STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 02-3942PL

)

HEATHER COTTON, )

)

Respondent.1/ )

_______________________________)

RECOMMENDED ORDER

Notice was provided and a formal hearing was held on February 18 and 19, 2003, at the Office of Judges of Compensation Claims, 2401 State Avenue, Suite 100, Panama City, Florida. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing was conducted by Charles C. Adams, Administrative Law Judge.

APPEARANCES

For Petitioner: J. David Holder, Esquire

24357 U.S. Highway 331, South Santa Rosa Beach, Florida 32459

For Respondent: David L. Thompson, Esquire

1919 Farragut Place

Jacksonville, Florida 32207 STATEMENT OF THE ISSUE

Should the State of Florida, Education Practices Commission (EPC) discipline Respondent, who holds Florida

Educator's Certificate No. 802764, for the violations alleged in EPC Case No. 990-1726-C?2/

PRELIMINARY STATEMENT

On July 30, 2002, Petitioner's predecessor executed an Administrative Complaint in EPC Case No. 990-1726-C, containing five counts related to alleged statutory violations and rules violations. On February 27, 2002, Respondent's election of her rights was filed with the EPC contesting the material allegations in the administrative complaint and any statutory or rules violations and requesting a formal hearing. On October 11, 2002, the State of Florida, Division of Administrative Hearings, in the person of Sharyn Smith, Chief Judge, received the case for consideration.

Following two continuances, the hearing was conducted on the dates described.

At hearing, Petitioner presented the testimony of Angie Suber; Candace Wise; Jacquelynn Bruce; Lorry Gambrell; Nancy Norton; Ryan Mints; Hazel Simmons; William Harrison; M.L. (mother of L., a student); and D.L. (mother of J.L., a student). Petitioner's Exhibits numbered one and two were admitted. Respondent testified in her own behalf and presented the testimony of Judy Riera, Barbara Beck, and Judith Griffith. Respondent's Exhibits numbered one through

ten were admitted to the extent described in the transcript. Angie Suber testified as Petitioner's rebuttal witness.

Consistent with an Order of Pre-hearing Instructions, the parties filed a pre-hearing stipulation. Through that stipulation the parties accepted the facts found in paragraph one and two to the Administrative Complaint. Those stipulated facts are reported in the fact finding in the recommended order.

The hearing transcript was filed on March 18, 2003.

The parties submitted proposed recommended orders which have been considered in preparing the recommended order.

FINDINGS OF FACT

Stipulated Facts:

1. The Respondent holds Florida Educator's Certificate No. 802764, covering the area of varying exceptionalities, which was valid through June 30, 2000.

2. At all times pertinent hereto, Respondent was employed as an ESE Specialist at Margaret K. Lewis Center (MKL) in the Bay County School District.

   Additional Facts:

   
   

3. MKL is a special education school with self-contained classrooms. It serves special needs children. During the 1999-2000 school year, Respondent was a special education

   teacher at MKL. Her class had approximately 14 teenage students with varying exceptionalities. The majority of those students were trainably mentally handicapped (TMH). One or two of the students were educably mentally handicapped (EMH). One child was deaf and a second child had a different form of health impairment.

4. Respondent, in her formal education to prepare her for her teaching assignment at MKL, earned a Bachelor of Science in Education from State University of West Georgia, specializing in mental retardation. In December 2000, beyond the dates described in the administrative complaint, Respondent earned a master's degree from Florida State University in emotional disturbances and learning disabilities pertaining to teaching.

5. The curriculum in Respondent's class in 1999-2000 was designed to provide the students with functional daily living skills. The grade level, generally described, included grades 9A through 10B.

6. The teachers at MKL had been provided with a handbook which described the appropriate discipline and behavioral management of the students. Respondent had that handbook.

   The faculty had undergone training above and beyond what would normally be anticipated for teachers in other schools designed to help the teachers develop and monitor specific behavior

   programs needed for the individual students. Most importantly, the methods of discipline described in the handbook did not include resorting to corporal punishment of the students. This would include the prohibition against bending back the fingers of students, pulling the hair of students, placing soap in the mouth of students or causing it to be placed. Respondent concedes that these forms of physical interaction with the student would constitute grounds to discipline a teacher. As Respondent acknowledges, the only forms of appropriate control of students in her class were verbal reminders, denial of privileges, or removal from group activities consistent with behavior plans for the students.

7. At times relevant, Respondent had received training from the Bay County School District on the subject of Downs Syndrome children to allow her to address their needs. The school district also had provided the Respondent training in crisis prevention intervention (CPI).

8. Notwithstanding her awareness that she should not engage in physical intervention with her students such as hair pulling, bending fingers, and placing soap in the mouth, Respondent engaged in these activities with the student J.L., as alleged in the administrative complaint. Respondent also yelled at and directed profanity at J.L. as the subject of her tirades. These events occurred while J.L. was a student in

   Respondent's class at MKL during the 1999-2000 school year, in particular on May 25, 2000.

9. J.L. has been classified as TMH. He has Downs Syndrome. He had heart surgery when he was six months old. He has endocardia cushion effect, a heart problem. He has cholesterol problems. He has thyroid problems. At times relevant, J.L. was approximately five feet four inches tall and weighed 185 to 190 pounds and was in his mid-teens.

   
   

10. The facts in this case reveal that J.L. was a student prone to agitation. He could be profane. He gestured with his index finger in his version of an obscene sign. He tried to scratch other students or to physically interfere with other students in a different way, for example, grabbing at the hair of a female student. He was observed to play with his "sexual parts."

11. In addressing J.L.'s unruly or disruptive conduct, Respondent instructed Ryan Mints, a paraprofessional whom she supervised in the classroom, to employ a physical control technique by pressing and bending J.L.'s finger back. By this method the pointer finger would be subjected to pressure until sufficient pressure was exerted to make J.L. stop the misconduct. Respondent showed Mr. Mints how this would be done. Consistent with his instructions, Mr. Mints employed

    the bending the finger technique to exert control over J.L. When this was done, J.L. would verbalize his discomfort. Mr. Mints also observed Respondent put soap on J.L.'s pointer finger when J.L. had an outburst and used the pointer finger similar to when "people flip people off with the middle finger." Instead J.L. would use his pointer finger for the same purpose. When the soap was applied to the pointer finger as a means to address the obscene gesture, J.L. would put that finger in his mouth with the soap. J.L. would then try to spit the soap out. Mr. Mints had also observed Respondent place J.L. in the bathroom as a form of "timeout."

12. Nancy Norton was a paraprofessional in a separate class at MKL in the school year 1999-2000. She was supervised by teacher Barbara Beck. Respondent told Ms. Norton that Respondent would put a little soap in J.L.'s mouth when J.L. would use "ugly words," which was quite a frequent event.

13. On the morning of May 25, 2000, while in the classroom, J.L. tried to scratch another student. Jacquelynn Bruce, a paraprofessional in the class, walked over to try and remove J.L. from that student, at which point J.L. tried to scratch Ms. Bruce. Respondent intervened by physically escorting J.L. to the bathroom in the class space. When Respondent became involved in the incident, she told J.L. to get up from where he was seated. He would not. Respondent

    then took J.L.'s thumb and bent it back. Then he got up. Respondent picked up some soap and commented "that's one of my favorite things to do" while taking J.L. to the bathroom.

    When entering the bathroom Respondent commented that she was going to wash his mouth out with soap, taken to mean to wash J.L.'s mouth out with soap. Before entering the bathroom Respondent put soap on J.L.'s index finger and he placed that finger in his mouth as a reflex. Once in the bathroom, the door was closed, leaving Respondent and J.L. out of the sight of other persons in the classroom. Respondent was "hollering and cussing." Respondent was overheard to say "shithead," taken to be directed to J.L. J.L. was heard to use the word "bitch," taken to refer to Respondent. When Respondent and

    J.L. came out of the bathroom, J.L. was upset. Respondent appeared angry by virtue of the expression on her face.

14. There was another incident between J.L. and Respondent during the afternoon of May 25, 2000, in the classroom. After lunch, J.L. reached over and scratched one of the other students who was sitting next to him. Angie Suber, a paraprofessional in the classroom, went over to J.L. and told him that his act was not an appropriate thing to do. When Ms. Suber got J.L. up from his seat, J.L. made a gesture as if to pull the hair of a female student, J.B. Given the level of his agitation, the paraprofessionals, Ms. Suber and

    Ms. Bruce, decided to move J.L. to another part of the room where they placed him on a picnic bench and put a divider screen between J.L. and the other students to calm things down between the students. After being placed behind the screen on the picnic bench, J.L. became more calm.

15. While these events transpired, Respondent was not in the room.

16. Respondent then re-entered the classroom and, seeing

    
    

    J.L. isolated from the other students, asked "what happened now?" The paraprofessionals told Respondent what had transpired between J.L. and the other students leading to his placement behind the screen on the picnic bench.

    
    

17. Respondent approached J.L. behind the screen. J.L. was heard to exclaim "Oh, oh that hurts." J.L. called Respondent "bitch." The screen then fell away to the floor revealing Respondent grasping J.L. by the hair with her two hands, one in the front on the top, and one on the back on the bottom. Respondent then escorted J.L. to the bathroom again by exerting physical control over J.L.. On this occasion while escorting J.L. to the bathroom, she referred to him as "a little shithead." While Respondent had J.L. by the hair front and back, he continued to say "stop Sheets, stop Sheets, no soap Sheets, stop Sheets, stop Sheets." In addition to

    referring to J.L. as a "shithead," Respondent stated, "I'm going to teach you, I'm going to get to do what I like to do best to you." Respondent and J.L. entered the bathroom. When they came out of the bathroom, J.L. was upset, red in the face, and very emotional and had bubbles coming out of his mouth that had the appearance of soap bubbles. Respondent was red in the face and angry in her appearance.

18. Once out of the bathroom Respondent commented that "we're going to the office." Respondent kept pushing J.L. forward through the classroom while encountering other students. She had one hand on J.L.'s collar and was using the other hand to make way by pushing through the other students. During this time, J.L. was clawing and fighting back and another student, L., was scratched as the Respondent and J.L. exited the door. Once outside the door in an area that included an access ramp with a rail, a student identified by the initial J. lost his balance in the fray while standing against the rail, but he caught himself before falling completely. When leaving the room, Respondent was screaming "get out of my way, get out of my way.”

19. The student identified as L. had a preference for wearing shirts with a wrestling motif. Respondent did not accept that attire. Respondent told L. that she would take his shirt and turn it inside out because she did not want him

    wearing it and commented that "she didn't care what his bitchy mama said." Respondent took the shirt off L. and put it back on inside out. L., a TMH student, did not resist Respondent when this was done.

20. William Harrison is the director of personnel for the Bay County School District. He is certified as an educator in Florida. He has spent his entire professional career in Bay County, some 36 years. Eighteen and one-half years were spent as a teacher in the classroom. Several years were served as an assistant principal, and the balance of his service has been as director of personnel.

21. Mr. Harrison was accepted as an expert allowed to offer opinions concerning professional ethics for educators. He established that grabbing a student by the hair, putting soap in the mouth of a student, bending a student's finger back, or using derogatory or profane references such as "shithead" directed to a student do not constitute legitimate means to control or discipline a student in the Bay County school system.

    Mr. Harrison correctly perceives that the use of these methods, all attributable to Respondent's conduct with J.L., evidence a failure to make reasonable efforts to protect students from conditions harmful to learning and physical safety, Rule 6B-1.006(3)(a), Florida Administrative Code, and

    intentionally expose a student to unnecessary embarrassment or disparagement, Rule 6B-1.006(3)(e), Florida Administrative Code.

22. Although the record reveals that Mr. Harrison's involvement in the investigation of the alleged incident of May 25, 2000, for the Bay County School District was one in which he did not recommend termination of her employment with the school district, he nonetheless expressed the opinion that the conduct in relation to J.L. would seriously reduce her effectiveness as an employee with the school board. This opinion is accepted. At the time of the hearing, Respondent was not employed with the school district or any other school district.

    CONCLUSION OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties in this case pursuant to Sections 120.569 and 120.571, Florida Statutes.

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

    
    

25. In consideration of Count I, alleging that

    Respondent has engaged in misconduct by violating Sections 231.2615(1)(c), Florida Statutes, now Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross morality or an act involving moral turpitude, that violation has been shown. See Rule 6B-4.009(2) and (6), Florida Administrative Code.

26. Respondent's treatment of J.L. is so reprehensible that it constitutes a violation of Section 231.2615(1)(c), Florida Statutes, now Section 1012.795(1)(c), Florida Statutes.

27. In consideration of Count II alleging that Respondent has engaged in misconduct by violating Section 231.2615(1)(f), Florida Statutes, now Section 1012.795(1)(f), Florida Statutes, upon investigation revealing that Respondent is guilty of personal conduct which seriously reduces her effectiveness as an employee of the school board, that violation has been shown. Although Respondent is not currently employed by the Bay County School Board or any other school board, her mistreatment of J.L. on May 25, 2000, and the approach that she had in mind for controlling and disciplining him on other occasions by methods clearly outside the expectations and principles within the school system, with knowledge that her actions were contrary to established principles, seriously reduces her effectiveness as an employee

    of the Bay County School Board or any other school board.

    
    

28. In consideration of Count III, alleging that Respondent has engaged in misconduct in violation of Section 231.2615(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 IV and V. Those conclusions are in association with the treatment of both J.L. and the student identified as L.

29. In consideration of Count IV, alleging that Respondent has engaged in misconduct in violation of Rule 6B- 1.006(3)(a), Florida Administrated Code, by failing to make reasonable effort to protect a student from conditions harmful to learning and/or to the student's mental health and/or physical safety, that violation has been shown. The treatment afforded J.L., and to a lesser extent the treatment of the student identified as L., was not subject to reasonable efforts by Respondent to protect those students from conditions harmful to learning and the physical safety of J.L. Instead, Respondent was responsible for creating conditions harmful to their learning and the physical safety of J.L.

30. In consideration of Count V, alleging that

    Respondent has engaged in misconduct in violation of Rule 6B- 1.006(3)(e), Florida Administrated Code, by intentionally exposing a student

    
    

    to unnecessary embarrassment or disparagement, that violation has been shown, both in relation to J.L. and the student identified as L.

31. Respondent's misconduct is especially egregious when realizing that the students subjected to her mistreatment have exceptionalities which make them more vulnerable to her disregard for their well-being.

RECOMMENDATION

Having this in mind, it is RECOMMENDED:

That a final order be entered finding Respondent in violation of Counts I through V, revoking Respondent's teaching certificate for a period of four years.

DONE AND ENTERED this 11th day of April, 2003, in Tallahassee, Leon County, Florida.

Hearings

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative The DeSoto Building

Hearings

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 11th day of April, 2003.

ENDNOTES

1/ The Style in this case has been corrected to reflect the change in the Commissioner of Education and Respondent's name from Charlie Crist, as Commissioner of Education, Petitioner v. Heather Herriott Sheets, Respondent. EPC Case No. 990-1726-C.

2/ The material allegations set forth in the later two sentences to paragraph three have been withdrawn upon Petitioner's motion.

COPIES FURNISHED:

J. David Holder, Esquire 24357 U.S. Highway 331, South

Santa Rosa Beach, Florida 32459

David L. Thompson, Esquire 1919 Farragut Place

Jacksonville, Florida 32207

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: 02-003942PL

Orders for Case No: 02-003942PL