STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 99-0678

)

ELAINE V. HOLLINGSWORTH, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause was heard before Daniel M. Kilbride, Administrative Law Judge with the Division of Administrative Hearings on September 23, 1999, in Orlando, Florida.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

528 East Park Avenue Tallahassee, Florida 32301

For Respondent: Harvey M. Alper, Esquire

Alper and Crichton, P.A.

112 West Citrus Street

Altamonte Springs, Florida 32714 STATEMENT OF THE ISSUES

Whether Respondent engaged in inappropriate conduct with students and colleagues during the 1996-97 school year, having received a Letter of Reprimand on September 22, 1997.

Whether Respondent violated various provisions of the Principles of Professional Conduct during the 1996-97 and 1997-98

school year. Rule 6B-1.006(3)(a) and (e), Florida Administrative Code.

Whether Respondent's teaching certificate should be revoked or suspended or other penalty imposed as provided by law, for gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(i), Florida Statutes.

PRELIMINARY STATEMENT

On December 22, 1998, Petitioner issued an Administrative Complaint alleging that Respondent, a certified teacher, engaged in conduct that was in violation of various sections of the Florida Statutes, and the Florida Administrative Code.

Respondent denied the allegations and requested a formal hearing on these allegations.

On February 3, 1999, this matter was referred to the Division of Administrative Hearings for adjudication. Prior to the hearing, Petitioner moved to amend the Administrative Complaint. The motion was granted, except that paragraphs 5, 6, and 7 were stricken.

Official recognition was taken of the statement of admitted facts. Petitioner presented eight witnesses: April Cook, Ricky Souza, Rebecca Jones, Carol Pickler, Linda Lovell, Nancy Spearman, Diane Lovett, and Emma Newton. One exhibit was admitted in evidence. Respondent presented the testimony of two witnesses: Naomi Sims and Esther Sims. Respondent also testified in her own behalf and offered two exhibits in evidence.

Petitioner moved and was granted to leave the record open to take the testimony of an expert witness. By letter dated September 18, 1999, Petitioner waived that request and rested his case.

At the close of the evidentiary hearing, the parties were advised that post-hearing submittals were to be filed no later than 15 days following the filing of the transcript. A Transcript of the proceedings was filed on October 14, 1999.

Petitioner and Respondent timely submitted their respective Proposed Recommended Orders. The parties proposals have been given careful consideration in the preparation of this Order.

FINDINGS OF FACT

Based upon the exhibits received into evidence, the stipulation of the parties, and the testimony of the witnesses at the hearing, the following findings of fact are made:

1. The Education Practices Commission has the authority to suspend or revoke the teaching certificate of any person holding a Florida Educator's Certificate for violation of Florida laws and rules.

2. Respondent holds Florida Educator's Certificate 537304, covering the areas of Elementary Education and Middle Grade Math, and which is valid through June 30, 1999.

3. At all times pertinent hereto, Respondent was employed by Orange County School District as a teacher at Union Park Middle School.

4. April Cook, now 14, had Respondent as a math and English teacher when she was in the sixth grade. On one occasion, during the 1996-97 school year, while April was attending Respondent's class, Respondent was talking to the class about a "higher power" and raised her hand using her middle finger stating that this referred to the higher power. April interpreted this hand gesture to mean "fuck you" and was "stunned" by Respondent's conduct in the classroom.

5. Ricky Souza, now 14, had Respondent as his sixth grade language arts teacher and seventh grade math teacher. On one occasion while Ricky was attending Respondent's class, Respondent was talking to the class about how she praised God and raised her hand using her middle finger in the same manner observed by Cook. Ricky was "offended" by Respondent's hand gesture, although Respondent stated that God was a good force.

6. Respondent was not a popular teacher while at Union Park Middle School and students were regularly disrespectful in class and would spread rumors about her throughout the school.

7. Rebecca Jones and Carol Pickler are teachers at Union Park Middle School. Mrs. Jones has been a teacher for 18 years, Mrs. Pickler, 32 years. On one occasion during the 1996-97 school year, while Mrs. Jones and Mrs. Pickler were in the hallway of the school talking, Respondent approached them and stated: "Every time I see the two of you, I'd like to beat the

   shit out of both of you." She then turned and walked down the hallway.

8. No provocation for the statement has been established. However, no students were in the area to hear the remark.

9. Diane Lovett was the principal at Union Park Middle School during the relevant time period. She has been a teacher and administrator for 10 years. Her responsibilities include evaluation of teachers, observations of teachers and handling disciplinary matters. While principal at Union Park, Mrs. Lovett observed Respondent teach on several occasions. During these observations Respondent's teaching seemed to be "scattered discourse." On one occasion, Lovett heard the Respondent threaten her students by telling them that the FBI would come and take them to jail if they did not behave.

10. Mrs. Lovett also observed Respondent, while holding her hand up and counting on all of her fingers, use her middle finger in the same manner described by April Cook and Ricky Sousa. She alluded to the third finger as being an example of the higher power.

11. Parents reported to Mrs. Lovett that they were offended by the hand gesture made by Respondent, as reported to them by students.

12. Respondent used hand gestures in the classroom which were misinterpreted by the students.

13. Mrs. Lovett counseled Respondent about the hand gesture and told her that it was an obscene gesture and that she should not use it in the classroom.

14. After Mrs. Lovett counseled Respondent about her using the hand gesture, Mrs. Lovett observed Respondent use the gesture in the classroom again by referring to the middle finger as the higher power.

15. On another occasion, Mrs. Lovett went to Respondent's classroom. When Mrs. Lovett arrived, Respondent was very distraught. Respondent was screaming at a student and pointing in the face of one of the students because she thought the student's book bag was not placed properly under his desk. Respondent stated that she could not take it anymore. Other students in the classroom observed Respondent's behavior and they were "on the verge of tears."

16. Respondent used acrostics often in the classroom. One acrostic was to use the word "Christ" to spell out a positive message.

17. Linda Lovell is the bookkeeper at Union Park Middle School. Mrs. Lovell has been at Union Park for 14 years. On one occasion, Respondent directed one of her students to take a document to Mrs. Lovell and ask her to send the document to the address by fax. Mrs. Lovell told the student to inform Respondent that she (Mrs. Lovell) could not fax the document, but that she would show Respondent how to use the fax machine. Later

    that afternoon, Respondent went to the front office where Mrs. Lovell's office was located and engaged in a verbal altercation with Lovell, at whom Respondent yelled and screamed. Respondent accused Mrs. Lovell of causing her husband to lose his insurance because Mrs. Lovell did not send the fax. Because Respondent was very angry and appeared out of control, Mrs. Lovell was afraid and did not know what to do. Others in the office could hear the Respondent's verbal assault upon Mrs. Lovell.

18. On September 22, 1997, the principal of Union Park issued a letter of reprimand for misconduct, including inappropriate conduct in the classroom and with school statements for the incidents described above which occurred in the 1996-97 school year. Respondent disputed the substance of the allegations contained in the letter.

19. The 1996-97 school year was a very stressful period for Respondent. During the period, Respondent's mother died, her husband became gravely ill and subsequently died also, and Respondent was removed from the classroom for a period of time. When she returned she came under the close scrutiny of a new principal.

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter of this proceeding pursuant to Sections 120.569 and 120.47(1), Florida Statutes.

21. The Education Practices Commission (hereinafter referred to as the "Commission") is statutorily empowered to take disciplinary action against the holder of a Florida teaching certificate based upon any of the grounds enumerated in Section 231.28(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: permanent certificate revocation; certificate revocation, with reinstatement following a period of not more than ten years; certificate suspension for a period of time not to exceed three years; imposition of an administrative fine not to exceed $2,000 for each count or separate offense; restriction of the authorized scope of practice; issuance of a written reprimand; and placement of the teacher on probation for a period of time and subject to such conditions as the Commission may specify. Sections 231.261(8)(b), 231.262(6), and 231.28(1), Florida Statutes.

22. Section 231.28(1)(c), Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "has been guilty of gross immorality or an act involving moral turpitude."

23. Section 231.28(1)(i), Florida Statutes, authorizes the Commission to take disciplinary action against a certified teacher who "has otherwise violated the Principles of Professional Conduct in Florida prescribed by the State Board of Education."

24. Rule 6B-1.006, Florida Administrative Code, 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.

       
       

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or the other penalties as provided by law.

       
       

    3. Obligation to the student requires that the individual:

       
       

       1. Shall make a reasonable effort to protect the student from conditions harmful to learning or to health or safety.

          
          

          * * *

          
          

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

          
          

25. The foregoing statutory and rule provisions are penal in nature and must be strictly construed. No conduct is to be regarded as included within them that is not reasonably proscribed by them. Furthermore, if there are any ambiguities included such must be construed in favor of the licensee. Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

26. A teacher's certificate may be suspended or revoked based upon the foregoing statutory and rule provisions only if the grounds for suspension or revocation are established by clear

    and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387, 388 (Fla. 1st

    DCA 1995).

    
    

27. "Clear 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 testimony 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 a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting with approval from Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

28. Furthermore, the grounds proven must be those specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

29. In the instant case, the Administrative Complaint issued against Respondent alleges that:

    1. During the 1996-97 school year, Respondent engaged in inappropriate conduct with students and colleagues. During class, Respondent raised her hand above her head and lifted her middle finger to the sky as a reference to God and to the class. Respondent used inappropriate language in front of students, Respondent also behaved loudly and irrationally with colleagues.

    2. On or about September 22, 1997, Respondent received a letter of reprimand for misconduct including inappropriate conduct in the classroom and with school staff.

    
    

30. Petitioner alleges that these actions constitute statutory violations of Section 231.28(1)(c), Florida Statutes, in that Respondent has allegedly "been guilty of gross immorality or an act involving moral turpitude" and in that the allegations of material misconduct violate Section 231.28(1)(i), Florida Statutes, because Respondent has purportedly breached the Principles of Professional Conduct for the education profession in Florida.

31. The claimed rule violations, which are tantamount to violations of the Principles of Professional Conduct, include the allegations made by Petitioner that "Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or the student's mental health and/or physical safety"; and the allegation of misconduct in violation of Rule 6B-1.006(3)(e), Florida Administrative Code, in that "Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement."

32. As a matter of law, the facts presented against Respondent, even if presumed to be true in all particulars, and even if Respondent's testimony in contravention or mitigation thereof is presumed untrue, do not meet the standard necessary

    whereby Respondent could be found guilty of "gross immorality or an act involving moral turpitude."

33. Immorality is defined as conduct that is inconsistent with the standard of public conscience and good morals and must be sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service to the community. Norman H. Arnold, Jr., vs. Frank T. Brogan, Commissioner of Education, DOAH Case No. 98-1619; DOE Case No. 98-0191 (Final Order, December 28, 1998); See State ex rel. Tullidge vs. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).

34. Here there is no compelling evidence that the Respondent did anything of such a nature. At best, the evidence against her regarding the allegation that she "raised her hand above her head and lifted her middle finger to the sky as a reference to God" is conflicting as to how it occurred and as to what was intended by the gesture.

35. Further, there is no proof that Respondent used "inappropriate language in front of students." Indeed, there is no proof whatever that Respondent ever used any words which could be considered offensive in the presence of any student.

36. As to the allegation that Respondent behaved "loudly and irrationally with colleagues," the fact remains that such actions are not tantamount to proof of any violation of

    Respondent's responsibilities to her students nor would the same constitute proof of any immoral conduct by her.

37. The sum of the allegations against Respondent do not equate to an allegation that she has been guilty of any "moral turpitude," which is defined as a crime. See Norman H. Arnold, Jr., vs. Frank T. Brogan, Commissioner of Education, supra, and authorities cited therein. Moral turpitude involves inherent baseness and depravity and no such factual allegations have either been made or proven against Respondent in this cause. State ex rel. Tullidge vs. Hollingsworth, supra.

38. In consideration of the foregoing, the allegation that Respondent has violated Section 231.28(1)(c), Florida Statutes, which prohibits "gross immorality or an act involving moral turpitude" is, therefore, not proven.

39. The allegation that Respondent has violated the Principles of Professional Conduct for the education profession prescribed by State Board of Education Rules is similarly not proved. This is so because the rule violations alleged are that Respondent, under Rule 6B-1.006(3)(a), Florida Administrative Code, failed to "make reasonable effort to protect the student from conditions harmful to learning and/or the students' mental and/or physical health and/or physical safety." This case is devoid of any convincing evidence that Respondent failed to protect students from conditions harmful to learning and/or their mental and physical well being.

40. Furthermore, there is no proof that any student was present at any time when Respondent used language toward

    Ms. Jones and Ms. Pickler which was "inappropriate." Respondent's, outside the ears of students, yelling at Mrs. Lovell concerning her failure to timely send an important fax is not evidence that Respondent exposed students to conditions harmful to learning and/or their physical or mental well being.

41. However, there is proof that Respondent has violated Rule 6B-1.006(3)(e), Florida Administrative Code, which requires that she shall "not intentionally expose a student to unnecessary embarrassment or disparagement." There is evidence in the record that Respondent, on one or two occasions, raised her hand while in class, pointed to the middle finger and referred to it as the "higher power." Several students interpreted the gesture as offensive and disparaging to them.

42. The testimony describing how Respondent stood on chairs and engaged other inappropriate gestures is not credible.

43. In view of Respondent's repeating the conduct after being counseled by her principal is sufficient proof of intent to embarrass or disparage a student.

44. However, in mitigation, the facts as presented show Respondent was going through a stressful period in her life, during which her mother died, during which her husband was taken gravely ill (and subsequently died), and during which she was removed from the classroom, only to return to her school under

    the close scrutiny of a new principal with whom she had no relationship.

45. The allegation that Respondent received a letter of reprimand is not a violation in and of itself. The mere fact of receipt of a letter of reprimand does not establish that the matters and things subject to the letter of reprimand did, in fact, occur. Respondent disputed the substance of the allegations against her in the letter of reprimand from the start. Therefore, the mere issuance of the letter of reprimand does not prove the "facts" giving rise to that reprimand. Thus, this allegation regarding the reprimand against Respondent, in effect, fails to state a cause of action.

RECOMMENDATION

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

RECOMMENDED that the Education Practices Commission enter a final order that:

1. Respondent engaged in inappropriate conduct with students and colleagues during the 1996-97 school year.

2. Respondent be found not guilty of gross immorality or committing an act involving moral turpitude, in violation of Section 231.28(1)(i), Florida Statutes.

3. Respondent be found not guilty of violating Rule 6B- 1.006(3)(a), Florida Administrative Code.

4. Respondent be found guilty of violating Rule 6B- 1.006(3)(e), Florida Administrative Code.

5. Respondent be issued a letter of reprimand in view of the minor matter of the offense and the demonstration of mitigation by Respondent.

DONE AND ENTERED this 10th day of December, 1999, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1999.

COPIES FURNISHED:

Harvey M. Alper, Esquire Alper & Crichton, P.A.

112 West Citrus Street

Altamonte Springs, Florida 32714

Ron Weaver, Esquire

528 East Park Avenue Tallahassee, Florida 32301

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

Florida Education Center

325 West Gaines Street, Room 224-E Tallahassee, Florida 32399

Jerry W. Whitmore, Program Director Professional Practices Services Department of Education

325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-000678

Orders for Case No: 99-000678