STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner of ) Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6896

)

MARETTA WESLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings, at Miami, Florida, on March 10, 1993. Appearances for the parties were as follows:

APPEARANCES

For Petitioner: Gregory A. Chaires, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: William du Fresne, Esquire

Du Fresne and Bradley, P.A.

2929 S.W. Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against Respondent on the basis of alleged misconduct which is set forth in a three count Administrative Complaint. The misconduct alleged consists primarily of assertions that the Respondent used various forms of corporal punishment on her students and that she also engaged in verbal abuse of her students.

PRELIMINARY STATEMENT

At the hearing on March 10, 1993, the Petitioner presented the testimony of eight witnesses and also offered four exhibits, all of which were received in evidence. The Respondent testified on her own behalf and also presented the testimony of two other witnesses. The Respondent did not offer any exhibits.

At the conclusion of the hearing, the parties were allowed ten days from the filing of the transcript of the hearing within which to file their proposed recommended orders. The transcript was filed with the Hearing Officer on March

29, 1993. Thereafter, both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all findings of fact proposed by the parties are contained in the appendix hereto.

FINDINGS OF FACT

1. The Respondent currently holds Florida teaching certificate number 151121, covering the area of elementary education. The certificate is valid through June 30, 1995.

   
   

2. During the 1990-1991 school year and during the 1991-1992 school year, the Respondent was employed as a teacher at Charles R. Drew Elementary School in the Dade County School District.

   
   

3. In January of 1992, the Respondent threw a wooden ruler at A. S., who was a minor male student in her class. The ruler hit A. S. in the face and left a scratch on his face. This incident took place in class in the presence of other students in the class.

   
   

4. During the 1991-1992 school year, the Respondent pinched A. S., a minor male student, on the ear in front of the other students in the class.

   
   

5. During the 1991-1992 school year, the Respondent struck L. W., a minor female student, with a ruler on her hands and on her legs. The ruler left marks on L. W.'s hands. Student L. W. cried as a result of being struck with the ruler and she felt sad.

   
   

6. During the 1991-1992 school year, the Respondent on several occasions used offensive and indecent language in the classroom, sometimes directing such language towards her students. The offensive and indecent language included such words as "fuck," "damn," "bitch," and "ass."

   
   

7. During the 1991-1992 school year, the Respondent used tape to restrain

   M. S., a minor male student. Specifically, the Respondent taped student M. S.'s mouth closed, taped his arms to the arm rests of his chair, and taped his feet to the legs of his chair.

   
   

8. During the 1991-1992 school year, the Respondent used tape on minor male student, P. B., to keep his mouth closed. Student P. B. was taped up in front of the class, which caused him to feel sad.

   
   

9. During the 1991-1992 school year, the Respondent used tape on minor male student, A. S., to keep his mouth closed.

   
   

10. During the 1991-1992 school year, the Respondent used tape on minor male student, T. L., to keep his mouth closed and to prevent him from talking. The Respondent also used tape to restrain T. L. Specifically, the Respondent taped T. L. to his chair.

    
    

11. On several occasions during the 1991-1992 school year, the Respondent threw a wooden ruler, and other similar objects, at students in her class.

    
    

12. During the 1991-1992 school year, the Respondent struck minor male student, M. S., with a wooden ruler. This incident was observed by the other students in the class and made M. S. feel sad and embarrassed.

13. During the 1991-1992 school year, the Respondent struck minor male student, P. B., on the buttocks with a wooden ruler.

    
    

14. During the 1991-1992 school year, the Respondent struck minor female student, D. H., on the buttocks with a counter in class. This incident embarrassed the student.

    
    

15. During the 1991-1992 school year, the Respondent stuck minor male student, T. L., on his left arm with a counter in class. This incident embarrassed the student.

    
    

16. During the 1991-1992 school year, the Respondent pinched the ear of minor male student, T. L. in class.

    
    

17. On numerous occasions prior to the 1991-1992 school year, the Respondent, and all other teachers at Charles R. Drew Elementary School, had been made aware of the policies of the Dade County School District prohibiting corporal punishment. The Respondent had also been made aware of what was encompassed by the term "corporal punishment."

    
    

18. In a memorandum dated February 12, 1991, concerning the use of corporal punishment, the Respondent was specifically instructed not to throw rulers at students.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

20. In a proceeding of this nature, the Petitioner has the burden of proof. And, where the penalties proposed in the Administrative Complaint include the possibility of license revocation, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). See also, Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983), and Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988).

    
    

21. Section 231.28, Florida Statutes, provides, in pertinent part:

    
    

    1. The Education Practices Commission shall have authority to suspend the teaching certificate 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, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period 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:

       * * *

       (h) has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of 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. The Respondent's conduct described in the foregoing Findings of Fact clearly constitutes multiple violations of subsections (a) and (e) of Rule 6B- 1.006(3), quoted above. It is without doubt harmful to learning or to health or safety for a teacher to throw objects at students, to strike students, to place tape on students' mouths, to tape students' arms and legs to their seats, and/or to use offensive and indecent language in speaking to students. And it is equally clear that intentionally doing any or all of the foregoing in the presence of other students constitutes intentional exposure of students to unnecessary embarrassment or disparagement.

    
    

24. In view of the foregoing, the Petitioner has established the violations charged in the Administrative Complaint and appropriate disciplinary action should be taken in this case. In making the disciplinary recommendations which follow, the Hearing Officer has given serious consideration to the recommended penalty suggested in the Petitioner's proposed recommended order. There the Petitioner has proposed that the Education Practices Commission (EPC) issue a letter of reprimand to the Respondent and that the Respondent be placed on three years of probation with the EPC. The Petitioner's proposed terms of probation include the requirement that the Respondent:

    
    

    1. 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. 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. Shall satisfactorily perform her assigned duties in a competent, professional manner;

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

    5. During the period of probation shall successfully complete two college courses or

    the equivalent in-service training courses in the areas of assertive discipline, and classroom management, with progress and completion to be monitored by the EPC.

    
    

25. The Hearing Officer is of the view that the proposed penalty described immediately above is too lenient and fails to address the reality of the fact that the Respondent's course of conduct described in the findings of fact raises serious concerns regarding the physical safety and the emotional health of any children subjected to the Respondent's classroom. The Respondent should not be in charge of students in the classroom until such time as she has been through some remediation process and has affirmatively demonstrated an ability to manage a classroom without resort to verbal and physical abuse. In this regard, attention is directed to the case of Betty Castor, as Commissioner of Education

v. June C. Rawls, Case No. 92-4489 (Recommended Order issued February 26, 1993). In the Rawls case, on the basis of facts very similar to the facts of this case, the Hearing Officer recommended, and the Education Practices Commission imposed, a penalty of revocation. A similar penalty is appropriate here. Because the misconduct proved in this case is arguably to some extent less egregious than the conduct proved in Rawls, supra, the recommended period of revocation is less than in Rawls.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a final order be issued in this case revoking the Respondent's teaching certificate for a period of three years and providing that any recertification of the Respondent shall be pursuant to Section 231.28(4)(b), Florida Statutes.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of September 1993.

MICHAEL M. PARRISH

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 28th day of September 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6896

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings submitted by Petitioner:

Paragraphs 1, 2, 3 and 4: Accepted in substance.

Paragraph 5: Accepted.

Paragraph 6: Accepted in substance, although the language used is more accurately described as indecent or offensive than as profanity.

Paragraphs 7, 8, 9, 10, 11, 12 and 13: Accepted in substance, with some repetitious information omitted.

Paragraph 14: Admitted

Paragraph 15: Rejected because not charged in the Administrative Complaint.

Paragraphs 16, 17, 18, 19, 20, 21, 22, 23 and 24: Accepted in substance. Paragraph 25: Rejected as irrelevant.

Paragraphs 26, 27, 28, 29, 30 and 31: Rejected as subordinate and unnecessary details, many of which are also irrelevant.

Findings submitted by Respondent:

Paragraphs 1 and 2: Accepted in substance.

Paragraphs 3, 4 and 5: These paragraphs are accurate summaries of a portion of the allegations and of a portion of the evidence, but there was other evidence which supports a finding that Audric Sands was struck on the chin by a ruler thrown at him by the Respondent.

Paragraph 6: Rejected as contrary to the greater weight of the persuasive evidence.

Paragraphs 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20: These

paragraphs are all essentially correct summaries of the testimony described in each paragraph. Although there are differences in the details reported by the several child-witnesses, such differences are not unusual when several young children describe an event. There was a great deal of consistency on several relevant matters.

Paragraphs 21 and 22: These paragraphs are essentially accurate summaries of the testimony of the witness referred to. Although the witness Mr. Jim Smith testified he never heard or saw any misconduct by the Respondent, I still find the testimony of the child-witnesses to be persuasive. The child-witnesses were with the Respondent on many occasions when Mr. Smith was not present. Also, Mr. Smith worked as an aide to the Respondent only from some time in November or December until sometime in late January.

Paragraphs 23, 24 and 25: These paragraphs are essentially accurate summaries of the Respondent's testimony. To the extent the testimony summarized here conflicts with the testimony of the child-witnesses, I have generally accepted as more persuasive the testimony of the child-witnesses.

Paragraphs 26 and 27: I have resolved the conflicts in the evidence other than as suggested here. I have found most of the child-witnesses' testimony to be credible.

COPIES FURNISHED:

Gregory A. Chaires, Esquire Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

William du Fresne, Esquire Du Fresne and Bradley, P.A.

2929 South West Third Avenue, Suite One Miami, Florida 33129

Karen Barr Wilde, Executive Director Education Practices Commission

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: 92-006896

Orders for Case No: 92-006896