STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

JOAN BANNISTER,

Respondent.

/

Case No. 14-0119PL

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in Tavares, Florida, on February 24 and April 25, 2014, before Lisa Shearer Nelson, an administrative law judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154

For Respondent: Joan Bannister, pro se

9256 New Orleans Drive Orlando, Florida 32818-9076

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Joan Bannister, has violated the provisions of section 1012.795(1)(j), Florida Statutes (2011), and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e), and if so, what penalty should be imposed?

PRELIMINARY STATEMENT

On June 3, 2013, Tony Bennett, as Commissioner of Education, filed a three-count Administrative Complaint against Respondent, alleging that she had violated the statute and rule provisions identified above. The factual basis for seeking discipline against Respondent’s license was that, in the presence of other students, Respondent told a female student that she was exposing too much of her chest, retrieved a ruler, and told the student to come to her so that she could “measure the amount of boobage hanging out,” or words to that effect. Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On January 8, 2014, the case was referred to the Division of Administrative Hearings for the assignment of an administrative law judge.

By notice issued January 21, 2014, the case was scheduled on February 24, 2014. At that time, Petitioner presented the testimony of B.T., Erin Porter, and Respondent. Subpoenas for other witnesses to be called by Petitioner had been provided to the sheriff’s office for service, but those witnesses did not appear. The record was left open for Petitioner to either take the depositions of the witnesses or to move to reconvene the hearing. Petitioner’s Exhibits 1-6 and 8-10 were admitted into

evidence. Respondent testified on her own behalf and Respondent’s Exhibits 1-6 were admitted into evidence.

On March 5, 2014, Petitioner filed a Status Report and Unopposed Motion to Take Additional Witness Testimony. As a result, the hearing was noticed to reconvene on April 25, 2014, and reconvened and finished as scheduled. Petitioner presented the testimony of E.W. and A.D. Respondent was allowed to supplement her testimony in light of the testimony of Petitioner’s two witnesses.

Transcripts of the proceeding were filed on April 15 and May 12, 2014. Respondent filed a Proposed Recommended Order on May 13, 2014; Petitioner filed its Proposed Recommended Order on May 19, 2014. Both parties’ submissions have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Joan Bannister is a licensed educator in the State of Florida, holding certificate number 893735. Her certificate covers biology and math, and is valid through June 2015.

2. During the time period relevant to the Administrative Complaint, Respondent taught math at Eustis Middle School.

3. On or about January 30, 2012, Respondent had a student in her first-period math class named B.T. B.T. came to school that morning in a tank top and a shirt. From the testimony provided, it is inferred that the shirt was worn unbuttoned, like

   
   

   a sweater or jacket, over the tank top, but with the tank top showing.

4. As B.T. entered Ms. Bannister’s classroom that morning, Ms. Bannister noticed that B.T.’s stomach was showing below the tank top. Ms. Bannister asked B.T. to adjust her shirt so that her stomach would not show. B.T. pulled her tank top down as requested.

5. The adjustment that B.T. made to her tank top resulted in a new problem: too much cleavage visible to comply with the school dress code. As B.T. and Ms. Bannister walked into the room, Ms. Bannister asked B.T. to adjust her shirt again, so that she did not show so much cleavage.

6. B.T. did not appreciate the second request to adjust her shirt, but Respondent’s claim that B.T. engaged the class by asking them whether her shirt was too low is rejected. B.T. was, however, apparently visibly annoyed and did not think that her tank top was too low. Considering the evidence in the light most favorable to Respondent, Ms. Bannister picked up a ruler off a desk near her own and said, “well, we could always measure it.”

7. There was conflicting testimony regarding what term Respondent used to describe B.T.’s exposed chest. Whether Respondent used the term “chest,” “cleavage,” or “boobage,” is irrelevant. What matters is that Respondent made a statement in front of the class suggesting that it would be appropriate to

   
   

   measure the amount of B.T.’s cleavage that was visible in order to make her point about the dress code violation. The statement was loud enough that other students in the classroom could hear

   it.

   
   

8. Respondent did not actually approach B.T. with the ruler

   
   

   or attempt to measure her in any way. However, B.T. was very upset and embarrassed by the comment, picked up her books, and left the classroom. She did not seek permission before doing so.

9. B.T. admitted at hearing that she never liked

   
   

   Ms. Bannister. However, her version of the incident is credible and corroborated in several key points by other students who were present that day. By contrast, Ms. Bannister’s testimony was internally contradictory and conflicts with the testimony of the students in many respects. B.T.’s testimony that she left the classroom immediately without getting a pass or asking permission to do so is credited.

10. B.T. went to see Erin Porter, her guidance counselor.

    
    

    Initially, Ms. Porter was not in her office, so B.T. consulted with the school resource officer, Deputy King, and told him about the incident. While B.T. was in his office, Ms. Porter returned to her office and B.T. told her about the interaction with

    Ms. Bannister. Ms. Porter felt that the situation was more a teacher issue than a guidance issue, and reported it to administration.

    
    

11. The school district conducted an investigation of the incident, and interviewed several students, Ms. Porter, and Ms. Bannister. Ms. Bannister was notified of the investigation

    by letter dated February 2, 2012. Ms. Bannister was removed from the classroom during the investigation and directed to work at the District Copy Center until a decision was reached.

12. On February 6, 2012, Respondent was notified by the Superintendent of Schools, Susan Moxley, that Superintendent Moxley was recommending that she be suspended for five days without pay, and that she participate in a professional development practicum designed to assist teachers with classroom issues. The date of the suspension was to be determined once Respondent’s due process rights were satisfied.

13. On February 8, 2012, Respondent was notified that the investigation was concluded and that she would return to her classroom effective February 9, 2012. B.T. was reassigned to another math class.

14. The incident was publicized in the local community, through the internet, newspaper, and local television. Both Ms. Bannister and B.T. were embarrassed by the news coverage.

    B.T. was also embarrassed by the amount of attention the incident received at school, because other students talked about the incident and made fun of her.

    
    

15. Respondent resigned from her position with the Lake County School District, effective March 30, 2012, in order to take a job in another school district. Respondent submitted her resignation with an effective date of April 6, 2012, but for reasons that are unclear, the effective date was changed to

    March 30, 2012.

    
    

    CONCLUSIONS OF LAW

    
    

16. 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 (2013).

17. The Florida Education Practices Commission is the state agency charged with the certification and regulation of Florida educators pursuant to chapter 1012, Florida Statutes.

18. This is a proceeding in which Petitioner seeks to discipline Respondent’s educator certification. Because disciplinary proceedings are considered to be penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t

    of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

19. Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to the exclusion of a reasonable doubt.’” In re Graziano, 696 So.

    
    

    2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court, the standard:

    entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

    
    

    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 Davey, 645 So. 2d 398, 404 (Fla. 1994)(quoting, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA

    1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). “Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Elect. Corp. v. Shuler Bros., 590 So. 2d 986, 989

    (Fla. 1991).

    
    

20. Section 1012.796 describes the disciplinary process for educators, and provides in pertinent part:

    1. Upon the finding of probable cause, the commissioner shall file a formal complaint

       
       

       and prosecute the complaint pursuant to the provisions of chapter 120. An administrative law judge shall be assigned by the Division of Administrative Hearings of the Department of Management Services to hear the complaint if there are disputed issues of material fact. The administrative law judge shall make recommendations in accordance with the provisions of subsection

    2. to the appropriate Education Practices Commission panel which shall conduct a formal review of such recommendations and other pertinent information and issue a final order. The commission shall consult with its legal counsel prior to issuance of a final order.

       
       

       1. A panel of the commission shall enter a final order either dismissing the complaint or imposing one or more of the following penalties:

          1. Denial of an application for a teaching certificate or for an administrative or supervisory endorsement on a teaching certificate. The denial may provide that the applicant may not reapply for certification, and that the department may refuse to consider that applicant’s application, for a specified period of time or permanently.

          2. Revocation or suspension of a certificate.

          3. Imposition of an administrative fine not to exceed $2,000 for each count or separate offense.

          4. Placement of the teacher, administrator, or supervisor on probation for a period of time and subject to such conditions as the commission may specify, including requiring the certified teacher, administrator, or supervisor to complete additional appropriate college courses or work with another certified educator, with the administrative costs of monitoring the probation assessed to the educator placed on probation. An educator who has been placed on probation shall, at a minimum:

             
             

             1. Immediately notify the investigative office in the Department of Education upon employment or termination of employment in the state in any public or private position requiring a Florida educator’s certificate.

             2. Have his or her immediate supervisor submit annual performance reports to the investigative office in the Department of Education.

             3. Pay to the commission within the first 6 months of each probation year the administrative costs of monitoring probation assessed to the educator.

             4. Violate no law and shall fully comply with all district school board policies, school rules, and State Board of Education rules.

             5. Satisfactorily perform his or her assigned duties in a competent, professional manner.

             6. Bear all costs of complying with the terms of a final order entered by the commission.

          5. Restriction of the authorized scope of practice of the teacher, administrator, or supervisor.

          6. Reprimand of the teacher, administrator, or supervisor in writing, with a copy to be placed in the certification file of such person.

          7. Imposition of an administrative sanction, upon a person whose teaching certificate has expired, for an act or acts committed while that person possessed a teaching certificate or an expired certificate subject to late renewal, which sanction bars that person from applying for a new certificate for a period of 10 years or less, or permanently.

          8. Refer the teacher, administrator, or supervisor to the recovery network program provided in s. 1012.798 under such terms and conditions as the commission may specify.

       
       

21. The Administrative Complaint asserts the following allegations in support of imposing discipline against Respondent:

    
    

    1. On or about January 2012, Respondent told B.T., an 8th grade student, to pull her shirt up because “she was exposing too much chest.” B.T. responded that her shirt was not too low. Respondent then, in the presence of other students, retrieved a ruler and told B.T. to come to her so that Respondent could “measure the amount of boobage hanging out,” or words to that effect. B.T. was embarrassed and left the classroom. B.T. reported Respondent’s conduct to another teacher.

       
       

    2. On or about February 6, 2012, the Superintendent of Schools suspended Respondent for five (5) days without pay.

       
       

    3. On or about March 26, 2012, Respondent resigned from her employment with the Lake County Schools, effective March 30, 2012.

    
    

22. Although Petitioner did not prove the allegations in the Administrative Complaint in all respects, it proved those facts necessary to find the violations discussed below. In short, Petitioner demonstrated by clear and convincing evidence that Respondent spoke to B.T. regarding her dress code violation in front of other students; that Respondent indicated that it would be appropriate to measure the amount of cleavage showing; that B. T. was embarrassed by the comments in front of her peers and reported the incident to a guidance counselor; that Respondent was disciplined for the incident; and that she resigned her position for employment elsewhere.

23. Count 1 of the Administrative Complaint charges Respondent with violating section 1012.795(1)(j), which makes it

    
    

    a basis for discipline to violate the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules. Count 1 is not truly a separate basis for discipline, but rather, lays a statutory predicate for violations of rule 6A-10.081(3)(a) and (e), charged in Counts 2 and 3.

24. Rule 6A-10.081(3)(a) and (e) provides:

    
    

    1. Obligation to the student requires that the individual:

       1. 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.

    
    

    * * *

    
    

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    
    

25. Petitioner has proven Counts 2 and 3 by clear and convincing evidence. While it was certainly appropriate for Respondent to take steps to enforce the school dress code, it was not appropriate to speak to a student about how much of her body was exposed in front of other students, in a manner that could reasonably embarrass the student. Telling a 13-year-old girl that her exposed cleavage could be measured, with ruler in hand, would most likely embarrass the student, regardless of the term used to refer to her body. Respondent’s actions, while perhaps well-intentioned, interfered with B.T.’s ability to learn and

    
    

    resulted in a change in classroom assignment, as well as causing her embarrassment both inside and outside the classroom.

26. The Commission has adopted disciplinary guidelines for the discipline of instructional personnel, providing a range of penalties normally imposed for violations of section 1012.795. Rule 6B-11.007 provides that, for a violation of the Principles of Professional Conduct for the Education Profession, the range of penalties is probation to revocation. Rule 6B-11.007(2) also provides that for each category listed, the guidelines should be interpreted to include probation, recovery network program, a letter of reprimand, restricted scope of practice, fines, and administrative fees and/or costs. Subsection (3) of the rule also lists aggravating and mitigating factors that may be considered in support of a deviation from the guideline penalty. Those factors have been considered here: this case involved one comment to one student. While B.T. was very embarrassed by the incident, she was not physically harmed. Respondent was disciplined by the Lake County School District, and there is no evidence that she has been disciplined by the Commission previously. Respondent is currently employed in another school district, and the events giving rise to the incident occurred more than two years ago. These factors lend themselves to the conclusion that while the penalty imposed should be within the guidelines, they should be at the lower end of the spectrum.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order finding that Respondent has violated section 1012.795(1)(j) and Florida Administrative Code Rule 6A- 10.081(3)(a) and (e). It is further recommended that Respondent be issued a reprimand; be required to complete a three-hour college-level course on classroom management; and be placed on probation for a period of one year, subject to such terms and conditions as the Commission may require.

DONE AND ENTERED this 21st day of May, 2014, 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 21st day of May, 2014.

COPIES FURNISHED:

Gretchen Kelley Brantley, Executive Director Education Practices Commission

Department of Education

325 West Gaines Street, Suite 224 Tallahassee, Florida 32399-0400

Joan Bannister

9256 New Orleans Drive Orlando, Florida 32818-9076

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154

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

Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244

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: 14-000119PL

Orders for Case No: 14-000119PL