L., Monique Trujillo, Steven Schubert, Jimmy Alan Scott, and Petitioner's Exhibits 1-16 were admitted. Respondent testified on her own behalf and presented the testimony of Julie Jarvis. Respondent's Exhibits 1-4, 6-7, and 9 were admitted into evidence. Respondent's Exhibits 5, 8, 10-13 were offered but not admitted.
The Transcript of the hearing was filed with the Division on April 6, 2011, and Petitioner's Proposed Recommended Order was filed April 18, 2011. Respondent has not submitted a proposed recommended order.
At all times material to the allegations in the Administrative Complaint, Respondent, Tammy Malone, has held Florida Educator's Certificate 606947, covering the areas of elementary education and health. Her certificate is valid through June 30, 2011.
During the 2008-2009 school year, Respondent was employed as a second-grade teacher at Edgewater Elementary School (Edgewater) in the Escambia County School District.
During the 2008-2009 school year, the principal at Edgewater was Steven Schubert. Anthony Boling was a third-grade teacher.
Dr. Steve Schubert was the principal at Edgewater starting in January 2006 through May 2009. Edgewater closed after the 2008-2009 school year.
At the end of the 2007-2008 school year, Respondent had completed her third year of annual contracts with the Escambia County School District. Dr. Schubert offered her a fourth-year annual contract for the 2008-2009 as opposed to a continuing contract.
Melinda Vest was the 2008-2009 PTA president, and a parent liaison. She also sometimes worked as a substitute teacher at Edgewater. Deborah Moore, a secretary at Edgewater, heard Respondent call Ms. Vest uneducated and unprofessional. The statement was made in front of students, and was made in a loud and angry tone of voice.
Ms. Vest reported the incident to the curriculum coordinator, and it was agreed that Ms. Vest would not work in Respondent's classroom.
On September 25, 2008, Dr. Schubert asked Respondent to come to his office and sign a notice of a counseling meeting scheduled for the next day. The counseling notice, dated September 25, 2008, referenced three areas of concern: unprofessional remarks to two students; unprofessional and disrespectful remarks about the PTA president; and teacher complaints about disruptive behavior in faculty meetings.
The purpose of calling Respondent to Dr. Schubert's office on September 25, 2008, was simply to provide her written notice of the counseling session, which advised her of her right to have union representation present. Upon receipt of the notice, Respondent immediately became loud and hostile. She stood over Dr. Schubert's desk and refused to listen to him, despite the fact that he was trying to tell her that it was simply a notice of a meeting at which she could have union representation and the opportunity to respond to the items listed. According to Dr. Schubert, he was sitting at his desk with Respondent leaning over it, leaning toward him as she continued to talk in a loud, angry voice. Despite his repeated requests for her to leave, she did not do so until he stood up at his desk, put his hands on his desk to get her attention, and pointed to the door, telling her, "Mrs. Malone, leave my office now!" He then went to the door, opened it, and stood there while she exited the office. Dr. Schubert found the incident upsetting, and spoke to his assistant about it.
Respondent's memory of the meeting is quite different.
According to a letter that she sent to the chief of Professional Practices Services at the Department of Education,
On Thursday, September 25, 2008 at approximately 10:45 a.m., Steve R. Schubert, principal of Edgewater Elementary School in Pensacola, FL did the following to me. He called me away from my students and my
classroom, told me to sit down in his office as he closed the door behind me. He proceeded to present me with a letter with a new list of lies about me on it He
demanded that I sign the letter, which had three negative, false and anonymous statements written on it about me. The letter also notified me that I was to attend a "counseling session" with Steve Schubert and my union representative within the next
24 hours. I stated to him that I did not want to sign the letter because it was not true. Steve R. Schubert grew irate. He shouted in anger at me "Sign it Malone!" his entire body shook, his face turned bright red, and his veins and eyeballs bulged out. He lunged across the desk at me, bared his teeth and intimidated me further. I signed the letter and then I stepped away from his desk and he came around his desk, and raised his hand up toward me as intention of doing me physical harm. I backed away and opened his office door and returned to my classroom and students.
Dr. Schubert's version of the events taking place on September 25, 2008, is credited.
The counseling session with Respondent took place the following day, September 26, 2008. Present at the meeting was Dr. Schubert, Respondent, and Ms. Husbands, Respondent's union representative. Respondent interrupted him several times, requiring Ms. Husbands to caution her to let him finish. Respondent denied having done anything wrong and insisted that others were simply out to get her. She was given a written summary of the session, which she signed, that included strategies for dealing with the complaints.
Evidence to support the first and third items listed for the counseling session with Respondent was not presented at hearing. Competent, persuasive evidence regarding her statements about Ms. Vest is described in paragraphs 6-7.
Edgewater had a rotating schedule for lunch, meaning that classes were assigned a lunch-time location for a set period of time. Once one class's lunch period was finished, another class would be scheduled to sit in the same area. The rotation required that classes adhere to their assigned timeframe so that all classes could be seated for lunch.
Respondent's class was sometimes late leaving the lunchroom area, which affected other classes who came after her. On or about October 9, 2008, Respondent's class was late leaving the lunchroom. As a result, Mr. Boling left a lunch schedule in Respondent's school mailbox to remind her of her assigned lunch period. He did not put any note or message on the schedule, but simply left it in her mailbox in the teacher workroom.
Respondent was apparently offended by Mr. Boling's actions. When he arrived home that evening, Respondent had left a message on his telephone answering machine, in which she
stated:
I see you're a bully on your home phone, too. Mr. Boling, this message is for you, Anthony. This is Tammy Malone-Bailey. If you speak to, harass me or look at me the wrong way or put anything in my box from you
again, you're going to have the police at your door. I hope you're clear on this. I hope that you get it. Evidently, you have issues with people and I'm not going to be your whipping boy any more. You need to butt out and mind your own business and stick to what you know. I'm not sure what that is. It doesn't seem like much.
Respondent's voice in the message was angry and hostile. Mr. Boling was offended by the message and found it hostile, abusive and, to the extent it threatened police action, intimidating.
When Mr. Boling arrived at school the following morning, he went to Dr. Schubert, reported the incident, and gave him a copy of the voice mail message. He then proceeded to his classroom for the start of the school day.
In order to reach his classroom, Mr. Boling had to pass by Respondent's classroom. As he did so, Respondent was standing in the doorway of the class, and there were students present. Mr. Boling glanced at Respondent as he walked by, and when he did so, Respondent stated in a loud, condescending voice, "Don't you even," as well as other statements directed at Mr. Boling. He found her tone to be offensive and confrontational. Mr. Boling did not respond to Respondent but kept walking down the hall to his classroom.
Tamara Fischbeck was a guidance counselor at Edgewater. She was in the hall when the exchange between
Respondent and Mr. Boling occurred. Ms. Fischbeck was standing in her duty position in the hallway and could see Respondent, and could hear her speaking in a loud, angry, raised voice. She was concerned about Respondent's behavior, which she described as "out of control," especially in an area congested with students. Ms. Fischbeck went over to Respondent to see if she could calm her down, and told her to "let it go." The incident concerned her enough that she reported it to Dr. Schubert, who asked her to write a report of the incident.
Ms. Fischbeck is a close friend of Mr. Boling's and admitted that she may have been present in a group when some teachers made statements about Respondent's teaching style that were not complimentary. She denied ridiculing Respondent on faculty meetings. While Ms. Fischbeck candidly admitted a friendship with Mr. Boling which could imply a bias in his favor, her testimony was straightforward and candid, and is accepted.
On October 20, 2008, Respondent received a written reprimand, in part because of the telephone message left on
Mr. Boling's answering machine, and her interaction with him the following day. The written reprimand also referenced other incidents about which evidence was not presented at hearing, but that included further statements related to Ms. Vest. In this reprimand, Mr. Schubert referenced the previous counseling
session and advised Respondent that she was being given another chance to improve her performance, but that without improvement in her interactions with faculty and staff, she would be subject to further disciplinary action.
Consistent with the statements in her reprimand, the bulk of the evidence presented at hearing dealt with Respondent's interactions with other staff as opposed to her relationship with her students. One student, D. L., testified regarding an incident where Respondent pulled her out of line by the arm, an action that allegedly caused a bruise. She admitted however, that Respondent was breaking up a fight between D. L. and another girl. D. L.'s testimony appeared to be influenced by who was asking her questions. Her mother also testified, but had no direct knowledge of what transpired in the classroom. In addition, it was clear that although D. L.'s mother did not particularly care for Respondent, she felt that Respondent had worked to get her daughter some assistance she needed.
There was also testimony that another child, E. E., was removed from Respondent’s class and placed with another teacher because the child appeared afraid to go into
Ms. Malone's classroom, and was acting out. Once he was transferred, his disciplinary problems stopped. The evidence was far from clear and convincing, however, that Respondent mistreated the children in her classroom. There are many
explanations for why a child might be afraid to go into a classroom, including the behavior of other students. Here, the only evidence is that E. E. was afraid, but no competent, persuasive evidence was presented as to why.
Edgewater was slated to close at the end of the 2008- 2009 school year. On March 2, 2009, Respondent received a notice that her annual contract for 2008-2009 would expire at the end of the school year. Respondent signed the notice on March 17, 2009.
During the first week of May 2009, the school district sent out email notices to teachers at Edgewater of their new assignment for the 2009-2010 school year. However, Dr. Schubert had determined that he would not be recommending Respondent for a contract the following year, so she did not get a notice of reassignment.
On May 8, 2009, Dr. Schubert called Respondent to his office to tell her of his decision to recommend that her contract not be renewed. He did not make the decision based on her classroom performance: as he stated in a memorandum to Alan Scott, the Assistant Superintendent for Human Resources, all school-based observations regarding classroom performance indicated that Respondent was a proficient educator. However, "additional data gathered throughout the year concerning
Mrs. Malone's professional interactions with administration,
faculty, and staff at Edgewater Elementary forced me to conclude that her performances in these . . . categories was well below proficiency."
Because of past incidents involving Respondent, Dr. Schubert called the Human Resources Department for the School District to request that a law enforcement officer be
available when Ms. Malone was told of his decision. Alan Scott agreed with Dr. Schubert's request, and a school resource officer, Deputy Nick Harris, was sent to the school, arriving at approximately 7:50 a.m.
A school-wide event called Field Day was scheduled that included a series of outdoor activities planned for the morning. At about 8:15 a.m., Dr. Schubert asked Jessica Bryan, the school's curriculum coordinator, to escort Respondent to his office. Another staff member went with Ms. Bryan to cover Respondent's class while she met with Dr. Schubert. Ms. Malone was irritated by the interruption and made the comment that "Mr. Inept" needed to see her. Students were in her classroom at the time she made the comment regarding the school's principal.
When Respondent arrived at Dr. Schubert's office, she was asked to sit down, but refused to do so. Dr. Schubert attempted to tell her that she was not going to be rehired for the 2009-2010 school year, and to explain her options to her.
Respondent was not listening, however. She responded by telling Dr. Schubert, in a voice loud enough to be heard outside his office, that he would rot in hell, and that everyone knew he was incompetent.1/ Respondent's conduct was loud, verbally abusive, hostile, and totally inappropriate in an elementary school setting.
At this point, Respondent was either unwilling or unable to listen to Dr. Schubert. He asked her to leave campus, and she refused. At that point, he signaled for Deputy Harris, and in his presence again asked Respondent to leave campus, and she again refused. Dr. Schubert then asked Deputy Harris to escort her to her classroom to retrieve her personal belongings, and to escort her to her car so that she could leave campus. At no time during the interchange with Respondent did Dr. Schubert raise his voice.
On the way to her classroom, Respondent continued to be loud and angry. She referred to Dr. Schubert as a "Nazi" and a "faggott," also in a loud voice. Deputy Harris suggested to Respondent that she could not talk that way, and upon retrieving her purse and keys, escorted her to her car and watched her drive off campus.
Dr. Schubert notified the District of the outcome of his meeting with Respondent. As a result, later that day Respondent was placed on administrative leave, effective
immediately, "pending the outcome of an investigation into an allegation of misconduct." Respondent signed the notice on May 8, 2009, at 11:17 a.m.
Respondent was reassigned to her home for the remainder of the school year. On June 17, 2009, Dr. Scott advised Respondent by letter that, since her annual contract had expired on June 3, 2009, and she was no longer an employee of Escambia County School Board, the investigation into her conduct ceased to be active.
In reality, Respondent did not really dispute much of her conduct, described above. She admitted leaving the tape recording on Mr. Boling's voice mail, but minimized its effect. She did not seriously dispute her comments to Dr. Schubert on May 9, 2009. Instead, she focused her efforts on discrediting Dr. Schubert and laying the blame for her problems at Edgewater at his feet.
It is clear, from the totality of the evidence, that the working relationship between Respondent and Dr. Schubert was poor. Whether the relationship deteriorated because of Respondent's temper or because of Dr. Schubert's failure to "support" her, or some factors in between, is not a determination to be made in this proceeding. The focus here is Respondent's behavior and whether it conformed to the standards expected of educators in the State of Florida. As stated in the
conclusions of law, Respondent's behavior did not meet appropriate standards.
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 (2010).
This is a disciplinary action by Petitioner in which Petitioner seeks to suspend Respondent's teaching certificate. Petitioner bears the burden of proof to demonstrate the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking and Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
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).
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.
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.
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(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.
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(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
In order to prove that Respondent has violated the charge contained in Count I, Petitioner must show that Respondent's conduct with respect to her peers, as alleged in the Administrative Complaint, amounts to acts of gross immorality.
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 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.
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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.
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). In Brogan v. Mansfield, No. 96-0286 (Fla. DOAH Aug. 1,
1986; Educ. Practices Comm'n. Oct. 18, 1986), the hearing officer observed that "[t]he term "gross" in conjunction with "immorality" has heretofore been found to mean "immorality which involves an act of misconduct that is serious, rather than minor in nature, and which constitutes a flagrant disregard of proper moral standards."
Respondent's conduct is clearly inconsistent with the standards of professionalism. The question becomes whether Respondent's conduct rises to the level of not just immorality, but gross immorality. The undersigned concludes that, while a close question, Respondent's behavior does not rise to that level. Unlike the situation presented in Smith v. Hassan, No. 09-3491 (Fla. DOAH Dec. 24, 2009), Respondent did not threaten the principal with bodily harm. Her actions, while clearly inappropriate, amount to a series of temper tantrums one would expect of students rather than teachers, and demonstrate violations of other provisions charged in the Administrative Complaint. However, Respondent's behavior does not rise to the level of gross immorality, and therefore, Count One of the Administrative Complaint has not been established by clear and convincing evidence.
Count Two of the Administrative Complaint charges Respondent with violating section 1012.795(1)(g). This allegation in the Administrative Complaint has been proven by
clear and convincing evidence. There was no clear convincing evidence that Respondent's skills in the classroom were deficient, and Dr. Schubert affirmatively acknowledged her proficiency in that respect. However, her interactions with her peers, both in the presence of children and in their absence, severely reduce her effectiveness as an employee of the school board.
The mere fact that her prior behavior would prompt a principal to seek law enforcement to be on standby when delivering bad news indicates that Respondent was unpredictable. Teaching in an elementary school requires teamwork and collaboration. Name calling, leaving ugly messages on co- workers' home message systems and shouting at supervisors, no matter what the reason, are not behaviors reasonably expected of adults and do not support the type of collaboration necessary in a school setting. The example set for children who witness such behaviors is extremely negative. The strain on colleagues having to suffer through such histrionics is also burdensome. Under these circumstances, Petitioner has proven the allegations in Count Two of the Administrative Complaint by clear and convincing evidence.
Count Three charges Respondent with violating the Principles of Professional Conduct for the Education Profession, in violation of section 1012.795(1)(j). By virtue of the
conclusions made below with respect to Counts Five and Six, Petitioner has proven Count Three by clear and convincing evidence.
Counts Four through Six charge Respondent with violating three provisions Florida Administrative Code Rule 6B-
The relevant provisions state 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.
* * *
(5) Obligation to the profession of education requires that the individual:
* * *
Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual’s performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.
Shall not make malicious or intentionally false statements about a colleague.
Count Four charges Respondent with violating rule 6B- 1.006(3)(a). In its Proposed Recommended Order, Petitioner asserts that a violation of this rule provision has been proven with respect to Respondent’s conduct related to students D. L. and E. E. However, as stated previously, clear and convincing evidence was not presented to indicate that Respondent mistreated either child. D. A.'s testimony was inconsistent and confusing. E. E. did not testify. There were no adults who observed her in the classroom and testified concerning any inappropriate behavior regarding her students in a classroom setting. Count Four has not been proven by clear and convincing evidence.
Count Five charges a violation of rule 11B- 1.006(5)(d). Respondent's comments to Mr. Boling and
Dr. Schubert and comments about Ms. Vest and Dr. Schubert were hostile, abusive, offensive, and woefully unprofessional, and her behavior undermined the working environment for those around her. This count has been demonstrated by the requisite burden of proof.
Finally, Count Six alleges that Respondent violated rule 6B-1.006(5)(e), by making malicious or intentionally false statements about a colleague. Clearly, Respondent's statements
directed at Mr. Boling and Dr. Schubert, and about Dr. Schubert and Ms. Vest, were malicious. Count Six has been proven by clear and convincing evidence.
The Education Practices Commission has adopted disciplinary guidelines for the imposition of penalties authorized by section 1012.796. Although Florida Administrative Code Rule 6B-11.007 was amended in April 2009, after some of the incidents described in the findings above occurred, the amendments do not change the range of penalties for the violations found here. The undersigned has considered not only the range of penalties in the guidelines, which go from reprimand to revocation, but also the aggravating and mitigating circumstances delineated in rule 6B-11.007(3). While Respondent's behavior did not, for the most part, directly involve her students, it is the type of behavior that should not be accepted in any workplace. The recommended penalty suggested to the Commission takes into account her classroom skills as well as her need to address issues related to self-control.
