STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

GLADYS YOUNG-SMITH,

Respondent.

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) Case No. 05-3218PL

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RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in this case on February 21, 2006, in Miami, Florida, before J. D. Parrish, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street Fort Lauderdale, Florida 33316

For Respondent: Richard B. Marx, Esquire

O. Frank Valladares, Esquire Richard B. Marx and Associates

66 West Flagler Street, Suite 800 Miami, Florida 33130

STATEMENT OF THE ISSUE

Whether the Respondent, Gladys Young-Smith (Respondent),

committed the violations alleged in the Administrative Complaint and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case originally came to the Division of Administrative Hearings (DOAH) on January 27, 2005, and was assigned DOAH Case No. 05-0360PL. The case was promptly scheduled for hearing but was then continued two times at the request of the Respondent, who represented conflicts in scheduling and unavailability to try the case. It was represented that settlement negotiations between the parties were on-going. Indeed, such representations continued throughout the case and ultimately concluded on the day of the hearing. Such continuing representations supported the extensions of time afforded the parties throughout these proceedings.

For example, in May of 2005, the Respondent represented that she was a 66-year-old, retired teacher who did not intend to seek re-employment as a public school teacher. Additionally, the Respondent represented that numerous conflicts in scheduling precluded the matter from being set for hearing. On May 12, 2005, DOAH Case No. 05-0360PL was closed to afford the parties ample time within which to resolve the scheduling difficulties and to refer the matter back to DOAH if a hearing would be necessary to resolve the case.

The matter was referred back to DOAH on August 31, 2005,

and re-opened as DOAH Case No. 05-3218PL. A Notice of Hearing scheduled the case for November 29 and 30, 2005. On

November 17, 2005, the Respondent’s next request for a continuance was granted and the case was rescheduled for January 6, 2006. On December 29, 2005, the Respondent filed another Motion for Continuance and by Order entered January 4, 2006, the hearing was continued to February 21 and 22, 2006. On February 16, 2006, the Respondent filed an Emergency Motion for Continuance. The Respondent maintained that medical problems precluded her attendance at the hearing. The Respondent was afforded additional time, up until the commencement of the hearing, to provide the record with documentation from a physician to corroborate the medical problem that purportedly necessitated the continuation of the case. The Respondent failed or otherwise refused to provide a physician’s medical excuse. Accordingly, the matter proceeded to hearing as scheduled.

At the hearing, the Petitioner, John Winn, as Commissioner of Education, (Petitioner) presented testimony from Olga Vanbeverhoudt, formerly the Assistant Principal at North Miami Elementary School; Harriet Wilson, formerly a secretary at North Miami Elementary School; Lonell Segars, formerly a secretary at North Miami Elementary School; Reinaldo Benitez, a district director for the Miami-Dade County Public Schools Office of

Professional Standards; and Judith Mager, an Assistant Principal at North Miami Elementary School. The Petitioner’s Exhibits 1- 6, 7A, 7B, 16, 19, 21, and 22 were admitted into evidence.

The Respondent presented the following witnesses: Irma Isidore, a teacher at Biscayne Gardens Elementary School; Paul Greenfield, the Respondent’s former principal; Solomon Stinson, a member of the Miami-Dade County School Board; Clayton Harrell, an Assistant Pastor at the Mount Zion Baptist Church; and Carl Johnson, Pastor at the 93rd Street Baptist Church. The Respondent’s Exhibits 1, 2, and 3 were received in evidence.

The transcript of the hearing was filed with DOAH on

March 10, 2006. Thereafter, the parties sought an extension of the time within which to file their proposed recommended orders. Such request was granted, and the parties were afforded until March 24, 2006, to file their proposed orders. The Respondent then filed a Second Motion for Extension of Time to File Proposed Recommended Order. By Order entered March 27, 2006, the parties were granted leave until April 4, 2006, to file their proposals. Both parties filed Proposed Recommended Orders that have been fully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations of this case, the Respondent was a teacher employed by the Miami-Dade County

   Public School District. She was assigned duties as a third grade elementary teacher at North Miami Elementary School on the date the matters complained of took place. The Respondent holds a Florida Educator’s Certificate (Certificate No. 147509) that is valid through June 30, 2007.

2. On April 25, 2002, Lonell Segars (Ms. Segars) was employed at North Miami Elementary School (the school) as a school secretary. Among her duties were those associated with being the school treasurer. As school treasurer, Ms. Segars handled the processing of paperwork in order to procure school supplies.

3. Each teacher at the school was given an allowance of sorts from which school supplies could be purchased for the classroom. There were two ways to draw on this “allowance.” A teacher could purchase supplies with her own money and seek reimbursement by submitting a receipt with the items fully described or the teacher could submit a purchase order for the supplies and process the request through the office. In either instance the amount of the purchase was then applied back against the teacher’s “allowance.” An allowance not used by a certain date was forfeited.

4. Near the end of the allowance deadline, the Respondent presented to the school’s office and sought to obtain school supplies, but did not want to use either of the methods

   described above to secure the supplies. Ms. Segars attempted to resolve the issues regarding the procurement but was not successful.

5. In a second effort to resolve the issue, Ms. Segars sought to obtain a supply list from the Respondent so that she could obtain the prices from an office supply company, obtain a check for the Respondent (to cover the items sought), and assist in the procurement of the items.

6. Ms. Segars and the Respondent did not communicate well regarding the supply list and the prices attributable to the items. The Respondent became incensed with Ms. Segars and claimed she was “pissing her off.” The Respondent did not want to work with Ms. Segars on the procurement of the school supplies.

7. Ms. Segars later saw Ms. Vanbeverhoudt, the assistant principal, with the Respondent in the school hallway and attempted to explain the matter to her. The Respondent left the hallway (where Segars and Vanbeverhoudt were talking) and stormed off with the procurement problem still unresolved.

8. The Respondent entered the office of another school secretary, Ms. Wilson, followed by Ms. Segars and

   Ms. Vanbeverhoudt. In Ms. Wilson’s office, in full view of Ms. Wilson and Ms. Vanbeverhoudt, an altercation between Ms. Segars and the Respondent ensued.

9. The Respondent was talking to Ms. Wilson about the difficulties with the procurement when Ms. Segars and

   Ms. Vanbeverhoudt entered the office. Upon seeing Ms. Segars the Respondent became irate. She mumbled that she was going to hurt Ms. Segars. Ms. Segars did not call the Respondent “dumb,” but claimed the situation (the confusion over the procurement process) was “dumb.” In clear view of both Ms. Wilson and

   Ms. Vanbeverhoudt, the Respondent violently punched Ms. Segars about the head and rammed her into the door jam.

10. Ms. Segars did not do anything to provoke the attack, did not retaliate or hit the Respondent back, and did not present in any way a physical threat to the Respondent. The attack was senseless and completely uncalled for. The Respondent lost her temper and in a moment of extremely poor judgment resulted to physical violence to resolve a problem. While the Respondent may have been frustrated at the continuing issue to resolve the supply procurement, there was no immediate threat or harm to the Respondent posed by the matter.

    Ms. Segars is a petite, slightly built person who did not present a physical threat to the Respondent.

11. The Respondent left the office shortly after the attack and did not respond to an “all call” over the public address system for her to report to the office. After the fact it was discovered that the Respondent left the school property

    without permission and without signing out as was required by school procedure.

12. As a result of the attack, Ms. Segars left school employment and has a permanent impairment (loss of hearing and vertigo).

13. On May 28, 2002, a conference for the record was scheduled with the Office of Professional Standards. The Respondent was afforded an opportunity to present her side of the incident in order to clarify the facts at issue. The Respondent did not offer any detail or fact to support the attack on Ms. Segars.

14. Shortly thereafter, facing disciplinary action by the Miami-Dade County School Board, the Respondent resigned her position with the school district and retired.

15. Prior to the incident complained of, the Respondent had enjoyed a long, favorable career with the Miami-Dade County Public Schools. She had taught at several elementary schools and had received good work evaluations.

16. Public school teachers are held to a high standard of conduct. Violent physical outbursts are not tolerated. Such incidents significantly diminish an educator’s effectiveness. The Respondent’s conduct on April 25, 2002, impaired her ability to effectively maintain her stature as an educator within the Miami-Dade County School District. Moreover, since the

    Respondent never admitted her acts, never showed remorse for her behavior, and never took responsibility for her behavior, such lack of acknowledgement further demonstrates she does not appreciate the severity of her conduct or the extent to which it has impaired her credibility and effectiveness within the School District.

17. Finally, it is determined that the Respondent’s sworn testimony as set forth in her deposition (filed in this cause as Petitioner’s Ex. 1) demonstrates a lack of truthfulness regarding the incident with Ms. Segars and is not a credible account of the events of April 25, 2002.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. §§ 120.569, 120.57(1), and 1012.796, Fla. Stat. (2005).

19. The Petitioner bears the burden of proof in this matter to establish by clear and convincing evidence the allegations of the Administrative Complaint. See Department of Banking and Finance, Division of Securities and Investor Protection v. Osborne Stern and Co., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). The clear and convincing standard 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).

    
    

20. The Administrative Complaint in this case charged the Respondent with four violations in connection with an incident that occurred on April 25, 2002. Count 1 alleged that the Respondent was guilty of gross immorality or an act involving moral turpitude; Count 2 claimed the Respondent had been guilty of personal conduct which seriously reduced her effectiveness as an employee of the school board; Count 3 maintained that the Respondent violated the Principles of Professional Conduct for the Education Profession as denoted in the state rules; and Count 4 contended that the Respondent had engaged in harassment or discriminatory conduct that unreasonably interfered with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which created a hostile, intimidating, abusive, offensive, or oppressive environment. As to all claims the Respondent denied culpability and denied the underlying conduct that occurred on

    April 25, 2002. To the contrary, the Respondent falsely claimed the victim initiated the conduct and provoked the incident.

21. Section 1012.795(1), Florida Statutes (2002), provides in part:

    1. 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:

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

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       (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

       
       

22. Florida Administrative Code Rule 6B-4.009 provides definitions that are instructive in this matter. Pertinent provisions of that rule are:

    (2) 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.

    
    

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    (6) 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.

    
    

23. Case law defines “moral turpitude” as conduct that implies or involves baseness or depravity. See State ex. rel. Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933). In Charlie Crist, as Commissioner of Education v. Joseph H. Caruth, DOAH Case No. 03-0303PL, a single act of domestic violence not occurring on school property was held to constitute moral turpitude for purposes of disciplining an educator.

24. It should be noted that students are held to a strict standard regarding violence occurring on school property. The mandate for all public schools in Florida requires a zero tolerance for school violence. See Fla. Admin. Code Rule 6A- 1.0404. Similarly, teachers are held to a high standard of conduct and must demonstrate professionalism. See Adams v.

    Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1981).

25. In this case, the Petitioner has established by clear and convincing evidence that the Respondent committed a violent, unprovoked act of physical aggression against a co-worker. Three witnesses to the incident were clear as to all material facts of the incident. The Respondent struck her co-worker without provocation or reasonable cause. The co-worker was injured and suffers continuing impairment as a result of the incident. The Respondent has not accepted responsibility for her act and does not acknowledge that her credibility and effectiveness as a teacher has been seriously impacted as a result of her outburst.

26. The Petitioner has presented sufficient evidence to support the allegations of the Administrative Complaint and to justify the imposition of penalties appropriate to the charges. It is further concluded that the Respondent’s act of physical violence and unrepentant conduct is sufficient to find her guilty of gross immorality or of having committed an act of moral turpitude.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order suspending the Respondent’s teaching

certificate and prohibiting her from seeking re-certification for a period of not less than three years.

DONE AND ENTERED this 2nd day of May, 2006, in Tallahassee, Leon County, Florida.

S

J. D. PARRISH 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 2nd day of May, 2006.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Florida Education Center

Department of Education Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

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

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Richard B. Marx, Esquire Richard B. Marx and Associates Concord Building, Suite 800

66 West Flagler Street Miami, Florida 33130

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

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 05-003218PL

Orders for Case No: 05-003218PL