STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2873

)

PATRICIA ALBRITTON, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 7, 1992, a formal administrative hearing was held in this case in Largo, 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 2942

Largo, Florida 34649-2942

For Respondent: Lawrence D. Black, Esquire

650 Seminole Boulevard

Largo, Florida 34640-3625 STATEMENT OF THE ISSUES

The issue in this case is whether the Petitioner, the Pinellas County School Board, should suspend the Respondent, Patricia Albritton, from her employment as a teacher for three days without pay on charges contained in the April 20, 1992, letter from the School Superintendent, J. Howard Hinesley. The letter alleges that, during a class on March 18, 1992: (1) the Respondent picked up a chair in anger and slammed it to the floor, cracking one of the wooden chair legs; (2) a student sat in the chair a short time later, the chair leg broke off, and the student fell to the floor, striking his head; (3) when the student asked permission to go to the clinic, the Respondent refused, referring to the student's stupidity for sitting in the chair, and made a sarcastic remark when told that the student's head hurt; and (4) the Respondent used a profane term to refer to the class in the presence of students. The letter charges that the allegations constitute misconduct in office and just cause for suspension under Section 231.36(6)(a), Fla. Stat. (1991).

PRELIMINARY STATEMENT

By letter from counsel dated May 4, 1992, the Respondent requested formal administrative proceedings under Section 120.57(1), Fla. Stat. (1991). The matter was referred to the Division of Administrative Hearings on May 14, 1992.

By Notice of Hearing issued on July 24, 1992, the case was scheduled for hearing on October 7, 1992.

At the final hearing, the School Board called ten witnesses and had Petitioner's Exhibits 1 through 7, 9, 10, and 12 through 18 admitted in evidence. The Respondent testified in her own behalf and called six other witnesses. She also had Respondent's Exhibit 1 admitted in evidence.

At the end of the hearing, the parties were given ten days in which to file proposed recommended orders. 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. 92-2873.

FINDINGS OF FACT

1. During the 1991/1992 school year, the Respondent, Patricia Albritton, was teaching in the Pinellas County Public School System under an annual Professional Service Contract, renewable from year to year as determined by the School Board. She was an "itinerant teacher," meaning she had classroom assignments at various schools. Her base school was Azalea Middle School, where she taught a strings orchestra class at 1:30 p.m., and then had a teacher planning period before end of the school day dismissal.

   
   

2. On March 18, 1992, shortly after the bell rang for the beginning of the strings class at Azalea Middle School, the Respondent entered the class and, in preparation for the class, requested that the pupils rearrange the chairs in semi-circles to simulate the seating arrangement for an upcoming concert. The class was noisy, and many of the pupils either did not hear or ignored her instructions despite her having raised her voice to get their attention. Frustrated and angry, the Respondent picked up a wooden chair to almost face level and slammed it to the floor. In the process, she lost her grip on the chair, and it slammed to the floor with enough force for one leg of the chair to crack. She then asked the class a question to the effect of, "do I have to do cartwheels to get your attention?" As she turned away from the class, perhaps in response to a pupil's question as to why the class was being required to give a concert performance, the Respondent also mumbled to herself, but in a voice loud enough for some of the pupils to hear: "I'm getting so tired of this damn class."

   
   

3. After this incident, the Respondent either set the chair to the side or put it in the adjoining supply room where the Respondent generally stored music stands. One or more of the pupils who tended to be the class troublemakers, or clowns, retrieved the broken chair, and one of them purposely sat on it and appeared to fake falling to the floor. The fall did not appear to be of the kind likely to have injured the pupil in any serious way. Nonetheless, the pupil complained that his head hurt and asked for permission to go to the clinic. The Respondent, who had observed the apparent fakery and knew the propensities of the pupil involved, declined permission, believing it was yet another in a series of ploys to get out of class. She said something to the effect of, "you were stupid to sit on the broken chair." When the pupil persisted in saying his head hurt, the Respondent mocked him, saying words to the effect, "oh, you poor baby."

   
   

4. After the incident, the parents of the pupil who tried to fake falling in the broken chair became upset with the Respondent and took their son out of the Respondent's strings class. Two other parents expressed concern, primarily about the Respondent's angry outburst and throwing the chair. Otherwise, there

   was no evidence that the Respondent's effectiveness as an employee of the School Board was impaired as a result of the incident. She had no difficulties at any of the other schools where she taught.

   
   

5. The Respondent has been a teacher in the Pinellas County School System for ten years. Aside from some criticism for being tardy in 1986, the Respondent generally was not seriously criticized for deficiencies in her teaching ability or other aspects of her work in the earlier years of her teaching career. On November 10 and December 4, 1989, the Respondent received written reprimands for poor judgment. The former reprimand included criticism for using inappropriate language loud enough for her pupils to hear her. Her performance evaluation for the 1990/1991 school year included criticism in the areas of judgment and interpersonal relationships with parents and children, and it expressed the need for improvement in those areas. At the beginning of the 1991/1992 school year, the Respondent was put on an annual comprehensive evaluation cycle. An October 23, 1991, appraisal of her instructional performance in a pre-arranged visit to her class by the assistant principal reflected that the Respondent was satisfactory in all areas. In mid-January, 1992, the Respondent grabbed a pupil at Azalea Middle School (the same boy who later faked falling in the broken chair) by the shoulders and shook him to get his attention. As a result, the Respondent's assistant principal cautioned the Respondent to exercise better judgment and, in keeping with School Board policy, to keep her hands off pupils she is reprimanding. A March 5, 1992, appraisal of her performance in non-instructional areas reflected improvement in that her judgment was rated satisfactory. After the March 18, 1992, incident, her rating for management of student conduct again was lowered to "needs improvement."

   
   

   CONCLUSIONS OF LAW

   
   

6. Section 231.36(1)(a), Florida Statutes (1991), provides that, except for teachers on continuing contract under Section 231.36(4), a teacher can be dismissed during the term of an employment contract "only for just cause." It further provides: "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." (Emphasis added.)

   
   

7. Section 231.36(6)(a), Florida Statutes (1991), similarly provides that, except for teachers on continuing contract under Section 231.36(4), a teacher can be suspended or dismissed during the term of an employment contract for just cause as provided in paragraph (1)(a)."

   
   

8. In contrast, Section 231.36(4)(c), Florida Statutes (1991), provides that a teacher on continuing contract may be suspended or dismissed during the school year only on charges of immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

   
   

9. In this case, the School Board charged the Respondent "misconduct in office and just cause for suspension under Section 231.36(6)(a), Fla. Stat. (1991)."

   
   

10. The School Board is required to prove the charges against the Respondent by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County,

    569 So. 2d 883 (Fla. 3d DCA 1990); South Florida Water Management District v. Caluwe, 459 So. 2d 390 (Fla. 5th DCA 1984).

11. "Misconduct in office," as used in Section 231.36(1)(a), Florida Statutes (1991), 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.

    
    

12. 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.

       
       

13. The Code of Ethics of the Education Profession, in general, is aspirational in nature. The provision the Respondent is accused of violating in this case, particularly, is not susceptible, in most cases, of forming the basis for suspension or dismissal. It speaks exclusively of the educator "valuing," "seeking" and "striving." It is concluded that the evidence in this case did not prove a violation of F.A.C. Rule 6B-1.001(1)-(3), as written.

    
    

14. By comparison with the Code of Ethics, the Principles of Professional Conduct for the Education Profession set more definite and measurable standards of conduct. 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.

       * * *

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

       
       

15. As to F.A.C. Rule 6B-1.006(3)(a), the evidence did not prove that the Respondent failed to protect students from conditions harmful to learning or to

    health and safety. Arguably, by losing her temper and slamming the chair down, and later using the word "damn" in describing the class, she set bad examples for the students in appropriate ways of dealing with one's anger at others. But it is concluded that this is not the kind of "conditions harmful to learning" against which teachers are being required to protect pupils under the rule.

    Arguably, in slamming the chair down and later not letting the pupil who apparently faked falling in the broken chair go to the clinic, the Respondent did not exercise the best judgment. But, again, it is concluded that the Respondent did not fail to make "reasonable effort to protect the student from conditions harmful to learning or to health or safety."

    
    

16. As for F.A.C. Rule 6B-1.006(3)(e), the Respondent had good reason to believe that the pupil who claimed to have hurt his head had faked falling in the broken chair. In the Respondent's mind, she was not embarrassing or disparaging him but rather expressing her disbelief in his claims and her lack of appreciation for his antics. But it is clear from the evidence that it was not necessary for the Respondent to mock the pupil the way she did. 1/

    
    

17. As mentioned, F.A.C. Rule 6B-4.009(3) requires that, to qualify as "misconduct in office" so as to justify dismissal or suspension, the violations must be "so serious as to impair the individual's effectiveness in the school system." It is concluded that the evidence in this case did not prove that the Respondent's "effectiveness" was "impaired," in the way meant by the rule. Contrary to the School Board's arguments, it is concluded that, by "impairment of effectiveness," the rule contemplates more than proof that the parents of the pupil who was faked falling in the broken chair removed their son from the Respondent's class. It requires more than proof that a few of the parents of pupils in the Respondent's class were concerned about the chair incident. The evidence, taken as a whole, was that the Respondent's effectiveness was not impaired as a result of these incidents.

    
    

18. It is concluded that the School Board did not prove that the Respondent was guilty of "misconduct in office," as defined by F.A.C. Rule 6B- 4.009(3), and did not prove "just cause" for the three-day suspension sought to be imposed. At most, the chair incident, the use of profanity directed to class, the mocking of the pupil who faked falling in the chair, and the refusal to let him go to the clinic all showed poor judgment, but not "just cause" for a three-day suspension without pay under Section 231.36(1)(a) and (6)(a), Fla. Stat. (1991).

    
    

19. As reflected in the Findings of Fact, the evidence contained evidence of prior offenses for which the Respondent already has been reprimanded. This evidence was relevant to the Respondent's notice as to what constitutes misconduct. See F.A.C. Rule 6B-4.008. It also is relevant to the determination of an appropriate penalty. But since the Respondent already has been punished for them in the form of reprimands, they cannot form the sole basis for new and additional discipline.

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 that, notwithstanding evidence of poor judgment, as set above, the Respondent, Patricia Albritton, not be suspended for three days without pay.

RECOMMENDED this 4th day of November, 1992, 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 4th day of November, 1992.

ENDNOTE

1/ Even in the case of this provision of the rule, it conceivably could be argued, in any given case, that a method of teaching or maintaining discipline that had the side effect of "embarrassing" or "disparaging" a pupil was "necessary" under the circumstances. Such was not the case, however, with respect to the Respondent's mocking.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2873

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-6. Accepted and incorporated to the extent not subordinate or unnecessary.

7. Accepted but irrelevant and unnecessary.

8.-10. Accepted and incorporated to the extent not subordinate or unnecessary.

11.-13. Rejected as not proven that the Respondent was responsible for the pupil choosing the broken chair to sit in.

1. Accepted and incorporated.

2. Rejected as not proven. (However, the Respondent was not in a position to be absolutely sure that the pupil did not accidentally hit his head.)

3. Not proven whether the bump was from the chair incident or from a recent incident of fighting by the boy during which the boy's head was rammed into the wall, or a cabinet.

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

Respondent's Proposed Findings of Fact.

For purposes of these rulings, the unnumbered paragraphs under the heading "Argument" in the Respondent's Proposed Recommended Order are assigned consecutive numbers and treated as proposed findings of fact.)

1. Conclusions of law.

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

1. Rejected in part as being contrary to facts found and to the greater weight of the evidence (that she had no

   prior difficulties). In part, accepted and incorporated to the extent not subordinate or unnecessary (the rest).

2. He was a bass player, not a baseball player. Otherwise, accepted and incorporated.

3. Accepted. Subordinate to facts found.

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

COPIES FURNISHED:

Bruce P. Taylor, Esquire Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

Lawrence D. Black, Esquire 650 Seminole Boulevard

Largo, Florida 34640-3625

Howard Hinesley Superintendent of Schools

School Board of Pinellas County Post Office Box 2942

Largo, Florida 34649-2942

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.

=================================================================

AGENCY FINAL ORDER

================================================================= SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

PINELLAS COUNTY SCHOOL BOARD,

Petitioner,

1. DOAH CASE NO. 92-2873

   
   

   PATRICIA ALBRITTON,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   WHEREAS, by letter dated April 20, 1992, the Superintendent of Schools recommended to the School Board of Pinellas County, Florida that Patricia Albritton, a teacher employed by means of a professional service contract, be suspended without pay for three days, which letter stated the reasons therefore, and

   
   

   WHEREAS, Patricia Albritton timely requested an administrative hearing on the issues set forth in the Superintendent's charging letter, and

   
   

   WHEREAS, a hearing was conducted on October 7, 1992 before J. Lawrence Johnston, Hearing Officer of the Division of Administrative Hearings, and

   
   

   WHEREAS, the Hearing Officer's Recommended Order, together with the entire record of the case has been reviewed, it is further

   
   

   ORDERED AND ADJUDGED that the Hearing Officer's Statement of the Issues, Preliminary Statement, Findings of Fact numbered 1 through 5, and Conclusions of Law numbered 6 through 12, 14, and 16, are hereby accepted, adopted, and incorporated herein by reference, and it is further

   
   

   ORDERED AND ADJUDGED that Petitioner's Exceptions to the Hearing Officer's Recommended Order numbered 1 and 2 are accepted and the Hearing Officer's Conclusion of Law number 13 is rejected to the extent that it states that Section 6B-1.001(1) F.A.C. is not susceptible, in most cases, to forming the basis for a suspension or dismissal, and to the extent that it concludes that the evidence did not prove a violation of Rule 6B-1.001(1)-(3) as written, in that:

   
   

   1. Respondent herself admits some punishment is warranted for her behavior, as set forth on page 171, lines 10 through 13 of the transcript of the hearing.

      
      

   2. Such a conclusion is inconsistent with Hearing Officer's Findings of Fact numbers 2 and 3 and Conclusion of Law number 16.

   3. Such a conclusion is totally unsupported by competent substantial evidence in that Respondent did not even attempt to claim that she exercised good judgment, and Respondent had been repeatedly cautioned in the past to exercise better judgment as shown by Petitioner's Exhibits 7, 9, 10 and 12, the testimony of Joann Andrews at pages 15 through 35 of the transcript, and the testimony of John Leanes at pages 68 through 89 of the transcripts, and it is further

ORDERED AND ADJUDGED that the Hearing Officer's Conclusion of Law number 15 is accepted to the extent that it states that Respondent set a bad example to students in appropriate ways to deal with anger by slamming a chair down and using the word "damn" in describing the class, and to the extent that it indicates that Respondent did not use good judgment in slamming the chair down and in later not allowing a student to go to the clinic, and it is further

ORDERED AND ADJUDGED that Petitioner's Exceptions to the Hearing Officer's Recommended Order numbered 3 and 4 are accepted, and Hearing Officer's Conclusion of Law number 15 is rejected to the extent that it states that Respondent's conduct did not create conditions harmful to learning, from which she is legally obligated to protect students, based on:

1. The expert testimony of John Leanes, found at pages 72 through 74 of the transcript of the hearing in this cause.

   
   

2. The expert testimony of Stephen Crosby, found at pages 130 through 134 of the transcript of the hearing of this cause.

   
   

3. Petitioner's Exhibit 13.

   
   

4. There is no competent substantial evidence in the record to support a conclusion that the particular conditions harmful to learning created by Respondent were not the type of condition contemplated under Section 6B- 1.006(3)(a) F.A.C.

   
   

5. There is no competent substantial evidence in the record to support a conclusion that the particular conditions harmful to health, safety or learning created by Respondent are not those contemplated by Section 6B-1.006(3)(a) F.A.C.

   
   

6. The testimony of John Leanes and Stephen Crosby on these points is uncontroverted, and it is further

ORDERED AND ADJUDGED that the Hearing Officer's Conclusion of Law number 17 is accepted to the extent that it states parents removed their son from Respondent's class, and that at least a few parents of pupils in Respondent's class were concerned about the chair incident, and it is

ORDERED AND ADJUDGED that Petitioner's Exception to the Hearing Officer's Recommended Order number 5 is accepted, and the Hearing Officer's Conclusion of Law number 17 is rejected, to the extent that it indicates that the evidence in this cause did not prove that Respondent's effectiveness was impaired in that:

1. Such a conclusion is inconsistent with the testimony of Stephen Walker, at page 45, lines 14 through 16 and page 47, lines 13 through 16 of the transcript of the hearing of this cause.

2. Such a conclusion is inconsistent with the testimony of Chris Colvin, at page 55, lines 13 through 17 of the transcript of the hearing in this cause.

   
   

3. Such a conclusion is inconsistent with Petitioner's Exhibit 5, and the testimony of David Colvin, found at pages 11 through 12 of the transcript in this cause.

   
   

4. Such a conclusion is inconsistent with the testimony of Piper Jones, at pages 101 through 102 of the transcript of the testimony in the hearing of this cause.

   
   

5. Such a conclusion is inconsistent with the testimony of Timothy Gibson, at pages 13 through 15 of the transcript of the testimony of this cause.

   
   

6. Such a conclusion is inconsistent with the expert testimony of Stephen Crosby, at pages 129 through 134 of the transcript of the testimony in the hearing in this cause.

   
   

7. There is no evidence in the record to controvert the above referenced testimony, and there is no evidence in the record indicating that the sort of impairment to effectiveness as described is not the sort contemplated by Section 6B-4.009(3) F.A.C., and therefore such a conclusion is unsupported by competent substantial evidence, and it is further

ORDERED AND ADJUDGED that Petitioner's Exceptions to the Hearing Officer's Recommended Order numbered 6 & 7 are hereby accepted, and the Hearing Officer's conclusion of Law number 18 is rejected for the reasons previously set forth herein, because such a conclusion is inconsistent with the factual findings made by the Hearing Officer, and because it is concluded that just cause for the imposition of a three day suspension without pay includes the conduct Respondent has been found by the Hearing Officer to have committed, and it is further

ORDERED AND ADJUDGED that Petitioner's Exception to the Hearing Officer's Recommended Order number 8 is accepted and the Hearing Officer's recommendation that a Final Order be entered in this cause not suspending Respondent for three days without pay is hereby rejected because:

1. Of the serious nature of the incident, as found by the Hearing Officer to have been committed, and as shown by:

   
   

   1. the testimony of Stephen Crosby, at pages 127 through 134 of the transcript

      
      

   2. the testimony of Piper Jones, Timothy Gibson, Stephen Walker, David Colvin, and Chris Colvin, previously cited

      
      

   3. the testimony of John Leanes, at pages 73 through 74 of the transcript of the hearing of this cause

      
      

2. because Respondent has been repeatedly warned or reprimanded in the past for the exercise of poor judgment and has been placed on a comprehensive evaluation cycle for poor judgment, and was specifically told not to use profane language in the presence of students in the past, and has been give needs improvement ratings on her evaluations, as shown by:

1. Petitioner's Exhibits 7, 9 and 10.

2. The testimony of Joann Andrews, previously cited.

   
   

3. The testimony of John Leanes, previously cited. and it is further

ORDERED AND ADJUDGED that Respondent is suspended without pay for three days, effective January 19, 20, and 21, 1993, unless a timely Notice of Appeal is filed in this cause, in which case the suspension shall be stayed, pending the outcome of said appeal, and in the event that such an appeal is terminated without a reversal of the order suspending Respondent without pay, the suspension shall be imposed on the first three working days of the month following that in which the appeal is terminated.

Any party adversely affected by this Order shall have the right to appeal to the Second District Court of Appeals in Lakeland, Florida by filing notice of intent to do so with the clerk of said Court within thirty (30) days of this date.

DONE AND ORDERED on this the 16th day of December, 1992 in Largo, Pinellas County, Florida.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By: Chairman

Attest: Ex Officio Secretary

Docket for Case No: 92-002873

Orders for Case No: 92-002873