vs.
DEBRA E. WEST,
Respondent.
) Case No. 03-2272PL
Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing of this case on August 27, 2003, in Clearwater, Florida, on behalf of the Division of Administrative Hearings (DOAH).
For Petitioner: Kelly B. Holbrook, Esquire
For Respondent: Robert F. McKee, Esquire
The issues are whether Respondent failed to accommodate exceptional education students, directed derogatory comments to
students, and disclosed test grades in class in violation of Subsections 1012.795(1)(c), (f), and (i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a)
and (e); and, if so, whether the proposed penalty is reasonable. (Statutory references are to Florida Statutes (2000).
References to rules are to rules promulgated in the Florida Administrative Code in 2000.)
On May 7, 2003, Petitioner filed an Administrative Complaint against Respondent. Respondent timely requested an administrative hearing, and Petitioner filed an Amended Administrative Complaint on August 18, 2003, without objection.
At the hearing, Petitioner presented the testimony of 15 witnesses and submitted 11 exhibits for admission into evidence. Respondent testified, called no other witnesses, and submitted no exhibits.
The identity of witnesses and exhibits and any rulings regarding each are set forth in the Transcript of the hearing filed with DOAH on September 15, 2003. The ALJ granted Respondent's uncontested motion for an extension of time to file Proposed Recommended Orders (PROs). The parties timely filed their respective PROs on September 26, 2003.
Respondent is authorized to teach physical education in Florida pursuant to Florida Educator's Certificate
Number 666407. The Certificate is valid through June 30, 2007.
The Pinellas County School District (the District) employed Respondent as a physical education teacher at Gibbs High School (Gibbs) during the 2000-2001 school year (the school year). Respondent's students included students in the exceptional student education program at Gibbs (ESE students).
Faculty and staff at Gibbs had tested ESE students in Respondent's classes, identified them as disabled, developed an individual education plan (IEP) for each student, and placed each student in a special education program. The IEPs for some students allowed the students to leave the classroom during testing for a learning lab or other supervised environment.
Respondent refused to allow several ESE students to leave the classroom during testing. The students are identified in the record as A.A., A.S., J.T., and J.F. in order to protect their confidentiality.
Respondent sometimes afforded ESE students an opportunity to hear their tests read to them at the front of the class. That opportunity violated each student's IEP. Respondent did not have discretion to deviate from an IEP.
Some ESE students transferred from Respondent's class.
Other ESE students refused to enroll in Respondent's class because of Respondent's reputation among ESE students for refusing to accommodate ESE students during testing.
A number of parents complained to school officials about Respondent's failure to accommodate ESE students. Faculty and staff attempted to correct Respondent's behavior through informal conferences. A varying exceptionalities specialist, a teacher assistant, and an administrator with the
Office of Professional Standards (OPS) each met with Respondent.
Respondent answered an allegation and complaint from one parent by stating to a Gibbs administrator that the student was not an honor roll student, so Respondent's refusal to accommodate the student did not make a difference. Respondent complained to an assistant principal at Gibbs that, "They are ESE students. What are they doing here [in Respondent's class]? They shouldn't be here anyway."
Respondent made derogatory comments to students during the school year. The derogatory comments included terms such as: fat, little slacker, stupid, sorry bunch of kids, Gomer Pyle, and Dutch Boy. Respondent asked one of her students, "What's a black boy doing with a Dutch last name?" Respondent asked another student if the student was tired from walking the streets at night and called her "sleeping booty."
Respondent directed derogatory comments to students identified in the record as D.V., M.F., J.I., and A.W. Respondent referred to D.V., an African-American, as Dutch Boy because D.V.'s last name sounded Dutch to Respondent. Respondent suggested that D.V. should change names with a white student having a last name that Respondent believed was more appropriate for an African-American. Respondent used the terms "fat" and "stupid" when referring to M.F. and other students in M.F.'s class. Respondent used the term Gomer Pyle to refer to
J.I. because J.I. was in the Reserve Officers' Training Corps. (ROTC) program at Gibbs. Respondent told A.W. that larger people don't belong in the physical education class.
The derogatory comments degraded students, embarrassed them, were inflammatory to some students, and violated District policy. Respondent violated the Code of Ethics and the Principles of Processional Conduct for Educators by making embarrassing or disparaging remarks and by failing to make reasonable efforts to protect students from mental harm.
Respondent has made derogatory comments to students in previous school years. During the 1997-1998 and 1998-1999 school years, an assistant principal received complaints from students about Respondent's use of derogatory comments toward students. The assistant principal held a conference with Respondent on September 15, 1997, and completed a Conference
Summary that instructed Respondent to use better communication with students and parents; and to be more professional in addressing students.
The complaints against Respondent continued.
On September 30, 1997, an assistant principal held a formal conference with Respondent to discuss Respondent's use of derogatory comments to students. The assistant principal again instructed Respondent to refer to students only by their given name and use more professionalism in addressing students.
An assistant principal met with Respondent on October 1 and 7, 1997; and on February 13, April 1, and May 4, 1998. In addition to several "walk-throughs," the assistant principal visited Respondent's classroom for an evaluation on
March 31, 1998. The annual evaluation for the 1997-1998 school year rated Respondent's judgment as an "I," meaning that improvement was expected in addressing students.
The "I" on Respondent's annual evaluation required school administrators to prepare a "Success Plan" to help Respondent address the issues that resulted in the "I" rating. The Success Plan that Respondent signed required Respondent to use positive comments that enhance the self worth of students.
Respondent's use of derogatory comments toward students continued during the 1998-1999 school year. An assistant principal held conferences with Respondent on:
October 12, 26, and 27, 1998; November 11, 1998; and January 28,
March 11, Aril 15, May 3, and May 4, 1999. The assistant principal visited Respondent's classroom on: November 3, 1998; and January 28, March 1, March 11, and April 7 and 15, 1999.
Respondent's annual evaluation for the 1998-1999 school year contained more "Is" than the previous evaluation. Respondent received an "I" rating for: (1) Instructional Strategies Conducive to Learning and Critical Thinking; (2) Assessment of Students; and (3) Judgment and Professional Ethics.
During the school year at issue, the OPS administrator and Respondent discussed a letter from a parent regarding Respondent's use of derogatory comments. The parent complained that Respondent asked H.T., the parent's daughter, if H.T. was going to be a dentist. H.T.'s last name is related to a dental term. Respondent denied she ever made the comment and then told the OPS administrator, "I can look at her mouth and tell you no." Respondent subsequently told H.T. not to go running to H.T.'s mom if H.T. had a problem with Respondent.
Respondent read student grades aloud in class without the permission of the affected student in violation of District policy. Respondent also read the names of students receiving a grade of "A," "B," or "C" thereby disclosing the names of students with lower grades. Disclosing the grades of students
in class without the permission of the student invades the privacy of the student and exposes the student to embarrassment.
Respondent has a history of disclosing student grades in class. On May 17, 2000, the OPS administrator issued a letter of reprimand to Respondent for disclosing student grades during the 1999-2000 school year. In relevant part, the letter of reprimand stated:
I advised you that one concern was related to your announcing student grades of students in front of the entire class. You said that the Governor had given schools grades and that you could tell students their grades. I advised you that was not so; that student information was protected and confidential and I directed you to refrain from the practice. You said that you didn't read all of the grades. I noted that students said you read grades of students who had A's, B's, and C's. I said that some students who had lower grades were embarrassed. I again reiterated that you should cease reading the grades.
Respondent continued to disclose student grades during the school year at issue. Respondent read to the class the grades of A.A., A.S., A.W., C.A., and M.F. Each had failing grades. Respondent passed a test completed by A.S. down a row of students so that each student could see the test score on the front of the test and stated audibly that the only thing A.S. "got right" on the test was the date. The comment embarrassed, upset, and humiliated A.S.
The District placed Respondent on administrative leave in October 2000. After Respondent returned from her administrative leave, the OPS administrator received more complaints about Respondent's behavior, and issued another letter of reprimand to Respondent on April 27, 2001.
Respondent wrote the following message on the letter prior to returning the signed copy to the OPS administrator: "This is BS. Thank you [OPS administrator]."
The District transferred Respondent from Gibbs to a school where Respondent works with another teacher. The transfer shows that Respondent had lost her effectiveness at Gibbs, but not as an employee.
The District had a lot of complaints at Gibbs about Respondent. There were issues with Respondent's effectiveness at the school. The District determined that a transfer to another school might help Respondent "get a new start."
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569, 120.57(1), and 120.60(5). DOAH provided adequate notice of the administrative hearing.
The Amended Administrative Complaint alleges that the acts committed by Respondent violated Subsections 1012.795(1)(c), (f), and (i), and Rule 6B-1.006(3)(a) and (e).
Disciplinary statues and rules such as those relied on by Petitioner in the Amended Administrative Complaint are penal in nature and must be strictly construed against the authorization of discipline and in favor of the person sought to be penalized. Munch v. Department of Business and Professional Regulation, 592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); Lester v. Department of
Professional and Occupational Regulations, 348 So. 2d 923 (Fla. 1st DCA 1977).
Petitioner has the burden of proof in this proceeding.
Petitioner must show by clear and convincing evidence that Respondent violated the statutes and rules cited in the Amended Administrative Complaint by committing the acts alleged therein and the reasonableness of any proposed penalty. Department of Banking and Finance, Division of Securities and Investor
Protections v. Osborne Stern and Company, 670 So. 2d 932, 935 (Fla. 1996). In order for evidence to be clear and convincing:
The evidence must be of such weight that it produces in the mind of the trier of fact a firm . . . conviction, without hesitancy, as to the truth of the allegations sought to be established.
Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).
The evidence is less than clear and convincing that the acts committed by Respondent rose to the level of gross immorality or involved acts of moral turpitude within the
meaning of Subsection 1012.795(1)(c). Deviation from a standard of conduct is an ultimate finding of fact that is the exclusive province of the trier of fact. Holmes v. Turlington, 480 So. 2d 150, 152 (Fla. 1st DCA 1985). See Bush v. Brogan, 725 So. 2d 1237 (Fla. 2d DCA 1999) (holding a teacher's marriage to a 16- year-old former student and subsequent plea of no contest to domestic battery does not constitute gross immorality).
The evidence is less than clear and convincing evidence that the acts committed by Respondent have seriously reduced her effectiveness as an employee of the District, as alleged in the Amended Administrative Complaint, in violation of Subsection 1012.795(1)(f). As of the date of the administrative hearing, the District continued to employ Respondent at a school other than Gibbs.
The evidence is clear and convincing that the acts committed by Respondent violated the Principles of Professional Conduct within the meaning of Subsection 1012.795(1)(i). Respondent failed to make reasonable efforts to protect students from conditions harmful to learning or harmful to the mental health of students, and intentionally exposed students to unnecessary embarrassment or disparagement within the meaning of Rule 6B-1.006(3)(a) and (e).
Rule 6B-11.07 prescribes the disciplinary guidelines that Petitioner can apply in this case. The disciplinary
guidelines require Petitioner to consider both aggravating and mitigating factors prescribed in the rule.
Several aggravating factors defined in Rule 6B- 11.07(3) are evidenced in this case. The offenses committed by Respondent are severe, and they present a danger to public school students within the meaning of Rule 6B-11.07(3)(a)
and (b). The offenses are particularly severe and dangerous for ESE students. Respondent knew that her acts were inappropriate, repeated the offenses, and engaged in little or no attempt to correct or stop the offenses or at rehabilitation. Rule 6B- 11.07(3)(c), (j), (k), and (m).
Several mitigating factors defined in Rule 6B-11.07(3) are present in this case. Respondent has no previous disciplinary history with Petitioner. The previous disciplinary history with the District is not a factor authorized in Rule 6B- 11.07(3). Respondent has been an educator for a number of years and is currently employed by the District. The loss of certification would adversely affect Respondent's livelihood. Rule 6B-11.07(3)(e), (f), (i), and (l). Evidence of the degree of mental harm that Respondent's offenses caused her student's is less than clear and convincing. The students were high school students and not younger students. Rule 6B-11.07(3)(r).
Petitioner proposes in its PRO to suspend Respondent's Florida Educator's Certificate for two years and place
Respondent on probation for three years. Petitioner proposes several conditions of probation that would require Respondent to submit to a mental health and substance abuse evaluation by the Recovery Network Program (RNP). The proposed conditions would further require that Respondent follow any reasonable treatment and counseling recommended by RNP; provide a written verification by a professional approved by the RNP that Respondent poses no risk or threat of harm to the safety or well-being of students; and complete a college level course in Adolescent Child Development accredited for three credit hours.
Rule 6B-11.07(4) states that the penalty imposed in a particular case should not be limited to those penalties prescribed in the rule but limits any penalties to those that fall within "statutory parameters." The actual penalty imposed in this case must be within "statutory parameters" because a rule may not enlarge, modify, or contravene the specific provisions of the law implemented. Subsection 120.52(8)(c).
Petitioner relies on Subsections 1002.795(1) and (7) as authority for the proposed penalty. Subsection 1002.795(1) authorizes Petitioner to suspend or revoke Respondent's certificate. Subsection 1002.795(7), in relevant part, authorizes Petitioner to place Respondent on probation subject to "such conditions as [Petitioner] may specify."
Petitioner proposes penalties that are authorized by applicable statutes and rules. However, Petitioner proposes a two-year suspension and three-year probation for gross immorality, moral turpitude, a loss of effectiveness as an employee, and a violation of the Code of Ethics. Only the last of the foregoing violations is supported by clear and convincing evidence.
A lengthy suspension would eviscerate the District's determination that Respondent may be an effective employee in a setting other than Gibbs. However, a significant period of probation is supported by Respondent's long history of unethical behavior that exposes students to harm, and Respondent's recalcitrance. The conditions of probation set forth in Petitioner's PRO are reasonably necessary for Petitioner to assure itself that Respondent does not pose a risk or threat of harm to students.
RECOMMENDED that Petitioner enter a Final Order finding Respondent not guilty of violating Subsections 1012.795(1)(c) and (f); guilty of violating Subsection 1012.795(1)(i) and Rule 6B-1.006(3)(a) and (e); suspending Respondent's Florida Educator's Certificate during the summer session after the
current school year; and, on the date of the Final Order, placing Respondent on probation for two consecutive years, including the period of suspension, subject to the conditions prescribed in Petitioner's PRO.
DONE AND ENTERED this 21st day of October, 2003, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 2003.
Kelly B. Holbrook, Esquire Broad and Cassel
Robert F. McKee, Esquire Kelly & McKee
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
Daniel J. Woodring, General Counsel Department of Education
Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education
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.
