STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLIE CRIST, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 02-0966PL

)

EARNESTINE YOUNG, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Notice was provided and on June 4, 2002, at the Alachua County Courthouse, 201 East University Avenue, Gainesville, Florida, a formal hearing commenced. The hearing was concluded on August 27, 2002, at the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes, held before Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

913 North Gadsden Street Tallahassee, Florida 32301

For Respondent: Joan Stewart, Esquire

Florida Education Association

118 North Monroe Street Tallahassee, Florida 32399-1700

STATEMENT OF THE ISSUE

Should discipline be imposed on Respondent's Florida Educators Certificate 174039?

PRELIMINARY STATEMENT

In an action commenced by Tom Gallagher, as Commissioner of Education, Petitioner1/ v. Earnestine Young, Respondent, through an Administrative Complaint before the State of Florida, Education Practices Commission, Case No. 990-1294-A, as amended, it has been alleged in pertinent part:

1. On or about November 3, 1999, the Education Practices Commission issued a final order which placed Respondent on one year employment probation. As a condition of probation Respondent was required to perform her duties in a "competent, professional manner." The probation also required that Respondent violate no law, the code of professional conduct, . . . .

   During the 1999-2000 school year, Respondent violated her probation by engaging in inappropriate behavior towards student [sic] under her charge. Respondent struck students on the head and hand, used foul language, called the students names made derogatory remarks about their abilities. Respondent also openly complained about the students to their teacher in front of them and made no secret that she disliked the students and her job.

   
   

2. During the 1999-2000 school year, Respondent acted inappropriately toward her students by, striking some students . . .

making derogatory comments to students, using foul language and speaking to students in a rough and unfriendly manner.

Based upon these alleged facts Respondent was accused in five separate counts of various statutory and rule violations respectively, Section 231.28(1)(f) and 231.28(1)(a), Florida Statutes, and Rule 6B-1.006(3)(a), 1.006(3)(e) and 1.006(5)(p), Florida Administrative Code.2/

Consistent with an order of prehearing instructions the parties submitted a joint prehearing stipulation. Included within that submission were statements of facts admitted requiring no proof. Those facts, including the attached exhibits, were accepted and will be addressed in the fact- finding to this recommended order.3/

At hearing, Petitioner presented the testimony of Leanetta McNealy, J.M., Laura Renfroe, Renee Pigon, A.H., and

1. Petitioner's Exhibit numbered 1 was admitted.

   
   

   Respondent testified in her own behalf and presented the testimony of Officer MacArthur Burke and Gunnar Paulson. Respondent's Exhibits numbered 1 and 3, and 6 through 8 were admitted. Respondent's Exhibit numbered 5 was denied admission. Respondent's Exhibits numbered 2 and 4 were identified but not offered for admission. All exhibits described are transmitted with this record.

   Both hearing days were transcribed. The last hearing transcript was filed with the Division of Administrative Hearings on September 11, 2002. Without opposition Respondent

   asked that the time for submitting proposed recommended orders be extended until September 27, 2002. The parties were orally informed that the request was granted. On September 27, 2002, both parties submitted proposed recommended orders which have been considered in preparing this Recommended Order.

   FINDINGS OF FACT

   
   

   Stipulated Facts:

   
   

   1. The Respondent holds Florida Educator's Certificate No. 174039, covering the areas of Elementary and Business Education, which is valid through June 30, 2005.

   2. Respondent was at all times material to the allegations of this administrative complaint an employee of the Alachua County School District.

   3. On or about April 27, 1999, the Commission of Education found probable cause to file an Administrative Complaint (Commission of Education v. Earnestine M. Young, Case No. 978-0721M) against Respondent. The Administrative Complaint in Case No. 978-0721M alleged that "during the 1995- 1996 and 1996-1997 school years, Respondent made derogatory and insulting comments to and about students, in front of a whole class. She referred to one student as 'stupid' because he had a calculator, told another student to 'stop looking at me like that because you look queer . . .' and in other ways demeaned her students. Respondent, also ignored students in

      class if they had annoyed her." The Administrative Complaint contained three counts alleging violations respectively of Section 231.28(1)(i), Florida Statutes, and Rule 6B- 1.006(3)(a) and 1.006(3)(e), Florida Administrative Code.

   4. On or about November 3, 1999, the parties entered into a settlement agreement pertaining to Case No. 978-0721M. To settle the dispute in Case No. 978-0721M, the parties agreed that Respondent not admit nor deny but elected not to contest the allegations in the Administrative Complaint and to accept a letter of reprimand, a copy of which would be placed in Respondent's certification file with the Department of Education and in her personnel file with the employing school district. The parties agreed that the Respondent should be placed on a period of probation of one year commencing upon the issuance of a final order by the Education Practices Commission. The terms of that probation, in pertinent part, incorporated the requirement that Respondent violate no law (statutory violations) and not violate the State Board of Education Rule 6B-1.006 during her probation. It was likewise agreed that if the Respondent failed to comply with the conditions of the probation, Petitioner would be authorized to file an administrative complaint for sanctions up to and including the revocation of her teaching certificate based upon the violation of the terms of the probation.

   5. On or about December 28, 1999, the Education Practices Commission entered a Final Order approving the settlement agreement in Case No. 978-0721M.

      Additional Facts:

      
      

   6. In the school year 1999-2000, Respondent was assigned to Duval Elementary School, part of the Alachua County School District.

   7. In late January 2000, J.M. was a second grade student in Respondent's class with other students. On this date Respondent was serving as a substitute teacher in an art class. J.M. got up from her seat to retrieve a piece of paper without raising her hand for permission from Respondent. During this encounter Respondent hit the student with a pen on her knuckles. J.M. described the incident to the effect that "it hurt a little bit, but it did not hurt that much." The incident happened at the Respondent's desk in the classroom. After the incident Respondent told the student, "Just sit down." The student then started to cry. J.M. was not sure whether Respondent intended to strike her. Respondent concedes that she may have struck the student. Respondent denies any intent to strike the student. Respondent was grading papers at the desk with a pen and noticed the papers moving, put her hands down on the paper, repeated that procedure and commented to the effect that the student should

      not take the papers that were being graded. (What J.M. considered to be a pencil was in fact a pen.) To the extent that J.M. surmised that she was being struck because she did not raise her hand to ask permission to get a piece of paper, that belief by J.M. was not established in the proof. After weighing these facts, it is not certain that Respondent intentionally struck the student on the hand.

   8. On February 18, 2002, Respondent was responsible for a computer class at the Duval Elementary School. The computer lab class included A.H., a fifth grade student. A.H. sat down at his seat and raised his hand. Respondent approached A.H. and under her breath, but loud enough to be heard by A.H. and student H.J. stated, "I hate these damn kids." Respondent struck A.H. on the back of his head with her hand. A.H. turned around and looked at Respondent. Respondent told A.H. to "turn back around and do your work."

   9. In 1999-2000 Lenita McNeally was the principal at Duval Elementary. In that school year she observed Respondent with students in class and described Respondent as gruff in her mannerisms and demeanor. Ms. McNeally considered Respondent's teaching style to be curt and not what

      Ms. McNeally would expect. Ms. McNeally did not deem Respondent to be as pleasant as Ms. McNeally would desire. Ms. McNeally believed the children to be uncomfortable with

      Respondent. Ms. McNeally felt that the Respondent needed to come forth with a mild-mannered temper, with a smile and to diminish her tone. Ms. McNeally's comments concerning the tone Respondent used in dealing with Respondent's students are accepted. Ms. McNeally did not hear the use of foul language, or Respondent calling students names or making derogatory remarks about the abilities of students as alleged in the Administrative Complaint.

   10. Laura Renfroe was a reading facilitator in the reading program at Duval Elementary School during the school year 1999-2000. She observed Respondent in class and found Respondent to be very strict, and very tough with the students. When the students would question Respondent, Respondent often seemed angry in giving her answers. Respondent's tone, as observed by Ms. Renfroe, was angry and upset. This approach by Respondent was met by the students' silence beyond that point. The observations Ms. Renfroe made of Respondent in providing instruction were as reading facilitator. Ms. Renfroe also overheard Respondent from

       Ms. Renfroe's adjacent room to the Title I lab where Respondent was teaching. Again, what Ms. Renfroe overheard was the tone used by Respondent in addressing her students which was angry, upset, and sarcastic. Ms. Renfroe did not hear Respondent use foul language or call the students by

       derogatory names. Ms. Renfroe did not hear the Respondent tell the students that she did not wish to be in the classroom or did not like them personally.

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in

       this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

   12. In this administrative prosecution Petitioner must prove the allegations by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The term clear and convincing evidence is defined in Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

   13. As alleged in Count 1, Respondent is guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board, in striking A.H., in using profane language in that incident and in the manner of speaking to her students as identified by fellow educators.

   14. As alleged in Count 2, Respondent is guilty of misconduct in violation of Section 231.28(1)(i), Florida Statutes, by virtue of violations of the Principles of Professional Conduct for the education profession in Florida as prescribed by the State Board of Education rules, pertaining to Counts 3 through 5.

   15. As alleged in Count 3, Respondent is guilty of violating Rule 6B-1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect students from conditions harmful to learning in her treatment of A.H., and in her general demeanor in teaching students as described by fellow educators who observed her in the classroom or overheard her.

   16. As alleged in Count 4, Respondent is guilty of a violation of Rule 6B-1.006(3)(e), Florida Administrative Code, by the intentional exposure of a student to unnecessary embarrassment or disparagement in her conduct related to A.H.

   17. As alleged in Count 5, Respondent is guilty of a violation of Rule 6B-1.006(5)(p), Florida Administrative Code, in that Respondent failed to comply with the conditions of the prior order of the Education Practices Commission imposing probation by virtue of the violations that have been found in relation to Counts 1 through 4 to this Administrative Complaint.

RECOMMENDATION

Upon the consideration of the facts found and conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in violation of Counts 1 through 5 and suspending her teaching certificate for a period of 60 days.

DONE AND ENTERED this 31st day of October, 2002, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 31st day of October, 2002.

ENDNOTES

1/ This action had been commenced at a time when Tom Gallagher was Commissioner of Education. The parties agreed that the style of the case should be corrected to reflect Charlie Crist, as Commissioner of Education.

2/ As represented by his counsel, Petitioner abandoned prosecution on the basis that Respondent had violated her prior probation by conduct contrary to the policies and procedures of the Alachua County School District.

3/ The joint prehearing stipulation of facts with exhibits is transmitted with the recommended order.

COPIES FURNISHED:

Ron Weaver, Esquire

913 North Gadsden Street Tallahassee, Florida 32301

Joan Stewart, Esquire

Florida Education Association

118 North Monroe Street Tallahassee, Florida 32399-1700

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

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

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

325 West Gaines Street, Room 224E 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: 02-000966PL

Orders for Case No: 02-000966PL