vs.
Respondent.
) Case No. 05-2842
This case came before Administrative Law Judge John G. Van Laningham for final hearing on March 23-24, 2006, in Fort Lauderdale, Florida.
For Petitioner: Charles T. Whitelock, Esquire
Whitelock & Associates, P.A.
Chamblee, Johnson & Haynes, P.A.
The issue in this case is whether a veteran teacher should be dismissed for having drawn and displayed a kitchen knife while quieting a noisy class.
By letter dated July 15, 2005, the Superintendent of Schools for the Broward County School District notified Lynn Deering that he would recommend to the Broward County School Board at its regular meeting on August 2, 2005, that she be suspended without pay pending dismissal from her position as a schoolteacher. The superintendent's decision followed an incident that had occurred on March 2, 2005, during which Ms. Deering, while teaching a class, had taken out a kitchen knife and displayed it while quieting talkative students.
Not waiting for the School Board to act, Ms. Deering requested a formal hearing by letter dated July 25, 2005. On August 5, 2005, the matter was referred to the Division of Administrative Hearings for further proceedings.
After several continuances, the final hearing took place on March 23-24, 2006. Petitioner called the following witnesses: Craig Kowalski, Amanda Linden, Janine Stanislaw, Megan Manick, Jensen Thomas, Nesta Elliott, Shaina Leroy, Ellen Cohen, and Dr. Joseph Melita. In addition, Petitioner proffered Petitioner's Exhibits 1 through 5, and 7 through 23, which were admitted into evidence.
Ms. Deering testified on her own behalf, and Respondent's Exhibit 1 was received in evidence.
The final hearing transcript was filed on April 21, 2006. Each party timely filed a Proposed Recommended Order before the established deadline, which, after a couple of enlargements of time, was June 9, 2006.
Unless otherwise indicated, citations to the Florida Statutes refer to the 2005 Florida Statutes.
The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System.
As of the final hearing, Respondent Lynn Deering ("Deering") had been a teacher for about 34 years. She holds a certificate to teach in Florida. During the 2004-05 school year, Deering was employed as a science teacher at Marjory Stoneman Douglas High School, which is a public school in Broward County.
For reasons that will soon be apparent, it is pertinent to note that Deering contracted polio at a young age and as an adult has suffered from post-polio syndrome. As a result of these illnesses, Deering's upper-body is weak, the range of motion of her upper extremities is limited, and she has little grip strength in her right hand, which is dominant. Since 1985, Deering has been confined to a wheelchair.1
The incident giving rise to this case occurred on March 2, 2005. When the bell rang that day to start Deering's sixth period anatomy and physiology class, the students were excited and talkative. As was her practice, Deering raised her hand to signal that she was ready to begin teaching; this gesture usually quieted the class.
This time, however, the students continued to talk, and the classroom was noisy——too noisy for Deering to be heard. So Deering, who was sitting (in her wheelchair) in front of a demonstration table located at the head of the classroom, hitched up her right shoulder, reached back behind her body, and grabbed a utensil from the top of the table. She then used the utensil to tap on a glass beaker——which was filled with water and flowers——to get the students' attention.
The "utensil" in question happened to be a knife. It was a chef's knife,2 bearing the Chefmate™ brand on its blade. Measured from butt to point, the knife was approximately 10 and one-half inches long. From heel to point, the blade was roughly five and three-quarters inches in length; it was no wider than about three-quarters of an inch from edge to spine. The knife was in Deering's classroom at the time because she had been using it to slice flowers and potatoes for demonstrations in her biology class.3
Upon hearing the distinctive "tap, tap, tap" of blade on beaker, most of the students stopped talking. Some in the back of the room, however, perhaps being out of earshot, continued to converse. Two were especially oblivious. Presently, Deering wheeled over to their lab table, still holding the knife in her right hand, between her thumb and fingers. When she reached the students' table, Deering turned the knife over in her hand, so that the point was down and the edge faced away from the students (toward Deering herself). Deering leaned over the table, in front of the where the two students were sitting, raised the knife an inch or two above a couple of sheets of paper that were lying on the tabletop, and, loosening her grip, let gravity pull the knife down between her fingers.4 Driven by the knife's own weight, the point punched through the papers, leaving small slits in them, and scratched the surface of the tabletop. Now gripping the knife's handle more tightly (for had she let go the knife would have fallen), Deering said, "Hello!"——which she pronounced "Heh-LOW!"——"Do I have your attention?"
She did. The students stopped talking. Some were startled or frightened; others were amused or nonplussed. None, however, reacted as one might when facing a genuine threat of harm, e.g. by screaming or fleeing. As she returned to the front of the classroom, Deering joked, "Don't mess with a
postmenopausal woman . . . with a knife!" This was meant to be humorous and was not uttered in a threatening tone of voice.
Following this incident, Deering taught her lesson as usual, and the class unfolded in routine fashion. Her use of the knife, in other words, produced no discernible immediate fallout.
At least a few students, however, were sufficiently upset by Deering's conduct to report the matter to the administration, and they did.5 The students' report not only set in motion an internal investigation, but also prompted the administration to call the police.
Somehow, as well, the incident rapidly made its way into the local news. At least one local TV station aired a brief, 35-second story on the incident, which was short on facts, long on sensationalism, and notably unbalanced, in that Deering's side was not shown. The undersigned cannot comment on the contents or accuracy of other media reports, for they are not in evidence.
In due course, the Broward County Sheriff's Office commenced an investigation that brought forth a criminal charge against Deering, who found herself accused of having improperly exhibited a dangerous weapon. The crime of improper exhibition, which is a misdemeanor, is defined in Section 790.10, Florida Statutes, as follows:
If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree[.]
Deering ultimately pleaded no contest to the criminal charge and was sentenced by the county court to three months' probation and a $30 fine.
Meantime, the School Board decided that Deering should be fired, voting at its regular meeting on August 2, 2005, to accept the superintendent's recommendation that she be suspended without pay pending termination of employment.
Following her suspension, Deering accepted a teaching position at the Upper Room Christian Academy, where she was working as a science and math teacher at the time of the final hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to Sections 1012.33, 120.569, and 120.57(1), Florida Statutes.
A district school board employee against whom a dismissal proceeding has been initiated must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or
formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, policy, or collective bargaining provision] the [school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J. concurring).
Once the district school board, in its notice of specific charges or, as in this case, Administrative Complaint, has delineated the offenses alleged to justify termination, those are the only grounds upon which dismissal may be predicated, and none other. See Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Department of Insurance, 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v. Department of Business and Professional
Regulation, 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Department of Professional Regulation, 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v. Department of Professional Regulation, Board of Medicine, 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev.
denied, 576 So. 2d 295 (Fla. 1991).
In an administrative proceeding to suspend or dismiss an employee, the district school board, as the charging party, bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See McNeill v. Pinellas County School Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996);
Sublett v. Sumter County School Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); MacMillan v. Nassau County School Bd., 629 So. 2d
226 (Fla. 1st DCA 1993).
The guilt or innocence of the accused employee 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).
Pursuant to Section 1012.33(6)(a), Florida Statutes, the School Board is authorized to suspend or dismiss
[a]ny member of the instructional staff
. . . at any time during the term of [his teaching] contract for just cause . . . .
The district school board must notify the employee in writing whenever charges are made against the employee and may suspend such person without pay; but, if the charges are not sustained, the employee shall be immediately reinstated, and his or her back salary shall be paid.
(Emphasis added.) The term "just cause" includes, but is not limited to, the
following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
§ 1012.33(1)(a), Fla. Stat.
In its Administrative Complaint served on July 18, 2005, the School Board advanced three theories for dismissing
Deering: Immorality (Count I); Moral Turpitude (Count II); and Misconduct in Office (Count III).
The terms "immorality," "moral turpitude," and "misconduct in office" are defined in Florida Administrative Code Rule 6B-4.009, which prescribes the "criteria for suspension and dismissal of instructional personnel" and provides, in pertinent part, 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.
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.
* * *
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.
Immorality
"[I]n order to dismiss a teacher for immoral conduct the factfinder must conclude: a) that the teacher engaged in conduct inconsistent with the standards of public conscience and good morals, and b) that the conduct was sufficiently notorious so as to [1] disgrace the teaching profession and [2] impair the teacher's service in the community." McNeill v. Pinellas County School Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996)(italics in original).
In this case, the School Board did not offer any persuasive evidence establishing the applicable "standards of public conscience and good morals." The undersigned therefore cannot determine according to the rule of law whether Deering violated such standards. (The undersigned could determine whether Deering's conduct was inconsistent with his own personal standards of right and wrong behavior, but that would be improper.)
Even if Deering's conduct were inconsistent with the prevailing standards of public conscience and good morals, however, the evidence is insufficient to persuade the undersigned that Deering's conduct was sufficiently notorious both to cause her (or her profession's) public disgrace and to impair her service in the community.
As commonly used, the term "notorious" means "generally known and talked of" or "widely and unfavorably known." See Merriam-Webster Online Dictionary, <http://www.m- w.com/dictionary/notorious>. The School Board presented no persuasive direct evidence that Deering's conduct had become widely and unfavorably known. Instead, the School Board offered circumstantial evidence of notoriety, in the form of a videotape containing a local news broadcast concerning the incident. As well, some of the witnesses, including Deering, made reference to the publicity that had attended the event.
As the factfinder, the undersigned has carefully considered the weight to be accorded this evidence. In so doing, he has been mindful that, ultimately, it is the teacher's conduct that must be notorious, not the coverage of the conduct or——to be more precise——the conduct as portrayed in the media. Thus, the fact that the media reported an event would not be credible circumstantial evidence of the requisite notoriety unless the media happened accurately to have reported the facts as later established by proof at hearing; without a substantial match between the reported "facts" and the facts as proved by the greater weight of evidence at hearing, there would be no way of reliably inferring that the conduct known or discussed (if it were, in fact, known or discussed, which is a separate issue) was the conduct in question. Cf. Baker v. School Bd. of Marion
County, 450 So. 2d 1194, 1195 (Fla. 5th DCA), rev. denied, 456 So. 2d 1182 (Fla. 1984)(publicity surrounding criminal charge could not be considered as proof of teacher's impaired effectiveness if the teacher were subsequently exonerated).
Only if the evidence were to show that the news reports accurately and fairly depicted the conduct as proved at hearing would the need arise to decide whether, based on the intensity of the coverage or other relevant factors, it should be inferred from the media coverage that the teacher's conduct had become widely and unfavorably known.
In this case the evidence does not persuasively establish that the news reports accurately portrayed the incident as it was proved at hearing to have occurred. For this reason, the undersigned has determined that the evidence of surrounding publicity adduced here is insufficient to establish the necessary element of notoriety.
Even if Deering's conduct were shown to have been notorious, however, there is no persuasive evidence that she (or the teaching profession) was publicly disgraced or disrespected in consequence of such notoriety. At most, the evidence shows that Deering was personally embarrassed, humiliated, or disgraced as a result of her behavior. But that is not the same thing as public disgrace.
Finally, there is no evidence that Deering's ability to serve in the community has been impaired. Indeed, the incident did not prevent her from finding work as a teacher in her community, wherein she continued to be of service, as an educator, at the time of the hearing.
In sum, the School Board failed to prove the charge of immorality; it is therefore determined, as a matter of ultimate fact, that Deering is not guilty of this offense.6
2. Moral Turpitude
For a crime to involve moral turpitude, it must entail an act of "baseness, vileness, or depravity." See Fla. Admin. Code R. 6B-4.009(6). Further, "the doing of the act itself and not its prohibition by statute fixes the moral turpitude." Id. The latter condition tells that a crime of moral turpitude must be malum in se, that is, inherently wicked, rather than malum prohibitum, or wrong because it is prohibited.
The School Board did not put on any evidence tending to show that the crime of improper exhibition of a weapon is malum in se. Considering that Section 790.10, Florida Statutes, "does not require that the victim be placed in fear," and that "a defendant may be convicted of improper exhibition for merely carelessly, angrily, or rudely displaying a weapon," Kase v. State, 581 So. 2d 612, 612 (Fla. 1st DCA 1991),7 the undersigned concludes as a matter of law that this particular crime does not
involve an inherently or essentially evil act. Thus, Section
790.10 does not define a crime of moral turpitude.
Beyond that, there is no persuasive evidence that Deering's conduct was base, vile, or depraved as those words are ordinarily used and understood.
Consequently, the School Board has failed to prove that Deering was convicted of a crime involving moral turpitude; it is determined as a matter of ultimate fact that she is not guilty of this charge.8
3. Misconduct in Office
The Code of Ethics of the Education Profession (adopted in Florida Administrative Code Rule 6B-1.001) and the Principles of Professional Conduct for the Education Profession in Florida (adopted in Florida Administrative Code Rule 6B- 1.006), which are incorporated in the definition of "misconduct in office," provide in pertinent part as follows:
6B-1.001 Code of Ethics of the Education Profession in Florida.
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek
to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
* * *
6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.
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.
Obligation to the student requires that the individual:
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.
* * *
(5) Obligation to the profession of education requires that the individual:
* * *
(d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or
which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.
As shown by a careful reading of Rule 6B-4.009,9 the offense of misconduct in office consists of three elements: (1) A serious violation of a specific rule10 that (2) causes (3) an impairment of the employee's effectiveness in the school system. The second and third elements can be conflated, for ease of reference, into one component: "resulting ineffectiveness."
The School Board alleges that Deering breached the duty, imposed under Florida Administrative Code Rule 6B- 1.006(3)(a), to protect students from harmful conditions; and that she committed the offenses described in subparagraphs (3)(e), (3)(f), and (5)(d) of that Rule. These specific charges of misconduct will be examined below, one at a time, putting aside momentarily the element of "resulting ineffectiveness," which, being common to all the alleged acts of misconduct, will thereafter be addressed separately.
Reasonable Protective Effort.
Florida Administrative Code Rule 6B-1.006(3)(a) imposes on teachers the affirmative duty to protect students from harmful conditions.11 Focusing on protection, the Rule is limited in scope. It does not clearly and unambiguously prohibit a teacher
from making a harmful condition, for example, nor does it proscribe harmful conduct. That many types of teacher misbehavior are beyond this Rule's reach does not mean, of course, that teachers are therefore free to create harmful conditions or behave dangerously in the classroom. After all, Rule 6B-1.006(3)(a) is not the only rule with which teachers must comply. However, a teacher who has created a harmful condition or engaged in potentially harmful behavior might not thereby have violated Rule 6B-1.006(3)(a).
It is an objective standard against which a teacher's performance of the protective duty must be measured: she must make a "reasonable effort." Therefore, a teacher's subjective intent is not determinative of whether Rule 6B-1.006(3)(a) was violated. See Miami-Dade County School Bd. v. Williams, DOAH Case No. 04-2156, 2004 Fla. Div. Adm. Hear. LEXIS 2496, *10-*11 (Fla.Div.Admin.Hrgs. Nov. 8, 2004), adopted in toto, Jan. 26, 2005; Rolle v. Crist, DOAH Case No. 01-2644, 2001 Fla. Div. Adm. Hear. LEXIS 3171, *22 (Fla.Div.Admin.Hrgs. Dec. 14, 2001), adopted in toto, Feb. 28, 2002.
The specific standard of care owed under legal duty is typically a question of fact. See Dennis v. City of Tampa, 581 So. 2d 1345, 1350 (Fla. 2d DCA), rev. denied, 591 So. 2d 181 (Fla. 1991); Spadafora v. Carlo, 569 So. 2d 1329, 1331 (Fla. 2d DCA 1990). As such, it is susceptible to ordinary methods of
proof. Accordingly, when a teacher is charged with having failed to make a reasonable protective effort under Rule 6B- 1.006(3)(a) the School Board must adduce, first, evidence regarding the teacher's actual actions in the face of a harmful condition; and, second, evidence from which the trier of fact can conceptualize a standard of conduct in the form of the action of a "reasonable teacher" under the same or similar circumstances. From such evidence, a comparison of the teacher's actual conduct to the theoretical, objectively reasonable standard of conduct can be made. See Williams, 2004 Fla. Div. Adm. Hear. LEXIS 2496, at *11; Rolle, 2001 Fla. Div. Adm. Hear. LEXIS 3171, at 22-23; cf. Wal-Mart Stores, Inc. v.
King, 592 So. 2d 705, 707 (Fla. 5th DCA 1991), rev. denied, 602 So. 2d 942 (Fla. 1992)(enumerating facts that must be proved in trial of premises liability action).
Here, the School Board has not clearly articulated what, exactly, it believes was the harmful condition. Nevertheless, it is reasonably clear that the School Board considers the exhibition of a chef's knife by a teacher in the classroom to be necessarily or inherently harmful. Thus, from the School Board's perspective, Deering failed reasonably to protect her students as soon as she picked up the knife.12 The School Board has not, however, described the protective effort that, in its opinion, Deering should have made to defend against
this alleged harm. Presumably, though, such an effort would have been an intellectual one, namely, self-control.13 That being the case, the undersigned surmises that the School Board's theory, were it to make an argument as to how Deering violated the Rule in question, would be that Deering failed to make a reasonable effort to protect her students from harmful conditions when she succumbed to the urge to use the knife to get the attention of the class.
The problem with this position is that Rule 6B- 1.006(3)(a)——which plainly requires protective deeds, not protective thoughts——cannot permissibly be read to require, as a reasonable protective effort, the purely mental discipline of self-restraint, which is not an objective, observable act. Therefore, Deering's lack of self-control could not have amounted to a failure to make a reasonable protective effort within the ambit of Rule 6B-1.006(3)(a).
Further, Rule 6B-1.006(3)(a) cannot logically operate in situations where the teacher's conduct constituted the alleged harmful condition, as in the case at hand. This is because, against harmful teacher conduct, abstention is the only reasonable protective effort; that is, the teacher who is tempted to take harmful action simply must not engage in the behavior she has in mind, if she is to guard her students against such behavior. But, if the teacher refrains from acting
harmfully, then there will be no harmful condition against which to protect. And, unless and until a harmful condition actually arises, there is no duty to protect, for the Rule speaks exclusively of "conditions"——not potential conditions.14 Where there is no duty to protect, there can be no violation of Rule 6B-1.006(3)(a). On the other hand, if the teacher does act harmfully, it is then too late for her reasonably to protect the students from the harmful action presently under way: the horse it out of the barn. Inasmuch as one cannot act harmfully towards others while simultaneously making a reasonable effort to protect them from one's harmful behavior,15 no reasonable protective measure exists once the harmful conduct commences.
Where there is no reasonable protective measure to be taken, there can be no violation of Rule 6B-1.006(3)(a).16
Another, perhaps clearer, way to make the foregoing point is to observe that a mandate to give protection, such as Rule 6B-1.006(3)(a), is not the equivalent of a prohibition against acting harmfully, e.g., Rule 6B-1.006(3)(b), (c), (d), (e), (f), or (g). Properly understood according to its plain meaning, Rule 6B-1.006(3)(a) does not proscribe undesired conduct;17 it requires desired conduct. Therefore the Rule is violated, not by doing something harmful, but by failing, unreasonably, to do something helpful (namely, make a protective effort) when a harmful condition arises. Where the teacher has
done something that was allegedly harmful to learning or dangerous to students, as here, the harmful conduct must be punished, if at all, pursuant to a rule that prohibits the conduct in question. Rule 6B-1.006(3)(a) is not such a rule.
Consequently, the undersigned concludes that Deering is not guilty of failing to make a reasonable protective effort.
Unnecessary Embarrassment.
The First District Court of Appeal has described Florida Administrative Code Rule 6B-1.006(3)(e)——which proscribes the intentional infliction of unnecessary embarrassment or disparagement——as an "aspirational" rule, the "violation of which could only justify [a severe penalty] if there was factual evidence that the violation was so serious as to impair the teacher's effectiveness in the school system." Langston v.
Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995); MacMillan v. Nassau County School Board, 629 So. 2d 226, 228 (Fla. 1st DCA 1993).
Significantly, moreover, to be prohibited by Rule 6B- 1.006(3)(e), the offending conduct must be committed with a specific intent to disobey the rule. Accordingly, "[t]here can be no violation in the absence of evidence that the teacher made a conscious decision not to comply with the rule." Langston, 653 So. 2d at 491.
Even if the School Board sufficiently had proved the other elements of a Rule 6B-1.006(3)(e) violation, which it did not, the record is devoid of any direct evidence that Deering specifically intended to violate this Rule or to embarrass or disparage a student, and none of the circumstances shown to have existed persuasively supports a finding such was likely the case. Therefore, the offense was not established.
Denial of Legal Rights.
Rule 6B-1.006(3)(f) prohibits a teacher from intentionally violating or denying a student's legal rights. To demonstrate a violation of this Rule, the School Board must establish, as an element of the offense, which legal right or rights were infringed upon by the accused teacher. Here, however, the School Board has neither proved nor even identified the legal rights allegedly at stake. For this reason alone, the offense was not established.
Harassment or Discriminatory Conduct.
Rule 6B-1.006(5)(d) prohibits harassment and discriminatory conduct in the workplace. It is debatable whether this Rule—— which makes no mention of students, in contrast to Rule 6B- 1.006(3)(g), an anti-discrimination provision which does—— applies where a teacher is alleged to have discriminated against a student. See, e.g., Gretz v. Florida Unemployment Appeals Com'n, 572 So. 2d 1384, 1386 (Fla. 1991)(specific statute
controls over general statue covering the same subject matter); accord, Cone v. State Dept. of Health, 886 So. 2d 1007, 1012 (Fla. 1st DCA 2004). But regardless, the conduct that Rule 6B- 1.006(5)(d) proscribes, e.g., racial discrimination, sexual harassment, and the like, clearly must be motivated by an underlying prejudicial animus. Nothing of the sort was proved here. This charge was not established.
Resulting Ineffectiveness.
As mentioned above, to dismiss Deering for misconduct in office the School Board needed to show that her conduct not only violated a specific rule, but also that the violation was so serious as to impair her effectiveness in the school system.
There was little, if any, direct evidence that Deering's effectiveness in the school system was impaired as a result of the incident under consideration. On this element, therefore, the Board must rely on inferences in aid of its proof. Indeed, the Board invokes the concept of res ipsa loquitur, arguing that, "[b]ased on the conduct at hand, impaired effectiveness can simply be inferred from the nature of the violation." Pet. Prop. Rec. Order at 20.
For the School Board to profit from an inference of resulting ineffectiveness, it must establish two things: (1) that the violation was not of a private immoral nature, and (2) that, on the basis of past experience as drawn from the fund of
common knowledge, the violation would not, in the ordinary course of events, have failed to impair the individual's effectiveness in the school system. See Williams, 2004 Fla. Div. Adm. Hear. LEXIS 2496, at *18-*19; Miami-Dade County School Bd. v. Depalo, DOAH Case No. 03-3242, 2004 Fla. Div. Adm. Hear.
LEXIS 1684, at *33 (Fla.Div.Admin.Hrgs. Apr. 29, 2004), adopted
in toto, July 14, 2004; Miami-Dade County School Bd. v. Wallace, DOAH Case No. 00-4392, 2001 WL 335989, *19 (Fla.Div.Admin.Hrgs.
Apr. 4, 2001), adopted in toto, May 16, 2001.
The allegations against Deering do not involve misconduct of a private immoral nature, so the first condition is satisfied. The undersigned is not persuaded, however, that Deering's use of the knife, as foolish and unprofessional as it was, must have impaired her effectiveness in the school system. Indeed, even as the incident occurred, Deering did not lose control of the class or otherwise clearly demonstrate her ineffectiveness, as had the teacher on trial in Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2d DCA), rev. denied, 773 So. 2d 58 (Fla. 2000).18 Further, following the incident, Deering found work as a teacher in a private school, where, as of the final hearing, she had been sufficiently effective to stay employed. This latter fact alone rebuts an inference of irretrievably impaired effectiveness.
In sum, the record shows that the knife incident was a unique and isolated event, unfortunate certainly, but not so serious as to preclude redemption and recovery. To put the matter in perspective, Deering is an experienced teacher whose career spans four decades. There is not any evidence suggesting that she has been less than successful in 30-plus years of teaching. On the basis of past experience as drawn from the fund of common knowledge, the undersigned believes that Deering's momentary lapse of judgment does not inevitably and indelibly brand her a failure, forever incapable of performing effectively in the public school system.
Ultimately, therefore, although an inference of resulting ineffectiveness might be legally permissible under the circumstances of this case, such an inference is not factually justified and hence has not been drawn. Rather, taking into consideration all of the evidence in the record, it is determined that Deering can continue to be effective in the school system, notwithstanding the knife incident.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order
(a) rescinding its previous decision to suspend Deering without pay pending dismissal and (b) awarding Deering the back salary, plus benefits, that accrued during the administrative
proceedings, together with interest thereon at the statutory rate.
DONE AND ENTERED this 31st day of July, 2006, in Tallahassee, Leon County, Florida.
JOHN G. VAN LANINGHAM
Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2006.
1/ Deering uses a motorized wheelchair equipped with a seat that can be raised and lowered, which allows her to accomplish such tasks as writing on a blackboard.
2/ The School Board repeatedly has referred to the knife as a "butcher knife." Yet, while it was surely capable of causing serious bodily injury if used as a weapon, the knife was, in fact, an ordinary kitchen knife of the sort common experience teaches can be found in many homes; it was not suitable for butchering meat, a job that calls for a larger knife. The term "butcher knife" is, therefore, inaccurate.
3/ The School Board attempted to discredit Deering's testimony regarding the pedagogic purposes for which the knife was present
in the classroom. The undersigned, however, has accepted Deering's testimony on this point as reasonable and credible. The undersigned also accepts Deering's testimony, which the School Board disputes, that she had found the knife in a drawer at the school——although this particular fact is immaterial because there is no persuasive evidence (and the undersigned specifically declines to find) that Deering brought the knife into her classroom with the intention of using or exhibiting it as a weapon.
4/ To the extent that this finding (or any other finding of fact herein) is inconsistent with the testimony of one witness or another, the finding reflects a rejection of all such inconsistent testimony in favor of evidence that the undersigned deemed to be more believable and hence entitled to greater weight. The undersigned is aware that some students claimed Deering had raised the knife to shoulder level or higher and forcefully arced the blade to the table in a violent, stabbing motion, plunging the tip through the papers and into the tabletop. The undersigned simply does not believe, however, that the scene was that theatrical, or Deering so menacing.
First, Deering is, most likely, physically incapable of carrying out such a maneuver. Second, had Deering stabbed the tabletop in the manner some students described, there is a reasonably good chance her hand would have slipped off the smooth handle upon the point's impact with the table, causing injury to herself, because the relatively shallow (about a half-inch) finger guard would not likely have stopped a fast-moving fist from continuing its downward descent, onto the suddenly stationary blade——especially given Deering's lack of hand strength.
5/ The evidence does not persuasively establish the precise number of students, out of about 25 or so present in Deering's classroom when this incident occurred, who felt that the matter should be reported. There were clearly a couple, maybe even several, who felt strongly that Deering's use of the knife was egregious and should result in her dismissal. Whether more than, say, four or five students felt this way the undersigned cannot say. What is known is that, in the end, only seven students gave statements about the incident to investigators, and of these just six testified at hearing. This number constitutes a rather small percentage of the entire class (approximately a quarter) and was certainly not a random sample, including as it did the ones who reported the incident in the first instance.
6/ The inclusion of this and other findings of ultimate fact in the Conclusions of Law section is merely a matter of organizational convenience. To repeat for emphasis, ultimate determinations of guilt or innocence are factual in nature, not legal.
1.006 are penal in nature and must be strictly construed, with ambiguities being resolved in favor of the employee. See Rosario v. Burke, 605 So. 2d 523, 524 (Fla. 2d DCA 1992); Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).
10/ To elaborate on this a bit, the Rule plainly requires that a violation of both the Ethics Code and the Principles of Professional Education be shown, not merely a violation of one or the other. The precepts set forth in the Ethics Code, however, are so general and so obviously aspirational as to be of little practical use in defining normative behavior. It is one thing to say, for example, that teachers must "strive for professional growth." See Fla. Admin. Code R. 6B-1.001(2). It is quite another to define the behavior which constitutes such striving in a way that puts teachers on notice concerning what conduct is forbidden. The Principles of Professional Conduct accomplish the latter goal, enumerating specific "dos" and "don'ts." Thus, it is concluded that that while any violation of one of the Principles would also be a violation of the Code of Ethics, the converse is not true. Put another way, in order to punish a teacher for misconduct in office, it is necessary but not sufficient that a violation of a broad ideal articulated in the Ethics Code be proved, whereas it is both necessary and
sufficient that a violation of a specific rule in the Principles of Professional Conduct be proved. It is the necessary and sufficient condition to which the text refers.
11/ In imposing on a teacher the duty to protect students against harmful conditions, the rule deviates from the common law, under which a person is not required to protect another from danger unless he himself has created the danger. Thompson v. Baniqued, 741 So. 2d 629, 631 (Fla. 1st DCA 1999).
12/ The School Board might, possibly, concede that a harmful condition did not arise immediately upon Deering's grasping the knife, but rather that Deering crossed a "red line," so to speak, some time later during the incident, transforming an otherwise harmless condition into a harmful one. The School Board did not, however, identify such a red line, and even if it had, the analysis above would be the same.
14/ If the Rule reached potential conditions, then it would impose a duty of prevention, in addition to a duty of protection. If the policy makers who drafted the Rule had intended to impose a duty of prevention, then they should have said so clearly and unambiguously. As it is, the undersigned perceives no such intent behind the plain language of Rule 6B- 1.006(3)(a). Therefore, construing the Rule to require prevention would be making policy, not merely applying it.
15/ Although it is possible to ameliorate the effects of one's harmful actions, even as they are being carried out, Rule 6B- 1.006(3)(a) surely require more than merely pulling one's punches. That is, making an effort to cause less damage than one otherwise might while engaging in harmful conduct seems hardly to qualify as the sort of "reasonable effort to protect" that the Rule contemplates.
16/ Again, this does not mean that the harmful conduct would not be a disciplinable offense——only that it would not be disciplinable pursuant to Rule 6B-1.006(3)(a).
17/ Insofar as requiring an act necessarily proscribes the failure to perform that act, Rule 6B-1.006(3)(a) can be said to forbid unreasonable inaction in the face of a harmful condition.
But that is merely restating the affirmative duty in the negative, as a converse proposition.
. . . [the teacher's] ineffectiveness may be inferred." Id. Elaborating, the court explained that the "chaos in [the teacher's] classroom"——which accompanied his violation of "established school board policy"——"sp[oke] for itself" regarding the teacher's resulting ineffectiveness. Id. It was therefore permissible for the trier of fact to infer the teacher's impaired effectiveness in the school system from the loss of classroom control to which his violation of school board policy immediately had led.
Charles T. Whitelock, Esquire Whitelock & Associates, P.A.
Matthew Haynes, Esquire Chamblee, Johnson & Haynes, P.A.
Dr. Frank Till, Superintendent Broward County Public Schools 600 Southeast Third Avenue
Daniel J. Woodring, General Counsel Department of Education
John L. Winn, Commissioner Department of Education Turlington Building, Suite 1514
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.
