STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, )

AS COMMISSIONER OF EDUCATION,1/ )

)

Petitioner, )

)

vs. ) Case No. 02-3522PL

)

ELANNA DERBY, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

On March 18, 2003, a formal hearing was held in this case.

Authority for conducting the hearing is set forth in Sections 120.569, and 120.57(1), Florida Statutes. The hearing location was the City Hall Annex Building, 200 East Bay Street, Suite 1600, Jacksonville, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 279 Austell, Georgia 30168

For Respondent: David A. Hertz, Esquire

General Counsel

Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207-3364 STATEMENT OF THE ISSUE

Should the Respondent have discipline imposed on her Florida Educator's Certificate 753123?

PRELIMINARY STATEMENT

In an action before the State of Florida, Education Practices Commission (EPC), Case No. 989-2387-C, Respondent was charged by Administrative Complaint with violations of Section 231.28(1)(i), Florida Statutes, as it pertains to Rule 6B-1.006(3)(a) and (e), Florida Administrative Code. The Administrative Complaint was executed on August 21, 2000. It contained three counts. The material allegations in the Administrative Complaint are as follows:

On or about February 5, 1999, Respondent used inappropriate discipline techniques when she struck a minor male student, R.M., on the back of the head causing his head to strike the desk and chip one of his teeth. On or about May 17, 1999, Respondent received a letter of reprimand from the Duval County School District.

EPC received Respondent's Election of Rights for a settlement option and requesting a formal hearing if that option was not successful.

On September 11, 2002, the case was filed with the Division of Administrative Hearings to resolve material facts in dispute through a formal hearing. After a single continuance the case proceeded to hearing on the date described.

Petitioner presented the witnesses W.B. (a student); R.M. (a student), and L.H., R.M.'s mother. Respondent testified in her own behalf.

When the hearing commenced counsel for the parties entered into a stipulation accepting paragraphs one and two to the Administrative Complaint as factually correct.

On April 9, 2003, the hearing transcript was filed with the Division. Proposed recommended orders from the parties were submitted and considered in preparing the recommended order.

FINDINGS OF FACT

Stipulated Facts:

1. The Respondent holds Florida Educator's Certificate 753123, covering the area of Primary Education, which is valid through June 30, 2002.

2. At all times pertinent hereto, Respondent was employed as a Second Grade teacher at Martin Luther King Elementary School (MLK), in the Duval County School District.

   Additional Facts:

   
   

3. At the time of hearing Respondent had been a teacher for 17 years, most recently as fifth grade teacher at MLK.

4. On February 5, 1999, R.M. was a student in Respondent's second grade class. During the school day the class members had been generally disruptive and disrespectful

   to the teacher. This conduct continued after the lunch break. As a consequence, Respondent turned down the lights in the classroom and required the students to put their heads down on their desks to allow them to re-group. R.M. disobeyed this instruction.

5. Respondent walked to the desk of R.M. Again she told

   
   

   R.M. to put his head down on the desk. He did not.

   
   

   Respondent took her hand and begin to push on the back of R.M.'s head. During this time R.M. was physically resisting Respondent by trying to keep his head up and away from the desktop. In effect he was pushing back against the pressure created by Respondent. Eventually, Respondent stopped pushing R.M.'s head. When she released R.M.'s head after exerting pressure that was resisted by R.M., the sudden change in momentum caused R.M.'s chin to strike the desktop chipping two teeth. R.M. did not bleed but he could feel a chipped tooth.

   R.M. told Respondent that he thought she had chipped his tooth. Respondent looked at R.M.'s mouth and commented that there was no chipped tooth.

6. When R.M. arrived home he told his mother about the incident. His teeth have been temporarily corrected pending a permanent solution when he has fully matured.

7. The act of pushing R.M.'s head down which caused him to strike his chin and chip his teeth was not an appropriate choice for discipline or control.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

9. Petitioner bears the burden to prove the material allegations in the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

10. In consideration of Count I, alleging that Respondent has engaged in misconduct in violation of Section 231.28(1)(i), Florida Statutes, now Section 1012.795(1)(i), Florida Statutes, by violating the Principles of Professional Conduct for the Education Profession in Florida as prescribed by the State Board of Education, that violation has been shown as related in Counts II and III. Those conclusions are in association with the treatment of R.M. by imposing physical force to gain his compliance with her verbal instruction.

11. In consideration of Count II alleging that Respondent has engaged in misconduct in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code, by failing to make

    reasonable effort to protect R.M. from conditions harmful to learning and/or R.M.'s mental health and/or physical safety, that violation has been shown. What transpired was contrary to R.M.'s physical safety.

12. In consideration of Count III alleging that Respondent has engaged in misconduct in violation of Rule 6B- 1.006(3)(e), Florida Administrative Code, by intentionally exposing R.M. to unnecessary embarrassment or disparagement, that violation has been shown. Respondent disparaged R.M. in pushing his head toward the desktop to force his compliance with her verbal instruction, leading to his striking his chin and chipping his teeth.

RECOMMENDATION

Based on the facts found and the conclusions of law reached, it is

RECOMMENDED:

That a final order be entered finding Respondent in violation in Counts I through III and suspending Respondent's teaching certificate for a period of 30 days.

DONE AND ENTERED this 28th day of April, 2003, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Hearings

Hearings

Division of Administrative

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

this 28th day of April, 2003.

ENDNOTE

1/ This case commenced as Tom Gallagher, as Commissioner of Education, Petitioner vs. Elanna Derby, Respondent, EPC Case No. 989-2387-C. At present Tom Gallagher heads the State of Florida, Department of Financial Services. Jim Horne has become the Commissioner of Education.

COPIES FURNISHED:

Ron Weaver, Esquire Post Office Box 279 Austell, Georgia 30168

David A. Hertz, Esquire General Counsel

Duval Teachers United 1601 Atlantic Boulevard

Jacksonville, Florida 32207-3364

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: 02-003522PL

Orders for Case No: 02-003522PL