STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 91-6338

)

BERYL GLANSBERG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on January 15, 1992, in Miami, Florida, before J. Stephen Menton, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jaime Claudio Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley, P.A. 2992 S.W. Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUE

The issue for determination in this case is whether the Respondent should be suspended and/or discharged from employment as a teacher with the School Board of Dade County for the reasons set forth in the Notice of Specific Charges dated November 8, 1992. That Notice alleges that Respondent is guilty of (a) immorality as defined by Florida Administrative Code Rule 6B-4.009(2); (b) misconduct in office as defined by Florida Administrative Code Rule 6B-4.009(3) including violations of the Code of Ethics of the Education Profession (specifically, Rules 6B-1.001(3) and 6B-1.005(3)(a) and (e);) (c) moral turpitude upon conviction of a felony as set forth in Florida Administrative Code Rule 6B-4.009(G); and (d) incompetency due to inefficiency as a result of her violation of the School Board's corporal punishment policy set forth in School Board Rules 6Gx13-5D-1.07. All of the charges arise from Respondent's alleged striking of a student in her classroom on May 1, 1991.

PRELIMINARY STATEMENT

By letter dated September 26, 1991, from Patrick Gray, Assistant Superintendent for the Dade County Public Schools, Respondent Beryl Glansberg was notified that the School Board had suspended her and initiated proceedings to dismiss her from employment effective at the close of the work day September

25, 1991. Ms. Glansberg timely requested a hearing on the matter and the School Board referred the case to the Division of Administrative Hearings which noticed and conducted the hearing. Prior to the hearing, Petitioner filed the Notice of Specific Charges discussed above.

At the hearing, Petitioner called six witnesses: Jeanette Walker and Gail Sielaff, who were teacher's aides in Respondent's classroom at Thomas Jefferson Middle School, (the "School"); Raymond Torres, who was a student in Respondent's class at the time of the alleged incident; Geneva Williams, the Principal at the School; Wesley Warner, Assistant Principal at the School; and Dr. Joyce Annuziata, Supervisor of the Office of Personnel Standards for the School Board. Petitioner offered five exhibits into evidence, all of which were accepted.

Respondent testified on her own behalf and also presented the testimony of Marc Scharbonneau and John Angelos, who were teachers at the School at the time of the alleged incident. Respondent offered two exhibits into evidence, both of which were accepted.

During the hearing, Petitioner objected to the testimony of the two witnesses called by Respondent on the grounds that they had not been disclosed during discovery prior to the case. After listening to argument of counsel and reviewing the file in this matter, Petitioner was granted leave to supplement the record in this proceeding to address the issues raised during the direct testimony of those witnesses. Petitioner was also granted leave to supplement the record with additional testimony from Jeanettte Walker and Wesley Warner since those witnesses had already left the hearing before Respondent's witnesses were called. Petitioner was given ten days from the conclusion of the hearing to take the necessary depositions.

On January 27, 1992, a telephone conference hearing was held during which Petitioner sought permission to supplement the record in this case with testimony from the alleged victim's mother. After listening to argument from counsel, this request was denied. On March 20, 1992, Petitioner submitted the depositions of Wesley Warner, Jeanette Walker and L.H., the alleged victim's mother. Respondent objected to all of the depositions as being untimely. That objection was overruled with respect to the depositions of Jeanette Walker and Wesley Warner and those depositions have been reviewed and considered. For the reasons stated during the January 27, 1992 telephone conference hearing, the deposition of L.H. is not accepted and has not been considered in the preparation of this Recommended Order.

A transcript of the proceedings has been filed. Both parties have submitted Proposed Recommended Orders. A ruling on each of the parties' proposed findings of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:

1. Respondent holds a teaching certificate from the State of Florida and has been employed as a full-time teacher by the School Board of Dade County ("School Board") since the 1985/1986 school year. Respondent is certified in the areas of Mental Retardation and Special Learning Disabilities. During the 1990/1991 school year, Respondent was assigned as a special education teacher for autistic children at Thomas Jefferson Middle School (the "School").

   Respondent was employed pursuant to a professional services contract. Respondent was previously employed by the Dade County Public Schools from March 1979 to April 1980. There is no evidence of any prior discipline taken against Respondent by the School Board.

   
   

2. In April and May of 1991, Respondent was the classroom teacher for six autistic students at the School.

   
   

3. D.H. was a seventeen year old ninth grade student enrolled in Respondent's class in April/May of 1991. D.H. is autistic and profoundly mentally retarded. He has extremely limited communication skills. D.H. suffers from a seizure disorder and often defecated in his pants during the school day. On these occasions, Respondent and/or her aides would be required to clean up the student and change his clothes.

   
   

4. During the school day on May 1, 1991, D.H. defecated in his pants. While Respondent was cleaning him up, she became angry and began scolding him very loudly. After cleaning him and putting his pants back on, Respondent struck the student with a piece of wood (approximately 2" by 4") on his buttocks. Respondent returned to her desk for a few minutes then got up and struck the student twice more with the piece of wood. The classroom aides and students in the classroom witnessed the events. During the School Board's investigation into this incident, Respondent denied striking the student. At the hearing in this cause, Respondent admitted hitting the student on the buttocks with a ruler as an "attention getter." She claims that her actions were appropriate in view of the student's deficiencies in communication skills and she denies using any significant amount of force. The more persuasive evidence established that Respondent struck the child in a forceful manner in anger and/or frustration.

   
   

5. After Respondent struck him, the student became very upset. He developed significant bruises and swelling as a result of Respondent striking him.

   
   

6. Respondent contends that the student had bruises on his knees, legs and buttocks two days prior to the incident and the bruises observed by the student's parents and school officials were not related to her actions. This contention is rejected as not supported by the weight of the evidence. While the student may have had some minor bruises prior to the incident, the more persuasive evidence established that he suffered significant bruises as a result of the blows administered by Respondent.

   
   

7. The School Board has adopted 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....

   
   

8. Respondent was aware of the School Board policy against administering corporal punishment to students.

   
   

9. Respondent's acts constituted a violation of the School Board's corporal punishment policy and its rules on employee conduct. In addition, Respondent's excessive corporal punishment of the student created a condition harmful to learning, health or safety in the school.

10. Because of the events of May 1, 1991, Respondent was transferred out of the classroom by the School Board pending review of her case by School Board Administrators.

    
    

11. Respondent's effectiveness as a teacher in the school system has been impaired as a result of this incident.

    
    

12. The Miami Herald, a newspaper circulated in the area, published an article on June 6, 1991 that described the incident and identified both the school and Respondent by name.

    
    

13. Several parents of students at the school have voiced concern over the incident. Parents in the Autistic Society had a special meeting to discuss the incident and the safety of their children in the school system.

    
    

14. Respondent was arrested and charged with aggravated child abuse, a second degree felony. Respondent entered a plea of nolo contendere to the charge. The Circuit Court in and for Dade County, Florida, accepted Respondent's plea of nolo contendere, withheld adjudication of guilt, and sentenced her to five years of probation. A special condition of her probation is that Respondent is not to teach retarded persons or children for five years.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. 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.

    
    

17. Petitioner bears the burden of showing by a preponderance of the evidence that Respondent committed the actions for which she faces suspension and termination from employment. Dileo v. School Board of Dade County, 569 So.2d 882 (Fla. 3rd DCA 1990); Allen v. School Board of Dade County, 571 So.2d

    568 (Fla. 3rd DCA 1991).

    
    

18. Petitioner has charged Respondent with immorality, misconduct in office, moral turpitude upon conviction of a felony and incompetency as a result of the Board's May 1, 1991 incident.

    
    

19. "Immorality," "Incompetency" and "Misconduct in Office" as used in Section 231.36, Florida Statutes, are defined in Rule 6B-4.009(4), Florida Administrative Code, in pertinent part as follows:

    1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity....[A finding of incompetency] shall be based on...one (1) or more of the following:

       1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes);

       2. Incapacity: (1) lack of emotional stability;...

    2. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    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.

       
       

20. The School Board contends 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. "Immorality" is clearly stated to be grounds for termination of employment in the instance of a continuing contract teacher, see, Section 231.36(4)(c), but "immorality" is not specifically mentioned as a basis for termination of employment for professional services contract teacher. While the explication of just cause found in Section 231.36(1)(a), Florida Statutes, is not all inclusive, it is not clear that the definition of "immorality" set forth in the Rule is applicable to a teacher who is not employed pursuant to a continuing contract. In view of the other conclusions reached herein, the School Board's contention that "immorality" should be considered as a basis for termination of a professional services contract need not be resolved.

    
    

21. In light of the Court's action in withholding adjudication of guilt on the charges to which Respondent entered her nolo contendere plea, it is concluded that the School Board has failed to establish that Respondent is guilty of moral turpitude upon conviction of a crime as alleged in the Notice of Specific Charges.

    
    

22. Section 231.09, Florida Statutes, which is referenced in the definition of "incompetency" found in Rule 6B-4.009(1)(a), Florida Administrative Code, provides as follows:

    
    

    Members of the instructional staff of public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods, recordkeeping, and fulfilling the terms of any contract, unless released from the contract by the school board.

23. Corporal punishment is defined in Section 228.041(27), Florida Statutes (1991), as follows:

    
    

    (27) CORPORAL PUNISHMENT--corporal punishment is the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principle as may be necessary to protect himself or other students from disruptive students.

    
    

    See also, School Board Rule 6Gx13-5D-1.07.

    
    

24. Respondent's actions on May 1, 1991 violated the corporal punishment policy set forth in the statute and the rule. However, there was no showing of "repeated" violations by Respondent and/or lack of emotional stability as required by Rule 6B-4.009(4)(1). Accordingly, Petitioner has failed to establish the charge of incompetency.

    
    

25. As defined in Rule 6B-4.009(3), Florida Administrative Code, misconduct in office includes a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001 (the "Code of Ethics") and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, (the "Principles of Conduct") which is so serious as to impair the individual's effectiveness in the school system.

    
    

26. Rule 6B-1.001, Florida Administrative Code, the "Code of Ethics," provides as follows:

    
    

    1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nature of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

    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.

       
       

27. The Code of Ethics states that an educator's primary professional concern is always for the student and the development of the student's potential. Therefore, an educator must seek to exercise the best professional judgment and integrity, and strive to maintain the respect and confidence of students and parents. Rule 6B-1.001(2) and (3), Florida Administrative Code.

    
    

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

       
       

29. The Principles of Conduct set forth the teacher's obligations to students, including a requirement to make reasonable efforts to protect students from conditions harmful to health or safety and to refrain from intentionally exposing a student to unnecessary embarrassment. Rule 6B-1.006(3)(a) and (e), Florida Administrative Code.

    
    

30. The evidence in this case established that Respondent exposed the student, D.H., to unnecessary embarrassment or disparagement in violation of Rule 6B-1.006(1)(3)(e). Respondent also failed to make reasonable efforts to protect the student from conditions harmful to learning or to health or safety as required in Rule 6B-1.006(1)(3)(a).

    
    

31. The resulting impact of this incident on students and parents reduced Respondent's effectiveness as a teacher, and has caused her to lose the confidence and respect of students and parents. It is also noted that Respondent's probation prohibits her from teaching. In sum, the evidence in this case establishes that Respondent's actions on May 1, 1991 constituted misconduct in office within the meaning of Section 231.36(1a)(a) and (6)(a) and provide a proper basis for Petitioner to impose disciplinary action.

    
    

32. There is no evidence of prior misconduct by the Respondent. In addition, Respondent was in a stressful environment with the responsibility for overseeing several handicapped children, including D.H. who was clearly very difficult to deal with. Nonetheless, in view of the seriousness of this incident and the notoriety that has resulted, it is concluded that Petitioner's decision that Respondent should be terminated from her employment was justified.

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.

RECOMMENDED this 17th day of July, 1992, at Tallahassee, Florida.

J. STEPHEN MENTON 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 July, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6338

Both parties have submitted Proposed Recommended Orders. The following constitutes my rulings on the proposed findings of fact submitted by the parties.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

2. Adopted in pertinent part in Findings of Fact 2.

3. Adopted in substance in Findings of Fact 3.

4. Adopted in substance in Findings of Fact 4.

5. Adopted in substance in Findings of Fact 4.

6. Adopted in pertinent part in Findings of Fact 5 and 10.

7. Adopted in substance in Findings of Fact 4,

12 and 13.

1. Rejected as unnecessary.

2. Adopted in substance in Findings of Fact 14.

3. Adopted in substance in Findings of Fact 7.

4. Rejected as unnecessary.

5. Rejected as a summary of testimony rather than a Finding of Fact. This subject matter is addressed in Findings of Fact 9 and 11 and in the Conclusions of Law.

   
   

   The Respondents's Proposed Findings of Fact

   
   

   Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or

   Reason for Rejection.

   
   

   1. Adopted in substance in Findings of Fact 1.

   2. Adopted in substance in Findings of Fact 1.

   3. Subordinate to Findings of Fact 6.

   4. Subordinate to Findings of Fact 6.

   5. Subordinate to Findings of Fact 6.

6-7. Subordinate to Findings of Fact 4, 5 and 6.

8. Subordinate to Findings of Fact 14 and addressed in the Conclusions of Law.

COPIES FURNISHED:

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

Octavio J. Visiedo, Superintendent Dade County School Board

1450 N.E. Second Avenue Miami, Florida 33132

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 W. Gaines Street Tallahassee, Florida 32399-0400

William Du Fresne, Esquire Du Fresne and Bradley, P.A. 2992 S.W. Third Avenue Suite One

Miami, Florida 33129

Copies furnished continued:

Jaime Claudio Bovell, Esquire

75 Valencia Avenue

Coral Gables, Florida 33134

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: 91-006338

Orders for Case No: 91-006338