STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7554

)

ROSALIND D. MORTON, )

)

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 March 11, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Margaret E. O'Sullivan, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: James A. Cassidy, Esquire

2161 Palm Beach Lakes Boulevard Suite 403

West Palm Beach, Florida 33409 STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent is a certified teacher who was, at the times pertinent hereto, employed by the School Board of Broward County, Florida, and assigned to teach a third grade class at Markham Elementary School. On October 8, 1991, Petitioner filed an Administrative Complaint against Respondent which contained certain factual allegations and which seeks to discipline Respondent's certification based on those factual allegations. The allegations pertained to the manner in which Respondent administered corporal punishment to various students in her classroom. It is also alleged that Respondent told various students to lie about the discipline that she had imposed. Based on those allegations, Petitioner contends that Respondent had committed acts involving gross immorality or acts involving moral turpitude; had violated provisions of law or Board Rules; had failed to make reasonable effort to protect students from conditions harmful to learning or safety; and had intentionally exposed students to unnecessary embarrassment or disparagement.

Respondent disputed the allegations and conclusions of the Administrative Complaint and this proceeding followed. All witnesses who testified in this proceeding, with the exception of Respondent, were students who had been in Respondent's third grade class for the 1990-91 school year. The students who testified in this proceeding will be referred to by his or her initials in an effort to protect the privacy of the students. See, Section 228.093(3)(d), Florida Statutes. At the formal hearing, Petitioner presented the testimony of M.R., K.S., K.C., L.S., T.B., V.D., K.C. (there were two students with the initials of K.C.), and S.T. (who was also referred to as S.W.). Petitioner presented one exhibit which was accepted into evidence.

The Respondent testified on her own behalf and called as her only other witness student S.J. Respondent presented 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 Petitioner's proposed findings of fact may be found in the Appendix to this Recommended Order. Respondent did not file a post-hearing submittal.

FINDINGS OF FACT

1. Respondent currently holds Florida teaching certificate number 576645, which covers the areas of elementary education and mathematics. Respondent's certificate is valid through June 30, 1992.

   
   

2. During the 1990-91 school year, Respondent was employed as a third grade teacher at Markham Elementary School in the Broward County School District. 1/

   
   

3. On an undetermined date during the 1990-91 school year, Respondent hit, M.R., a female student, with a wooden ruler that was twelve inches long and one inch wide. Respondent's action was in response to M.R.'s behavior of talking in class without permission. M.R. was hit on the palm of her hand with the ruler in front of the class. M.R. was embarrassed by the incident, but she did not cry.

   
   

4. On another occasion, M.R. was talking in class. There was a dispute in the testimony as to whether M.R. was using profanity. Respondent testified that

   M.R. was using profanity, while M.R. denied using profanity. Respondent took

   M.R. to the bathroom at the rear of the classroom, told M.R. to place soap on her hands, and made M.R. wash her mouth out with soap. 2/

   
   

5. During the 1990-91 school year, Respondent hit K.S., a female student, on the palm of the hand with the twelve inch wooden ruler. This discipline occurred at the door to the bathroom at the rear of Respondent's classroom.

   K.S. became upset and began to cry. Another student saw K.S. crying.

   
   

6. On one occasion, while talking to K.S. in the bathroom, Respondent told

   K.S. to pretend to cry to make the other students believe that she had been punished. Respondent had not administer corporal punishment to K.S. on that occasion, but Respondent wanted the other students to believe that they would be punished if Respondent took them to the bathroom.

7. The Respondent hit K.C., a male student, on the palm of the hand with a wooden ruler, and on the buttocks with a small board. On one occasion the Respondent took K.C. into the bathroom and hit him with a ruler.

   
   

8. The Respondent threatened on other occasions to hit K.C. with a ruler.

   
   

9. The Respondent threatened to hit L.S., a female student with a ruler.

   L.S. witnessed the Respondent hitting other students on the hand with a ruler.

   
   

10. The Respondent hit V.D., a female student, on the palm of the hand with a ruler. V.D. cried after being hit with the ruler.

    
    

11. The Respondent hit K.C., a female student, on the palm of the hand and buttocks with a ruler. The Respondent hit K.C. in the bathroom and in the classroom.

    
    

12. The Respondent hit S.T. 3/, a female student, on the palm of the hand with a wooden ruler, causing S.T. to cry.

    
    

13. The Respondent hit or tapped T.B., a male student, on the hand with a ruler.

    
    

14. The Respondent's conduct in hitting the students with a ruler was not done in self-defense, but as a disciplinary measure that was intended to both punish and intimidate the students.

    
    

15. At hearing, the Respondent offered a composite exhibit of permission forms, purporting to demonstrate parental permission to use corporal punishment against K.S., T.B., K.C. (female student) and D.R. (a student who did not testify). Respondent did not offer any permission forms from the parents of M.R., S.T., K.C. (male student), or V.D., although the evidence established that Respondent struck these students with a ruler. Regardless of parental permission, the discipline administered by Respondent violated district policy, which forbids corporal punishment of any kind.

    
    

16. After an investigation into allegations that the Respondent had struck students, students were called to the school office to be interviewed.

    
    

17. The Respondent discussed the pending investigation with her class. Several students recalled that on the day that they were to be interviewed she told them she might go to jail if students told the investigators that she had hit them. None of the students testified that Respondent told them, as a group, to lie to the investigators. In fact each of the students testified that the Respondent told the class to tell the truth.

    
    

18. There was a conflict in the evidence as to whether Respondent told

    S.T. and V.D. individually not to reveal that she had hit them, or to say that she had hit them fewer times than she actually had. This conflict is resolved by finding that Respondent's denial that she told either S.T. or V.D. to lie is more credible than the testimony to the contrary from S.T. and V.D. Therefore, it is found that Petitioner failed to establish that Respondent told her students to lie about her discipline practices.

    CONCLUSIONS OF LAW

    
    

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

    
    

20. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v.

    Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

21. Section 231.28, Florida Statutes (1990), provides, in pertinent part, as follows:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certificates of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed

       10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

       * * *

       (c) has been guilty of gross immorality or an act involving moral turpitude:

       * * *

       (h) has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation the teaching certificate.

       
       

22. Rule 6B-1.006(3), Florida Administrative Code, provides, in pertinent part:

    
    

    Obligation to the student requires that the individual:

    (a) 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.

    
    

23. Section 232.27, Florida Statutes, provides in pertinent part:

    
    

    If a teacher feels that corporal punishment is necessary, at least the following procedures shall be followed:

    * * *

    (2) A teacher or principal may administer corporal punishment only in the presence of another adult who is informed beforehand, and in the student's presence, of the reason for the punishment.

    
    

24. Petitioner did not establish at the formal hearing by clear and convincing evidence that Respondent told her students to lie about her discipline practices. Consequently, Petitioner failed to establish that Respondent committed acts of gross immorality or acts involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes.

    
    

25. Petitioner has proven by clear and convincing evidence that the Respondent administered corporal punishment in violation of district policy and in violation of Section 232.27, Florida Statutes. Consequently, Petitioner established that Respondent failed to make a reasonable effort to protect students from conditions harmful to learning or to health or, in violation of Rule 6B-1.006(3)(a), Florida Administrative Code, by her unauthorized use of corporal punishment.

    
    

26. Petitioner established by clear and convincing evidence that Respondent intentionally exposed students to unnecessary embarrassment or disparagement, in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, by threatening students in front of other students and by administering corporal punishment to students in front of the class. The Respondent also took students into the bathroom to discipline them, and instructed them to appear upset when they left the bathroom in order to intimidate other students. Such conduct clearly results in embarrassment to the student who is being used by the teacher as a method of controlling other students.

    
    

27. In deciding the punishment that should be imposed in this matter, it is appropriate to consider that teachers are entitled to, and are expected to, maintain discipline in their classrooms. It is also appropriate to consider that there was no showing that the corporal punishment administered by Respondent involved excessive force or resulted in injury to any student. However, there can be no doubt that Respondent's methods of discipline are inappropriate.

    
    

28. In its post-hearing submittal, Petitioner asserts that the Education Practices Commission (EPC) should issue a letter of reprimand to Respondent and that Respondent should be placed on three years probation with EPC. Petitioner asserts the following as terms of Respondent's probation:

    
    

    1. Respondent shall make arrangements for her immediate supervisor to provide the EPC with quarterly reports of her performance, including, but not limited to, compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent;

    2. Respondent shall make arrangements for her immediate supervisor to provide the EPC with a true and accurate copy of each written performance evaluation prepared by her supervisor, within ten days of its issuance;

    3. Respondent shall satisfactorily perform her assigned duties in a competent professional manner;

    4. Respondent shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B- 1.006; and

    5. Respondent shall, during the period of probation, successfully complete two college courses or the equivalent inservice training courses in the areas of assertive discipline and classroom management, with the progress and completion to be monitored by the EPC.

    
    

29. The disposition of this matter recommended by Petitioner are within the range of penalties that can be imposed. It is recommended that the length of the term of probation be reduced from three years to two years because of Petitioner's inability to sustain the charge that Respondent told her students to lie for her. The suggested terms and conditions of probation appear to the undersigned to be both reasonable and appropriate under the circumstances.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of facts and conclusions of law contained herein, which provides that a letter of reprimand be issued Respondent by the Education Practices Commission, and which places Respondent's certification on probation for a period of two years. It is further recommended that the terms and conditions of probation be identical to those recommended by Petitioner in its post-hearing submittal.

RECOMMENDED in Tallahassee, Leon County, Florida, this 19th day of May, 1992.

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 19th day of May, 1992.

ENDNOTES

1/ All students referred to herein were assigned to Respondent's third grade class. All events discussed herein occurred during the 1990-91 school year.

2/ It is not necessary to resolve the dispute as to whether M.R. was using profanity because Respondent's action in having the student wash her mouth out with soap would not have been justified even if the student had been using profanity.

3/ S.T. is student S.W. as set forth in Paragraph 3(a) of the Administrative Complaint. At hearing, she testified that she had used the name S.W. in the past.

APPENDIX TO THE RECOMMENDED ORDER, CASE NO. 91-7554

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, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16, 19, 20, 21, and 22 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 13 and 17 are rejected as being contrary to the greater weight of the evidence and contrary to the findings made.

3. The proposed findings of fact in paragraphs 18, 23, 24, 25, 26, and 27 are rejected as being subordinate to the findings made.

COPIES FURNISHED:

Margaret E. O'Sullivan, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

James A. Cassidy, Esquire

2161 Palm Beach Lakes Boulevard Suite 403

West Palm Beach, Florida 33409

Karen B. Wilde, Executive Director

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: 91-007554

Orders for Case No: 91-007554