which he had found. Respondent took advantage of that situation by allowing the student to demonstrate to the other students a scientific principle, i.e., that sparks can be created by friction. Petitioner presented no evidence that the device posed any danger to the students; on the other hand, Respondent testified that she is familiar with the device in question, that it is not capable of burning the children or causing their clothes to catch fire, and that the demonstration was safe. Petitioner has failed to prove that Respondent is guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board, that Respondent has otherwise violated the provisions of law or rules of the State Board of Education, that Respondent failed to make a reasonable effort to protect students from harmful conditions, or that Respondent intentionally exposed students to unnecessary embarrassment or disparagement as a result of the sparker incident.

    
    

24. As to the musical calculator altercation, Petitioner presented the testimony of five students from Respondent's class of educable mentally handicapped children. No student's testimony was consistent with the other students' testimony. Additionally, some of the students gave testimony which was inconsistent with their own testimony. One of the students even testified that Respondent was standing in the classroom brushing her teeth while the boys were fighting. The only other witnesses presented by Petitioner were the principal and the assistant principal. The principal had no first hand knowledge regarding the incident. The assistant principal had no first hand knowledge of the incident except for statements allegedly made by Respondent to her subsequently. Respondent is a more credible witness than the assistant principal. The assistant principal's demeanor during the final hearing demonstrates an absence of objectivity regarding Respondent.

    
    

25. It has been found that Respondent did not instigate the other students "jumping on" or fighting with Antwon. The evidence is clear that Respondent did not physically attempt to separate the six or seven fighting boys. Even had she been capable of doing so physically, she had been previously instructed by her assistant principal to not do so. Respondent did terminate the altercation by verbal direction, and no one was physically injured. Petitioner has failed to prove that Respondent is guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board, that Respondent has otherwise violated the provisions of law or rules of the State Board of Education, that Respondent has failed to make a reasonable effort to protect students from harmful conditions, or that Respondent intentionally exposed students to unnecessary embarrassment or disparagement as a result of the musical calculator altercation.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause.

DONE and ENTERED this 17th day of June, 1991, at Tallahassee, Florida.

LINDA M. RIGOT

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 June, 1991.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-0288

1. Petitioner's proposed findings of fact numbered 1-3 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 4-42 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony.

3. Respondent's proposed findings of fact numbered 1, 2, 4, 6-8, 11, 13, 14, and 16-20 have been adopted either verbatim or in substance in this Recommended Order.

4. Respondent's proposed findings of fact numbered 3, 5, 9, 10, 12, and 15 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel.

Copies furnished:

Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

William DuFresne, Esquire DuFresne and Bradley

2929 Southwest Third Avenue Suite One

Miami, Florida 33129

George A. Bowen, Acting Executive Director Department of Education

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

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: 91-000288

Orders for Case No: 91-000288