STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JIM HORNE, AS COMMISSIONER )
OF EDUCATION, )
)
Petitioner, )
)
vs. ) Case No. 03-3165PL
)
GREGORY ADAMS, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case before Larry J. Sartin, an Administrative Law Judge of the Division of Administrative Hearings, on February 24 and 25, 2004, in Miami, Florida.
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire
Whitelock & Associates, P.A.
300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316
For Respondent: Nina Ashenafi, Esquire
Florida Education Association
118 North Monroe Street Tallahassee, Florida 32399-1700
STATEMENT OF THE ISSUE
The issue in this case is whether Respondent, Gregory Adams, committed the offenses alleged in an Administrative
Complaint issued by Petitioner, and dated February 20, 2003, and, if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
In an Administrative Complaint dated July 7, 2001, then Florida Commissioner of Education, Charlie Crist, charged Gregory Adams with having violated certain of the statutory and rule provisions governing the conduct of teachers in Florida's public schools. Mr. Adams timely disputed the factual allegations in the Administrative Complaint by executing an Election of Rights form in which he elected the "Settlement Option." By selecting the Settlement Option, Mr. Adams elected to attempt to negotiate a settlement of the charges against him and, if that effort failed, a "Formal" hearing on the charges.
When settlement negotiations failed, Mr. Adams' request for hearing was forwarded to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct an evidentiary hearing pursuant to Section 231.262(5), Florida Statutes. The matter was filed October 19, 2001, was designated DOAH Case No. 01-4025PL, and was assigned to the undersigned.
On March 19, 2002, the parties filed a Joint Motion to Cancel Hearing and Relinquish Jurisdiction to the EPC, in which the parties stipulated that they had negotiated a settlement of their dispute. By Order entered March 20, 2002, DOAH Case
No. 01-4025PL was closed.
On October 17, 2002, a Motion to Reopen was filed by Commissioner Crist, in which it was represented that Mr. Adams had rejected settlement. On November 20, 2002, an Order Granting Motion to Reopen File was entered, reopening the matter as DOAH Case No. 02-4363PL.
On February 12, 2003, Commissioner Crist filed a Notice of Voluntary Dismissal Without Prejudice. The Notice was treated as a withdrawal of the Administrative Complaint, and on February 13, 2003, an Order Closing File was entered.
Finally, on September 3, 2003, Florida Commissioner of Education, Jim Horne (hereinafter referred to as the "Commissioner"), filed an Administrative Complaint dated February 20, 2003, charging Mr. Adams with the same violations alleged in the July 27, 2001, Administrative Complaint. The Commissioner requested the assignment of an administrative law judge to conduct an evidentiary hearing. The matter was designated DOAH Case No. 03-3165PL and was again assigned to the undersigned.
By Notice of Hearing entered September 11, 2003, the final hearing of this case was scheduled for November 18 and 19, 2003. On November 13, 2003, an Order Granting Continuance and Rescheduling Hearing was entered. The final hearing was rescheduled for January 28 and 29, 2004. On January 27, 2004, a second Order Granting Continuance and Rescheduling Hearing was
entered. The final hearing was rescheduled for February 24 and 25, 2004.
Prior to the commencement of the final hearing, the parties filed a Joint Pretrial Stipulation. The parties stipulated to certain facts, which have been included in this Recommended Order to the extent relevant.
At the final hearing the Commissioner presented the testimony of Valerie Anthony, Celia Bolzani, Susan Burstein, Pablo Civedo, Diane Cotter, Carmen Gutierrez, Paulette M. Martin, Dr. Thomasina O'Donnell, Martha Ortega, M.S.,1 and William Tagel. The Commissioner offered 22 exhibits for identification as "Petitioner's" Exhibits 1 through 12, 14 through 16, and 18 through 22. All were accepted in evidence. Respondent testified on his own behalf and presented the testimony of Lea Gulliard-Ross, Brett Thomas Scanlon, Pablo Silveria, Brittany Chen Wong, and Dr. O'Donnell. Respondent offered six exhibits for identification as "Respondent's" exhibits. All were accepted in evidence. Respondent's Exhibit numbered 2 consists of the deposition testimony of M.S. during the final hearing of a related case, Miami-Dade County School Board v. Gregory Adams, DOAH Case No. 01-1131 (Final Order November 19, 2001; Recommended Order October 26, 2001).
At the conclusion of the hearing, the parties agreed that the testimony of S.G., the mother of M.S., and Millie Johnson
would be late filed. By letter dated March 29, 2004, the Commissioner filed testimony given by M.S. and Ms. Johnson during the final hearing of DOAH Case No. 01-1131. The Commissioner represented that the parties had agreed to the consideration of this testimony, the transcripts of which have been marked as Petitioner's Exhibits 23 and 24, respectively. Those exhibits are hereby admitted into evidence.
By Notice of Filing of Transcript issued April 20, 2004, the parties were informed that the Transcript of the final hearing had been filed on April 19, 2004. The parties, pursuant to agreement, therefore, were informed that they had until
May 10, 2004, to file proposed recommended orders. An extension of time, allowing the parties to file their proposed orders by May 14, 2004, was subsequently granted. On that date, Respondent filed a Motion to Extend PRO Filing Deadline, requesting a further extension until May 17, 2004. That Motion is hereby granted. Both parties filed proposed orders on
May 17, 2004. On May 18, 2004, Respondent filed Respondent's Proposed Recommended Order, "Corrected to Abbreviate Names of Minors."
The post-hearing submittals of the parties have been fully considered.
FINDINGS OF FACT
The Parties.
The Department of Education, which the Commissioner was the head of at the times material to this case, is the state agency charged with the responsibility to investigate and prosecute complaints of violations of Section 1012.795, Florida Statutes (2003),2 against teachers holding Florida educator's certificates. §§ 20.15 and 1012.796(1), Fla. Stat.
The Education Practices Commission (hereinafter referred to as the "EPC"), is charged with the responsibility of imposing discipline for any violation proscribed in Section 1012.795, Florida Statutes. § 1012.795(1), Fla. Stat.
Gregory Adams holds Florida Educator's Certificate No. 763527, valid through June 30, 2003, covering the area of
Elementary Education. At the times material to this proceeding, Mr. Adams was employed by Miami-Dade County Public Schools (hereinafter referred to as "M-D Public Schools").
Mr. Adams, the youngest of eight children, earned a bachelor of science and a master’s degree, both in elementary education.
Mr. Adams has been employed as a teacher by M-D Public Schools since 1996. Mr. Adams began his employment in August 1996 at Rodondo Elementary School, where he remained until August 1998. Since 1998 and at all times pertinent to this
matter, Mr. Adams was employed as a second-grade teacher at William Chapman Elementary School (hereinafter referred to as "Chapman").
Chapman is located in Homestead, Dade County, Florida.3
The November 14, 2000, Incident.
On November 14, 2000, M.S. and other students were in the second-grade classroom of Millie Johnson and Leah Gilliard,4 Chapman teachers. While Ms. Johnson was temporarily out of the room, Ms. Gilliard directed a child, identified in this proceeding only as "L.", to collect books from the other students. M.S., without Ms. Gilliard's permission, joined L. in collecting the books and the two boys became disruptive.
M.S. was eight or nine years of age at the time of the incident. While he took some learning disability classes, he was an average, normal second-grade student. M.S. was and still is slight for his age. Of Spanish heritage, M.S. speaks both Spanish and English, the latter with a relatively heavy accent.
Ms. Gilliard decided to discipline L. and M.S. for their misbehavior by utilizing a "time-out" procedure. This informal procedure, which was utilized by some teachers at Chapman but has never been an approved M-D Public Schools disciplinary procedure, consisted of taking a disruptive child to another teacher and leaving the child with the other teacher
until that teacher felt that the child could return to his or her classroom without disruption.
Ms. Gilliard took L. and M.S. to the classroom of Mr. Adams, located in space adjacent to Ms. Johnson's and
Ms. Gilliard's classroom space. Mr. Adams was about to begin a planning period and his students were, therefore, preparing to leave for another classroom
Ms. Gilliard told Mr. Adams that the boys, neither of whom had been students of Mr. Adams, "need to be here for five minutes." Mr. Adams confirmed the length of time and
Ms. Gilliard left. It is inferred that Ms. Gilliard specifically informed Mr. Adams that the boys needed a time-out or that Mr. Adams knew that Ms. Gilliard was utilizing the informal time-out procedure to discipline the boys.
Soon after Ms. Gilliard left, L. calmed down and apologized to Mr. Adams. L. was, therefore, allowed to return to Ms. Gilliard's class. M.S., however, was not contrite. Instead, he acted disrespectful and flippant to Mr. Adams. M.S., therefore, was not returned with L. to Ms. Gilliard's class.
Rather than have M.S. sit quietly in his classroom while he proceeded to perform the tasks he would have normally performed during his planning period, Mr. Adams took M.S. with him to the second floor of Chapman to the classroom of another
teacher, Mr. Brett Thomas Scanlon, a first-year third-grade teacher.5
As Mr. Adams and M.S. walked into Mr. Scanlon's classroom area, they found Mr. Scanlon's third-grade students in the process of preparing to leave for another classroom.
Mr. Scanlon saw Mr. Adams and M.S. standing at the edge of his classroom area, just outside the boys' and girls' bathrooms, and approached them.
Mr. Adams explained to Mr. Scanlon that M.S. had been brought to him by Ms. Gilliard for being disruptive and that
M.S. did not understand that his behavior was inappropriate.
M.S. was still being defiant and disrespectful and exhibited the same disdain for Mr. Scanlon as he had for Mr. Adams.
Due to the presence of the other children, Mr. Adams and Mr. Scanlon took M.S. just inside the entrance or foyer area of the bathrooms, on the side leading into the boys' room. While Mr. Adams and Mr. Scanlon indicated they did so to avoid embarrassment to M.S., the entrance or foyer area of a bathroom is not an appropriate location for a teacher to discuss a second-grade student's misbehavior with that student.
M.S., despite the admonitions of Mr. Adams and Mr. Scanlon, remained defiant, cocky, and disrespectful. He
continued to laugh, smirk, and ignore their efforts to modify his behavior and attitude.
Between the time that Ms. Gilliard left M.S. with
Mr. Adams and when Mr. Adams and Mr. Scanlon took M.S. into the foyer area of the bathrooms, Mr. Adams began what he was later to describe6 as "some combat procedures and strategy" or words to that effect.7 Based upon Mr. Adams' admissions and what has been proved to have occurred on November 14, 2000, it is inferred that Mr. Adams meant by this description of his actions with
M.S. that he had treated M.S. in the manner in which a "drill sergeant" would treat new military recruits: yelling insults and threats at them.
A number of specific examples of combat procedures or scare tactics have been attributed to Mr. Adams by the Commissioner in this case. M.S. also gave a number of specific examples. Except to the extent specifically described in this Recommended Order, those examples were not clearly and convincingly proved or, the evidence failed to prove that
Mr. Adams was responsible.8
One specific example of a scare tactic used by Mr. Adams on M.S. that was proved was that Mr. Adams, while
accosting M.S. in the foyer or entrance to the boys' bathroom or, later, when he took M.S. into the boys' bathroom, slammed his fist against the wall for emphasis.9
At some point while Mr. Adams and Mr. Scanlon were haranguing M.S. for his behavior and attitude, Mr. Scanlon asked
M.S. "do you want to flush your life down the toilet" or words to that effect. This question prompted Mr. Adams to guide M.S. fully into the boys' bathroom, a totally inappropriate place to carry out any sort of discipline of, or counseling with, a student. Once in the bathroom, Mr. Adams took M.S. to one of the toilet stalls.
Once at the toilet stall door, M.S. was guided up to the toilet and Mr. Adams, who was standing to the left and behind M.S., placed his hand on the back of M.S.'s neck or head, pushed M.S.'s head forward and down toward the toilet, flushed the toilet with his left foot and told M.S. "this is what you are doing; flushing your life down a toilet" or words to that effect.
Exactly how far down Mr. Adams pushed M.S.'s head was not proved clearly and convincingly. The evidence on this point, which included, among other things, M.S.'s testimony that his head was pushed by Mr. Adams into the toilet bowl approximately an inch or more above the water, and Mr. Adams' testimony that he did not touch M.S. at all, was not clear and convincing. What was clear and convincing is that Mr. Adams did indeed place his hand on M.S., push M.S. forward toward the toilet bowl sufficiently close enough to scare M.S., flush the toilet with his foot, and suggest to M.S. that his life was "in
the toilet," all inappropriate actions for a teacher to take with a student.
After flushing the toilet, Mr. Adams escorted M.S. out of the bathroom and instructed him to apologize to Mr. Scanlon.
M.S. reluctantly complied.
M.S. was then taken to a set of stairs leading back to the first floor where he was threatened and told not to tell anyone what had happened. The evidence failed to prove, however, exactly what transpired on the stairs or what role
Mr. Adams or Mr. Scanlon played in those events.
Mr. Adams then escorted M.S. down the stairs and back to Ms. Gilliard's classroom. Mr. Adams instructed M.S. to apologize to Ms. Gilliard and M.S. complied.
As a result of Mr. Adams' treatment, described supra,
M.S. was frightened and upset. His treatment of M.S. constituted conditions harmful to learning, M.S.'s mental health, and M.S.'s physical health and/or safety.
Mr. Adams' treatment of M.S. as described, supra, violated the disciplinary policy for students of the M-D Public Schools' Code of Student Conduct. At the times relevant to this matter, that policy had been incorporated into the collective bargaining agreement to which Mr. Adams was subject.
Mr. Adams' treatment of M.S., while embarrassing and disparaging, was not intended by Mr. Adams to be so. Nor did Mr. Adams intend to violate or deny any legal rights to M.S.
Subsequent Events.
During the evening of November 14, 2000, M.S. told his mother, S.G., some of what had taken place that day with
Mr. Adams and Mr. Scanlon, who he described at the time as "the brown man" and "the white man." Mr. Adams, who is African American, was later identified by M.S. as "the brown man" and Mr. Scanlon, who is white, was later identified by M.S. as "the white man."
The morning of November 15, 2000, S.G. brought M.S. to school and spoke to his teacher, Ms. Johnson.10 There then followed a series of conversations between M.S. and several teachers, administrators, M-D Public Schools law-enforcement officers, and eventually the police. M.S. also testified about the matter in two administrative proceedings, including the instant proceeding. M.S. was 14 years of age at the time of his testimony in this proceeding and had discussed the matter with various individuals a minimum of approximately ten to 20 different times.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
The Burden and Standard of Proof, and Credibility.
In the Administrative Complaint, the Commissioner has sought, among other penalties, the revocation or suspension of Mr. Adams' teaching certificate. Therefore, the Commissioner has the burden of proving the allegations in the Administrative Complaint by clear and convincing evidence. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); and McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995).
Clear and convincing evidence has been defined as evidence which:
requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or 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 grounds proven in support of the Commissioner's assertion that Mr. Adams' teaching certificate should be revoked or suspended must be those specifically alleged in the Administrative Complaint. See, e.g., Cottrill v. Department of
Insurance, 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Department of State, 501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v. Department of Professional Regulation, 458 So. 2d 842 (Fla. 2nd DCA 1984).
Much of the proposed orders filed by the parties in this case have been devoted to questions of the credibility of the witnesses. Although credibility is generally always an issue to be resolved in an administrative hearing, it was a central and difficult issue in the resolution of this matter for a number of reasons:
The victim, M.S., was only eight or nine years of age at the time the incidents took place. See M.C. v. State of
Florida, 695 So. 2d 741 (Fla. 1st DCA 1996); George Fuller v. State of Florida, 669 So. 2d 273 (Fla. 2d DCA 1996);
M.S., due in part to language difficulties, has experienced difficulty understanding questions and adequately answering those questions;
M.S. has had to describe the events of November 14, 2000, a significant number of times. Because of his age, he has not been able to fully recall and explain the events of that day; and
S.G. brought civil suit against the M-D Public Schools seeking a monetary award, which gave her a motive to lie.
While the foregoing circumstances made it difficult to determine fact from fiction in this matter, there was sufficient clear and convincing evidence to conclude that Mr. Adams did commit most of the significant alleged violations of the Administrative Complaint:
It has been concluded that M.S. was credible with regard to the allegations concerning Mr. Adams' conduct which have been found to have been clearly and convincingly proved in this Recommended Order. M.S. was found credible because, despite the significant number of times that he has had to describe the events over the past four years and his young age, he has generally been consistent when describing those events. See Fernandez v. State of Florida, 328 So. 2d 508, 509 (Fla. 3d DCA 1976);
Mr. Adams and Mr. Scanlon, the only other eye-witnesses to the events of November 14, 2000, corroborated and/or admitted either at hearing or to others most of the conduct which
Mr. Adams has been found to have engaged in; and
Mr. Adams and Mr. Scanlon were not deemed credible in many instances due to the believability of other witnesses and/or inconsistencies in their descriptions of events.
The EPC's Authority to Discipline Teaching Certificates; The Charges Against Mr. Adams.
Section 1012.795(1), Florida Statutes, gives the EPC the power to suspend or revoke the teaching certificate of any person, either for a set period of time or permanently, or to impose any penalty provided by law, if he or she is guilty of certain acts specified in the statute.
The Commissioner has alleged in Counts 1 and 2 of the Administrative Complaint that Mr. Adams has committed two of the prohibited acts of Section 1012.795(1), Florida Statutes.
Count 1 alleges that Mr. Adams violated Section 1012.795(1)(c), Florida Statutes. Count 2 alleges that
Mr. Adams violated Section 1012.795(1)(i), Florida Statutes, which prohibits any violation of the Principles of Professional Conduct for the Education Profession (hereinafter referred to as the "Principles"), which are found in Florida Administrative Code Chapter 6B-1.006. In Counts 3, 4 and 5 of the Administrative Complaint, the Commissioner has alleged that
Mr. Adams violated three of the Principles.
The Principles which are alleged by the Commissioner to have been violated are found in Florida Administrative Code Rule 6B-1.006(3)(a) and (e), and (f).
Whether Mr. Adams violated these statutes and rules, as charged, is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995).
Gross Immorality and Acts Involving Moral Turpitude; Section 1012.795(1)(c), Florida Statutes.
Section 1012.795(1)(c), Florida Statutes, provides that a teacher may be disciplined if he or she "[h]as been guilty of gross immorality or an act involving moral turpitude."
The terms "gross immorality" and "an act involving moral turpitude" are not defined in Chapter 1012, Florida Statutes. See Sherburne v. School Board of Suwannee County, 455 So. 2d 1057 (Fla. 1st DCA 1984). Florida Administrative Code Rule 6B-4.009, which applies to dismissal actions initiated by school boards against instructional personnel, does, however, provide guidance as to the meaning of the terms as they are used in Section 1012.795, Florida Statutes. See Castor v. Lawless, 1992 WL 880829 *10 (EPC Final Order 1992).
Florida Administrative Code Rule 6B-4.009(2), defines "immorality" as follows:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
"Gross immorality" has been defined by the courts as misconduct that is more egregious than mere "immorality":
The term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards." Education Practices Commission v. Knox, 3 FALR 1373-A (Department of Education 1981).
Frank T. Brogan v. Eston Mansfiled, DOAH Case No. 96-0286 (EPC Final Order 1996).
Florida Administrative Code Rule 6B-4.009(6) defines "moral turpitude" as follows:
Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
The court in State ex rel. Tullidge v. Hollingsworth,
146 So. 660, 661 (1933), observed that moral turpitude
involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man or by man to
society. . . . It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated.
In determining whether any teacher is guilty of gross immorality or an act involving moral turpitude in violation of Section 231.2615(1)(c), Florida Statutes, it must be remembered that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Adams v. Professional Practices Council, 406 So. 2d 1170, 1171 (Fla. 1st DCA 1981).
The acts which the Commissioner has proved by clear and convincing evidence that Mr. Adams berated M.S., using combat or scare tactics to get his attention, slammed his hand against the wall, and took M.S. into the boys' bathroom, into a toilet stall, pushed his head toward the toilet, flushed it with his foot, and told M.S. that he was flushing his life down the toilet. These acts are not acts involving moral turpitude; they are not so egregious to constitute acts of "baseness, vileness or depravity."
The acts committed by Mr. Adams, while not sufficiently egregious to constitute acts involving moral turpitude, do constitute gross immorality. Treating a second- grade student as if he were a military recruit undergoing boot
camp, in violation of M-D Public Schools policies, and contrary to any educator's understanding of proper disciplinary treatment of a student, constitutes conduct that is "inconsistent with the standards of public conscience and good morals" and which is "serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards."
The Commissioner has proved clearly and convincingly that Mr. Adams violated Section 1012.795(1)(c), Florida Statutes.
Violation of the Principles of Conduct for the Education Profession; Section 1012.795(l)(i), Florida Statutes.
Section 231.2615(1)(i), Florida Statutes, provides that a teacher may be disciplined if he or she "[h]as violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules."
The Principles are found in Florida Administrative Code Chapter 6B-1.006, which provides that "[v]iolation 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."
The particular Principles which the Commissioner has alleged in Counts 3, 4, and 5 that Mr. Adams violated, which if proven, would constitute the alleged violation of Section 1012.795(1)(i), Florida Statutes, are as follows:
Count 3: Florida Administrative Code Rule 6B- 1.006(3)(a), which provides that a teacher has an obligation to a student, requires that the teacher:
. . . 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.
Count 4: Florida Administrative Code Rule 6B- 1.006(3)(e), which provides that a teacher has an obligation to a student, which requires that the teacher ". . . not intentionally expose a student to unnecessary embarrassment or disparagement."
Count 5: Florida Administrative Code Rule 6B- 1.006(3)(f), which provides that a teacher has an obligation to a student, which requires that the teacher ". . . not intentionally violate or deny a student's legal rights."
The Commissioner has proved clearly and convincingly that Mr. Adams violated Florida Administrative Code Rule 6B- 1.006(3)(a). Rather than "make reasonable effort to protect [M.S.] from conditions harmful to learning and/or to [his] mental and/or physical health and/or safety", Mr. Adams created conditions harmful to learning, M.S.'s mental and physical health and his safety.
The Commissioner has also proved clearly and convincingly that Mr. Adams violated Florida Administrative Code Rule 6B-1.006(3)(e). Mr. Adams knew or should have known that his treatment of M.S. would expose him "to unnecessary embarrassment or disparagement."
Finally, the Commission failed to clearly and convincingly prove that Mr. Adams violated Florida Administrative Code Rule 6B-1.006(3)(f). Any legal right of
M.S. which Mr. Adams may have violated or denied to M.S., was not intentionally violated or denied.
Appropriate Penalty.
In determining what punitive action the Commission should take against Mr. Adams for committing the violations proved in this case, it is necessary to consult Florida Administrative Code Rule 6B-11.007, which contains the disciplinary guidelines adopted by the Commission. Cf. Williams v. Department of Transportation, 531 So. 2d 994, 996 (Fla. 1st DCA 1988)(agency required to comply with its disciplinary guidelines in taking disciplinary action against its employees).
Florida Administrative Code Rule 6B-11.007, provides, in pertinent part, the following:
When the Education Practices Commission finds that a person has committed any act for which the Commission may impose discipline, the Commission shall impose an appropriate penalty within the ranges set
forth for various acts or violations in the following disciplinary guidelines unless, based upon consideration of aggravating and mitigating factors in the individual case which are among those set out in subsection (3), the Commission determines that a penalty outside the range in those guidelines but within statutory limitation is appropriate. In those cases in which the Commission relies on aggravating or mitigating factors to depart from the ranges in these disciplinary guidelines, such aggravating and mitigating factors shall be stated in the record of the case and in the Final Order imposing the applicable penalty.
The following disciplinary guidelines shall apply to violations of the below listed statutory and rule violations and to the described actions which may be basis for determining violations of particular statutory or rule provisions. Each of the following disciplinary guidelines shall be interpreted to include “probation” with applicable terms thereof as an additional penalty provision.
. . . .
(j) Misuse of corporal Reprimand - Revocation punishment/Inappropriate
methods of discipline in violation of s. 231.28(1)(b), (c), (f), (i), F.S., paragraphs
6B-1.006(3)(a), (e), F.A.C.
Having carefully considered the facts of the instant case in light of the provisions of Florida Administrative Code Rule 6B-11.007 (in particular, subsection (2)(j), as well as subsection (3), which sets forth the "aggravating and mitigating factors" to be considered in determining whether a "deviat[ion] from the penalties recommended in subsection (2)" is
justified11), it is concluded that the Commission should punish Mr. Adams for having committed the violations of subsection (1) of Sections 1012.795(1)(c) and (i), Florida Statutes, alleged in the Administrative Complaint by suspending his teaching certificate for a period of one year12 and placing his certificate on probation for a period of two years thereafter.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that a final order be entered finding that Gregory Adams violated Section 1012.795(1)(c), Florida Statutes, and, by violating Florida Administrative Code Rule 6B- 1.006(3)(a) and (e), Section 1012.795(1)(i), Florida Statutes; suspending his teaching certificate for one year; and placing him on probation for a period of two years thereafter.
DONE AND ENTERED this 11th day of June, 2004, in Tallahassee, Leon County, Florida.
S
LARRY J. SARTIN
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 11th day of June, 2004.
ENDNOTES
1/ Throughout the conduct of this proceeding, efforts have been made to protect the rights of students and parents to confidentiality provided for in Section 1002.22(3), Florida Statutes. The parties, however, have filed documents, without any request for protective order, in which identifying information has been divulged. Additionally, identifying information was divulged in the hearing of a related case, Miami-Dade County School Board v. Gregory Adams, DOAH Case
No. 01-1131 (Final Order November 19, 2001; Recommended Order
October 26, 2001).
2/ Because the events at issue in this case occurred in 2000, the authority of the Department of Education in this matter is actually found in Chapter 231, Florida Statutes (2000). The original administrative complaint issued against Mr. Adams in the first case filed with the Division of Administrative Hearings by the Commissioner, DOAH Case No. 01-4025PL, alleged violations of Chapter 231, Florida Statutes. Between the filing of that case and this one, that statute, however, was repealed and reenacted in relevant part as Chapter 1012, Florida
Statutes. See Ch. 2002-387, Laws of Fla. 2002. The alleged statutory violations against Mr. Adams contained in the Administrative Complaint were, therefore, changed to reflect where those violations are described in Chapter 1012, Florida Statutes. Mr. Adams has not been prejudiced in any manner by the technically incorrect statutory allegations because the substance of the alleged violations has not changed. In light of the foregoing, all references to statutes will be to Chapter 1012, Florida Statutes (2003), rather than Chapter 231, Florida Statutes (2000), unless otherwise specified.
3/ The student population at Chapman consisted primarily of children from migrant-labor or Black families.
4/ At the time of the final hearing of this matter, Ms. Gilliard was married and known as Leah Gilliard Ross. She will be referred to as Ms. Gilliard in this Recommended Order.
5/ At hearing, Mr. Adams testified that he intended to leave
M.S. with a teacher other than Mr. Scanlin, but changed his mind while taking M.S. upstairs. Mr. Adams did not mention the other teacher during the taking of his deposition testimony, Petitioner's Exhibit 18. Mr. Adams also testified that he intended to take M.S. to Mr. Scanlon's room because he did not want to waste his planning period. Because of the inconsistencies in Mr. Adams testimony, his explanation is not credited. Mr. Adams was not, however, required to prove why he took M.S. to Mr. Scanlon. The burden in this case was on the Commission to prove, to the extent relevant, why Mr. Adams took
M.S. to Mr. Scanlon's classroom, a fact that was not proved clearly and convincingly.
6/ The morning after the incident, November 15, 2000, M.S. and his mother, S.G., spoke with Ms. Johnson about the incidence.
For some unexplained reason, Ms. Johnson discussed what S.G. had told her with Mr. Adams. Mr. Adams admitted that he had been involved and told her that he had used "combat procedures" on M.S.
7/ Although Respondent presented evidence about Mr. Adams' lack of direct military experience and argued that he would not, therefore, have know what "combat procedures and strategy" meant, Mr. Adams himself refuted the need to have served in the military in order to understand the terms. On cross-examination by the Commissioner, Mr. Adams was asked how Ms. Johnson would have known those terms. Mr. Adams responded: "Honestly, I
can't say, but those are terms that I think any adult will be familiar with, television, newspapers, Persian Gulf." Lines 22- 24, Page 561 of the Transcript.
8/ For example, the evidence failed to prove clearly and convincingly that M.S. was made to chase a "fast boy" up and down the stairs. And while it was proved that M.S. was told that he would have his fingers cut off and his teeth and tongue would be ripped out, it was not proved clearly and convincingly that those threats came specifically from Mr. Adams.
9/ Mr. Adams admitted slamming his fist against the wall to M.S.'s mother the morning after the incident, admitting "lightly" tapping the wall at hearing, and admitting hitting the side of the wall to Ms. Martin, Chapman's principal. Mr. Adams demonstration of how he lightly tapped the wall has not been credited.
10/ This meeting is described in endnote 6, supra.
11/ Subsection (3) of Florida Administrative Code Rule 6B-11.007 provides as follows:
(3) Based upon consideration of aggravating and mitigating factors present in an individual case, the Commission may deviate from the penalties recommended in subsection (2). The Commission may consider the following as aggravating or mitigating factors:
The severity of the offense;
The danger to the public;
The number of repetitions of offenses;
The length of time since the violation;
The number of times the educator has been previously disciplined by the Commission;
The length of time the educator has practiced and the contribution as an educator;
The actual damage, physical or otherwise, caused by the violation;
The deterrent effect of the penalty imposed;
The effect of the penalty upon the educator's livelihood;
Any effort of rehabilitation by the educator;
The actual knowledge of the educator pertaining to the violation;
Employment status;
Attempts by the educator to correct or stop the violation or refusal by the licensee to correct or stop the violation;
Related violations against the educator in another state including findings of guilt or innocence, penalties imposed and penalties served;
Actual negligence of the educator pertaining to any violation;
Penalties imposed for related offenses under subsection (2) above;
Pecuniary benefit or self-gain enuring to the educator;
Degree of physical and mental harm to a student or a child;
Present status of physical and/or mental condition contributing to the violation including recovery from addiction;
Any other relevant mitigating or aggravating factors under the circumstances.
12/ Although Mr. Adams engaged in serious misconduct, in which he displayed poor judgment, when the totality of circumstances are considered, his misconduct was not sufficiently serious to warrant revocation of his license or the need to obtain written verification from the Recovery Network for Education that "he posses no threat to children," part of the punishment proposed by the Commissioner in his Proposed Recommended Order. It is doubtful, after having undergone two formal administrative hearings and a suspension of his license, that Mr. Adams will impose any disciplinary action against a student not authorized by the school board for which he works or the laws governing his teaching certificate.
COPIES FURNISHED:
Charles T. Whitelock, Esquire Whitelock & Associates, P.A.
300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316
Nina Ashenafi, Esquire FEA/United
118 North Monroe Street Tallahassee, Florida 32301
Kathleen M. Richards Executive Director
Education Practices Commission
325 West Gaines Street, Room 224-E Tallahassee, Florida 32399
Daniel J. Woodring, General Counsel Department of Education
325 West Gaines Street 1244 Turlington Building
Tallahassee, Florida 32399-0400
Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education
325 West Gaines Street 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.
Issue Date | Document | Summary |
---|---|---|
Nov. 29, 2004 | Agency Final Order | |
Jun. 11, 2004 | Recommended Order | Respondent violated Section 1012.795 (1)(c) and (i) and Florida Administrative Code Rule 6B-1.006 (3)(a) and (e) by using "combat tactics" to discipline a second grade student. |
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