STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH,

AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

DEBORAH ELAIN BAILEY-SOWELL,

Respondent.

)

)

)

)

)

) Case No. 10-2783PL

)

)

)

)

)

RECOMMENDED ORDER

On October 4, 2010, a duly-noticed hearing was held by means of video teleconferencing with sites in Tallahassee and Jacksonville, Florida, before Lisa Shearer Nelson, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: J. David Holder, Esquire

40 Grand Flora Way

Santa Rosa Beach, Florida 32459

For Respondent: Deborah Elain Bailey-Sowell, pro se

1978 Ribault Scenic Drive Jacksonville, Florida 32208

STATEMENT OF THE ISSUES

The issues presented are whether Respondent committed the acts alleged in the Administrative Complaint and by doing so violated Sections 1012.795(1)(d), 1012.795(1)(g) and 1012.795(1)(j), Florida Statutes (2008),1/ and Florida Administrative Code Rule 6B-1.006(3)(a), (e) and (f). If one

or all of the violations alleged are proven, what penalty would be appropriate?

PRELIMINARY STATEMENT

On September 2, 2009, Dr. Eric J. Smith, as Commissioner of Education (Petitioner), filed a six-count Administrative Complaint against Respondent charging her with violations of the statutes and rules outlined above. The factual allegations for the charges against Respondent are that while employed as an exceptional education teacher at Chaffee Trail Elementary School (Chaffee Trail), she restrained a trainable mentally handicapped student by pinning him in a corner with her chair; restrained the same child on a different occasion the same day by pinning him to the floor and twisting his arm behind his back; and on a third occasion restrained or disciplined the same child by applying force or twisting the child's arm.

Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to Section 120.57(1), Florida Statutes. On May 20, 2010, the matter was referred to the Division of Administrative Hearings for assignment of an administrative law judge.

The case was originally noticed for hearing August 4, 2010.

However, Petitioner filed an unopposed Motion for Continuance, which was granted by Order dated July 30, 2010. The case was subsequently rescheduled for October 4, 2010, and proceeded as scheduled.

At hearing, Petitioner presented the testimony of Wanda Grondin, Julie Brooke, Brian Harvell, Beverly Walker, Ellisa Williams, Willie Lee and John Williams. Petitioner's Exhibits numbered 1-7 were admitted into evidence. Respondent testified on her own behalf and presented the testimony of Gloria Spencer. Respondent's Exhibits numbered 5, 11-13, 15, 17-18, 21 and 24 were also admitted into evidence.

The hearing Transcript was filed with the Division on October 22, 2010, and has been carefully considered in the preparation of this Recommended Order. Petitioner filed its Proposed Recommended Order on October 29, 2010. To date, Respondent has not filed a proposed recommended order.

FINDINGS OF FACT

1. Respondent is licensed as a teacher in Florida, and has been issued Florida Educator's Certificate 449960. Her certificate covers the area of mentally handicapped, and expires June 30, 2013.

2. During the 2008-2009 school year, Respondent taught at Chaffee Trail in Duval County, Florida. She was assigned as an exceptional education teacher in a self-contained classroom for trainable mentally handicapped students in the first through third grades. Respondent generally had eight to eleven students in her class, and was aided by a paraprofessional, Julie Brooke. Respondent's classroom was on the first-grade hallway.

   
   

3. One of Respondent's students was a nine-year-old named

   
   

   C.L. C.L. was a thin, frail, African-American student who, at the time of the incidents giving rise to these proceedings, was approximately four feet, four inches tall and weighed approximately 60 pounds. He was described as very low functioning, with an IQ in the 40's. Despite his significant limitations, C.L. was an active, friendly child who had a tendency to wander and needed redirection. His IEP included specific strategies for dealing with behavior problems in the classroom.

4. Ms. Brooke worked with C.L. daily and he often sat at her desk to work on his assignments. They got along well together.

   November 18, 2008

   
   

5. On November 18, 2008, there were only four or five students in Respondent's class, because a number of students were absent. That morning, Ms. Brooke took another student to the office because he had been misbehaving. On her way back to Respondent's classroom, she heard loud voices and screaming coming from Respondent's classroom and recognized the voices as those of Respondent and C.L.

6. When she entered the classroom, Ms. Brooke saw Respondent sitting in an office chair, holding C.L. face down on the floor with both of his arms twisted behind his back. Respondent appeared to be pushing C.L. down so that his face and

   
   

   body were pressed against the floor. C.L. was screaming and crying and appeared to be frightened.

7. Ms. Brooke walked over to her desk and sat down. C.L. wanted to go over to Ms. Brooke, but was not allowed to do so. Respondent let him get up, but pinned him into the corner of the classroom near the door, by hemming him in with her chair. Respondent was facing C.L. and pressing the chair against his body, while he continued to scream and cry.

8. About this same time, Assistant Principal Wanda Grondin received a call from a substitute teacher in another classroom on the first-grade hallway, complaining that there was yelling going on that was disturbing her classroom. Ms. Grondin went to the first-grade hallway, and could also hear yelling that was coming from Respondent's classroom.

9. As Ms. Grondin approached the classroom, the yelling stopped. As she entered the room, she saw Respondent sitting in the office chair, with C.L. pinned in the corner of the room, held there by Respondent's chair. C.L. was crying and fighting back. Respondent indicated that he had refused to do something and she was trying to calm him down to give him options. Upon Ms. Grondin's arrival, Respondent slid her chair back, and C.L. fell into Ms. Grondin's arms, crying. Respondent told C.L. that he could now go to Ms. Brooke.

10. C.L. went to Ms. Brooke and she comforted him and gave him some work to do.

    
    

11. Later in the day, Ms. Brooke reported to Ms. Grondin that another child in the classroom, M.C., had reported to

    Ms. Brooke that Respondent had twisted C.L.'s arm and had locked him in the closet in the classroom. Although there was testimony presented regarding conversations that Ms. Grondin, the principal and the guidance counselor had with M.C., and his description of what allegedly happened to C.L., neither M.C. nor any other person who actually witnessed C.L. being locked in the closet testified at hearing.

    December 16, 2008

    
    

12. Brian Harvell is a first-grade teacher whose classroom is across the hall from Respondent's. On December 16, 2008, he was in his classroom when he heard loud voices and banging noises. Mr. Harvell walked out into the hallway and saw Respondent with C.L., struggling in the doorway. Respondent had her back against the doorframe, and one arm around D.L.'s torso and one of C.L.'s arms twisted behind his back.

13. Mr. Harvell approached Respondent and C.L., and she stated, "Look what's happening in my classroom." When he looked past her, it appeared that a desk had been turned over.

14. C.L. was squirming and crying out while Respondent restrained him. At that point, Mr. Harvell stated, "C.L., come to me." Respondent released C.L. and he walked over to

    Mr. Harvell, who took him to his classroom. In the classroom, he showed him a carpeted area and a toolbox full of cardboard books.

    
    

    C.L. sat and played quietly for approximately 15-20 minutes, until Ms. Brooke came for him. Mr. Harvell reported the incident to Ms. Grondin.

15. It is not appropriate to control a student by twisting his arm behind his back, pinning him into a corner, or pushing his face toward the floor. It is especially inappropriate to subject a small, frail, mentally handicapped child of C.L.'s size and capacity to such methods of restraint.

16. Respondent was removed from Chaffee Trail on December 19, 2008, as a result of the incidents involving C.L. Her employment with the Duval County School District was terminated in February 2009.

17. The allegations against Respondent were reported in both the print and broadcast news media.

18. The incidents in question also prompted complaints to be filed with the Department of Children and Family Services, and investigations were conducted by DCFS to determine whether there were indicators for child abuse. However, the investigations by DCFS do not address violations of professional standards governing teachers, and the findings are a result of evidence that is different from that presented at the hearing in this case.

    CONCLUSIONS OF LAW

    
    

19. 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 (2010).

20. This is a disciplinary action by Petitioner in which Petitioner seeks to permanently revoke Respondent's teaching certificate. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

21. As stated by the Florida Supreme Court:

    
    

    Clear 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 lacking in confusion as to the facts in issue. The evidence must be of such a 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.

    In re Henson, 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

    
    

    v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

    
    

22. The Administrative Complaint charged Respondent with violations of Subsections 1012.795(1)(d), (g) and (j), Florida Statutes. Section 1012.795 authorizes the Education Practices Commission to suspend, revoke, or otherwise penalize a teaching certificate, provided it can be shown that the holder of the certificate has committed any of the violations enumerated.

    
    

23. The specific provisions of Section 1012.795(1) charged in Counts 1-3 of the Administrative Complaint allege that Respondent:

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

    
    

    * * *

    
    

    (g) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.

    
    

    * * *

    
    

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

    
    

24. In order to prove that Respondent has violated the charge contained in Count I, Petitioner must show that Respondent's conduct with respect to C.L., as alleged in the Administrative Complaint, amounts to acts of gross immorality.

25. The Education Practices Commission has not defined "gross immorality" or "moral turpitude" for the purposes of discipline to be imposed pursuant to Section 1012.795, Florida Statutes. The Commission has, however, defined "immorality" and "moral turpitude" for use by school districts in taking action against instructional personnel in Florida Administrative Code Rule 6B-4.009. This rule, which may provide guidance in this context, provides in pertinent part:

    (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.

    
    

    * * *

    
    

    (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.

    
    

26. Moral turpitude has also been defined by the Supreme Court of Florida as "anything done contrary to justice, honesty, principle, or good morals, although it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated." State ex rel. Tullidge v. Hollingsworth, 108 Fla. 607, 146 So. 660, 661 (1933).

27. Respondent's conduct is clearly inconsistent with the standards of public conscience and good morals, satisfying the definition of immorality. The question becomes whether Respondent's conduct rises to the level of gross immorality.

    It is recommended that the Commission make such a determination. Respondent is a grown woman, who has been trained to deal with children possessing mental handicaps. C.L. was a very small, frail child with a very limited level of function. While his behavior may have presented a challenge to her, there is no acceptable reason for pushing a child's face into the floor,

    
    

    pinning him into a corner or restraining him by twisting his arm behind his back. Respondent has proven the violation alleged in Count I by clear and convincing evidence.

28. Count 2 charges a violation Section 1012.795(1)(g), Florida Statutes. Clear and convincing evidence was presented to demonstrate that Respondent committed offenses that seriously reduced her effectiveness as an employee of the School Board. By her actions with respect to C.L., Respondent undermined any sense of confidence that the School District could have in her ability to maintain control of a classroom or to have mentally challenged children alone in her care. Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2d DCA 2000); Purvis v. Marion County School Board, 766 So. 492 (Fla. 5th DCA 2000). Petitioner has demonstrated a violation of Section 1012.795(1)(g), Florida Statutes, by clear and convincing evidence.

29. Count 3 charges Respondent with violation of Section 1012.795(1)(j). By virtue of the violations proven with respect to Counts 4-6, Count 3 has been proven by clear and convincing evidence.

30. Counts 4-6 charge Respondent with violating several provisions within Florida Administrative Code Rule 6B-1.006, which provide in pertinent part:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       
       

    2. 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.

       
       

    3. Obligation to the student requires that the individual:

       
       

       (a) 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.

       
       

       * * *

       
       

       1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          
          

       2. Shall not intentionally violate or deny a student's legal rights.

       
       

31. Petitioner has proven violations of Counts 4-6 by clear and convincing evidence. Shoving a small child's face into the floor, twisting his arm behind his back and pinning him into a corner when the child is already upset and frightened not only fails to protect the child's safety, but places the child at risk for physical harm. A violation of Count 4 has been demonstrated.

32. Count 5 alleges that Respondent exposed C.L. to unnecessary embarrassment or disparagement, in violation of Florida Administrative Code Rule 6B-1.006(3)(e). When Respondent pinned C.L. in the corner and when she shoved his face into the carpet, she clearly placed the child in a vulnerable and humiliating position. While C.L. did not testify, his reaction to seeing Respondent demonstrated the degrading nature of the actions by Respondent.

    
    

33. Finally, with respect to Count 6, Petitioner cites to Article IX, Section 1(a), Florida Constitution, and Section 1002.20(1), Florida Statutes, both which provide that all public school students have the legal right to a safe, secure, and high quality system of education. Under no circumstances could C.L.'s care on the days alleged be described as taking place in a safe and secure environment. Count 6 has been proven by clear and convincing evidence.

34. The Education Practices Commission has adopted disciplinary guidelines for the imposition of penalties authorized for violations of Section 1012.795, Florida Statutes. Fla. Admin. C. R. 6B-11.007. The undersigned has considered the range of penalties for each of the violations proven by Petitioner, and the factors listed in the guidelines that may be considered in mitigation or aggravation of penalty. The undersigned notes that the only area of certification held by Respondent is for instruction of mentally handicapped students. This vulnerable population is precisely the group of children that should not be placed in Respondent's care. In view of the facts alleged and proven in this case, as well as Respondent's disciplinary record already established with the School District, the permanent revocation advocated by Petitioner is appropriate.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law reached, it is

RECOMMENDED: That the Education Practices Commission enter a Final Order finding that Respondent violated Subsections 1012.795(1)(d),(g) and (j), Florida Statutes, and Florida Administrative Code Rules 6B-(3)(a),(e) and (f), and permanently revoking her certificate.

DONE AND ENTERED this 24th day of November, 2010, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 24th day of November, 2010.

ENDNOTES

1/ All references are to the 2008 Florida Statutes, unless otherwise indicated.

2/ C.L. was present at the hearing in this proceedings. Because of his age and his intellectual challenges, the undersigned expressed reservations about his competency to testify. He was, however, asked some basic foundational questions, including whether he recognized his Respondent. He did not answer the question but grimaced, grabbed one arm with the opposite hand and twisted. At that point, counsel for Petitioner elected to remove

C.L. from the room.

COPIES FURNISHED:

J. David Holder, Esquire

J. David Holder P. A.

40 Grand Flora Way

Santa Rosa Beach, Florida 32459

Deborah Bailey-Sowell 1978 Ribault Scenic Drive

Jacksonville, Florida 32208

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 224

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.

Docket for Case No: 10-002783PL

Orders for Case No: 10-002783PL