STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JIM HORNE, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) Case No. 03-2876PL

)

LINDA S. WITT, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on December 11, 2003.

APPEARANCES

For Petitioner: Charles T. Whitelock

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Anthony D. Demma

Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

The issues are whether Respondent is guilty of committing gross immorality or an act involving moral turpitude, in violation of Section 1012.795(1)(c), Florida Statutes; failing to make reasonable effort to protect students from conditions

harmful to learning or students' mental health, physical health, or safety, in violation of Florida Administrative Code Rule

6B-1.006(3)(a); or intentionally exposing a student to unnecessary embarrassment or disparagement, in violation of Florida Administrative Code Rule 6B-1.006(3)(e). If so, an additional issue is the penalty that should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated May 7, 2003, Petitioner alleged that, at all material times, Respondent has held a Florida educator certificate and was employed as a teacher at North Twin Lakes Elementary School in the Miami-Dade School District. The Administrative Complaint alleges that on February 1, 2001, Respondent inappropriately disciplined I. H., an eight-year-old student, by grabbing him by the shoulders and pushing his face into a book on the desk, where he was seated. The Administrative Complaint alleges that these acts violate the statute and rules cited above.

At the hearing, Petitioner called three witnesses and offered into evidence nine exhibits: Petitioner Exhibits 1-9. Respondent called seven witnesses and offered into evidence two exhibits: Respondent Exhibits 1-2. All exhibits were admitted except Petitioner Exhibit 4, which was proffered.

The court reporter filed the transcript on January 8, 2004.

The parties filed their proposed recommended orders on

February 6, 2004.

FINDINGS OF FACT

1. Respondent holds Florida educator certificate 125057, which covers Elementary Education and English to Speakers of Other Language (ESOL). The certificate is valid through

   June 30, 2004. Respondent was first certified in 1961, at which time she began her teaching career.

2. Respondent has taught full-time at North Twin Lakes Elementary School since August 1983. Prior to her employment at North Twin Lakes Elementary School, Respondent had been employed by the Miami-Dade School District for six or seven years.

3. Six or seven years ago, Anne Louise Harms became principal of North Twin Lakes Elementary School. Ms. Harms has been employed by the Miami-Dade School District for 30 years.

4. Not long after Ms. Harms became principal of North Twin Lakes Elementary School, Respondent felt that their relationship had become strained, perhaps over Respondent's intercession on behalf of another teacher. In March 2000, Ms. Harms placed Respondent on prescription for a failure regarding professional responsibilities that is unspecified in the present record. In the summer of 2000, Respondent took a leave of absence, at least partly to care for an ill family member.

5. Respondent's first day back to school following her leave of absence was January 29, 2001. She was assigned to teach an ESOL class in a portable.

6. Respondent's classroom was one of four classrooms occupying the portable. The pod-type arrangement provided Respondent's classroom with little privacy. An adult on a chair could easily see over the dividers that separated the four classrooms; obviously, persons within one classroom could hear what was said in the other classrooms. Every time they entered or left the portable, the students and teacher in at least one of the other classrooms used one of the exterior doors that connected to Respondent's classroom. The portable had no windows in the area of Respondent's class, so she kept the doors closed to assure that the area remained cooled or heated, as well as due to concerns about security and the distraction posed by noise outside of the portable.

7. A couple of days after Respondent's return to the classroom, the principal appeared in her room. The principal testified that she had heard Respondent yelling in her classroom, so the principal checked the classroom to see what was happening. The principal testified that Respondent's door was open. However, this testimony is discredited based on the testimony of Respondent and other teachers concerning their practice of keeping the door closed. Clearly, Respondent could

   not have been yelling without disturbing teachers in the portable, but Petitioner did not produce other witnesses to testify that Respondent was yelling.

8. The principal testified that she saw Respondent grasp a student's shoulder and temple and then push his head into a book that was open in front of him. The principal testified that she removed the child in question, although she left Respondent in charge of the remainder of the class. Although the principal admitted that she did not see any physical injury on the child, who reported that he was okay, the principal contacted the regional Office of Professional Standards. This testimony, too, is discredited for several reasons.

9. First, the child does not corroborate the principal's testimony. Although the child gave a very brief statement, in Spanish, indicating that Respondent had pushed his head into a book, the child testified at the hearing that he could not recall Respondent doing so.

10. Second, Respondent could not reasonably have expected that she could yell at a child and then push his head into a book without being heard and possibly seen by another nearby teacher occupying the same portable. As noted above, Respondent had no privacy in her classroom.

11. Third, the principal left Respondent with the remaining students on the day of the incident and for the rest

    of the school year. It would seem, especially on the day of the incident, that a principal who had witnessed a teacher physically abuse a student would not merely remove the child to her office to commence an investigation into the teacher. In such a situation, the principal's first responsibility would be, of course, to protect the other students from similar physical abuse by either having the teacher removed from the classroom and building or, if necessary, removing the students from the classroom.

12. Subsequently, the Miami-Dade School District removed Respondent from the classroom due to fitness-to-work issues unrelated to the matters raised in this case. Based on the testimony and demeanor of some, but not all, of the teacher witnesses, including Respondent, some, but not all, of the more senior teachers, including Respondent, posed serious personnel- management issues for the principal. Most likely, the principal tried to take a short-cut to solving one of her personnel- management problems--i.e., Respondent--by exaggerating the significance of what may have been a relatively minor classroom confrontation between Respondent and one of her students. In any event, the record fails to show by clear and convincing evidence that Respondent mistreated the child, as alleged by Petitioner.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2003).

14. Section 1012.795(1)(c), Florida Statutes, provides:

    
    

    The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person; may suspend the educator certificate, upon order of the court, of any person found to have a delinquent child support obligation; or may impose any other penalty provided by law, provided it can be shown that the person:

    
    

    (c) Has been guilty of gross immorality or an act involving moral turpitude.

    
    

15. Florida Administrative Code Rule 6B-1.006 provides, in relevant part:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       
       

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

       
       

    3. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental and/or physical health and/or safety.

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

          
          

16. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

17. Petitioner has failed to prove the material allegations by clear and convincing evidence.

RECOMMENDATION

It is

RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint.

DONE AND ENTERED this 9th day of February, 2004, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 9th day of February, 2004.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Education Practices Commission

Florida Education Center Department of Education

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

Daniel J. Woodring, General Counsel Department of Education

1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

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

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

Charles T. Whitelock Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

Anthony D. Demma Meyer and Brooks, P.A. Post Office Box 1547

Tallahassee, Florida 32302

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 03-002876PL

Orders for Case No: 03-002876PL