vs.
CASEY A. CARLISLE,
Respondent.
) Case No. 06-3812
On November 28, 2006, a hearing was held in Gainesville, Florida, pursuant to the authority set forth in Sections 120.569 and 120.57(1), Florida Statutes. The case was considered by Lisa Shearer Nelson, Administrative Law Judge.
For Petitioner: Thomas L. Wittmer, Staff Attorney
Alachua County School Board 620 East University Avenue Gainesville, Florida 32601
Whether Respondent is subject to personnel action as specified in the Notice of Charges and if so, what action should be taken.
On September 11, 2006, Respondent was served with a Notice of Charges alleging violations of Florida Administrative Code Rules 6B-1.001(2) and (3), and 6B-1.006(3)(a) and (e). On September 26, 2006, Respondent filed a Petition for Formal Hearing disputing the facts alleged in the Notice of Charges and requesting a hearing pursuant to Sections 120.57(1) and 1012.33(6)(a)2., Florida Statutes.
On October 4, 2006, the case was forwarded to the Division of Administrative Hearings and assigned to the undersigned.
Formal hearing was noticed for November 28, 2006, and proceeded as scheduled. Petitioner presented the testimony of 7 witnesses and Petitioner's Exhibits numbered 1-8 were admitted into evidence. Respondent presented the testimony of 11 witnesses and Respondent's Exhibits numbered 8, 10-15 were admitted, as well as Joint Exhibits numbered 1-6. The parties stipulated that Petitioner's Exhibits numbered 2-5 and all of Respondent's exhibits were to be considered for the purposes of penalty only in the event that the violations alleged in the Notice of Charges were proven.
The two-volume transcript was filed December 11, 2006. At hearing, the parties requested additional time for the filing of proposed orders and were given until January 15, 2007; inasmuch as January 15 was the observance of the Martin Luther King Jr., holiday, the proposed recommended orders were due January 16, 2007. Both parties timely submitted Proposed Recommended Orders which were considered in the preparation of this Recommended Order.
Respondent Casey Carlisle is a teacher at Santa Fe High School and is employed by the Alachua County School Board on a professional service contract. Respondent has taught at Santa Fe High School since 1990 and has taught in the Florida public school system for 32 years.
The 2006-2007 school year for students began on Monday, August 14, 2006. Respondent teaches a business systems technology course during the sixth period in Room 11-011. The class has approximately 30 students.
Respondent is hard of hearing. He advises both teachers and students of his hearing problem, and tends to speak louder than most. According to his wife, he does not need a microphone when he is talking. He had advised the sixth period class of his hearing problem and his tendency to speak loudly on the first day of school.
Room 11-011 is a large classroom, although not the largest in the school. The noise from the air conditioner, lights, computers and monitors, and the normal activity of having a classroom full of students shuffling their feet and passing things out, combined with Respondent's hearing deficit, is such that Respondent finds it necessary to speak loudly in this room. Respondent also has a tendency to "talk with his hands," and did so often during his testimony at hearing.
The computers in Respondent's classroom were not functioning properly on the first day of school, which caused frustration for students and teacher alike. As a result,
Respondent changed his plans for the second day and gave the students an alternative lesson. In preparing for this lesson, it was necessary for him to hand out books and document holders at the beginning of class that were still in the storage cabinets in the classroom.
On this same day, Principal Bill Herschleb was monitoring students in a common area on campus during the transition between fifth and sixth periods, which is his normal practice during the initial days of a school year. A student came up to him and asked for help retrieving a backpack that had been left in Room 11-011. Herschleb escorted the student to the classroom to retrieve the backpack so that the student would not be considered tardy going to his next class.
Herschleb entered Respondent's classroom with the student while Respondent was giving instruction and handing out books and document holders. According to Herschleb, he remained in the room only 15-30 seconds, and Respondent's back was to him. Herschleb testified that Respondent was yelling down the second row of students in the direction of a particular student, leaning toward that student and saying very loudly, "Come on, buddy, come on," in what the principal perceived as a threatening challenge. The principal believed that he would have to intervene because a physical confrontation was eminent.
The principal testified that Respondent was speaking much louder than normal; that he was gesturing and motioning; that the veins of his temples were sticking out and that in
Herschleb's judgment, the volume of Respondent's voice was not appropriate for a classroom setting.
During this brief exchange, Respondent also allegedly stated, "I'll show you what we're going to do," and turned to his left. At that point, he saw the principal standing near the door and asked what he needed. Herschleb explained that the student wanted to get his backpack. However, the backpack was not located and both Herschleb and the student left the classroom.
Herschleb acknowledged that while he felt the incident to be totally inappropriate, Respondent used no name calling and no profanity, and no physical altercation actually occurred. Herschleb did not testify how close Respondent was to the student in question and did not explain how he could see veins at Respondent's temples when Respondent had his back to him.
Several students, as well as Respondent, testified regarding their recollection of the incident. Their testimony varied greatly, in terms of whether anything out of the ordinary happened; whether Respondent was speaking louder than normal; which student, if any, was the subject of Respondent's anger; and the reason for any action taken by Respondent. Their testimony was uniform, however, that there was no physical threat to any student. Further, the incident, to the extent there was one, had not made a lasting impression on any student in the classroom.
Based on the evidence presented, it is found that Respondent admonished Garrett Holton for speaking in class when he asked questions of Sarah Sapp, a student sitting next to him, after Respondent had instructed the class not to talk without
being recognized first. He pointed at Garrett while speaking to him, but there were no threatening gestures. Respondent did raise his voice, but was not much louder than usual, especially when it is taken into account that he was in the process of passing out document holders and at times had his back to the class. While Respondent did not feel well and may have been irritated, he was not angry. Respondent told the student he would get a referral if he continued to talk.
Both the student to whom the comments were directed and the girl to whom he was speaking ultimately viewed the incident as not being a "big deal." Garrett Holt testified that while he was embarrassed initially and did not want to get into trouble, he did not take it too seriously and did not indicate any reluctance to return to the class the next day. Sarah thought it was just a normal day, and teachers yelling in class is "nothing new." She did not think the incident was a big deal and felt she and Garrett were treated appropriately and should have waited to discuss the lesson after Respondent finished talking.
The students did not feel threatened and the incident was not the subject of conversation around the school. No student or parent complained about the incident. Indeed, one student testified that the matter had been "blown up into something that it wasn't," and it wasn't "necessary to go to court over."
Several students considered the day just an ordinary day. Respondent certainly thought so, and was actually pleased
with the overall progress of his class that day, given the challenges the computers had presented.
After class ended, Respondent saw the backpack that the student with Herschleb had not been able to find, and loaded it onto his cart to take it to Herschleb or to the student via the lost and found.
The next morning Respondent saw Herschleb and told him he had found the backpack. He asked what Herschleb wanted him to do with it and apologized for not helping more to find the backpack during class time, making a comment to the effect that "it shouldn't have happened that way." Herschleb understood his apology to mean that Respondent recognized that his behavior the day before as inappropriate.
On Wednesday afternoon, August 16, 2006, Herschleb gave Respondent a letter notifying him of a meeting with the principal to be held on Friday, August 18, 2006. Respondent did not know that Herschleb had any concern about his conduct during the August 15, 2006, sixth period class until Herschleb made the allegation on Friday, August 18, 2006.
During this meeting, Herschleb explained what he had observed on Tuesday afternoon in Respondent's classroom and why he was concerned. Respondent denied any wrongdoing. Respondent was placed on administrative leave with pay so that the matter could be investigated.
The matter was also reported to Joan Longstreth, Assistant Superintendent for Human Resources for the Alachua County School Board. An investigator was assigned who obtained
random statements from members of the sixth period class. After receipt of the administrative investigative report, a committee was convened to review the report and make a recommendation.
While the committee members discussed the student statements, the most significant factor in recommending disciplinary action to the superintendent was the fact that the school principal had observed the incident.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner is the duly constituted governing body of the School District of Alachua County. §4, Art. IX, Fla. Const.;
§§ 1001.30 and 1001.33, Fla. Stat. A district school board has the statutory authority to adopt rules governing personnel matters pursuant to Sections 1001.42(5), 1012.22(1) and 1012.23,
Florida Statutes (2006).
In Florida, the school superintendent has the authority to make recommendations for dismissal of school board employees, and the school board has the authority to suspend school board instructional staff with professional service contracts for "just cause." §§ 1001.42(5); 1012.22(1)(f); and 1012.33(6)(a), Fla. Stat. (2006). Just cause is defined to include misconduct in office. § 1012.33(1)(a), Fla. Stat. (2006). Moreover, Florida Administrative Code Rule 6B-4.009 identifies the criteria
necessary for suspension or dismissal of instructional personnel. The Rule provides in pertinent part:
(3) 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.
Petitioner bears the burden to prove the charges against Respondent by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990);
Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
The Notice of Charges filed against Respondent allege the following:
In the afternoon of Tuesday, August 15, 2006, the second day of the 2006-07 school year, the Employee addressed one of the students in his classroom with a barrage of loud, angry remarks. The employee waved his hands, pointed, and finally motioned to the student with both hands, pulling toward his chest as if challenging the student in a threatening manner. The student felt embarrassed and intimidated by the Employee's voice and demeanor and did not want to return to the class the next day.
Employee's conduct on August 15, 2006, was unprofessional, improper and prohibited. The Employee's actions were in the presence of and witnessed by other students.
By his actions Employee has brought discredit upon himself and the school district.
Based upon these factual allegations, Respondent is
charged with violation of Florida Administrative Code Rules 6B- 1.001(2) and (3); 6B-1.006(3)(a) and (e); School Board Policy
6.52 (Staff Ethics); and School Board Policy 9.10 (Civility).
Florida Administrative Code Rule 6B-1.001 is entitled Code of Ethics of the Education Profession in Florida. Subsections (2) and (3) of the Rule provide:
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.
Florida Administrative Code Rule 6B-1.006 is entitled Principles of Professional Conduct for the Education Profession in Florida. Subsections (3)(a) and (e) provide:
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.
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(e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Alachua County School Board Policy 6.52 (Staff Ethics) provides:
Board members and all Board employees shall abide by the Code of Ethics of the Education
Profession in Florida (Rule 6B-1.001, FAC) and the Principles of Professional Conduct for the Education Profession in Florida (Rule 6B-1.006, FAC), and shall self-report to the worksite supervisor and/or the Human Resources Division within 48 hours:
any arrests/charges including the abuse of a child or the sale and/or possession of a controlled substance; and
any conviction, finding of guilt, withholding of adjudication, commitment to a pre-trial diversion program
or entering of a plea of guilty or
nolo contendere for any criminal offense other than a minor traffic violation.
Alachua County School Board Policy 9.10 is entitled Civility - Conduct of District Employees, Parents, and Other Visitors to Schools and School District Facilities. Relevant portions of Policy 9.10 provide:
It is the intent of the School Board to promote mutual respect, civility, and orderly conduct among district employees, parents and the public. It is not the intent of the School Board, however, to deprive any person of his or her right to freedom of expression. The intent of this policy is to maintain to the greatest extent reasonably possible, a safe, harassment-free workplace for teachers, administrators, other staff, and for parents and other members of the community. In the interest of presenting teachers and other employees as positive role models, the School Board encourages positive communication and discourages disruptive, volatile, hostile, or aggressive communications or actions.
Expected Level of Behavior:
School and school district personnel will treat parents and other members of the public with courtesy and respect.
Parents and other visitors to schools and school district facilities will treat teachers, school administrators, other school staff, and district employees with courtesy
and respect.
School Board employees will treat each other with courtesy and respect.
Unacceptable/Disruptive Behavior (Disruptive behavior includes, but is not necessarily limited to):
Exhibiting behavior which interferes with or threatens to interfere with the operation of a classroom or school-related off-campus activity, an employee's office or office area, areas of a school or facility open to parents/guardians and the general public and areas of a school or facility which are not open to parents/guardians and the general public.
Using loud and/or offensive or demeaning language, swearing, cursing, profanity, or disruptive display of temper.
* * *
e. Any other behavior which disrupts the orderly operation of school, school classroom, or any other School Board facility.
Petitioner has failed to sustain the charges against Respondent in this case.
The evidence, taken as a whole, demonstrated that Respondent raised his voice and admonished a student for talking out of turn. He did not threaten the student, did not use profanity, did not belittle the student and took no physical action toward the student. He did not subject the student to a "barrage of loud, angry remarks," and did not wave his hands or motion to the student with both hands, pulling toward his chest in a threatening manner, as alleged in the Notice of Charges.
Petitioner has not explained how the evidence presented would establish a violation of Florida Administrative Code Rule 6B-1.001(2) or (3), and the evidence presented simply did not demonstrate such a violation. Respondent was intent on developing the students' skills in his computer class despite some technical difficulties. Respondent did not engage in any unethical behavior.
Likewise, no violation of Florida Administrative Code Rule 6B-1.006 has been shown. This rule has been described by the First District Court of Appeal as "aspirational." MacMillan v. Nassau County School Board, 629 So. 2d 226, 228 (Fla. 1st DCA 1993). Subsection (3)(a) requires a teacher to make reasonable effort to protect students from conditions harmful to the students' learning and/or to the students' mental health, physical health or safety. At no time was the mental or physical health, or safety of any student at risk during the 15-30 seconds that the principal observed Respondent's classroom. To the contrary, the students were engaged in the behavior typical of a classroom in the early days of school. Moreover, Respondent was actively seeking to maintain a learning environmental by admonishing a student not to disrupt the class. That Principal Herschleb chose to leave the classroom with Respondent in charge immediately after witnessing the so-called incident demonstrates that no danger to students existed.
With respect to Rule 6B-1.006(3)(e), the Petitioner must demonstrate that Respondent made a conscious decision not to comply with the rule. MacMillan, 629 So. 2d at 228; Langston v.
Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1995). No such
evidence has been presented here. Therefore, no violation of this rule has been proven.
Alachua County School Board Policy 6.52 requires compliance with Rules 6B-1.001 and 6B-1.006. It also requires self-reporting for certain conduct not remotely relevant to this case. Inasmuch as Petitioner has failed to demonstrate violation of the rules identified above, no violation of Policy 6.52 has been shown.
Finally, Petitioner charges Respondent with Alachua County School Board Policy 9.10, which attempts to codify a spirit of civility and respect among school board staff. Petitioner has not specified what portion of Policy 9.10 is relevant to these proceedings, but has in its Proposed Recommended Order quoted Sections 2.a., b., and e., which describe "Unacceptable/Disruptive Behavior." The evidence at hearing did not show that Respondent exhibited behavior that interfered with or threatened to interfere with the operation of a classroom or any other area identified in Section 2.a.
Compelling evidence indicated that Respondent did not use offensive or demeaning language, swearing, cursing, profanity, or a disruptive display of temper. While Respondent clearly raised his voice, the greater weight of the evidence showed that he did so because of his hearing impairment and the competing noises in the classroom, and to get the attention of a
student who was talking out of turn. No violation of Section
2.b. of Policy 9.10 has been proven.
Likewise, Petitioner has not demonstrated that Respondent engaged in any other behavior that disrupted the orderly operation of school, school classroom, or any other School Board facility. After Respondent admonished the student in his sixth period class, the students completed the assigned work and Respondent was pleased with the result. There was no credible evidence to show that the orderly operation of the classroom was compromised. No violation of Section 2.e. of Policy 9.10 has been proven.
Finally in order to warrant the suspension sought by Petitioner, it must be demonstrated that the alleged rule violations were so serious as to impair the Respondent's effectiveness in the school system. Not only has no violation been proven, but there is absolutely no indication that this incident has undermined Respondent's effectiveness.1/ There was some limited, casual discussion of the exchange between Garrett
Holton and Respondent on the day it occurred. After that, it appeared to be forgotten until subpoenas were issued for this hearing. It was not a matter of discussion among students or staff and did not result in any student, including Garrett Holton, attempting to drop the class. As one student aptly stated, it was not worth going to court for.
That a final order be entered dismissing all charges against Respondent.
DONE AND ENTERED this 5th day of February, 2007, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 5th of February, 2005.
1/ There was testimony of prior discipline involving Respondent in order to justify progressive punishment for this incident.
Likewise, a prior final order by the Florida Education Practices Commission against Respondent accepting a Settlement Agreement in Case No. 03-0376-RT, and the results of an administrative investigation and stipulated discipline in 2005 involving a separate incident that has been forwarded to the Education Practices Commission. However, all of the testimony regarding the 2005 incident was hearsay and beyond the scope of the allegations in this case. Likewise, the exhibits related to Respondent's disciplinary history were admitted solely for the purpose of penalty, should a violation be found. While these exhibits might also be indicative of the School Board's motive for bringing action in this case, they were not admitted for that purpose
and were not considered in determining whether the conduct in the Notice of Charges served as a basis for finding the asserted violations.
Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, Florida 32601
W. Daniel Boyd, Jr., Superintendent Alachua County School Board
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.
