vs. ) Case No. 07-3452
Respondent. )
Pursuant to notice, a final hearing was held in this case on January 16, 2008, at Fort Lauderdale, Florida, before
Errol H. Powell, a designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Mark A. Emanuele, Esquire
Hannah L. Kaplan, Esquire Panza, Maurer & Maynard, P.A.
For Respondent: Robert F. McKee, Esquire
Kelly & McKee, P.A.
The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
By letter dated June 5, 2007, the Broward County School Board, hereinafter School Board, notified Isabel Beach, among other things, that, at the School Board’s meeting on July 24, 2007, charges set forth in an attached Petition for Formal Proceeding and Administrative Complaint would be presented to the School Board with a recommendation for suspension, without pay, and dismissal. The Petition for Formal Proceeding and Administrative Complaint was dated June 13, 2007 and executed by James F. Notter, Interim Superintendent of Schools. By letter dated June 20, 2007, a field staff representative of the Broward Teachers Union requested a hearing on behalf of Ms. Beach. On July 24, 2007, the School Board took action to immediately suspend Ms. Beach from employment, without pay, and commence dismissal proceedings against her. On July 25, 2007, this matter was referred to the Division of Administrative Hearings.
The Administrative Complaint consists of two counts. The School Board charged Ms. Beach as follows: (1) Misconduct in Office by violating Section 1012.33, Florida Statutes, and Florida Administrative Code Rule 6B-4.009 through a violation of
Florida Administrative Code Rule 6B-1.006; and (2) Immorality by violating Section 1012.33, Florida Statutes, and Florida Administrative Code Rule 6B-4.009(2). The School Board avers in the Administrative Complaint that Ms. Beach’s conduct constitutes just cause for dismissal and termination from employment.
The parties waived the 60-day requirement of Section 408.039(5), Florida Statutes. This matter was originally scheduled for hearing, after consultation with the parties, for November 30, 2007. A continuance was requested by the parties and was granted. The matter was re-scheduled. Prior to hearing, the parties filed a Joint Pre-Hearing Stipulation.
At hearing, the School Board presented the testimony of six witnesses and entered 13 exhibits (Petitioner's Exhibits numbered 1, 7, 8, 10, 11, 12-2, 13, 14, and 16-20) into evidence. Ms. Beach testified in her own behalf and entered no exhibits into evidence.
A transcript of the hearing was ordered. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. The Transcript, consisting of one volume, was filed on March 3, 2008. The parties timely filed post-hearing submissions, and their post-hearing submissions have been considered in the preparation of this Recommended Order.
No dispute exists that, at all times material hereto, the School Board was a constitutional entity charged with the duty to operate, control and supervise the public schools within the school district of Broward County, Florida.
In 2000, Ms. Beach was employed as a teacher with the School Board at Oriole Elementary School (Oriole), teaching the third grade. In 2001, she began teaching the first grade at Oriole and did so until her suspension by the School Board on July 24, 2007.
During the 2006-2007 school year, Z. A. was a student in Ms. Beach’s first grade class. At the time of hearing, he was eight years of age. Z. A. testified that, at times,
Ms. Beach would forcefully pull his chin and/or squeeze the cheeks of his face together with her hands; that she would pinch him on his arm; and that, a few times, she pushed his desk into his stomach. He testified that, some of the time when these incidents happened, he was laughing in class, but he did not consider his behavior to be disruptive. Ms. Beach admits that she physically touched Z. A., except for the desk incidents, and testified that her physical touching was intended to get Z. A. to focus on his work, not to embarrass or punish him.
The undersigned finds the testimony of Z. A. more credible than Ms. Beach. Therefore, the undersigned makes a
finding of fact that Ms. Beach, at times, forcefully pulled
Z. A.’s chin and/or squeezed the cheeks of his face together with her hands; pinched his arm on occasion; and, a few times, pushed Z. A.’s desk into his stomach.
A finding is further made that the physical touching of
Z. A. by Ms. Beach and the pushing of the desk into Z. A.’s stomach by Ms. Beach was punishment.
Additionally, prior to being assigned to Ms. Beach’s class, Z. A. had not had bladder problems at home, during bedtime, since he was three years of age. After being assigned to her class, he began to have bladder problems again at home, during bedtime. Also, after being assigned to Ms. Beach’s class, Z. A. began to have behavior problems and nightmares and did not wish to attend school. Z. A. informed his mother of what was happening at Oriole in Ms. Beach’s class. Z. A.’s mother met with Oriole’s Assistant Principal, Brian Reardon, and explained the situation to him and requested the removal of
Z. A. from Ms. Beach’s classroom. Z. A. was re-assigned to another classroom. Since his move, Z. A.’s bladder problem and nightmares have ceased, he has had no discipline problems at school, and he wants to attend school.
Z. A. also testified that he observed Ms. Beach pull the chin of other students and/or squeeze the cheeks on their face together with her hands. In particular, Z. A. testified
that he observed Ms. Beach squeeze the cheeks on the face of
D. B. together. Additionally, he testified that he saw
Ms. Beach pinch other students on the arm. No other students testified at hearing.
As to D. B., Ms. Beach testified that she did not squeeze the cheeks of D. B. together, but she may have placed her hand under his chin to get his attention. D. B. did not testify at hearing; however, D. B. did sign a statement that, on a specific date, Ms. Beach grabbed his face when he was talking.
D. B. made no statement that he was injured or felt pain by the grabbing of his face by Ms. Beach or that Ms. Beach forcefully grabbed his chin.
A finding of fact is made that Ms. Beach grabbed the chin of D. B. However, no finding of fact is made that D. B. suffered any injury as a result of Ms. Beach’s action or that Ms. Beach forcefully grabbed D. B.’s chin.
Furthermore, at hearing, Z. A. testified that he signed a statement at Oriole, taken by Mr. Reardon, and confirmed that the statement was accurate. Included in Z. A.’s statement was an incident where Ms. Beach called him “dummy” when he was writing and grabbed him by his shoulder. At hearing, Z. A. testified that Ms. Beach referred to him as a “dummy” but gave no testimony that, when Ms. Beach grabbed his
shoulder, she applied force. Z. A.’s testimony and statement are found to be credible.
A finding of fact is made that Ms. Beach referred to
Z. A. as a “dummy.”
As to Ms. Beach putting her hands on the shoulders of students, she admits that, on occasion, she would put her hands on the shoulders of some of her students for the sole purpose of directing their attention to the blackboard. She denies that she applied any force when she touched the students on their shoulders.
The evidence demonstrates that Ms. Beach put her hands on the shoulders of some of her students, but fails to demonstrate that Ms. Beach applied force when she touched the students on their shoulders. However, as to the incident involving Z. A., taking the conduct of Ms. Beach as a whole (calling Z. A. a “dummy” and placing her hand on his shoulder), a finding of fact is made that Ms. Beach used force when she placed her hand on Z. A.’s shoulder to redirect him.
The Administrative Complaint in this matter does not allege performance issues, regarding a formal performance plan, and, therefore, no finding of fact is made regarding performance.
An investigation of the alleged conduct of Ms. Beach was performed by the Special Investigative Unit (SIU) of the
School Board. No investigative issues are set forth in the Administrative Complaint in this matter, and Ms. Beach does not address any investigative issues in her post-hearing submission. Therefore, an inference is drawn that no investigative issues are before this Administrative Law Judge for determination; hence, no finding of fact is made regarding the investigative process of the School Board.
Corporal punishment is not permitted in the Broward County school system and is not tolerated in Broward County schools. The School Board’s policies reiterate a strict
no-corporal-punishment policy. Teachers employed with the School Board are not permitted to use physical force on students, except for teachers in cluster classes, who receive special training in restraining students in cluster classes. Teachers employed with the School Board are not permitted to physically put their hands on students other than in limited situations, such as defending themselves or in the instance of safety issues. Ms. Beach did not have a cluster class. No evidence was presented to demonstrate that Ms. Beach was defending herself or that the situations involved a safety issue. Therefore, the limited situations are not applicable in this matter.
The Principal of Oriole, Deborah Peeples, testified that the touching by Ms. Beach of grabbing a student by the
chin, squeezing a student’s cheeks together on the face with her (Ms. Beach’s) hands, and pushing a desk into a student’s stomach are not authorized, are not appropriate conduct, and are improper touching. Further, Ms. Peeples testified that
Ms. Beach’s referring to a student as dumb was not appropriate conduct and was embarrassing to a student. Ms. Peeples’ testimony is found to be credible.
A finding of fact is made that Ms. Beach’s action of referring to Z. A. as a “dummy” was causing unnecessary embarrassment to Z. A.
Furthermore, Ms. Peeples testified that School Board policy requires that, if corporal punishment is to be applied, specific guidelines must be followed, including pre-approval. Ms. Peeples testified that Ms. Beach did not have pre-approval for the physical touching of the students. Ms. Peeples’ testimony is found to be credible.
Ms. Beach testified that, in her class, she had a disproportionate number of “problem students,” which caused her to have more behavioral problems in her class. However,
Ms. Peeples testified that Ms. Beach’s class was no different in composition than any other first grade class at Oriole.
Ms. Peeples’ testimony is found to be more credible than Ms. Beach’s.
Specific procedures are available to a teacher who is having disciplinary issues with a student; the procedures are set forth in both the faculty handbook and the school discipline plan that teachers create themselves. Essentially, the procedures are as follows: When a teacher is unable to control the behavior of a student, the teacher calls the front office and requests assistance; and, when the request is received, assistance is provided. Furthermore, if the student needs to be removed from the classroom and/or has consequences assigned, such is recorded in the student’s file. These procedures are followed at Oriole, and assistance is provided to a teacher any time a teacher, who is unable to control a behavioral problem, calls the office requesting support for the behavioral problem.
Further, at Oriole, assistance is provided to the teacher to learn how to prevent the behavior on a long term basis and to support the teacher as an individual, such as mentoring, modeling, workshops, and sending district-level personnel to the teacher for assistance.
Permanently removing a student from the classroom is used only as a last resort. As a result, removal is warranted in those circumstances in which an occurrence exists that substantially affects the learning environment. During the 2006-2007 school year, only two or three situations warranted permanent removal from Ms. Beach’s classroom. The situation
between Ms. Beach and the students was so severe that
Ms. Peeples and Mr. Reardon saw no alternative but to remove the students from Ms. Beach’s classroom. Once removed, the students did not experience any further learning problems.
A finding of fact is made that Ms. Beach engaged in corporal punishment when she would, at times, forcefully pull
Z. A.’s chin and/or squeeze the cheeks of his face together with her hands, pinch his arm, push his desk into his stomach, and forcefully grab his shoulders to redirect his attention.
No dispute exists that Ms. Beach was disciplined on two prior occasions.
During the 2004-2005 school year, the School Board issued Ms. Beach a written reprimand for the offense of corporal punishment/inappropriate physical force—pulling a student harshly by the shoulder and grabbing the student by the back of the neck on three occasions. The incident occurred in December 2004.
During the 2005-2006 school year, the School Board suspended Ms. Beach for three days, without pay, directed her to successfully complete an approved Classroom Management Program by the end of the 2005-2006 school year, and placed her on a Pre-Development Plan for the offense of harassment—grabbing a student’s shirt near the chest area and being verbally aggressive towards the student. The incident occurred in May
2005, and the School Board and Ms. Beach entered into an agreement of discipline, resolving the incident, in December 2005.
The Executive Director of the School Board’s Office of Professional Standards in SIU testified that Ms. Beach has had numerous opportunities to understand that corporal punishment is not tolerated but that she has not understood that and that, because of her continuous inappropriate conduct, she “poses a danger to the physical, emotional, and mental well-being of the children . . . .” His testimony is found to be credible and a finding of fact is made that Ms. Beach is a danger to the students.
Following the investigation of the instant matter by the SIU, the Professional Standards Committee (PSC) of the School Board reviewed the investigative report and Ms. Beach’s two prior disciplinary actions and determined that probable cause existed to support the charge of child abuse by Ms. Beach. The PSC recommended termination of Ms. Beach’s employment with the School Board.
By letter dated June 5, 2007, Ms. Beach was notified that a recommendation would be made to the School Board on July 24, 2007, for her suspension, without pay, and dismissal from employment with the School Board. At its meeting on
July 24, 2007, the School Board decided to suspend Ms. Beach, without pay, and begin dismissal proceedings.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2008).
The School Board has the burden of proof to show by a preponderance of the evidence that Ms. Beach committed the offenses set forth in the Administrative Complaint. McNeil v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
No dispute exists that at all times material hereto, Ms. Beach was subject to the rules and regulations of the School Board.
Section 1012.33, Florida Statutes (2007), provides in pertinent part:
(1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause.
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.
Florida Administrative Code Rule 6B-4.009 provides in pertinent part:
The basis for charges upon which dismissal action against instructional personnel may be pursued . . . . The basis for each of such charges is hereby defined:
* * *
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.
Florida Administrative Code Rule 6B-1.001 provides in pertinent part:
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.
Florida Administrative Code Rule 6B-1.006 provides in pertinent part:
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.
* * *
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student's legal rights.
The School Board contends that just cause exists for the suspension and termination of Ms. Beach.
The evidence demonstrates that Ms. Beach engaged in corporal punishment of Z. A., a first grader.
Additionally, the evidence demonstrates that, in class, Ms. Beach referred to Z. A. as a “dummy” and unnecessarily embarrassed him in class.
Furthermore, the evidence demonstrates that, because of the corporal punishment and the name-calling, Z. A. experienced a re-occurrence of bladder problems at home, behavior problems at school, and a desire to not attend school. The evidence also demonstrates that all of the foregoing had a culminating effect of negatively affecting Z. A. mentally and his learning environment at school. However, when he was moved to another teacher, his bladder problems disappeared again, he no longer had behavior problems at school, and he desired to attend school, resulting in him improving mentally and in the improvement of his learning environment.
Even though Ms. Beach admitted to placing her hand under the chin of one student, to which Z. A. testified that he observed, to get the student’s attention and to putting her hands on the shoulders of some students to re-direct their
attention, the evidence fails to demonstrate that she used force in her actions with those students.
Corporal punishment is prohibited and not tolerated by the School Board. Ms. Beach was aware of the School Board’s no tolerance policy and had received prior discipline. In the
2004-2005 school year, Ms. Beach received a reprimand for corporal punishment (inappropriate physical force), and, in the 2005-2006 school year, she received a three-day suspension for harassment (grabbing a student’s shirt and being verbally aggressive towards the student). Ms. Beach’s conduct of engaging in corporal punishment is inconsistent with the standard of public conscious and good morals. Moreover, her conduct in the instant matter combined with her past conduct demonstrate continuous conduct that is not consistent with the standards of public conscious and good morals; and that is sufficiently notorious as to bring the School Board and the educational profession into public disgrace or disrespect and impair her service in the community. Ms. Beach’s conduct is so serious that her impaired effectiveness may be inferred from the nature and seriousness of the conduct and no direct evidence of impaired effectiveness is necessary. Purvis v. Marion County School Board, 766 So. 2d 492, 497-98 (Fla. 5th DCA 2000).
Hence, Ms. Beach’s conduct constituted misconduct and immorality.
Under the circumstances of the instant case, the imposition of a suspension, without pay, and termination of employment is proportionately related or reasonably related to the seriousness of Ms. Beach's conduct and her employment record. See Collins v. School Board of Dade County, Florida, 676 So. 2d 1052 (Fla. 3rd DCA 1996); Bell v. School Board of Dade County, Florida, 681 So. 2d 843 (Fla. 3rd DCA 1996).
RECOMMENDED that the Broward County School Board enter a final order upholding the suspension, without pay, of Isabel Beach and terminating her employment.
DONE AND ENTERED this 24th day of July 2008, in Tallahassee, Leon County, Florida.
ERROL H. POWELL
Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2008.
Mark A. Emanuele, Esquire Hannah L. Kaplan, Esquire Panza, Maurer & Maynard, P.A.
Robert F. McKee, Esquire Kelly & McKee, P.A.
Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514
Deborah K. Kearney, General Counsel Department of Education
Mr. James F. Notter, Superintendent Broward 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.
