STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAM STEWART, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

MARVIN MORRIS,

Respondent.

/

Case No. 15-3980PL

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on February 12, 2016, in Jacksonville, Florida, before Garnett W. Chisenhall, a duly-designated Administrative Law Judge of the Division of Administrative Hearings (“DOAH”).

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675 Douglasville, Georgia 30154-0012

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent violated sections 1012.795(1)(g) and (j), Florida Statutes (2013), and Florida Administrative Code Rules 6A-10.081(3)(a) and (e), during an altercation with a student on February 24, 2014, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On April 15, 2015, Petitioner, Pam Stewart as Commissioner of Education, filed an Administrative Complaint charging Respondent, Marvin Everett Morris (“Respondent” or “Mr. Morris”) with violating sections 1012.795(1)(g) and (j) and rules 6A- 10.081(3)(a) and (e). Mr. Morris disputed the allegations in the Administrative Complaint and requested a formal administrative hearing. On July 16, 2015, the case was referred to DOAH for assignment of an administrative law judge (“ALJ”), and ALJ Lisa Shearer Nelson scheduled the final hearing to occur on

September 22, 2015, in Jacksonville, Florida.

On September 2, 2015, Mr. Morris requested that the final hearing be continued to an unspecified date in November. In support of that request, Mr. Morris stated that he had just undergone an endoscopy, and he was worried that he might have esophageal cancer. Mr. Morris also stated that he was taking medication to treat gastroesophageal reflux and had “not felt like doing much of anything.” After a pre-hearing conference, ALJ Nelson issued an Order on September 14, 2015, continuing the final hearing to November 12, 2015. The aforementioned Order stated that, “[c]ontinuances will be granted only by order of the Administrative Law Judge for good cause shown. Failure to appear at this hearing may be grounds for closure of the file without further proceedings.”

On November 2, 2015, Mr. Morris requested a second continuance. In support thereof, he cited health concerns and his inability to speak to Petitioner’s witnesses.

On November 3, 2015, ALJ Nelson issued an Order denying Mr. Morris’ request and stating:

With respect to Petitioner’s witness list, the Order of Pre-hearing Instructions requires Petitioner to provide both the names and addresses of witnesses to Respondent.

Petitioner shall provide any missing witness addresses no later than November 5, 2015.

With respect to Respondent’s health, Respondent has written at length regarding his various health concerns. He sought, and the Petitioner did not object, to an earlier continuance on this basis. However, he has provided no documentation from a health care provider to document his perceived inability to proceed, or any estimate from a health care provider as to when he would be able to proceed. It is Respondent who has sought this hearing, and this proceeding cannot be delayed without some documented basis for determining good cause to do so. Absent some documentation from his physician indicating that he is unable to attend a hearing and why, and an estimate as to when he would be able to do so, the case remains scheduled for Thursday, November 12, 2015.

On November 5, 2015, Mr. Morris filed a third request for a continuance and attached a note from a physician stating that “[p]atient has Gastrointestinal issues and is currently being managed by a Gastroenterologist. Patient is presently seeing Gastroenterology for medication adjustment problems. His next appointment is scheduled for November 18, 2015 at 3:00 p.m.

Please hold the deposition and hearing until patient is seen by the specialist.”

Over Petitioner’s objection, ALJ Nelson issued an Order on November 6, 2015, granting Mr. Morris’ third continuance request and canceling the hearing scheduled for November 12, 2015. The Order also required the Parties to file a status report with mutually available dates for the final hearing. In addition, the Order stated that, “[s]hould Respondent believe he is still unable to proceed, he shall provide documentation from his treating gastroenterologist as to when he would be well enough to be present at hearing.”

After receiving the Parties’ dates of availability, ALJ Nelson issued an Order on November 24, 2015, scheduling the final hearing to occur on February 12, 2016, at 9:00 a.m. in Jacksonville, Florida. In addition, the Order stated that “NO FURTHER CONTINUANCES WILL BE GRANTED ABSENT A DOCUMENTED

EMERGENCY. Failure to appear at this hearing may be grounds for closure of the file without further proceedings.”

On February 11, 2016, this case was transferred to the undersigned.

The final hearing was held as scheduled on February 12, 2016. When Mr. Morris did not appear at the hearing location at the designated start time of 9:00 a.m., the undersigned delayed commencement of the final hearing, and Petitioner’s attorney

unsuccessfully attempted to contact Mr. Morris at two different telephone numbers. Also, the undersigned called his assistant who reported that Mr. Morris had not attempted to contact DOAH that morning. The final hearing eventually commenced at

9:18 a.m., and the undersigned asked a security guard at the hearing site’s entrance to direct Mr. Morris to the hearing room if he were to arrive during the course of the hearing. The final hearing eventually concluded at approximately 10:30 a.m., without any appearance from Mr. Morris.

During the final hearing, Petitioner offered 15 exhibits that were accepted into evidence. Petitioner also presented the testimony of five witnesses.

Petitioner ordered a transcript and filed a Proposed Recommended Order on February 29, 2016. Mr. Morris filed a Response to Petitioner’s Proposed Recommended Order on March 7, 2016. The undersigned considered both pleadings during the preparation of this Recommended Order.

On March 2, 2016, Mr. Morris filed a “request to re-schedule the hearing.” In support thereof, he stated that he was unable to attend the final hearing on February 12, 2016, because of “recurring back spasms” and had only left his home on two occasions since the back spasms started on February 11, 2016.

Mr. Morris’ request to reconvene the final hearing in this matter is denied due to untimeliness and lack of good cause.

Mr. Morris states in his March 2, 2016, pleading that he used a telephone to call his primary care physician on February 12, 2016, but there is no indication from that pleading that

Mr. Morris was ever so incapacitated that he could not have used that telephone a second time to notify the undersigned and/or Petitioner’s counsel of his condition on February 12, 2016, or at some point the week thereafter.

All statutory citations below are to the 2013 version of the Florida Statutes unless indicated otherwise.

FINDINGS OF FACT

Based on the demeanor of the witnesses, the documentary evidence presented, and the record as a whole, the following facts are found:

1. At all times relevant to the instant case, Mr. Morris held Florida Educator Certificate 349864, covering the areas of mathematics and guidance counseling, valid through June 30, 2015.

2. On February 24, 2014, Mr. Morris was employed as a teacher at Sandalwood High School in Jacksonville, Florida.

3. At approximately 10:25 a.m., on February 24, 2014,

   
   

   Mr. Morris was about to begin a math class. At least two of the students (V.H. and D.C.) were unsatisfied with their grades in Mr. Morris’ class and were vigorously expressing their displeasure with his teaching style and with being tested on material that allegedly had not been taught in class.

   
   

4. During this time, Mr. Morris was in the front of the classroom, and the complaining students were in the back or middle of the classroom.

5. Mr. Morris responded by telling the complaining students to “shut up,” and his statement was primarily directed toward

   V.H.

   
   

6. V.H. told Mr. Morris to “shut up,” and Mr. Morris

   
   

   responded by ordering V. H.to leave the classroom.

   
   

7. When V.H. refused to leave the classroom, Mr. Morris told V.H. that he would physically remove her from the classroom if she did not comply.

8. V.H. challenged Mr. Morris to physically remove her from the classroom.

9. At that point in time or very soon thereafter, V.H. was seated in a chair. Mr. Morris moved behind her and pulled the chair out from under her.

10. One of the other students in the classroom had a device capable of recording audio and video and had pointed the device in V.H.’s direction just as Mr. Morris was pulling the chair out from under her. The video and accompanying audio begin at that moment but do not record anything that transpired beforehand.

11. The video shows V.H. falling to the floor and quickly getting to her feet.

    
    

12. V.H. then took one or two steps toward Mr. Morris.

    
    

    Mr. Morris extended both of his arms and kept his hands on V.H.

    
    

13. Due to the vantage point from which the video was shot, it is impossible to definitively ascertain V.H.’s intent when she got to her feet and took those one or two steps in Mr. Morris’ direction. However, V.H. was a few inches over five feet tall and weighed approximately 110 pounds at the time. In contrast, the video indicates that Mr. Morris was at least five feet, ten inches in height and approximately 200 pounds. Therefore, given their respective sizes, V.H. posed no threat to Mr. Morris even if her intent had been to attack him.

14. For the next few seconds, Mr. Morris and V.H. struggled with each other. V.H. testified that Mr. Morris repeatedly slammed her against a bookshelf. But, given the vantage point from which the video was shot, it is impossible to verify that portion of V.H.’s testimony through the video.

15. D.C. quickly rose from her chair and attempted to place herself between Mr. Morris and V.H. While doing so, D.C. implored Mr. Morris to, “get your hands off of her Mr. Morris, she’s a girl, get off of her.” Mr. Morris said something to the effect that V.H. was attacking him. At that point, Mr. Morris shoved V.H. away from him, and the ease with which he did so underscores the fact that V.H. posed no threat to him.

    
    

16. The force of Mr. Morris’ shove drove V.H. a few feet backwards. While she stumbled, she did not lose her balance.

17. Mr. Morris then ordered V.H. to leave the classroom and advanced toward her.

18. At that point, D.C. put herself directly between Mr. Morris and V.H., and D.C. wisely led V.H. out of the classroom.

19. As she was being led out of the classroom, V.H. angrily voiced her displeasure with Mr. Morris pulling the chair out from under her. Mr. Morris responded by saying, “I asked you to leave!”

20. After V.H. left the classroom, Mr. Morris and some of the remaining students discussed the incident. Mr. Morris stated to one student that V.H. “came straight at me, and I’m supposed to let her hit me!?”

21. One of the students reminded Mr. Morris that he pulled V.H.’s chair out from under her.

22. The above findings regarding the incident between

    
    

    Mr. Morris and V.H. were drawn from the video, written statements given by several of the other students present in the class that day, and the testimonies of V.H. and D.C.

23. The undersigned found D.C.’s testimony to be particularly credible and an accurate account of what transpired that day.

    
    

24. V.H. testified that she sustained injuries to her back and neck during the altercation with Mr. Morris. She missed a week of school, and her family spent $3,693 treating her injuries.

25. Even if the comments directed toward Mr. Morris at the beginning of the class were disrespectful and even if V.H. had been insubordinate, it was inexcusable for Mr. Morris to pull the chair out from under V.H. There are no circumstances under which such an act would be appropriate conduct for a teacher.

26. Mr. Morris acted with reckless disregard for V.H.’s mental and physical health, and safety by intentionally pulling the chair out from under her. Also, that action exposed V.H. to unnecessary embarrassment or disparagement.

27. Petitioner has proven by clear and convincing evidence that Mr. Morris violated sections 1012.795(1)(g) and (j) and rules 6A-10.081(3)(a) and (e).

    CONCLUSIONS OF LAW

    
    

28. The Division has jurisdiction over the subject matter and the parties to this action in accordance with sections

    120.569 and 120.57(1), Florida Statutes (2015).

    
    

29. The Florida Education Practices Commission (“the Commission”) is the state agency charged with the certification and regulation of Florida educators pursuant to chapter 1012, Florida Statutes.

    
    

30. This is a proceeding in which Petitioner seeks to impose discipline against 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).

31. 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:

    
    

    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 Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 989

    (Fla. 1991).

    
    

32. Section 1012.796, Florida Statutes, 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

       7 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.

       
       

    2. 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 . . .

          
          

       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 section 1012.798 under such terms and conditions as the commission may specify.

          
          

33. Petitioner’s Administrative Complaint alleges in Count 1 that Mr. Morris violated section 1012.795(1)(g) which subjects a holder of an educator certificate to discipline if he or she “has been found guilty of personal conduct that seriously reduces that person’s effectiveness as an employee of the

    
    

    district school board.” As found above, it was inexcusable for Mr. Morris to pull the chair out from under V.H., regardless of whether V.H. had been insubordinate. Accordingly, Petitioner proved Count 1 by clear and convincing evidence.

34. Count 2 of the Administrative Complaint alleges that Mr. Morris violated section 1012.795(1)(j) which subjects a holder of an educator certificate to discipline for violating “the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.” With regard to the Principles of Professional Conduct, Count 3 alleged that Mr. Morris violated rule 6A-10.081(3)(a) by failing to “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.” Also, Count 4 alleged that Mr. Morris violated rule 6A-10.081(3)(e) by intentionally exposing “a student to unnecessary embarrassment or disparagement.”

35. Petitioner proved the allegations in Counts 2, 3, and

    
    

    4 by clear and convincing evidence. As found above, Mr. Morris acted with reckless disregard for V.H.’s mental and physical health and safety by intentionally pulling the chair out from under her. Indeed, it is extremely fortunate that V.H. was not seriously injured when Mr. Morris pulled the chair out from under her. If her head had made direct contact with the classroom floor, then V.H. would likely have suffered a concussion or much

    
    

    worse. Moreover, Mr. Morris’ reckless action exposed V.H. to unnecessary embarrassment or disparagement.

36. The State Board of Education has adopted Florida Administrative Code Rule 6B-11.007 to provide certificate holders with notice of what penalties can be expected for violations of section 1012.795 and the Principles of Professional Conduct. The rule also lists aggravating and mitigating factors that may be considered in determining an appropriate penalty.

37. With regard to the instant case, the undersigned has considered the fact that the same conduct constituted the basis for all four Counts in the Administrative Complaint.

38. Rule 6B-11.007(2) provides for penalties ranging from probation to revocation for “[e]ngaging in personal conduct which seriously reduces effectiveness as a district school board employee . . .” The same range of penalties applies for violations of rules 6A-10.081(3)(a) and (e).

39. Petitioner is seeking revocation of Mr. Morris’ educator certificate and states that the duration of the revocation should be decided by the Commission.

40. Because the validity of Mr. Morris’ educator’s certificate ended on June 30, 2015, it is unclear whether the Commission can revoke Mr. Morris’ educator’s certificate.

41. However, if revocation of Mr. Morris’ educator’s certificate is within the Commission’s authority, then that is

    
    

    the appropriate penalty given the circumstances of the instant case. As noted above, Mr. Morris acted with reckless disregard for V.H.’s safety when he intentionally pulled the chair out from under her. Also, while there was testimony that the incident resulted in physical injuries to V.H., it is extremely fortunate that she was not more seriously injured.

42. Furthermore, there are no mitigating factors that are sufficiently compelling or credible to persuade the undersigned that a lesser penalty is appropriate. Mr. Morris claimed in his post-hearing submission that he was under the influence of pain medication due to a work-related back injury and that the aforementioned medication affects one’s perception of reality. In addition, Mr. Morris claimed that he aggravated his back injury when he slipped on a wet floor and fell on his back at the entrance to Sandalwood High School on the date of the incident with V.H.

43. Due to his medication and the affects from the fall that morning, Mr. Morris further stated in his post-hearing submittal that he was generally unaware of what was happening around him at the time of the incident with V.H. He also claimed that he was so incapacitated that he was about to black out and was unaware that V.H. was in the chair when he pulled it out from under her.

    
    

44. While Mr. Morris may have had an injured back and been taking medication on February 24, 2014, the opportunity for him to present evidence with the respect to these claims was at the final hearing. Even assuming that evidence was presented in support of these claims, his assertions regarding his physical state and lack of intent at the time of the incident with V.H. lack credibility. Indeed, Mr. Morris’ actions, demeanor, and statements captured by the student video conclusively refute those assertions.

45. While it is unclear whether the Commission can revoke an educator certificate that is no longer valid, section 1012.796(7)g), authorizes the Commission to impose 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.”

46. Permanently barring Mr. Morris from applying for a new educator’s certificate is an appropriate sanction given the circumstances of the instant case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission revoke Marvin Morris’ educator’s certificate; or, in the alternative, permanently bar him from applying for a new educator’s certificate.

DONE AND ENTERED this 25th day of March, 2016, in Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL 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 25th day of March, 2016.

COPIES FURNISHED:

Gretchen K. Brantley, Executive Director Education Practices Commission Department of Education

Turlington Building, Suite 316

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

Ron Weaver, Esquire Post Office Box 5675

Douglasville, Georgia 30154-0012 (eServed)

Marvin E. Morris Apartment 238

3545-1 Saint Johns Bluff Road Jacksonville, Florida 32224 (eServed)

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

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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 (eServed)

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: 15-003980PL

Orders for Case No: 15-003980PL