STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
JAMES DAVIS HEBNER,
Respondent.
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) Case No. 10-1394PL
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RECOMMENDED ORDER
Pursuant to notice, a final hearing was held in this case on September 1 and 2, 2010, in Fort Myers, Florida, before Susan B. Harrell, a designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Charles T. Whitelock, Esquire
Whitelock & Associates, P.A.
300 Southeast 13th Street
Fort Lauderdale, Florida 33316
For Respondent: Robert J. Coleman, Esquire
Coleman & Coleman Post Office Box 2089
Fort Myers, Florida 33902 STATEMENT OF THE ISSUES
The issues in this case are whether Respondent violated Subsection 1012.795(1)(j), Florida Statutes (2008),1 and Florida Administrative Code Rules 6B-1.006(3)(a), 6B-1.006(3)(e), 6B-
1.006(3)(f), 6B-1.006(3)(h), 6B-1.006(3)(i), 6B-1.006(4)(a), and
6B-1.006(4)(c), and, if so, what discipline should be imposed.
PRELIMINARY STATEMENT
On November 19, 2009, Petitioner filed a three-count Administrative Complaint against Respondent, James David Hebner (Mr. Hebner), alleging that Mr. Hebner had violated Subsection 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e). Mr. Hebner requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings on March 17, 2010.
On April 28, 2010, Petitioner filed a motion to file an amended administrative complaint. The motion was granted, and the Amended Administrative Complaint was deemed filed as of
May 12, 2010. The eight-count Amended Administrative Complaint alleged that Mr. Hebner had violated Subsection 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6B- 1.006(3)(a), 6B-1.006(3)(e), 6B-1.006(3)(f), 6b-1.006(3)(h), 6B-
1.006(3)(i), 6B-1.006(4)(a), and 6B-1.006(4)(c).
On June 4, 2010, Petitioner filed a motion to amend the Amended Administrative Complaint. The motion was granted, and the Second Amended Administrative Complaint was deemed filed as of June 22, 2010. The eight-count Second Amended Administrative Complaint added some factual allegations and alleged the same violations set forth in the Amended Administrative Complaint.
The parties filed a Joint Pre-hearing Statement, in which they agreed to certain facts, which have been incorporated into this Recommended Order to the extent relevant.
At the final hearing, official recognition was taken of Section 1003.32, Florida Statutes.
At the final hearing, Petitioner called the following witnesses: Diane Salko, Aida Saldivar, A.S., Suzanne Grohs, M.F., C.P., Jan-Michael Apostol, and Craig Anthony Baker.
Petitioner's Exhibits 1 through 13, 16, and 19 through 22 were admitted in evidence.
At the final hearing, Mr. Hebner testified in his own behalf and called the following witnesses: Aida Saldivar, R.P., Dan Russell Perry, and Gregory Atkins. Respondent's Exhibits 1 through 10, 14, 19 through 33, 35, and 36 were admitted in evidence. Respondent's Exhibits 11 and 12 were proffered, but not admitted.
The two-volume Transcript was filed on September 22, 2010.
The parties were required to file their proposed recommended orders within ten days of the filing of the Transcript.
Petitioner requested extensions of time to file the proposed recommended orders, and the time for filing proposed recommended orders was extended to October 27, 2010. The parties timely filed their Proposed Recommended Orders, which were considered in the preparation of this Recommended Order.
FINDINGS OF FACT
Mr. Hebner holds Florida Educator's Certificate 703698, covering the areas of Educational Leadership and Emotionally Handicapped, which is valid through June 30, 2013.
At all times material to the Second Amended Administrative Complaint, Mr. Hebner was employed as a fifth- grade exceptional student education teacher at Heights Elementary School (Heights Elementary) in the Lee County School District (School District). The 2008-2009 school year was the first and only year that Mr. Hebner taught at Heights Elementary.
During his employment with the School District,
Mr. Hebner received certified training to control aggressive behavior by students. He received the training while he was a teacher at Royal Palm Exceptional School. The students at Royal Palm Exceptional School consisted of special education students or students in the Exceptional Student Education program. The training included instruction on an elbow control and take-down maneuver. With the elbow control technique, a student is secured above the wrist with one hand and pressure is applied to the back of the elbow with the palm of the person applying the pressure. The arm of the student being restrained forms an
L shape, and the technique allows the teacher applying the restraint to keep the student slightly off balance, which allows
the teacher to guide the student in the direction the teacher desires. The take-down maneuver consists of the teacher extending his or her leg in front of the student, allowing the student to be taken down over the back of the teacher's thigh. The take-down maneuver has the appearance of a person being tripped. Mr. Hebner has used the elbow control and take-down maneuver in his career prior to being employed at Heights Elementary.
Typically at the elementary level, a bear hug would be the appropriate method to control a student who is out of control. When using a bear hug, the teacher would put his or her arms around the student, hug the student, and guide the student to the side away from the conflict. The bear hug method had been discussed among the teachers at Heights Elementary, but there had been no formal in-service training on the use of the bear hug. The evidence did not establish that Mr. Hebner was aware that the bear hug was the typical method of student control at Heights Elementary.
During the fall of 2008, C.P. was a student in
Mr. Hebner's class. C.P. had problems controlling his behavior while in Mr. Hebner's class, and there had been instances of aggression towards other students.
On or about September 24, 2008, Mr. Hebner met with the assistant principal, Aida Saldivar (Ms. Saldivar), and a parent
of C.P., a 12-year-old male student. C.P.'s mother claimed, and Mr. Hebner admitted, that Mr. Hebner had put his hands on C.P. Ms. Saldivar warned Mr. Hebner not to put his hands on anyone, even in a behavioral situation. In addition to C.P.'s mother, Ms. Saldivar had two other complaints from female students claiming that Mr. Hebner had restrained them in the classroom, and Ms. Saldivar advised Mr. Hebner of those complaints after the meeting with C.P.'s mother.
On November 21, 2008, Heights Elementary had a race called a "Turkey Trot." Some of the students in Mr. Hebner's class participated in the race. During the race, C.P. called one of his classmates, L.R., slow. After the conclusion of the race, Mr. Hebner led his students back into the school building. Mr. Hebner's classroom was located on the second floor of the school.
C.P., L.R., and R.P., another student in Mr. Hebner's class, were returning from the Turkey Trot. C.P. pushed L.R., and R.P., who was a friend of L.R., pushed C.P. in retaliation.
C.P. then pushed R.P. and said, "Do you want to go?" which R.P. took to mean did R.P. want to fight. This altercation took place in the hallway at the top of the stairs.
Mr. Hebner did not see C.P. push L.R. nor did he see
R.P. push C.P. Mr. Hebner did see C.P. push R.P. and, at that point, intervened into the situation. Mr. Hebner yelled at C.P.
to stop. Mr. Hebner grabbed C.P.'s arm and raised it above C.P.'s head. C.P. continued to resist as Mr. Hebner kept telling him not to resist. Mr. Hebner told C.P., "You are going down, and you won't like it." Mr. Hebner then put his foot in front of C.P. and dropped C.P. to the floor, similar to a policeman taking down someone about to be arrested. C.P. was lying on his stomach, yelling for Mr. Hebner to let go, while Mr. Hebner still had a hold on C.P.'s arm. When C.P. stopped resisting, Mr. Hebner released C.P. and told him to go to the office.
C.P. had a red mark on his cheek, which he thinks was a rug burn as a result of lying on the floor. In addition to his cheek, the nurse noticed red marks on C.P.'s arm and back. She applied ice to his cheek and to his back. When C.P. was examined by the nurse, he was upset and crying.
The School District investigated the incident and issued Mr. Hebner a written reprimand on February 3, 2009.
On February 6, 2009, Mr. Hebner was provided notice that the Office of Professional Practices Services and the Department of Education had initiated an investigation into the November 21, 2008, incident.
On February 19, 2009, Mr. Hebner grieved the written reprimand with the School District.
On or about April 21, 2009, Mr. Hebner had some of his students complete a questionnaire about the November 21, 2008, incident. He intended to use the completed questionnaire as part of his defense in the grievance procedure. The questionnaire read in part: "this questionnaire is meant to help the School Board better understand exactly what happened on 11/21/08 after the Heights Turkey Trot." The questionnaire also stated: "this exercise is entirely voluntarily and not school related." The questionnaire provided a series of questions with suggested answers. The students were requested to circle the appropriate response.
The questionnaires identified C.P. and R.P. by name and had a line at the top of the questionnaire for the student answering the questionnaire to write in his or her name. Some students put their full names on the questionnaires, and others put their first names on the questionnaires.
The students in Mr. Hebner's class were exceptional education students, who were reading two to four grades below reading level. Mr. Hebner quickly read the instructions to the students. Some students completed the questionnaires in class, and others took them home to complete. Mr. Hebner did not seek permission from the students' parents or administrators at Heights Elementary prior to asking the students to complete the questionnaires.
Mr. Hebner did submit the completed questionnaires for use in his grievance procedure.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 120.569 and 120.57, Fla. Stat. (2010).
Petitioner has the burden to establish the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern
and Company, 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington,
510 So. 2d 292 (Fla. 1987); McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995).
The clear and convincing evidence standard has been described in Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), as follows:
[C]lear and convincing evidence 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.
Petitioner has alleged that Mr. Hebner violated Subsection 1012.795(1)(j), Florida Statutes, which provides:
The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students 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 or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:
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(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Florida Administrative Code Rule 6B-1.006 constitutes the Principles of Professional Conduct for the Education Profession in Florida and provides:
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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Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student’s legal rights.
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Shall not exploit a relationship with a student for personal gain or advantage.
Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.
Obligation to the public requires that the individual:
Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated.
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(c) Shall not use institutional privileges for personal gain or advantage.
Petitioner has established by clear and convincing evidence that Mr. Hebner violated Florida Administrative Code Rules 6B-1.006(3)(e), 6B-1.006(3)(h), 6B-1.006(3)(i), and 6B- 1.006(4)(c) by requesting the students to complete the
questionnaires and by giving the completed questionnaires to the hearing officer in the grievance proceeding. Such violations are grounds for discipline as set forth in Subsection 1012.795(1)(j), Florida Statutes.
Subsection 1002.20(13), Florida Statutes, provides that parents have rights regarding the student records of their children including a right of privacy and right of access. Subsection 1002.22(2)(c), Florida Statutes, defines a student record to mean "official records, files, and data directly related to students that are created, maintained, and used by public educational institutions. Materials that shall be considered as part of a student's record include, but are not necessarily limited to: identifying data. "
Subsection 1002.21(3)(c), Florida Statutes, provides:
Right of privacy.--Every student has a right of privacy with respect to the educational records kept on him or her. Personally identifiable records or reports of a student, and any personal information contained therein, are confidential and exempt from s. 119.07(1). A state or local educational agency, board, public school, career center, or public postsecondary educational institution may not permit the release of such records, reports, or information without the written consent of the student's parent, or of the student himself or herself if he or she is qualified as provided in this subsection, to any individual, agency, or organization.
However, personally identifiable records or reports of a student may be released to the following persons or organizations without
the consent of the student or the student's parent:
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2. Other school officials, including teachers within the educational institution or agency, who have legitimate educational interests in the information contained in the records.
In the instant case, the questionnaires filled out by the students should not have been released to the hearing officer in the grievance procedure. The questionnaires contained personal identifying information concerning students and were not submitted for educational purposes. They were submitted as part of a grievance proceeding involving a teacher; therefore, they were submitted for employment purposes. As such, Mr. Hebner should have obtained written permission from the parents of the students who had personally identifiable information on the questionnaires prior to releasing the information to the hearing officer.
Mr. Hebner also used his position as a teacher to gain information from his students to help him in his grievance proceeding. Although, Mr. Hebner did not ask permission from the Heights Elementary administration to give the students the questionnaires, such permission would have been denied. It is clear that the questionnaires were not for any educational purpose, but for Mr. Hebner's own personal use. Because
Mr. Hebner was their teacher, the students would more than likely have felt an obligation to fill out the questionnaires. Mr. Hebner used his position as a teacher to get the information.
Petitioner has failed to establish that Mr. Hebner violated Florida Administrative Code Rules 6B-1.006(3)(a) and 6B-1.006(3)(e). Subsection 1003.32(1)(j), Florida Statutes, provides:
Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may be assigned to him or her by the principal or the principal's designated representative and shall keep good order in the classroom and in other places in which he or she is assigned to be in charge of students.
In accordance with this section and within the framework of the district school board's code of student conduct, teachers and other instructional personnel shall have the authority to undertake any of the following actions in managing student behavior and ensuring the safety of all students in their classes and school and their opportunity to learn in an orderly and disciplined classroom:
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(j) Use reasonable force, according to standards adopted by the State Board of Education, to protect himself or herself or others from injury.
Florida Administrative Code Rule 6A-1.0404(8)(m),2 which was in effect on November 22, 2008, provides that a teacher may "[u]se reasonable force, according to standards adopted by the State Board of Education, to protect himself or herself or others from injury."
The evidence does not establish by clear and convincing evidence that Mr. Hebner used unreasonable force in restraining C.P. Mr. Hebner was familiar with C.P.'s aggressive behavior, and he believed that C.P and R.P were about to get into a fight. From what Mr. Hebner saw, it appeared that C.P. was the aggressor in the situation. While administrators at Heights Elementary preferred that a bear hug be used to restrain students, no evidence was presented that Mr. Hebner knew of this policy. Mr. Hebner had received training on the proper methods to restrain students when he was teaching at Royal Palm Exceptional School. Such training included the methods which Mr. Hebner used in restraining C.P.
No evidence was presented to show that Mr. Hebner caused unnecessary embarrassment to any student. No evidence was presented to show that Mr. Hebner violated Florida Administrative Code Rule 6B-1.006(4)(a).
The disciplinary guidelines set forth in Florida Administrative Code Rule 6B-11.007 for the violations which were established range from probation to revocation.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Hebner violated Subsection 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(f), 6B-1.006(3)(h), 6B-1.006(3)(i), and 6B-1.006(4)(c); finding that
Mr. Hebner did not violate Florida Administrative Code Rules 6B- 1.006(3)(a), 6B-1.006(3)(e), and 6B-1.006(4)(a); placing
Mr. Hebner on probation for two years pursuant to terms set by the Education Practices Commission; and requiring Mr. Hebner to complete a college level course in ethics.
DONE AND ENTERED this 22nd day of December, 2010, in Tallahassee, Leon County, Florida.
S
SUSAN B. HARRELL
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2010.
ENDNOTES
1/ Unless otherwise indicated, all references to the Florida Statutes are to the 2008 version.
2/ Florida Administrative Code Rule 6A-1.0404 was repealed effective October 25, 2010.
COPIES FURNISHED:
Charles T. Whitelock, Esquire Whitelock & Associates, P.A.
300 Southeast 13th Street
Fort Lauderdale, Florida 33316
Robert J. Coleman, Esquire Coleman & Coleman
Post Office Box 2089
Fort Myers, Florida 33902
Kathleen M. Richards, Executive Director Education Practices Commission Department of Education
Turlington Building, Suite 224-E
325 West Gaines Street Tallahassee, Florida 32399-0400
Deborah K. Kearney, General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Marian Lambeth, Bureau Chief
Bureau of Professional Practices Services Department of Education
Turlington Building, Suite 224-E
325 West Gaines Street Tallahassee, Florida, 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 28, 2011 | Agency Final Order | |
| Dec. 22, 2010 | Recommended Order | Teacher did not use unreasonable force to restrain student, but did disclose identifiable information concerning students. |
