Findings Of Fact At all times material hereto, Respondent was employed by Petitioner on a continuing contract as a physical education teacher at North Ward Elementary School in the Pinellas County school system. Respondent holds a professional teaching certificate number 495697, issued by the State of Florida, Department of Education. On April 6, 1988, Respondent was conducting a physical education class at North Ward Elementary School. The students were playing "T-ball" outdoors, and during the game, one student, Michelle Washington, became upset with Respondent when she told the teams to change sides in order to allow all students to have a turn at bat. The student ran up to Respondent and began screaming in her face. Respondent asked her several times to stop and to calm down, but the screaming continued for between thirty and forty-five seconds. When it became apparent that Washington would not calm down, and after trying to verbally quiet her, Respondent slapped Washington on the cheek. No marks or bruises resulted, and at the end of the class period Respondent and Washington hugged and apologized to each other. Respondent reported the incident immediately to her principal, and also called the student's mother to apologize. During December, 1987 and January, 1988, Respondent grabbed Amudin (Deenie) Tzekas by the jaw, and Jason Owens by the arm in order to discipline and quiet them. These actions caused no physical injury to either student, and were not reported by Respondent or the students at the time. Based upon the testimony of students involved in these incidents, as well as Respondent's own testimony, the testimony of her principal, Marcia Morgan, and a written summary prepared by Steven Crosby of a conference held within a week of the incident involving Michelle Washington, it is found that Respondent slapped Washington on the face on April 6, 1988, after having grabbed Tzekas by the jaw and Owens by the arm earlier in the school year. These actions were taken by Respondent as forms of discipline, and to maintain control in her classes. Based upon the testimony of Marcia Morgan and Steven Crosby, who were accepted as experts in education, Respondent's actions involving these three students impair her effectiveness as a teacher due to the loss of respect among students and parents which has resulted. She failed to exercise good profession judgment, and instead her actions caused embarrassment to her students. This conduct by a teacher impairs the teaching profession as a whole. According to school board policy, teachers should never touch students in a punitive manner. By proper notice to Respondent, Petitioner sought to impose a three day suspension without pay as a result of these incidents, and Respondent has timely sought review of this proposed action. In August, 1987, prior to these incidents, Respondent was counseled by Marcia Morgan, her principal, about getting angry with people. Morgan told Respondent that if she violated school board policy, she could not help her.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a three day suspension without pay upon Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of October, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2291 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 1. Rejected as a finding of fact since this is a conclusion of law. Adopted in Finding of Fact 6. Rejected as not based on competent substantial evidence in the record. 6-8. Rejected since these are conclusions of law. Adopted in Finding of Fact 2. Adopted in Finding of Fact 8. 11-13. Adopted in Findings of Fact 3 and s. 14-15. Rejected as irrelevant and unnecessary. 16-17. Adopted in Finding of Fact 4. 18. Rejected as unnecessary. 19-20. Adopted in Finding of Fact 6. Rejected as not based on competent substantial evidence. Adopted in Finding of Fact 6. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Findings of Fact 1, 2 and 7. Adopted in Finding of Fact 7. Adopted and Rejected, in part, in Findings of Fact 3, 5. Rejected in Findings of Fact 4 and 5. Rejected as irrelevant and unnecessary. Rejected in Findings of Fact 4 and 5. Rejected in Finding of Fact 8. COPIES FURNISHED: Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Charleen C. Ramus, Esquire Post Office Box 75638 Tampa, Florida 33675
The Issue The issues in this case are whether Respondent committed the acts alleged and violations charged in the Administrative Complaint; and, if so, what discipline should be imposed.
Findings Of Fact Petitioner, on behalf of the Education Practices Commission, is charged with the responsibility of certifying and regulating public school teachers in Florida. Respondent is a teacher. At the time of the allegations in the Administrative Complaint, Respondent held Florida Educator's Certificate 1266409, covering the area Exceptional Student Education (ESE). Respondent's Background Respondent earned a bachelor's degree in special education from New York University and a master's degree in early childhood special education. From 1998 to 2015 she taught ESE in self-contained classrooms (classrooms dedicated to ESE students) in New York. Respondent moved to Florida and began working for Orange County Public Schools, where she was employed in February 2015 as an ESE teacher at Ocoee Elementary School (Ocoee Elementary). For reasons unrelated to this case, Respondent was moved to the position of behavioral specialist (a non-classroom position), but returned to ESE classroom teaching in the fall of 2017. Crisis Prevention Intervention (CPI) is a "best practice" crisis de- escalation protocol used district-wide in Orange County Public Schools. Respondent is CPI trained and certified. In June 2017, Respondent injured her shoulder and ankle at work while she was attempting to pick a student up from the floor. She returned to work after a few weeks of physical therapy. She continues to have pain in her shoulder and ankle. Respondent also suffers from asthma and recurrent nerve pain. By all accounts, Respondent was a dedicated and effective ESE teacher at Ocoee Elementary. She used her own funds to purchase supplies for her ESE students, including exercise balls for autistic students to prevent them from rocking in standard-issue chairs. Her evaluations from Ocoee Elementary were all "effective" or "highly effective." All of the witnesses who had occasion to observe Respondent in the classroom gave her high marks. There is no evidence that Respondent ever acted in anger or frustration with a student. She is accused of having done so in the incident at issue here. Respondent's Classroom For the fall of 2017, Respondent taught ESE students in a self- contained classroom at Ocoee Elementary. The grade level of her students spanned three grades, from second to fourth grade. The class size was approximately 12 students. The students were autistic and/or intellectually disabled. Paraprofessionals were assigned to assist Respondent in the classroom, including Cory Baker, Chanda Nguyen, and Michelle Hartley. The classroom had a designated "safe space," a small open area approximately three to four feet wide located between a large portable closet on wheels, a file cabinet on one side, and a wall on the other side. The safe space floor was covered with a soft mat and pillows. Posters on the safe space wall showed students how to breathe, relax, and decompress. A bathroom was located inside the classroom. The door opened out to the classroom. The door could be locked from the inside. Respondent and the paraprofessionals assigned to the classroom had access to an Allen key to unlock the bathroom door, but a disc had to be "popped" off of the lock to use it. Ocoee Elementary had a "crisis team" that could be called to assist when a student was in crisis, including removing the student if necessary. The crisis team included Juan Colon, who was the school's behavior specialist, and Isaac Bowen, a behavior trainer. The crisis team typically responded to a call for assistance within one to two minutes. The Incident with Student E.T. E.T. was assigned to Respondent's ESE classroom for the fall of 2017. He was 12 years old at that time. The other students ranged from seven to nine years of age. At approximately 5'6", E.T. was not only the largest student in the class, but he was also larger, and about four inches taller, than Respondent. E.T. was considered to be intellectually disabled. He was learning on a first or second grade level and his IQ was below 70. Some of the other students in the classroom were autistic, but E.T. was not. A Behavior Intervention Plan (BIP) is a written plan that identifies problematic behaviors of a particular ESE student and strategies staff should use to address them. E.T. had a BIP that listed three problematic behaviors: (1) noncompliance (that is, refusing to perform tasks, by saying words like "no," "this is stupid," making faces or squeaking noises, or simply walking away); (2) physical aggression (including aggressive posturing towards his peers and throwing small objects like pencils, erasers, and papers); and (3) elopement (defined as walking away from staff). On the morning of October 12, 2017, E.T. began engaging in disruptive behavior that ultimately required his removal from the classroom. The disruptive behavior began when E.T. crawled under the desk of one or more other students and grabbed crayons and pencils that were not his. Respondent attempted to de-escalate and redirect E.T. with oral instructions, but her attempts failed. Ultimately, Respondent called the crisis team for help with E.T. Mr. Bowen arrived at Respondent's classroom within a short time with two other behavior trainers. The rest of the class was taken to the playground. Respondent and Mr. Bowen sat with E.T. at a table to work on compliance tasks, and E.T.'s behavior and mood improved. Respondent and Mr. Bowen walked with E.T. to the playground to retrieve the rest of the class. Respondent, E.T., and the rest of the class went back to the classroom. Mr. Bowen and the other behavior trainers left to respond to another call. On the way back to Respondent's classroom, E.T. refused to walk in line with the other students. One of the paraprofessionals walked with E.T. and redirected him back to the line. Back in the classroom, E.T.'s disruptive behavior resumed. He grabbed pencils and crayons that were not his and crawled under the desks of other students. He also blew mucus out of his nose, spit saliva onto his hands, and wiped his mucus and saliva all over his body. Respondent attempted to redirect E.T., initially by ignoring his behavior. When that failed, she attempted to redirect him with instructions and incentives. This strategy also failed. Finally, Respondent asked two of the paraprofessionals, Ms. Nguyen and Ms. Hartley, to take the other students to the sensory room, an activity room located outside of Respondent's classroom. The class was removed in the hope that E.T.'s behavior would improve once he was denied an audience of his peers. Respondent asked Ms. Baker to remain in the classroom with her to assist with E.T. When E.T.'s behavior did not improve, Respondent and Ms. Baker called the crisis team again, but this time they were unable to reach Mr. Colon or Mr. Bowen because they were either responding to other calls for help or in a radio "dead zone." Respondent thought E.T. might respond better if he was allowed to talk with his mother, so she called E.T.'s mother and allowed him to talk to her on the class telephone. At that time, E.T. was under a table in the classroom pretending to be a turtle. E.T. feigned illness (fake coughing) and told his mother he wanted to go home. He also asked for potato chips to eat. The call terminated and E.T. refused to come out from under the table. After repeated unsuccessful attempts to coax E.T. out from under the table without laying hands on him, Respondent carefully pulled E.T. from under the table, making sure he did not hit his head. E.T. was not injured in any way in the process. Respondent then took E.T. to the classroom safe space. Once in the safe space, E.T. started to crawl under the portable wheeled closet. Respondent was concerned E.T. would injure himself in the process— legitimately so—and lifted him up and held him against the wall. E.T. made himself go limp to become "dead weight" and slumped down to the floor mat. Respondent lifted him back to his feet again and E.T. slumped back down to the floor. This process was repeated several times until E.T. reached on top of the closet and grabbed a basket of toys, causing the basket contents to fall to the safe space floor. The basket included toy train cars made of die cast metal. E.T. grabbed one of the train cars off the floor and threw it over the head of Ms. Baker, who was standing in the middle of the classroom. He threw another train car at Respondent, striking her in the head. Respondent stepped on one of the train cars and fell hard against the wall, pinning E.T. between her and the wall. E.T. said, "My chest hurts, my heart hurts," and "I think I am going to die." Respondent's shoulder hurt and she was short of breath. Having reached her physical limits, Respondent decided to remove E.T. from the safe space because she was concerned he would be able to reach other items on top of the closet, including a heavy paper slicer with a sharp cutting arm. Respondent's plan was to transport E.T. out of the classroom to the "calm-down" room, an empty classroom used to allow students in crisis to decompress. The calm-down room is located about 20 to 30 yards from Respondent's classroom. Respondent guided E.T. out of the safe space and toward the classroom door, with his arm under her armpit. This would be an approved CPI transport hold but for the fact that CPI transport requires two adults to transport a student in crisis in this manner, with each of the student's arms under the armpits of an adult on each side of the student. Ms. Baker—who was also CPI-trained—did not offer to serve as the second adult or provide any other assistance to Respondent while she was struggling to transport E.T. out of the safe space. E.T.—apparently unfazed by falling with Respondent against the safe space wall moments earlier—started to laugh and grabbed crayons off the desk of another student as he was being guided toward the classroom door. E.T. pulled away from Respondent and started walking quickly ahead of her. Respondent tried to maintain a hold on E.T., but was unable to do so without help from anyone (such as Ms. Baker, who continued as a spectator to Respondent's struggles). E.T. announced he was going to the bathroom and headed for the bathroom door. Respondent rushed to stop him, but tripped and landed hard against the bathroom door with E.T. Respondent was concerned—legitimately so—that E.T. could lock himself in the bathroom and create a mess or injure himself before the key to the bathroom could be accessed. Respondent applied all of her weight to the bathroom door, while E.T. held onto the doorknob, to prevent him from accessing the bathroom. Respondent held E.T. against the bathroom door, using her forearm against his chest. Respondent then struggled to lead E.T. away from the bathroom door and toward the classroom exit door, sliding with him against the wall. Natalie Hatch, a staffing specialist at Ocoee Elementary, and Mr. Colon entered the classroom door when Respondent was struggling to keep E.T. out of the bathroom. Mr. Colon immediately assisted Respondent to escort E.T. to the calm-down room using the dual-hold CPI transport position. On the way to the calm-down room, E.T. was crying and upset and he continued to wipe mucus and saliva on his body. In the calm-down room, E.T. tore paper and threw it on the floor. After about 15 minutes, he calmed down and Mr. Colon talked to him about the importance of following instructions. Ms. Colon asked E.T. to pick the paper off the floor and E.T. complied. Mr. Bowen also arrived and walked with E.T. and Mr. Colon back to Respondent's classroom. There were no further incidents involving E.T. that day. E.T. was not injured, physically or otherwise. The Findings of Fact regarding the incident with E.T. are based almost entirely on Respondent's testimony, which the undersigned found to be highly credible. The findings are also consistent with the credible testimony of Mr. Colon, who found nothing wrong with Respondent's attempt to keep E.T. from going into the bathroom by holding him against the bathroom door, nor did he find anything wrong with anything else he witnessed after entering Respondent's classroom. Ms. Baker stood in the middle of the classroom while Respondent struggled with E.T. Ms. Baker could not see all of the safe room interactions between Respondent and E.T., because her field of view was blocked by the closet and cabinet that formed the boundary of the safe space. Ms. Baker made repeated calls to the crisis team, but otherwise failed to offer any assistance to Respondent. Ms. Baker did not voice any objection to the manner in which Respondent physically interacted with E.T. The following day, Ms. Baker complained to administration that Respondent physically mistreated E.T. This led to an investigation of the incident and ultimately to Respondent's termination. Rejection of Corey Baker's Testimony Petitioner relies chiefly on the testimony of Ms. Baker to prove its case. For the reasons that follow, Ms. Baker's testimony was not credible and has not been accorded any weight. Ms. Baker's account of the incident differed from Respondent's in that she contends Respondent "manhandled" E.T. out of frustration, including: "snatching" him out from under the table when he was pretending to be a turtle; and repeatedly slamming E.T. hard against the wall of the safe room; and later the bathroom door. Essentially, Ms. Baker accuses Respondent of physically mistreating E.T. out of frustration with his conduct that day. Ms. Baker's testimony is rejected where it conflicts with the testimony of Respondent and Mr. Colon for several reasons. First, Ms. Baker 's field of view of the safe space was obstructed. No credit has been given to her testimony about what occurred when E.T. and Respondent were in the safe space together, because she could not see all of what happened there. That she would offer testimony describing events she could not have seen casts doubt on her overall veracity. Ms. Baker's credibility also suffers from her admitted failure to intercede in any way to aid a student she now claims to have been physically mistreated for a prolonged period of time. If, as Ms. Baker contends, Respondent "manhandled" E.T. while the three were alone in the classroom, then Ms. Baker should have attempted to separate the two or at least warn Respondent that she was being too rough; she did neither. Here is Ms. Baker's explanation for why she stood idle when Respondent and E.T. struggled: Q. So why didn't you jump into that space and help her lift him up? Why didn't you do something? A. Because, like I said, I do not feel comfortable with it being a blind corner [referring to the safe space] and already seeing stuff done that shouldn't have been done. If somebody came in, it would have literally looked like we were both just trying to take this kid out. In other words, Ms. Baker claims she did nothing to protect E.T. because she might also get into trouble. This explanation is rejected. It is inconceivable that Ms. Baker would sit back and do nothing if she believed Respondent was mistreating E.T. The rational explanation for why Ms. Baker did nothing to intercede to stop Respondent is that Respondent's actions were appropriate under the circumstances. Finally, Ms. Baker's credibility suffers from her embellishment of the incident, including the trauma she claims to have suffered after-the-fact. Ms. Baker testified that the incident was so traumatic that she had nightmares for a week or two afterwards. She went so far as to blame the stress of witnessing the incident for ending her relationship with her boyfriend. There was no evidence that E.T. was injured in the slightest. Indeed, as Ms. Baker admitted, E.T. laughed and continued to grab crayons that were not his after he left the safe space with Respondent. Ms. Baker grossly distorted the resulting trauma she claims to have suffered. For all of these reasons—and the undersigned's observation of the demeanor of the witnesses who testified live at the final hearing— Ms. Baker's account of the incident with E.T. is found to be grossly exaggerated and unreliable, and is given no weight.2 The OCPS Investigation Petitioner also offered the testimony of Acacia Vierbicky, an investigator for Orange County Public Schools (OCPS). Ms. Vierbicky was charged with investigating the incident involving E.T. after Ms. Baker complained to administration. Ms. Vierbicky testified that during the investigation, Respondent admitted to her that she "snatched" E.T.'s arm from underneath the table when he was pretending to be a turtle, and pinned him against the wall—face first—in the safe space. The Administrative Complaint does not allege facts regarding the manner in which Respondent removed E.T. from under the table as a predicate for any charges. Regardless, Respondent denied that she "snatched" E.T. from under the table and explained why she removed him from underneath the table. Respondent's testimony was credible and is accepted over Ms. Vierbicky's recollection of what she was told during her investigation. 2 Additional evidence was offered to impeach Ms. Baker's credibility. First, to suggest bias, Respondent and Ms. Baker were close friends at one time, but that relationship soured the summer before this incident occurred. Second, another teacher testified that Ms. Baker came forward with false allegations against her in an attempt to get her fired. Finally, another witness testified that Ms. Baker is prone to exaggerate events involving students in general. While all of this testimony may be true, it is unnecessary to rely upon it to reach the conclusion that Ms. Baker's testimony is unreliable. The characterization of whether Respondent "pinned" or "held" E.T. against the wall of the safe space with the weight of her body is not an important distinction here. What is important is that Respondent did so to prevent E.T. from crawling under the wheeled closet or grabbing dangerous items from the top of the closet. Holding E.T. against the wall under these circumstances—whether an approved CPI hold or not—was entirely reasonable to prevent E.T. from hurting himself or others. Ms. Vierbicky's testimony as to her recollection of Respondent's admissions is rejected where it differs from Respondent's live testimony.3 Crisis Prevention Intervention CPI is not the law; it has not been adopted by statute or rule. Petitioner offered the testimony of Kimberly Ann Smith, an expert in CPI and behavior analysis. Ms. Smith testified credibly that pinning or holding a student against a wall or holding a student with his arm behind his back is not an approved CPI hold. But, as Ms. Smith repeatedly acknowledged, CPI is a "best practice" protocol. As such, restraining a student with a non-CPI approved hold can be reasonable under certain circumstances even if it is not the "best practice." Ms. Smith testified that it is acceptable to physically restrain a student when the student may hurt himself or others. Ms. Smith also agreed that E.T. could have injured himself crawling under the wheeled closet and that throwing the metal trains presented a legitimate safety concern. The CPI training materials offer examples of approved holds that one teacher can apply to restrain a student, but these holds are not appropriate for a student 3 Ms. Vierbicky's investigative summary of the incident involving E.T. was admitted as an exhibit in this proceeding, as were the witness statements she collected during her investigation. Although admitted, these exhibits have not been relied upon here because they are largely hearsay. See § 120.57(1)(c), Fla. Stat. It is also noteworthy that there are obvious material omissions from Ms. Vierbicky's investigative summary, including the failure to mention that E.T. grabbed and threw metal trains while in the safe space and the failure to mention the fact that E.T. was not injured. Thus, even if not hearsay, or predicated on hearsay, the investigative summary represents an incomplete assessment of the incident with E.T., and is unreliable for this reason alone. who is taller than the teacher. In fact, these holds should only be used on a student who is at least a head shorter than the teacher. E.T. is significantly taller than Respondent. Petitioner offered no evidence of a CPI-approved hold that would have been appropriate for Respondent to use under the circumstances she confronted with E.T. Petitioner also offered testimony from Ms. Hatch to show that Respondent did not use a CPI-approved restraint when E.T. was attempting to enter the bathroom. Ms. Hatch testified that when she entered the classroom, she saw Respondent holding E.T. with his face against the wall with his hand behind his back. This differs from Mr. Colon's testimony, which was that Respondent was holding E.T. with his back against the bathroom door with her forearm on his chest. Although Mr. Colon's and Ms. Hatch's recollection of the positioning of Respondent and E.T. differ, the distinction is not material. Respondent had a legitimate concern to keep E.T. from entering the bathroom under the circumstances, and her attempts to do so—although not a CPI-approved hold—were reasonable under the circumstances. For all of these reasons, Respondent's admitted failure to use CPI- approved holds to restrain E.T. is not evidence that she failed to make reasonable effort to protect E.T. from any potentially harmful conditions, or that she exposed him to a risk of mental or physical harm. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent, in fact, made reasonable effort to protect E.T. from conditions harmful to learning and/or to his mental or physical health and/or to his safety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of March, 2020, in Tallahassee, Leon County, Florida. S BRIAN A. NEWMAN 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 27th day of March, 2020. COPIES FURNISHED: Tobe M. Lev, Esquire Egan, Lev, Lindstrom & Siwica, P.A. 231 East Colonial Drive Orlando, Florida 32801 (eServed) Ron Weaver, Esquire Law Office of Ron Weaver Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Randy Kosec, Jr., Chief Office of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issue in this case is whether the Education Practices Commission should discipline the Respondent for statutory and rule violations alleged in the Petitioner’s Administrative Complaint.
Findings Of Fact The Respondent, Peter Zanfagna, holds Florida Educator’s Certificate 1022509 covering the area of physical education, which is valid through June 30, 2017. In August 2013, the Respondent was hired as the physical education teacher for Westbrooke Elementary School in the Orange County School District. The Respondent’s classes combined two regular classrooms and consisted of approximately 42 to 70 children, depending on absences. Without a paraprofessional to assist him for the first two to three weeks of the school year, the Respondent made do with the assistance of a parent of a student and managed his classes well. He was widely considered to be a big improvement over his predecessor in the job. He had good lesson plans, followed his lesson plans and managed to maintain order. He received a good evaluation when his assistant principal, Carl Sousa, assessed him. Once, the school’s administration asked him to avoid using the playground when other classes were using it for recess, as he was doing on what he called “Fun Friday.” The Respondent immediately complied with the request. On Friday, October 11, the Respondent was attempting to supervise a large group of kindergarteners as they moved from the playground to a pavilion where lumber, some with nails sticking out, was stacked in preparation for its use in setting up for the school’s annual fall carnival scheduled for that weekend. Just before the maneuver began, the Respondent explained to the children his safety concerns about them having to walk past the lumber to get where they were going and told them he wanted them to walk in single file behind him. As he began walking along a sidewalk outside some classrooms, several students ran up beside him. Concerned for the students’ safety and upset that they ignored his instructions, the Respondent reprimanded them by yelling or screaming at them in a very loud voice. Two teachers were startled by the loud yelling or screaming. They looked out the window and saw it was the Respondent. One said the yelling or screaming was extreme and in a sharp, harsh tone. The other said the Respondent was pointing a finger six-to-eight inches from the face of one child. She heard him yelling or screaming at the child, “I told you to stay behind me, not in front of me, not next to me, but behind me.” Both thought the Respondent’s behavior was over-the-top, especially for children so young. Neither knew the reason for the Respondent’s behavior. One of the teachers who witnessed the incident said she heard children sobbing and screaming. The other said one child was crying and another was starting to cry. They believed the children were crying because of the Respondent’s loudness. The Respondent conceded that he yelled or screamed at the children to “stop” and “hold up.” He testified that his main concern during this incident, as always, was the safety of the children. He suggested the children’s crying may have been in reaction to his message to them that they could be seriously hurt if they ran into the lumber and nails. The Respondent also pointed out that he was saddled unfairly with the difficult task of supervising and monitoring a very large number of small children without adequate help. Even so, there was no evidence of any other similar incident. It was not proven by clear and convincing evidence that the Respondent inappropriately disciplined students by requiring them to sit on concrete for entire class periods. When students were misbehaving so as to endanger other students or were not following the Respondent’s instructions, the Respondent would place the students in “timeout” by having them sit apart from the rest of the class for periods of time. Sometimes this occurred when the class was in the pavilion, which is where his classes gathered for attendance and for dismissal. The pavilion had a concrete floor and no walls but had a roof and was not an inappropriate place for students to be in time-out. Early in the school year, the Respondent sometimes left children in time-out for inappropriately long periods of time. When this was reported to administration, the Respondent was given a directive to limit time-out to ten minutes. The Respondent testified that he complied with that directive throughout the rest of the school year until he resigned, effective April 25, 2014. With one exception, there was no evidence that the Respondent failed to comply with this directive. On April 16, 2014, a school psychologist attempted to observe one of the Respondent’s kindergarten or first-grade students to help a school “staffing” determine if the child was autistic and eligible for special education. Near the beginning of the class, while the class was in the pavilion, the Respondent placed the child in time-out for not listening to instructions. The Respondent proceeded with his class, and the child remained in time-out for approximately 20 or more minutes. On that day, the Respondent had no assistant and was attempting to teach a class of 40 or more students by himself. The psychologist conceded that he might have lost track of time and left her “target” in time-out longer than intended. The Respondent did not recall the incident. It was not proven by clear and convincing evidence that the Respondent inappropriately disciplined students by requiring them to do laps for entire class periods. First, the evidence was clear that the Respondent did not force his students to run laps. They always had the option of running or walking. Second, after attendance was taken in the pavilion, all classes began with stretching and warm-ups. Third, running or walking laps was sometimes a class activity, not discipline. Fourth, when laps were being run or walked, the duration of the activity or discipline could be determined by how well the students were performing; if they were not performing well, extra laps could be added to the activity or discipline. The charge that the Respondent made A.O., a twelve-year old fifth-grader, continue running after she complained of pain in her recently injured ankle arose from an incident on January 15, 2014. As to how recently A.O.’s ankle had been injured, her ankle was in a boot for about a month after the injury, and she had been out of the boot for about a week at the time in question. The evidentiary basis for the rest of the charge consisted of the written statements A.O. and the testimony of her and her mother. A.O. wrote an ambiguous statement the day after the incident. It started saying that the Respondent made the class run for the whole class period but then said he would let some people sit down and make others keep running. She stated her ankle started hurting after 20 minutes, so she asked if she could stop running, but he said to keep running. She did not state that she told the Respondent her ankle hurt. A.O. wrote another ambiguous statement for the Petitioner’s investigator in September 2014. In it, she said the Respondent did not make the class run the whole class period every day. She said, “[t]hat day we were walking and we were not running so he made us run the whole time.” Although “that day” was not specified, it reasonably can be inferred that the investigator was asking about January 15, 2014. In this statement, A.O. did not mention her own ankle hurting but stated another student claimed to have fallen and hurt his ankle, may or may not have told the Respondent about it, and seemed fine after the class. She also stated that when a student actually got hurt in class, the Respondent would send them to the clinic to get ice for the injury. At the hearing, counsel for the Petitioner had A.O. adopt her January statement and led her to testify that she told the Respondent that her ankle hurt, and asked him if she could stop running and sit down, and that he told her “no.” She then said she “kept walking.” Counsel then asked if the Respondent said, “no, keep running,” and she said, “yes.” She then said “no” to the suggestions that she was about to cry and was uncomfortable. She said she told her mother that evening that her ankle was hurting. On cross, she clarified that she “might have not been running as much as the other kids. I only said since it was hurting could I sit down. And you said, no, keep walking.” She then said she could not remember exactly what the Respondent said to her but only knew she asked to stop and sit down, and the Respondent said no, she had to keep going. On redirect, she agreed with counsel for the Petitioner that her memory of events would have been better at the time of her January statement than her September statement. A.O.’s mother testified that A.O. told her on the evening of January 15, 2014, that her ankle was hurting while running, that she asked the Respondent to stop, and that he said, no. She did not give any testimony on whether her daughter told the Respondent that her ankle was hurting. The Respondent denied that A.O. told him her ankle was hurting and that he refused to let her stop. He stood by his testimony that students always were given the option to walk and that he asked A.O. if she could walk slowly, she said she could, and she did. For that reason, he was not aware of any cause for concern. He testified persuasively, with strong corroboration from Robert Flynn, who was the Respondent’s teaching assistant for the last part of the Respondent’s tenure at Westbrooke and is the current physical education teacher there, and others, that the health and safety of the children was the Respondent’s number one priority, and that he would not have made any student run or walk if he thought there was a risk of injury. Taken together, the evidence was not clear and convincing that the Respondent made A.O. keep running after being told her ankle was hurting. The charge that the Respondent refused to allow A.L., a ten-year-old fourth-grader, to go to the clinic for an asthma treatment arose from an incident on April 18, 2014. The evidentiary basis for this charge consisted of two written statements by A.L. and the testimony of A.L. and her mother. A.L.’s first written statement was on April 21, 2014. It said she was in the Respondent’s class running at 12:15 p.m. when she had an asthma attack and went up to the Respondent to ask him if she could go to the nurse, “but before I can say anything he said no I can’t go to the nurse because I sometimes ask him if I can go to the nurse for my inhaler. Then I had to walk slow.” A.L. gave a second statement, this time to the Petitioner’s investigator, which was essentially consistent with the first one. Neither statement made it clear that A.L. told the Respondent she was having an asthma attack or that she needed her inhaler. At the hearing, she testified that she was running in class, felt an asthma attack, and asked the Respondent if she could go to the nurse to take her inhaler, and that he said, no, keep running. She then was led by counsel for the Petitioner to testify that she also told the Respondent she “couldn’t run and needed [her] inhaler.” Counsel for the Petitioner also led her to testify that she told her mother after school that she had gone to the Respondent and told “her [sic?]” that “[she] needed to see the nurse.” A.L.’s mother testified that her daughter had tears in her eyes when picked up after school. The mother could tell her daughter was having an asthma attack but no one else in the pickup area noticed. The mother took her daughter to the hospital, where it was determined that after a full medical workup that A.L. had walking pneumonia. A.L. spent a few days in the hospital and returned to school with a new medication for the pneumonia to take in addition to her inhaler. The Respondent denied that A.L. asked him to go to the clinic. He testified persuasively, with strong corroboration from Robert Flynn and others, that the health and safety of the children was the Respondent’s number one priority, and that he would not have refused to allow A.L. or any student go the clinic upon request for a medical reason. It appears from the greater weight of the evidence, including A.L.’s shy demeanor, and the number of children in the Respondent’s class, that A.L.’s medical request was not made known to the Respondent at the time. Taken together, the evidence was not clear and convincing that the Respondent refused to allow A.L. to go to the clinic for an asthma treatment. After A.L.’s parents reported to Westbrooke’s administration why A.L. was out of school, the school’s administration blamed the Respondent for refusing to allow A.L. to go to the clinic for an asthma treatment. This was the culmination of deteriorating relations between the Respondent and the school administration that began when the Respondent got his first paraprofessional assistant, Laura Fogarty. Ms. Fogarty was a private school physical education teacher, coach and athletic director in Chicago, who had moved to Orlando and took the paraprofessional job while she was awaiting her Florida certification. The Respondent felt she was undermining and disrespecting him and angling to replace him and felt that the school’s administration was siding with her when disagreements between them were presented to the school’s administration. The Respondent became increasingly antagonistic to Ms. Fogarty and the school’s administration. When the A.L. incident occurred, the school’s administration decided to ask the Respondent to resign or be fired. The Respondent chose to resign. After resigning, the Respondent was employed by a charter school in Manatee County as a physical education teacher, coach, and athletic director. He testified that he has been there for a year and a half with “zero problems.” On cross, it was brought out that the Respondent actually had been on administrative leave for about the last two weeks, apparently since counsel for the Petitioner questioned the charter school’s principal in preparation for the hearing and made the principal aware of the Petitioner’s investigation and disciplinary case against the Respondent’s state educator certificate. Cross-examination of the Respondent by counsel for the Petitioner also attempted to have the Respondent contradict his testimony regarding his positive teaching experiences at other Florida schools before he was hired by Westbrooke. Those attempts at impeachment were unsuccessful, and the Petitioner presented no evidence to contradict the Respondent’s testimony, which is accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order denying the Petitioner’s request for a five- year suspension and dismissing the charges against the Respondent. DONE AND ENTERED this 3rd day of May, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 3rd day of May, 2016.
The Issue The ultimate issue for determination at the formal hearing was whether Respondent's teaching certificate should be revoked for violating Subsection 231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B- 1.06(3)(a) and (e), as more fully described in the Administrative Complaint.
Findings Of Fact At all times material to this proceeding, Respondent was licensed as a substitute teacher pursuant to certificate number 479861 from the State of Florida Department of Education. Respondent's teaching certificate expires on June 30, 1991. Respondent had approximately 10 years experience as a substitute teacher in Dade and Broward counties. He never received an evaluation less than satisfactory and never received a written reprimand during his 10 years of employment as a substitute teacher. Respondent never achieved annual or continuing contract status with any school board in Florida. Respondent was a permanent substitute teacher in physical education during the 1988-1989 school year. His teaching responsibilities were divided between Natural Bridge Elementary and Biscayne Gardens Elementary. Respondent also worked as an actor and had appeared in at least one episode of the television program "Miami Vice". One of Respondent's students at Biscayne Elementary was Omar de Jesus. Omar was in the sixth grade at the time. Racquel de Jesus, Omar's younger sister, was in the fifth grade at Biscayne Elementary but was not one of Respondent's students. Judy Aulet is the mother of Omar and Racquel. Mrs. Aulet and her children lived approximately two blocks from Biscayne Elementary. They moved to Florida after the school year began. Omar and Racquel began attending Biscayne Elementary sometime in October, 1989. Neither Omar, Racquel, nor Mrs. Aulet knew that Respondent was an actor. Respondent approached Omar approximately two to three weeks after Omar began attending school in October, 1989. Respondent told Omar that Respondent had noticed Omar's mother the first day Omar started school and that Omar's mother was very pretty. Respondent asked about Omar's mother during class on several subsequent occasions, asked Omar for his mother's telephone number and address so Respondent could talk to her, and generally engaged Omar in extended conversations about Omar's mother. On one occasion, Respondent told Omar that Respondent had obtained the address and telephone number of Omar's mother through the school records and was coming over for dinner that evening. Omar was alarmed at Respondent's apparent preoccupation with his mother and was embarrassed by Respondent's repeated comments and inquiries. Omar disclosed the problem to his mother. When Respondent told Omar that he was coming over for dinner, Omar disclosed the situation to his mother. At that time, Omar discovered that Respondent had also been talking to Omar's sister, had given a picture of himself to Racquel, and had asked her to take the picture to her mother. Racquel was first approached by Respondent during physical education class one day. Racquel accompanied two of her friends over to where Respondent was teaching another physical education class. After the two friends left, Respondent told Racquel that her mother was very pretty. The next Monday during Racquel's lunch break, Respondent asked Racquel if her mother was going out with anyone or if she had a husband. Approximately two to three days later after school, Respondent gave Racquel a picture of himself and told Racquel to give it to her mother. Racquel did not want Respondent to go out with her mother and was concerned over the situation. Racquel was afraid that Respondent would get mad if Racquel told Respondent that her mother did not want to go out with him. Racquel was also afraid to tell her brother for fear her brother would get mad at Respondent. After Racquel disclosed the situation to her mother, Racquel was concerned enough to telephone her father in New York for advice. /1 One day during his physical education class, Omar accused Respondent of cheating in-favor of the girls' team when Respondent was refereeing a game between the boys and girls. Omar and Respondent began arguing. Omar told Respondent that he was going to get Respondent fired for confronting Omar and his sister about their mother and that a detective was coming to school to investigate the matter. Respondent grabbed Omar by the arm, shook him, called Omar a "motherfucker", and threatened Omar. Respondent told Omar that if he was fired over this he would "come after" Omar. Omar had a disciplinary history involving failure to listen, inattentiveness, and "mouthing off" at teachers. Omar was sent to the principal's office many times by other teachers. Omar accused Respondent of cheating in favor of the girls team whenever Respondent refereed games between the girls and boys. Omar called Respondent a "cheat" to Respondent's face on more that one occasion. Respondent never sent Omar to the principal's office for discipline. Respondent awarded Omar a grade of B in physical education and a C in conduct. The altercation between Omar and Respondent occurred approximately two to three weeks after Omar and Racquel had disclosed the situation to their mother. At the time of that disclosure, Mrs. Aulet had put Respondent's picture in a drawer and told her children she would report the matter to the school. She told her children not to confront Respondent with the issue. Mrs. Aulet did not know Respondent and had never communicated with him or met him. Mrs. Aulet reported the incident to Dr. Jolivette, the school's principal, after the altercation between Omar and Respondent. Dr. Jolivette questioned Respondent and verbally reprimanded Respondent. Dr. Jolivette requested an investigation, and the matter was investigated by a detective. Respondent was suspended from his employment and remained suspended at the time of the formal hearing. Respondent's actions subjected Omar and Racquel to unnecessary embarrassment. The conditions both children were subjected to were harmful to learning. Respondent demonstrated extremely poor judgment in his course of conduct. He used Omar and Racquel in an attempt to attain personal gain outside the scope of his employment. Respondent's actions and course of misconduct were serious in their nature.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent be found guilty of violating Subsection 231.28(1)(f), Florida Statutes, and Florida Administrative Code Rule 6B- 1.06(3)(a) and (e). It is further recommended that Respondent's teaching certificate be revoked for a period of three years from the date of the final order in this proceeding. DONE and ENTERED this 4th of September 1990, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September 1990.
The Issue The issue for determination in this case is whether the Respondent should be suspended and/or discharged from employment as a teacher with the School Board of Dade County for the reasons set forth in the Notice of Specific Charges filed on August 11, 1989. That Notice alleges that Respondent is guilty of misconduct in office as defined by Florida Administrative Code Rule 6B-4.009(3), violations of the Code of Ethics of the Education Profession (specifically, Rules 6B-1.001(3) and 6B-1.005(3)(a) and (e),) conduct unbecoming a School Board employee in violation of School Board Rules 6Gx13-4A-1.21 and 6Gx13-4C- 1.01 and/or violation of the School Board's ccrporal punishment policy set forth in School Board Rules 6Gx13-5D-1.07.
Findings Of Fact Respondent holds a teaching certificate from the State of Florida and has been employed pursuant to a continuing professional contract with the School Board of Dade County ("School Board") since September, 1986. During the 1988/1989 school year, Respondent was assigned as an elementary school teacher at Broadmoor Elementary School. As part of his duties as a teacher at Broadmoor, Respondent supervised the children on the physical education field at the school prior to the commencement of classes. The number of students playing in this area each morning often exceeded two hundred and, at the time in question, Respondent was the only teacher assigned to supervise the children. On April 3, 1989, while carrying out his duties as supervisor of the physical education field prior to the commencement of classes, Respondent was involved in an incident involving a student, R.S. who was eight years old and in the third grade at the time. The initial encounter between Respondent and R.S. on that date occurred when Respondent was distributing balls to the students to play with. The student struck Respondent in the back and ran off to the playing field. A few minutes later, the student struck the Respondent a second time by punching him in the stomach when he attempted to break up an altercation between and another student. After punching Respondent in the stomach, R.S. again ran off. Shortly thereafter, a dispute arose between R.S. and several other students who were playing box ball. The other students contended that R.S. was "out". However, R.S. refused to leave the game. The other students called Respondent over to intervene. Respondent instructed the students to replay the point. On the replayed point, R.S. was again "out", but she refused to leave the game and Respondent approached her and directed her to give him the ball. After turning the ball over to Respondent, R.S. began yelling and kicking at Respondent to get the ball back. In grabbing for the ball, R.S. tore the sleeve of Respondent's shirt and ripped some buttons off it. Respondent grabbed R.S. by the arm and told her that they "needed to talk." Respondent attempted to physically remove R.S. from the playing area by grabbing her arm and leg. R.S. resisted the efforts. In trying to restrain and control the student, the Respondent applied a "PIT" hold which Respondent had learned while teaching emotionally disturbed children at the Montenari School. The acronym PIT refers to prevention intevention training. While there is some indication that PIT methods include procedures for incapacitating an individual and placing them on the ground, the Respondent in this case did not attempt to place the student on the ground. Instead, Respondent attempted to hold the student in a position where she could no longer effectively strike or kick at him. R.S. is not emotionally disturbed and does not have a history of discipline probless. While PIT methods are apparently used to restrain violent or aggressive emotionally disturbed students, they are not authorized by the Dade County Public School System for use in restraining students in a regular school. At the time of this incident, the student, R.S., was in third grade and weighed approximately 60 pounds. The Respondent weighed approximately 250 pounds. While Respondent was holding the student and attempting to remove her from the area as described above, the student and the Respondent fell to the ground. While the student contended that the Respondent deliberatley "slammed" her to the ground, the more persuasive evidence indicates that both Respondent and the student accidentally fell while Respondent was attempting to remove her from the playing area. Thus, it is found that Respondent did not deliberately throw the child to the ground. While on the ground, the student continued to struggle and attempted to get up. Respondent pushed her back to the ground and held her down. As a result of the struggle, the student suffered scrapes on the side of her face and a swollen lip. It is unclear whether the injuries occurred as a result of the fall or Respondent's subsequent actions in pushing the student back to the ground. After the student calmed down, the Respondent took R.S. to his room rather than to the Administrative Office or the clinic as required by school policy. Petitioner contends that no administrative staff was in the office at the time and that he attempted unsucessfully to contact the student's parents. However, he did not alert any other school personnel or administrative staff of this incident and the student was left unattended in the Petitioner's office for a short period of time. Other students alerted R.S.'s homeroom teacher of the incident and that teacher located the student and brought her to the clinic where she was treated and her parents were contacted. R.S. had punched Respondent on prior occasions. However, Respondent never reported those incidents to school administrators or to the student's parents. Instead, he attempted to work with the child utilizing nonviolent techniques. Several parents of students at the school have voiced concern over the incident and Respondent's handling of the matter. As a result, Respondent's effectiveness as a teacher at the school has been impaired.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order finding Respondent guilty of misconduct in office and imposing a ten day suspension without pay upon Respondent. DONE and ORDERED this 21st day of February, 1990, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1990.
Findings Of Fact Before his current assignment to a textbook depository, respondent Kerby Clifton Smith taught school for the Duval County School Board for 26 years. Mr. Smith holds a teacher's certificate, No. 145127, authorizing him to teach physical education to sixth through twelfth graders and science to seventh, eighth and ninth graders. In 1980-81, respondent received an unsatisfactory evaluation, which he attributed to the distraction of his mother's terminal illness, culminating ultimately in her death on Thanksgiving Day 1981. Otherwise, his annual evaluations were satisfactory through the 1986-87 school year. He began in August of 1963 as a physical education teacher at Lake Shore Junior High School. He ended that school year and spent all the next at "Paxon Junior High School teaching physical education, coaching track, baseball and basketball." (T.557) Mr. Smith returned to Lake Shore Junior High School in the fall of 1965. Until 1967, all his classes were physical education classes. In 1967, when he began teaching three science classes, he continued to teach two physical education classes, and to coach after school. After 1974, although he continued to work as a coach, he did not teach physical education classes, with the exception of a single physical education course for hearing impaired students. Instead, he taught physical science and earth science (or earth and space science) to junior high or middle school students, mainly with ninth-graders. Leaves Lake Shore With the intention of pursuing computer science training, respondent requested a leave of absence for the school year 1986-87. Request granted, he began at Jacksonville University in the fall of 1986. But when he began to run out of money toward the end of the first semester, he decided to return to work. Because his position at Lake Shore was filled, he was sent to Fort Caroline Junior High School, where he substituted for eight days before he took over a retiring science teacher's five earth science classes, effective February 2, 1987. Soon after Mr. Smith began teaching the science classes, the principal at Fort Caroline Junior High School, Mr. Pratt-Dannals, conducted a formal observation, the first of at least three he conducted before the academic year ended. He gave respondent special attention because, during the school years 1981-82 and 1982-83, when Mr. Pratt-Dannals was dean of boys at Lake Shore Junior High School, he had concluded that "a general lack of proper classroom decorum" (T.43) in one or more of Mr. Smith's classes accounted for an "inordinate number of referrals" (T.53) to the dean's office. But he evaluated Mr. Smith's teaching in the spring of 1987 as satisfactory over all. He also offered criticisms of various aspects of his performance as a teacher, telling him he needed to improve. He urged Mr. Smith to enroll in certain methodology courses in the summer of 1987, but Mr. Smith declined because he "had the summer planned." T. 617. When Mr. Smith returned in the fall, he found himself without a classroom of his own. As a "travelling teacher," he moved from one classroom to another in the course of the school day. This may have accounted for some of his classes' getting off to less than a smooth start. T. 573. 1987-88 Observations On September 15, 1987, Mr. Pratt-Dannals observed Mr. Smith teaching an earth science class. On a "Summative Observation Instrument" he kept track of specified behaviors classed either as effective, or as ineffective, indicators. The former outnumbered the latter, and Mr. Pratt-Dannals commended respondent for "asking a large number of questions on the film strip" which he saw as evidence of a "desire to involve students in the discussion." Petitioner's Exhibit No. 5. But, from where he sat, Mr. Pratt-Dannals saw "students openly cheating on the quiz," (T.88) (although he took no action against the supposed offenders.) Mr. Smith did not see students cheating. T.594-5. "Mr. Smith warned a student to stop talking. The student continued to talk, and there was no repercussion." (T.88) On October 21, 1987, Mr. Pratt-Dannals observed another of Mr. Smith's earth science classes devoted, except for 18 minutes, to a test. He saw "13 students . . . openly sharing answers on the test," (T.88) again without taking any action. Again Mr. Smith did not see students cheating. T.594-5. Using the same "Summative Observation Instrument," Mr. Pratt-Dannals identified about as many "ineffective indicators" as "effective indicators." Among the ineffective teaching behaviors Mr. Pratt-Dannals made note of on October 21, 1987, was Mr. Smith's defining "seismograph" for the class without giving an example. (T.90) When one student said to another, "You do and I'll beat your butt," (T.88) and the other responded, "Faggot," neither the principal nor the teacher intervened, although respondent later reprimanded both students outside the class. T. 582. Mr. Smith recognized the voice of only one of the protagonists, and decided against "ask[ing] a class of 35 which one of you said, you're a faggot?" T.585. From the owner of the voice he recognized, he learned the identity of the other miscreant. On November 5, 1987, Mr. Pratt-Dannals observed Mr. Smith administering yet another test to yet another earth science class. Using the same form as before, he recorded more ineffective indicators than effective indicators. Petitioner's Exhibit No. 7. Mr. Pratt-Dannals testified: There's some additions and corrections to the test at the beginning of the period that created some confusion. These were said orally, so the student had to understand what he was saying orally and write it down on his test in order to do well on the test. I suggested Mr. Smith write these on the board if there were corrections necessary. The cheating continued, particularly where students sat next to each other. This was when Mr. Smith was helping another student. There is a term called with-itness, and that is where a teacher is able to do two things at one time. One of the things that would be required in this situation would be to assist a student who may have a question about the test while continuing to look over the rest of the class to determine if any cheating was going on. He told one student that he would deduct 10 points the next time he was talking. This was on the test. The student talked, and he did not deduct the points. In written remarks made at the time, Mr. Pratt-Dannals noted, "While there was some cheating going on, it was less than before," and suggested, "It looks like it is time to rewrite the 'House Rules' on your cart. The pencil scribble detracts from the impact." Petitioner's Exhibit No. 7. When Mr. Pratt-Dannals next observed respondent's teaching, on December 1, 1987, he perceived no "classroom management problems." (T.100) But he felt "[t]here were problems with presentation of content," id., specifically the effort to discuss dinosaurs, AIDS, the space program and the greenhouse effect in the same class period. He nevertheless commended respondent on a "[g]enerally good question/answer time with extension or correction as needed," Petitioner's Exhibit No. 8, and recorded many more "effective indicators" than "ineffective indicators." Id. Biweekly the science department received 50 student issues and a teacher's edition of Science World, a magazine to which the school subscribed. "There were eight science teachers and one set of magazines." T.591. The chairman of the science department asked science teachers to include all topics pertinent to their courses covered in the magazine "in our lesson plan biweekly." T.586. The then current issue contained articles on dinosaurs, AIDS, the space program, and the greenhouse effect (as well as numerous other topics) and respondent had passed copies out to the students. On February 18, 1988, Mr. Pratt-Dannals again observed respondent teaching and again recorded many more "effective indicators" than "ineffective indicators." But "problems with classroom management persisted, specifically open talking, interrupting and socializing." (T. 117) Nevertheless, according to Mr. Pratt-Dannals, "almost half of [Mr. Smith's] interventions were effective." Petitioner's Exhibit No. 9. Mr. Pratt-Dannals commended Mr. Smith for "[g]ood use of materials, orienting statements, and beginning review . . [g]ood circulation during seatwork . . . [and a]dequate coverage of 4 of 6 of the concepts," Petitioner's Exhibit No. 9, he explicated on February 18, 1988. The two concepts Mr. Pratt-Dannals felt received inadequate coverage "were that light passing through a prism gives a spectrum . . . [and] that the earth is spherical, therefore, that the light hits the earth directly at the equator, but it hits it at an angle at the poles. [Mr. Smith] stated those but did not give any kind of application." T.118. Finally, Mr. Pratt-Dannals again observed respondent's teaching on March 2, 1988. He saw Mr. Smith stop misconduct effectively on three occasions, but, on nine occasions, misconduct extended beyond a reasonable period of time. In other words, he might say, Okay, that's enough, stop talking, and the talking continued for a period of time following that. It may be that the talking continued throughout the whole period [, while the principal sat, mutely observing.] In many cases it continued for a longer period of time than was reasonable if the students were responding to his correction. T. 124. Mr. Smith also failed to give examples of several (but not all) of the terms he defined. According to Mr. Pratt-Dannals, the "problem . . . was that a definition was provided with no example . . . similar to," (T.124) the situation with "seismograph." In conjunction with his observations that school year, Mr. Pratt- Dannals read Mr. Smith's lesson plans for each of the half dozen classes he sat in on. These, he found, "minimally covered what is required." T.130. Aside from these six, he read no other lesson plans Mr. Smith prepared that year. He evaluated Mr. Smith's performance as a teacher as unsatisfactory principally because of classroom management problems. T.131. At Mr. Pratt-Dannals' behest, Gloriden J. Norris came to the school to evaluate respondent's teaching and test administration on December 18, 1987, and again on January 20, 1988. After her first visit, she reported, "[n]o major problem identified from these observations." Petitioner's Exhibit No. 26. On her second visit she recorded 30 effective teaching behaviors and only two ineffective teaching behaviors. Petitioner's Exhibit No. 28. Both Mrs. Norris and Mr. Pratt-Dannals gave Mr. Smith advance notice before observing his teaching. On the other hand, Daniel L. Weems, one of the science teachers whose classrooms respondent made intermittent use of, had occasion to enter his room without notice, during his own free period, while Mr. Smith was teaching there, "in the range of once a week," (T.188) for from two to 15 minutes at a time. Not infrequently he found that Mr. Smith did not have all the students' full attention. He observed "[o]n a number of occasions things such as heads down on the desk, writing notes or letters to one another, just talking with one another, being teenagers." T.177. MLST Petitioner requires students in its earth science courses to pass a Minimum Level Skills Test (MLST) demonstrating mastery of a specified fraction of about 19 percent of the course objectives, in order to pass the course. In March of 1988, Mr. Pratt-Dannals told Mr. Smith he was concerned that his students would not be properly prepared for the standardized test; and encouraged him to make special efforts to prepare them. Mr. Smith did make special efforts. The percentage of his students who passed the science MLST the first time they took it was higher than comparable percentages for two other science teachers' students, but lower than the comparable percentage for one of the other science teachers' students. Respondent's Exhibit No. 5. Mr. Smith's students' scores on the earth science MLST were not significantly better or worse than their scores on minimum level skills tests in other subject areas. 1988-89 At respondent's request, he was transferred from Fort Caroline Junior High School after Mr. Pratt-Dannals gave him an unsatisfactory evaluation. That summer he signed up for two of the three education courses Mr. Pratt-Dannals recommended that he take during the summer, but they were cancelled for lack of adequate enrollment. The third recommended course was already completed by the time he looked into it. Mr. Smith's request to teach physical education during the 1988-89 school year was not honored. Instead, he was assigned to teach two science courses, four classes of life science, which he had never taught before, and one class of physical science at the Eugene J. Butler Seventh Grade Center (Butler). His physical science students had all failed earlier attempts to pass the seventh grade. For the first two weeks of school or longer, Mr. Smith called students' names, and they raised their hands when he took roll, but after that he would simply "darken in the circles" (T.603) on a "bubble sheet" that listed the class roll. Once he had learned their names, this procedure saved class time, he felt. In each class, he asked a student to remind him to fill in the sheet before the hour was up. Before conducting his initial formal observation, Butler's principal, Kenneth Leon Manuel looked for respondent's lesson plans, but did not find them on file. When he did see the lesson plans, he concluded they "did not comply with the format of objectives, instructional strategies, materials and evaluation." Petitioner's Exhibit No. 14. In the classroom, he noticed several students "discours[ing] while [Mr. Smith] was talking," (T.259) on September 13, 1988, and again on October 18, 1988. Also on September 13, 1988, "several students walked in and out of the classroom. Like one kid would walk in with the hall pass. And by the time he put the hall pass down, another kid would get up, get the hall pass and walk out." T.260. Carole Lippert Benson, Butler's vice-principal, conducted a "formal observation" in one of Mr. Smith's classes on September 28, 1988. Even though class began four minutes late, five students were tardy. "The teacher usually makes some sort of notation that the child was tardy, or gives them some sort of reprimand," (T.404), but respondent did neither. When he began his presentation, one student was at the pencil sharpener and three others were out of their seats. He stood at an overhead projector with his back to half the class. Some students talked. One put his head down and went to sleep. A girl put on make up. Mr. Smith did not have the attention of several students. Kathleen Bowles, the science and health department chairperson at Butler had her planning period second hour during the 1988-89 school year. She walked through respondent's second period class on her way to the science department's storage rooms, "probably 20 times or more, throughout the entire school year." T.246. She saw children talking among themselves, writing notes and out of their seats. She even saw some listening to radios or cassette players with headphones. School policy forbids Walkman radios on campus. Mr. Smith violated departmental policy by letting the children "dissect pumpkins" without safety goggles, and nearly violated department policy "when he was going to dissect earthworms, and the safety contracts had not been signed." Although Ms. Bowles reported a "very high" noise level, a classroom teacher nearer by was not disturbed. On November 9, 1988, Kathleen Marie Poe, who then worked for petitioner as "a science consultant with professional development" (T.454) attended one of respondent's classes in order to conduct a scheduled formal observation. When the tardy bell rang two boys were arguing over which should retrieve a desk that had been moved for an earlier class. A student arrived late. One of the students walking around the room refused to obey several exhortations to sit down, so Mr. Smith ordered him to leave the class room "and that child wouldn't step outside, so they finally negotiated that he asked him to sit in the back of the room." T.455. But, when a girl finished sharpening her pencil, the recently seated student rose to sharpen his pencil. After these preliminaries, and a quiz, Mr. Smith made use of an overhead projector and began a far ranging lecture on sea life, mentioning (without defining that day) mollusks, bivalves, scallops, univalves, stingrays, echinoderms and the Great Barrier Reef. During the lecture, one girl put on make up, another did her English homework. On November 17, 1988, a student arriving for Mr. Smith's sixth period class told him he did not feel well, and asked to go home. Mr. Smith answered, "[S]ee if you can't tough it out one more period. Your mom's not going to want to come over here. Go . . . put your head down." T.624. Instead of putting his head down, the child lay down on a table. Mr. Manuel and Levi Garrett, another administrator in petitioner's employ, were present for the first five minutes of this class. Mr. Smith introduced Mr. Garrett to the students before proceeding with a scheduled VCR presentation. Neither Mr. Manuel's testimony that, "There were several kids that walked in and just lay down on the table," (T.266) nor his assertion that respondent's lesson plans were not on respondent's desk has been credited. On February 1, 1989, Ms. Norris observed respondent at Mr. Manuel's request. "Other than the inadequate preparation and delivery of content, [she] also concluded that there were some problems in inconsistency in . . . effective strategies . . . used to manage student conduct." T.384. On the test he gave that class, "there's a mixture of multiple choice and matching without directions." T.386. On February 15, 1989, Mr. Manuel conducted another formal observation, this time of respondent's third and fourth period classes. With regard to the third period class, Mr. Manuel reported: [B]asically the behaviors that were in that particular class during that time, there was a lot of deviant behavior. Mr. Smith, at one time, responded to the deviant behavior, "Neil, you better get busy. You guys get busy." There was continuous conversation with a student that had a missing lunch ticket. During the period of time in this particular classroom, Mr. Smith did circulate around the classroom. There were numerous misconducts [sic] of students going on. He had the opportunity to cease and desist some of that; however, in some cases he did not. Also, in that particular one, in that specific case, one student had indicated to Mr. Smith that he had completed the assigned task [an essay] . . . [A]nd Mr. Smith explained to him to continue to work on the essay. The child just went ahead on. T.275-7. About a third of the class finished the essay early, and had no additional assignment other than (possibly) homework. The fourth period class was the physical science class, full of students who were repeating. Several students "were continuously off task." T.279. Mr. Smith told a student she should have raised her hand, and she said he had not required another student to do that. After two warnings, Mr. Smith "wrote [a student] up on a referral, told him to leave the classroom." T.280. Another student was playing with the thermostat. Still another student "was constantly talking and complaining." T.281. On February 28, 1989, Ms. Poe again observed respondent, whose strength she had earlier described as "science content/knowledge." Petitioner's Exhibit No. 33. In connection with her February visit, she prepared written comments. "Some conduct problems - 4 students out of their seats - talking back - frequent interruptions. One was sent out on a referral (girl) transparencies were clearer as were his directions. He never raised his voice and was calm throughout the hour." Petitioner's Exhibit No. 33. Ms. Poe felt respondent "need[ed] to provide positive feedback to students' answers and . . . for correct behavior and to be consistent with his own set of classroom rules." Id. She also noticed that "he kept calling on the same students, the ones who were paying attention, to answer the question." T. 459. Two boys played "paper football across the desk," (T.456) a boy threw "basketball paper wads . . . three of them in a row", id, a distance of about six feet, and "[t]here were a couple of paper airplanes being flown around the room." T.456. Mr. Manuel conducted a final observation on March 13, 1989. After this observation he told respondent that he wished he had taught so well for the whole year or words to that effect. He told him that this was the type of teaching he had been looking for and was generally complimentary. Nevertheless the next day he made a final evaluation that Mr. Smith's work for the year had been unsatisfactory. After January 30, 1989, respondent did not file lesson plans until June 14, 1989, when he filed lesson plans for some four months' classes late. MLST At Butler Of the 21 students in Mr. Smith's year-long physical science class, only ten passed the physical science MLST the first time it was administered. T.302. Petitioner's Exhibit No. 23. Even fewer students passed the course itself. "That's the class that were repeaters . . . ." T.603. Most of the students who flunked the class "failed because we had an attendance policy. If you missed more than seven days [in "[e]ach grading period" (T.607)] . . . you automatically received an F or an E in the class." Id. Students in Mr. Smith's four first semester life science classes passed the life science MLST at rates of 34.8, 52.0, 52.2, and 63.6 percent, as compared to a 77.7 percent pass rate for all teachers' first semester life science students. Petitioner's Exhibit No. 24. But students in Mr. Smith's second semester life science classes passed the life science MLST at rates of 92.0, 93.8, 94.1 and 94.7 percent as compared to an average 93.9 percent for all teachers' life science students that semester. Petitioner's Exhibit No. 25. Popular With Colleagues A number of respondent's colleagues testified for him at hearing. Paul Z. Martin, a teacher at Lake Shore Junior High School from 1954 to 1976, said, in answer to counsel's questions: A He got along fine. I got jealous of him a lot of times, because he could handle the students so well, and the students liked him, and he had no problem there at all. And another thing -- let me say right there -- you know, things will happen, which is natural. They'll come up in class, or maybe under me or maybe under another coach. And, well, two or three times I recall where I would ask Kerby to go see if he could resolve that situation, and he did. He did a good job. He's a good disciplinarian. Q Good disciplinarian? A Good disciplinarian. And his work in his classroom was very efficient. (TR 344) Barbara Miller who taught at Lake Shore Junior High School for twenty- six (26) years and who, like Mr. Martin, had no personal knowledge of respondent's performance at Fort Caroline Junior High School testified: I think he is a very competent teacher. I say this due to the fact that when I walked into his classroom the many, many times that I did, that his class was in order, that he had control of his classroom, that his test scores were good, that his grades were better than mine, that he did take an interest in the children. And I have one real criteria for being a good teacher, and that is it involves the heart and the love of your job and the love of the children, and I absolutely will say under oath that Kerby has these things, that he enjoyed his job, he loved the kids, and he gave to them beyond the capacity of just your 7:30 - to - 2:40 requirement. And that says a lot for me. (TR 359, 360) A former principal, John Rowell, who served as principal at Lake Shore Junior High School, until 1969 testified: I would say he tries to reach every student that he can. He's very pleasant, and he -- for me, he maintained good order in the classroom and a well-disciplined gym class, and his teams that he coached were well-disciplined teams. He called on the kids to recite. He would explain, and they would recite. Q Do you think he was a competent teacher? A Yes. He was a competent teacher for me. Between 1963 and 1969, he was a very competent teacher." (TR 484-485) Another colleague who had not taught with Mr. Smith since he left Lake Shore Junior High School was Betty Tut who had herself taught for some twenty- five (25) years. She said: Did you ever observe Kerby Smith in the classroom? A No, not observe him in the classroom, but we taught P.E. kind of together. Sometimes we would be outside, but this was some time ago, not recent. Q But you could see each other? A Yes. Q What was his conduct with the class when you observed him? A Very caring and compassionate about them and wanting them to do well. He was very concerned about each of the kids and wanted them to do exceptionally well in what he was doing. I know that much. Q Did he seem to have control of his class? A Being outside, he had pretty good control outside. But when he was inside, I did not observe him. (TR 494) Another Lake Shore colleague, Floyd Watson, who taught at Lake Shore Junior High School from 1966 to 1988, answered counsel's questions, as follows: Q How did Mr. Smith conduct this classes? A What do you mean? Q You saw him in some of his classes. What were they like; well-run, poorly-run, whatever? A Of course, I'm not a science teacher, so I can't say that sort of thing. Q Did you find any atypical disciplinary problems in his classes, as compared to the others that you were familiar with? A No. Q Did he seem to have a rapport with the students or lack or rapport? A He seemed to have a good rapport. I think, with the latter part of the years, I was just thinking, when I came down here the other day, that he seemed to have a right good rapport, especially with minority students. Not all teachers have that." (TR 502) "Q In your opinion, from '63 to '85, was Mr. Smith a competent teacher? A Yes. Q And the reason for that statement? A Well, I think he's knowledgeable in his subject matter. I think he put the material across to the students. He did have a classroom management so that a student that wanted to learn could learn. He was able to talk with the students and get along with them reasonably well. Of course, like any teacher, you don't satisfy all of them. That never happens. But, overall, I think he got along very well with the students, and they tend to respect him. He made it such that if they wanted to learn they could, and he would try to teach them. (TR 503, 504) Robert A. Birmingham, an occupational specialist at Lake Shore Junior High School, 1985-1990, testified: Q What was the conduct of his classroom when you were there? A They're junior high kids, you know. In an educational setting, there can be noise, and it's educational noise, and there can uncontrolled noise. And I don't recall anything that I was unhappy with. (sic) (TR 510) Phil Valla, a 20-year teacher who taught with respondent early in his career, testified: Q How did he conduct his classes, as far as demeanor and the rest of it? A How did he conduct his classes? Q Yes. From your viewpoint as a teacher, yourself, do you have an opinion about how Kerby conducted his classes? A His classes were fine. Q Do you think he's a competent teacher? A Yes, sir. Q And could you tell the Hearing Officer why you think he's a competent teacher? A When we worked together, we seemed to accomplish everything we set out to do with the kids, and he seemed to get along real well with the kids and fellow coaches. Q How was discipline in his class? A Fine. Q What rapport, if any, did he have with his students? A It was excellent. He had superior rapport with the students. Q Do you think the students respected him? A Yes, sir. Q You say he accomplished everything he wanted to accomplish; was that subject matter? A Yes, sir. Q Do you think that got across? A Yes, sir. We taught -- our goals were to teach skills in physical education, and we accomplished that in those years. (TR 516, 517) And Georgette Macarthur, a teacher with 28 years of experience, offered her opinion, in response to counsel's questions: Q Do you have any opinion about how he conducted his classes? A Yes. He had a real special, I think, rapport with the students, and they liked him, and they performed for him. And I don't think he had a military discipline style, but that mold -- everybody doesn't fit that mold. His style of discipline was a little more relaxed, but the students learned well, I think, and they all did what they were supposed to do. I'm more of a relaxed teacher, myself. And I can see that what is right for one teacher, as far as discipline goes, is not right for another teacher. And students can't learn in chaos. That's not what I'm saying. What I'm saying is that if they're all tense and tight sometimes they don't do their best. I really like the way Kerby teaches, from my memory. It's been several years, but, from what I know, I really like the way he teaches. Q You've known him for over 20 years at Lakeshore (sic)? A Right, right. Q That's a long time to observe somebody. A That's right. That -- well, go on with your questions. Q And he left to go on a sabbatical? A Yes, and then he came back. Q And then -- I don't -- if I asked you this -- did I ask you, "Do you think he's a competent teacher?" A Yes, I do. From my observations and just from what I have known, I do think he's competent. (TR 524, 525) On the other hand, Messrs. Pratt-Dannals and Manuel, along with Ms. Bowles testified that respondent was not a competent teacher. Of the 6200 teachers the school board of Duval County employed in 1988-89, it sought to terminate the employment of only three. Raymond Bailey, petitioner's "director of certificated personnel," (T.200) testified: A competent teacher is one that has knowledge of subject matter, is able to impart and deliver that subject matter to students. That competent teacher also is one that is competent in the area of classroom management, meaning managing the learning activities that take place within those four walls. He's also an individual that is effective in his delivery of curricular material to students, interpreting the curriculum of the district and, again, imparting its students. He is an individual that is charged with the responsibility of teaching the curriculum as outlined by the district and has the knowledge and background to proceed through that and to provide his students with the very best education. While it is clear respondent did not provide his students with "the very best education," the evidence fell well short of a showing that he was among the three worst teachers in the school system. At one point when respondent was teaching at Lake Shore and Mr. Wechsler was serving as principal, all five or six science teachers were evaluated by the School District's "teacher educational consultant for science" (T.369), Gloriden J. Norris. Ms. Norris, who observed all of the teachers in their classrooms, did not conclude that respondent's performance was significantly worse than any of the other science teachers' performances. (T.399-400).
Recommendation It is accordingly, recommended that petitioner renew respondent's employment contract. RECOMMENDED this 22nd day of August, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4132 Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 26, 27, 28, 29, 30, 31, 37, 38, 39, 40, 45, 79, 87, and 89 have been adopted, in substance, insofar as material. Petitioner's proposed findings of fact Nos. 7, 12, 13 and 14 pertain to matters outside the two-year period alleged by the Board, or are otherwise immaterial. Petitioner's proposed findings Nos. 15, 16, 17, 18, 23, 24, 25, 32, 33, 34, 36, 46 and 81 pertain to subordinate matters. With respect to petitioner's proposed findings of fact Nos. 19 through 22, see finding of fact Nos. 11 through 22. Petitioner's proposed findings of fact Nos. 35 and 86 were not established by the evidence. With respect to petitioner's proposed finding of fact No. 41, the testimony was that in no other case of this kind was a teacher assigned to teach subjects he had never taught before. With respect to petitioner's proposed findings of fact Nos. 42, 43 and 44, the evidence did not show that he was at any less disadvantage teaching life science, and the "special accommodations" were contrary to his request to teach physical education. With respect to petitioner's proposed findings of fact Nos. 47 through 65, 82, 83 and 84, see findings of fact Nos. 27 through 45. With respect to petitioner's proposed findings of fact Nos. 66 through 75, see findings of fact Nos. 46 and 47. Petitioner's proposed findings of fact Nos. 76, 77, and 78 have been adopted in substance, insofar as material, except that Mr. Manuel's testimony that lesson plans were not on respondent's desk has been rejected. With respect to petitioner's proposed findings of fact Nos. 80 and 85, that is the answer he gave on deposition. With respect to petitioner's proposed findings of fact Nos. 85 and 88, petitioner proved respondent was a weak teacher, but did not prove that he was incompetent, within the meaning of the statute. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 5, 8, 10, 13, 17 and 18 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 6 and 15 pertain to subordinate matters. The final two sentences of respondent's proposed finding of fact No. 7 have been adopted, in substance, insofar as material, but there were not six formal evaluations. With respect to respondent's proposed finding of fact No. 9, nobody testified that a traveling teacher should have any greater problems with discipline after the first few minutes of class. With respect to respondent's proposed finding of fact No. 11, the evidence did not show that he actually attended summer courses. With respect to respondent's proposed finding of fact No. 12, the first sentence has been adopted but it is not clear what comparison the second sentence is intended to make. Respondent's proposed finding of fact No. 14 is rejected. With respect to respondent's proposed finding of fact No. 16, she characterized certain behavior as inconsistent. COPIES FURNISHED: The Honorable Betty Castor Commission of Education The Capitol Tallahassee, FL 32399-0400 Dr. Larry Zenke, Superintendent Duval County School Board 1701 Prudential Drive Jacksonville, FL 32207 James L. Harrison, General Counsel Gail Stafford, Assistant Counsel 421 West Church Street, Suite 715 Jacksonville, FL 32202 Al Millar, Esquire 2721 Park Street Jacksonville, FL 32205
The Issue The issues to be determined are whether Respondent reported for duty while under the influence of alcohol in violation of section 1012.795(1)(j), Florida Statutes (2016), and Florida Administrative Code Rule 6A-10.081(2)(a)1.1/, as alleged in the Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Commissioner is the state officer responsible for investigating and prosecuting allegations of misconduct against individuals holding educator certificates. Ms. Jones held Florida Educator's Certificate No. 866702, covering the area of Music, which was valid through June 30, 2018. At all times pertinent to the Administrative Complaint, Ms. Jones was employed as a music teacher at Village Green in the St. Lucie County School District. On May 8, 2017, Ms. Cynthia Garcia reported to work at Village Green around 7:30 a.m. The desk where visitors and staff members sign in is adjacent to the front office where Ms. Garcia works. Sometime between 7:30 a.m. and 7:50 a.m., Ms. Jones signed in at the desk and crossed the front office. Ms. Jones said hello to Ms. Garcia and apologized for the way that she looked. Ms. Jones had on no makeup and her hair or wig was unkempt. Ms. Garcia asked Ms. Jones if she was okay because she was acting a little giddy and didn’t seem to be herself. Ms. McQueen was in the hallway at Village Green going to her classroom when Ms. Jones called out to her. Ms. McQueen went over to her to see what she wanted. Ms. Jones was laughing and told Ms. McQueen that the students would not recognize her because she wasn’t wearing any makeup. Ms. McQueen smelled alcohol and noticed that Ms. Jones’ was inappropriately dressed and that her hair was untidy. Ms. McQueen testified that Ms. Jones was slurring her words, but she was able to understand what Ms. Jones was saying. Ms. McQueen testified that Ms. Jones did not have any coordination problems or trouble walking. Ms. McQueen told Ms. Jones to go to her office to straighten herself up. Ms. McQueen testified, “And my reason for doing that, because I wanted to get her away from the students, so that I could go to the office to get help, to tell administration.” Ms. McQueen testified that while she was talking with Ms. Jones, a few students began waiting outside of the music room where they were to rehearse for a musical production. Ms. McQueen saw Ms. Brown in the cafeteria. Ms. McQueen told Ms. Brown that she thought Ms. Jones was drunk, or had been drinking. Ms. Brown asked Ms. McQueen to take over her responsibility to stay with the children who were having breakfast so that Ms. Brown could go see Ms. Jones in the music room. Ms. Brown testified that when she spoke to Ms. Jones: [Y]ou could smell the alcohol, and her eyes was swollen and the whites was red. And the students kept trying to come through the back part of the –- it’s like the stage, because they was practicing. They practice in the morning for a play. And I wanted to try to keep the students from seeing her, so I like get in front of her. * * * Because I didn’t want them to see how she looked. Because her hair was kind of wild and her top was up, you can kind of see her stomach. I didn’t want the students to see Ms. Jones like that. Ms. Brown told Ms. Jones she needed to get herself together, and Ms. Jones responded that she would leave the school. Ms. Brown asked Ms. Jones if she wanted her to get someone to help, was told no, and she then told Ms. Jones that she would tell the school administration that they would need to get a substitute teacher for the day. This credible, eyewitness testimony of Ms. Jones’ colleagues that she smelled of alcohol, had swollen and bloodshot eyes, exhibited slurred speech, and was acting in an unusual, “giddy” manner is sufficient evidence to reasonably infer that Ms. Jones was under the influence of alcohol when she reported to the school for duty on the morning of May 8, 2017. Ms. McQueen and Ms. Brown left campus, with Principal Barrett-Baxter’s permission, to make sure that Ms. Jones had arrived at her home. When they arrived, they saw her rental car parked there. Later the same morning, Ms. Jones returned to Village Green. She went to the office area to talk to Principal Barrett- Baxter. It was not clearly shown that Ms. Jones intended to return to duty or be in contact with students when she returned. Principal Barrett-Baxter said that she could smell alcohol from across the desk, and confirmed the others’ earlier observations that Ms. Jones’ appearance was unacceptable. Ms. Garcia also credibly testified that the smell of alcohol was so strong that it lingered in the room after she left. Based on her observations and reports, Principal Barrett-Baxter directed Ms. Jones to have a reasonable suspicion drug test conducted. Officer Ken Rodriguez, who transported Ms. Jones for the testing, also testified that he smelled alcohol, that Ms. Jones was a “little foggy,” and that she appeared to be under the influence of alcohol. Two breathalyzer tests were conducted at Absolute Testing, indicating that Ms. Jones had blood alcohol level readings of .186 and .191. The events after Ms. Jones returned to Village Green were of little value in considering the charge in the Administrative Complaint because of the interplay of two circumstances: 1) Ms. Jones spent time at home alone after her initial presentation at Village Green and before the time the alcohol test was conducted; and 2) it was not clearly shown that Ms. Jones was reporting for duty to teach students when she returned to the school. There was no evidence of any prior discipline involving the Florida Educator Certificate of Ms. Jones.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Education Practices Commission enter a final order finding Respondent Renya Jones in violation of section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(2)(a)1.; renewing her teaching certificate and placing her on probation for a period of three years; requiring her to obtain treatment through the Recovery Network Program at a frequency and for a duration deemed appropriate by the Commission; and requiring her to pay administrative fees and costs. DONE AND ENTERED this 15th day of November, 2018, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 15th day of November, 2018.
The Issue The issue in this case is whether Respondent should grant Petitioner's request for licensure by endorsement as a physical therapist pursuant to Sections 486.031 or 486.081, Florida Statutes (1997), and Florida Administrative Code Rule 64B17- (All statutory references are to Florida Statutes (1997) unless otherwise stated. All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact It is uncontroverted that Petitioner is 48 years old and of good moral character within the meaning of Section 486.031(1) and (2). Petitioner has been a resident of Florida for 34 years. He is licensed in Florida as a chiropractor and is a graduate of a four-year degree program at Palmer College of Chiropractic ("Palmer College"). Petitioner is board certified as a chiropractor orthopedist and as a chiropractic neurologist. Both board certifications required additional training after graduation from Palmer College. In June 1995, Petitioner attended the University of Health Sciences Antigua School of Allied Health Professionals and received a Bachelor of Science in Physical Therapy from that institution in August 1996. Petitioner traveled to the University of Antigua eight times in two years for education sessions. Each session lasted approximately two weeks. In addition to the hours Petitioner spent at the University of Antigua, Petitioner spent approximately 1,200 hours during an eight-month period at a physical therapy facility associated with the hospital in Antigua. In addition, Petitioner spent approximately 650 hours interning at the Spinal Rehabilitation Institute in Titusville, Florida. The University of Antigua required Petitioner to complete the 1,200 hours at the physical therapy facility and the 650 hours as an intern as part of its educational program. After obtaining a degree in physical therapy from the University of Antigua, Petitioner applied to the State of Colorado to take an examination prepared under the auspices of Profession Examination Services ("PES"). Colorado evaluated Petitioner's education and allowed Petitioner to take the PES exam. Petitioner passed the PES exam and has been licensed as a physical therapist in Colorado since April 11, 1997. On February 9, 1999, Petitioner applied to the State of Florida for a license as a physical therapist. Petitioner received and relied upon application materials provided by Respondent. In particular, Petitioner utilized Respondent's "List of Currently Qualified Credentialing Agencies" to select the International Education Research Foundation (the "Foundation") to evaluate Petitioner's foreign education. The Foundation is the appropriate agency identified by the Board, within the meaning of Section 486.031(3)(b), to determine whether Petitioner has educational credentials equivalent to those required for the educational preparation of physical therapists in the United States. The Foundation gave Petitioner credit for 60 semester hours of physical therapy education including six clinical hours. The Foundation determined that Petitioner has the U.S. equivalent of a Bachelor of Science in Physical Therapy (non-traditional program awarded by nonaccredited colleges and universities). The Foundation prepared its evaluation: . . . in accordance with guidelines developed by several state licensing boards and was completed in close collaboration with a physical therapy consultant. Records from the institution attended showing coursework completed, hours of study and grades earned, were used as the basis for this report. Joint Exhibit 1 at 399. The Board denied Petitioner's application for the following reasons: The applicant does not meet the requirements of Sections 486.031(3)(b) or 486.081(1) . . . and Rules 64B17-3.001(3) and (4) or 64B17- 3.003 . . . in that the applicant does not possess credentials that are deemed equivalent to a bachelor's degree in physical therapy in the United States. At best the applicant's training is a six week lecture series that would constitute a continuing education course. It is not the length and content of a CAPTE approved bachelors or masters in science program in physical therapy that would be the bulk of the final year of training. Denial Order at 1. The actual basis for Respondent's denial has little to do with factual disputes concerning Petitioner's educational hours. As Respondent admits in its PRO: While there may be some factual disputes about Petitioner's educational hours, both in modules and clinical time, these are not really material facts for the [ALJ] to resolve. The real issue is the legal interpretation of . . . Sections 486.031 and 486.081. . . . Respondent's PRO at 5. The findings in paragraphs 12-15 of Respondent's PRO are not material to the real issue concerning the interpretation of Sections 486.031 and 486.081. Respondent does not approve the physical therapy program at the University of Antigua for the educational preparation of physical therapists within the meaning of Section 486.031(3)(a). The record does not show whether the United States Department of Education approves the program. Petitioner has received a diploma from a program in a foreign country within the meaning of Section 486.031(3)(b). The Foundation, as the appropriate agency identified by the Board, has determined that Petitioner possesses educational credentials required for the educational preparation of physical therapists in this country. Petitioner passed the Colorado PES exam in 1997. Petitioner passed a national examination approved by the Board to determine Petitioner's fitness to practice as a physical therapist within the meaning of Section 486.031(3)(a) and (b). Petitioner is entitled to licensure in Florida without examination, pursuant to Section 486.031(3)(c), as provided in Section 486.081. Petitioner passed the PES exam in 1997. The written examination taken by Petitioner for licensure in Colorado was an examination prepared under the auspices of the Professional Examination Services within the meaning of Rule 64B17-3.003. Respondent has long construed applicable Florida Statutes to require an applicant for licensure without examination to pass the requisite national examination and to meet those educational requirements approved by the Commission on Accreditation for Physical Therapy ("CAPTE") in accordance with the requirements of Section 486.031(3)(a). Respondent's legal interpretation of applicable statutes and rules is a legal interpretation rather than a matter within the ambit of agency expertise.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order granting Petitioner's request for a license in Florida as a physical therapist pursuant to Sections 486.031(3)(b), 486.031(3)(c), and 486.081. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 2000. COPIES FURNISHED: Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health Division of Medical Quality Assurance Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 William Large, General Counsel Department of Health Bin A02 2020 Capitol Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Ann Cocheu, Esquire Office of the Attorney General Administrative Law Section The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Wilson Jerry Foster, Esquire 1342 Timberlane Road, Suite 101A Tallahassee, Florida 32312-1775
The Issue Whether Respondent's teaching certificate should be suspended or revoked, or the Respondent otherwise disciplined, pursuant to Chapter 231, Florida Statutes, as set forth in the Administrative Complaint dated April 9, 1981. This case arises as a result of an administrative complaint filed by the Commissioner of Education on April 9, 1981 against the Respondent Isome Francis, a physical education instructor at St. Johns Elementary School, Quincy, Florida. The complaint consists of twenty-one substantive counts of alleged misconduct on the part of Respondent at various times from 1975 through the 1979-80 school year. These generally include several allegations that Respondent made improper advances toward female students; that he pulled the teeth of various students; that he left the playground area unsupervised on a number of occasions, during several of which students injured themselves; that he failed to file accident reports concerning student injuries; and that he administered "unusual" corporal punishment and other methods of discipline against students at various times. The complaint recites that Respondent is therefore in violation of Section 231.28(1), Florida Statutes, in that he is guilty of gross immorality, moral turpitude, conduct which seriously reduces his effectiveness as an employee of the School Board, and incompetency to teach and perform duties as such an employee. It also alleges that his actions were contrary to Section 231.09, Florida Statutes, in that he failed to set a proper example for students, and Section 231.27, Florida Statutes (apparently referring to Section 232.27, F.S.) in that he failed to follow provisions of law in administering corporal punishment. In his answer to the complaint, Respondent denied all of the substantive allegations, except those dealing with extraction of loose teeth. Respondent admitted that he assisted students in that regard at various times, but denied any wrongful actions in so doing. He further defends on the ground that the charges should be barred by the agency's failure to assert them within a reasonable time from their occurrence. Respondent requested an administrative hearing on the charges. The final hearing was originally scheduled for September 10, 1981, but was continued until September 29, 1981, at the request of Petitioner. It was continued again until October 6, 1981, upon a determination that the hearing properly should be held in Quincy rather than Tallahassee due to the numerous witnesses expected to testify at the hearing. Post-hearing Memorandums filed by the parties have been fully considered and those portions thereof that have not been adopted herein are considered to be either unnecessary, irrelevant, or unsupported in law or fact.
Findings Of Fact The various paragraphs of the Administrative Complaint are set forth verbatim below and Findings of Fact are keyed thereto for the purposes of clarity. Respondent Isome Francis has been a teacher since 1963 and employed by the Gadsden County School Board since 1968. He is employed under a continuing contract. At all times relevant to this proceeding, he served as a physical education teacher at St. Johns Elementary School, Quincy, Florida. He holds Department of Education Teacher Certificate No. 138822, valid through June 30, 1982. (Testimony of Respondent, pleadings). Paragraph 2 of the Administrative Complaint states as follows: Respondent on or about the 1975-76 school year on several occasions directed a female, then a student at St. Johns Elementary School, to sit next to him while he observed the rest of the class participate in activity on the physical education field. Upon her obeying such direction, he would make observations about her body and fondle her breast. He was later observed by the female student standing over another female student while zipping up his pants and instructed her that she was not to tell what she had witnessed. Although the above allegation was apparently based upon expected testimony of Brenda Cooper, the alleged victim of the fondling incident who was also the supposed witness to the actions of Respondent with another student, she disavowed a pretrial statement to that effect and denied that the alleged incidents had occurred. Respondent testified in denial of the allegations. (Testimony of Cooper, Respondent, Petitioner's Exhibit 3) There is insufficient evidence to warrant a finding that Respondent committed the alleged acts or made the statements attributed to him. Paragraph 3 of the Administrative Complaint states: Respondent in the 1977-78 school year offered a 13 year old female student of St. Johns a ride home and then diverted her to his home where he hugged and kissed her. After such student later graduated, he asked her to date him. Willie Ruth Wilson, who is sixteen years old, testified in substance as follows: Some three years ago when she was thirteen years old, she left school and while standing on a street corner in Quincy, Respondent stopped, at which time she asked him for a ride home. After getting in the car, Respondent asked her to go to his house to meet his wife. She agreed, and when they arrived at his house, he unlocked the door and asked her to have a seat. No one else was in the house at the time. Upon sitting down, Respondent came over to her, hugged her and kissed her once. The phone then rang and Wilson got up and left the house. At some point during or after the alleged incident, Respondent asked her if she would go out with him. Wilson did not report the incident to anyone because Respondent was not a teacher in her school. At the hearing, Respondent denied that the incident took place and stated that when Wilson had attended St. Johns Elementary School, she had not wanted to participate in his physical education classes and did not receive good grades in that class. (Testimony of Wilson, Respondent) The evidence is deemed insufficient upon which to base a finding that Respondent committed the act alleged or made the statement attributed to him. Paragraph 4 of the Administrative Complaint states: In the 1979-80 school year, Respondent zipped up the front of the jeans worn by a female Special Education student at St. Johns Elementary who possessed the capability of self help. Furthermore, the zipping was used as a guise for further intimacy. Two years ago, when Twanda Ray was a ten-year-old special education student at St. Johns Elementary School, she asked Respondent, during an outdoor physical education class, to zip up her blue jeans for her. The zipper was located in the front of the jeans. Twanda was capable of zipping her own jeans, but asked Respondent to assist her. Another student who was present at the time testified that Respondent had called Twanda over to him and zipped up her jeans. At the hearing, Respondent testified that he had no recollection of such an incident, although on numerous occasions children came to him for assistance with zippers on their clothing. Twanda's father, Jesse Ray, is of the opinion that Respondent is a good physical education teacher and has never had any complaints against him. (Testimony of A. Ray, Murphy, J. Ray) Although the evidence is considered sufficient to find that Respondent zipped up the front of Twanda Ray's jeans two years ago, insufficient evidence has been presented to warrant a finding that he did so "as a guise for further intimacy", rather than merely assisting the student. Paragraph 5 of the Administrative Complaint makes reference to alleged complaints against Respondent during the 1977-78 school year concerning extraction of students' teeth, for which he received a memorandum from the school principal on April 10, 1978. The memorandum stated that "It is best for all concerned for you to cease pulling the teeth of children at school". (Petitioner's Composite Exhibit 2, Testimony of Smoak) Paragraph 6 of the Administrative Complaint states: In the 1978-79 school year during school hours, Respondent pulled the two front teeth of a St. Johns Elementary first grader without permission or knowledge of the of the student's parents. The student reports that the teeth were not loose. No evidence was presented concerning this allegation. Paragraph 7 of the Administrative Complaint states: In the 1978-79 school year during school hours, Respondent pulled a tooth of a St. Johns Elementary student without the permission or knowledge of the student's parents. Carla Edwards is a nine-year-old fourth grade student at St. Johns Elementary School. When she was in second grade, and while on the playground in Respondent's physical education class, Respondent extracted her loose tooth after he saw the tooth "shaking" while she was talking to him. Carla's father is of the opinion that the tooth was pulled prematurely because the adult replacement tooth grew in crooked, requiring orthodontic work. He has a pending lawsuit against the County School Board based on the incident. Carla has had toothaches in the area where the tooth was removed. (Testimony of Carla Edwards, Carlton W. Edwards) Paragraph 8 of the Administrative Complaint states: In the 1979-80 school year during school hours, Respondent pulled a tooth of a St. Johns Elementary student without the permission or knowledge of the student's parents. A letter of reprimand was issued wherein Respondent was ordered by his superior to stop the practice of pulling teeth. On some unknown date approximately two years ago, Respondent extracted a loose tooth of Natasha Strong, a first grade student at St. Johns Elementary School. Her mother did not object to Respondent's action because she had told all of Natasha's teachers, including Respondent, to do "whatever needed to be done" with respect to her child. Nevertheless, Iris B. Smoak, Principal of the school, wrote a letter to Respondent on February 25, 1980, that "Since it is unlawful for you to pull teeth, I am advising you to discontinue this practice immediately". Respondent's testimony at the hearing included a denial that he had pulled Natasha's tooth. (Testimony of N. Strong, M. Strong, Respondent, Davis, Petitioner's Composite Exhibit 2) It is found that Respondent pulled the tooth of Natasha Strong during the school year in question, but did so with the prior implied consent of the child's mother. Paragraph 9 of the Administrative Complaint states: In the 1979-80 school year during school hours, Respondent pulled the tooth of two first graders at St. Johns Elementary without the permission or knowledge of the student's parents. Respondent told one of the students that if she told others that she pulled her own tooth he would buy her a coke. During the 1979-80 school year, Respondent pulled the loose tooth of Tracy Frierson, a first grade student at St. Johns Elementary School. The tooth was hurting Tracy, and she asked Respondent to extract it. She told her mother about the incident. The mother had not authorized Respondent to take such actions with regard to her daughter, but made no complaint. Tracy first told her teacher that Respondent had pulled the tooth, but then said that she had done it herself. Members of the class corrected her in this regard, and she later told the teacher that Respondent had told her he would buy her a coke if she said she had pulled her own tooth. (Testimony of T. Frierson, A. Frierson, Morell) Respondent pulled the loose tooth of Doris Marshall, a third grade student at St. Johns Elementary School, when she was in the first grade. She reported the incident to her teacher. (Testimony of D. Marshall, Morell) Paragraph 10 of the Administrative Complaint states: In the 1979-80 school year during school hours, Respondent pulled the tooth of a St. Johns Elementary School student without the permission or knowledge of the student's parents. Respondent told student that he would spank the student if the student did not allow him to pull the tooth. Two years ago when Demetrius Reeves was a student in the second grade at St. Johns Elementary School, Respondent came up to him on the playground and asked him to open his mouth because he wanted to put his thumb in the boy's mouth. Demetrius told him he did not want him to pull his tooth, but Respondent removed the tooth by use of his thumb. The tooth was not loose and it bled a little after its removal. Demetrius told his mother about the incident and that Respondent had told him if he didn't let him pull the tooth, Respondent would talk to his grandfather. The mother observed that the tooth was missing at the time she saw Demetrius on the day of the incident. She had not given Respondent permission to extract teeth from her son. Respondent denied at the hearing that he had pulled the tooth of Demetrius Reeves, however, his testimony is not considered credible in this respect. (Testimony of D. Reeves, Donna Reeves, Respondent) Paragraph 11 of the Administrative Complaint states: In the 1979-80 school year during school hours, Respondent pulled the tooth of a St. Johns Elementary student without the permission or knowledge of the student's parents. Respondent pulled the tooth of Diane Jones, a second grade student at St. Johns Elementary School two years ago at her request. The incident occurred while the students were in line having returned to the school from physical education class. Diane's teacher observed Respondent put his finger in her mouth and "pop" a tooth out. It was bleeding and the teacher informed Diane to tell her mother about the matter. (Testimony of Jones, Maker) Paragraph 12 of the Administrative Complaint states: In the 1979-80 school year during school hours, Respondent caused a student of St. Johns Elementary to pull two teeth of another St. Johns Elementary student during school hours, without the permission or knowledge of the student's parents. No evidence was presented at the hearing concerning this allegation. Paragraph 13 of the Administrative Complaint states: In the 1979-80 school year, Respondent took crutches from a fourth grade student at St. Johns Elementary School and told the student to "walk like a man". The student was under doctor's orders to keep all weight off his leg because stitches had become infected and to use the crutches at all times. When the student told Respondent this, Respondent returned the crutches to the student. The evidence regarding this allegation is conflicting. It is found, however, that during the 1979-80 school year, Derrick Jackson, a fourth grade student at St. Johns Elementary School, arrived at the school one morning on the school bus. Derrick was using crutches at this time due to the fact that he had previously cut his knee and had stitches in the wound. Two students assisted him in leaving the bus. They first gave his crutches to Respondent who was standing several feet away from the bus, and then helped Derrick get off the bus. Several teachers nearby heard Respondent coax Derrick to walk on his leg so it would not become stiff. At this point in time, Respondent still had one of Derrick's crutches. Derrick told him about his injury, and Respondent returned the other crutch to the boy. (Testimony of Morell, Batts, D. Jackson, H. Jackson, Barnes, Respondent) Paragraph 14 of the Administrative Complaint states: From the school year 1974-75 through school year 1978-79, St. Johns Elementary students reported that Respondent frequently left his physical education classes unsupervised and unattended. Several injuries occurred and disagreements arose between Respondent and witnesses as to the filing of accident reports. On several occasions from 1977 to 1980, various teachers found Respondent absent from the playground when they took their classes to physical education class. They would either have him paged on the public address system, or wait for his arrival, which sometimes took up to 15 minutes. One teacher observed him reading under a tree some 20 to 30 feet away from the playground. Sometimes Respondent left the playground for approximately half the class period and the students dismissed themselves at the conclusion of the class. Although Respondent conceded at the hearing that he had left the playground on occasion, it was often due to the fact that the principal had called him to the office to administer first aid to injured students. On other occasions, Respondent had other obligations, such as telephone calls, the requirement to use the bathroom, and other legitimate reasons. Due to the poor condition of the playground, which contains holes, rocks, and is in general disrepair, Respondent routinely splits classes on the usable areas of the playground in order that they will not be injured. Some teachers leave their class at the playground early during the noon hour prior to the 1:00 P.M. physical education class. At such times, Respondent will have perhaps three or four groups of students there at the same time. He does sit under a tree and read a newspaper during the lunch hour on occasions. (Testimony of B. Thomas, A. Thomas, Batts, Adams, S. Barnes, Russ, Kelly, Respondent) Paragraph 15 of the Administrative Complaint states: Respondent, during the 1976-77 school year, failed to file an accident report on a student at St. Johns Elementary who broke an arm during Respondent's class and was taken to the hospital. It is reported by students that the class was unattended at the time of the accident. According to the students, Respondent frequently left the class toward the end of each period and when the bell rang, the students would dismiss themselves. Pamela Washington, now a ninth-grade student, broke her arm on the playground while a fourth-grade student at St. Johns Elementary School. She was engaged in sports activity at the time. Respondent was present at the time of the accident, and insured that the child was taken care of, and that the principal was informed. Respondent testified that he filed an accident report on the incident. (Testimony of Washington, Respondent) Paragraph 16 of the Administrative Complaint states: Respondent, during the 1979-80 school year, failed to file an accident report on a St. Johns Elementary student, who, after being instructed by Respondent to run barefoot, ripped her toenail on a rock. The student's classroom teacher had to file the accident report after attempts on her part to get Respondent to file the report had failed. Respondent later told the classroom teacher that he had confirmed with the student's parents that the accident had happened while the student was at home. The student reported the accident happened at school. The student's mother reported that Respondent had not contacted her regarding the accident. In April, 1980, Deani Weston was a six-year-old first grade student at St. Johns Elementary School. At some time during that month, she went to school wearing shoes with heels which were too high to participate in sports activities during a physical education class. Respondent advised her to remove her shoes while she was running with the other children. She did so and, while running, injured her toe on a rock. Respondent administered first aid to the child. The first grade teacher observed Respondent treat the injury on the playground, and asked him to file an accident report, but Respondent did not do so. He later told the teacher that a report should not be filed because he had talked to the child's parents and found out that the toe had been originally injured at home, and then reinjured on the playground. However, the teacher had observed that Deani's toe was not injured prior to going out to the physical education class. Deani's mother had no knowledge that the child had injured her toe at home, but saw her with a bandage on her toe covering an injury which she said had been received at school. (Testimony of Weston, Jones, Davis, Respondent) Paragraph 17 of the Administrative Complaint states: Respondent's principal reported to the Superintendent in November, 1975 that reports of unusual corporal punishment and other methods of discipline had been alleged against Respondent. During the 1974-75 school year, Respondent hit a St. Johns Elementary student in the head with a broomhandle. The student is unaware of what caused Respondent to act in this manner. Respondent was reprimanded and a report was placed in his file. Christopher Scatlock, a sixteen-year-old eleventh grade student at the present time, formerly attended St. Johns Elementary School. He testified that on an undisclosed date in the spring he was attending the sixth grade and started running from the physical education classroom when the bell rang. He was told to stop by Respondent. Christopher complied, at which time Respondent hit him on the head with a broomstick, causing a knot to appear on his head. When he returned home that day, the boy told his foster parent about the incident and she observed the knot on his head whereupon she notified the principal of the school. Respondent denied this incident at the hearing. It is found that there is insufficient evidence to establish that he committed the alleged act. (Testimony of Scatlock, Roberts, Respondent) Paragraph 18 of the Administrative Complaint states: During the 1974-75 school year, other complaints came from parents regarding Respondent's method of discipline including whipping a child with a stick and making the child run excessive punishment laps around the track. No evidence was presented at the hearing concerning these allegations. Paragraph 19 of the Administrative Complaint states: Respondent in the school year 1976-77, instructed a St. Johns Elementary student to keep running track even though she complained of being tired and ill. The student subsequently passed out. No evidence was presented concerning this allegation. Paragraph 20 of the Administrative Complaint states: Respondent in the school year 1978-79, warned two St. Johns Elementary students not to talk. When the students persisted, Respondent took their heads and knocked them together with sufficient force to cause one of the students to cry. Charles Green, an eleven-year-old fifth grader at St. Johns Elementary School, testified that about a year ago, he and another student, Rhonda Robinson, were talking in class at which time Respondent knocked their heads together. Charles further testified that Rhonda cried, but that he was not hurt by Respondent's actions. Respondent testified at the hearing and denied that the incident occurred. (Testimony of Green, Respondent) There is insufficient evidence upon which to base a finding that Respondent committed the act alleged. Paragraph 21 of the Administrative Complaint states: Respondent, during the 1979-80 school year, paddled a St. Johns Elementary student who is known by the staff to have asthma, and who was under doctor's orders to not become overly excited. The paddling was for untimely completion of an assignment. Insufficient competent evidence was presented at the hearing to support this allegation. (Testimony of McMillan, Respondent's Exhibit I) Paragraph 22 of the Administrative Complaint states: Respondent, during the 1979-80 school year, ignored a classroom teacher's request that a St. Johns Elementary student be excused from track because of a recent illness. The Respondent insisted upon the student's participation in the physical education activities. Insufficient evidence was presented at the hearing to support this allegation. (Testimony of Roberts, McMillan) Although there is no express policy on extraction of students' teeth by instructors in the Gadsden County School System, teachers fall under the general prohibition set forth in Chapter 231, Florida Statutes, which requires them to treat students humanely. Rules of the Gadsden County School Board require that corporal punishment be administered to a student only upon authorization by the school principal, and in the presence of another adult member of the professional, instructional, or administrative staff. Punishment must be administered on the posterior with every reasonable effort made to avoid striking the person elsewhere. In the opinion of the Gadsden County School Board Superintendent, striking a child with a broomstick on the head would be in violation of corporal punishment policies and would interfere with the effectiveness of the individual as an employee of the school board, as would kissing a student under questionable circumstances. In the past, the Gadsden County School Superintendent has not recommended any disciplinary action against Respondent to the School Board due to insufficient evidence obtained regarding several complaints. (Testimony of Bryant, Bishop, Petitioner's Exhibit 1) Respondent has received satisfactory performance evaluations since 1966, and excellent evaluations during the period 1980-81. A parent testified at the hearing as to his observation of Respondent's performance as a supervisor of athletics, and is of the opinion that he does good work. A fellow teacher testified that the children like Respondent and enjoy his classes. The present principal of the St. Johns Elementary School, who has served in that capacity since August, 1980, has received no complaints regarding Respondent, and considers him to be a very good teacher. (Testimony of J. Ray, Green, Kelli, Respondent's Exhibit 2) Respondent conceded at the hearing that he had extracted students' teeth on a number of occasions, but never did so without the child's permission, or if it seemed dangerous to do so. He recited that the children often came to him for help since he had been involved in Boy Scouts and Little League activities. He stated that in some cases the teeth would be hanging by a thread and, in one instance, a child had rotten teeth and had cut his tongue on one of them, so he removed it to prevent further injury. Respondent taught health classes and was generally called upon by the principal to provide first aid to injured students. Respondent denied pulling any teeth after receiving the letter from Principal Smoak directing him to cease that practice. (Testimony of Respondent)
Recommendation That no disciplinary action be taken against the teaching certificate of Respondent, Isome Francis. DONE and ENTERED this 29th day of December, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 1981 COPIES FURNISHED James G. Mahorner, Esquire 107 South Bronough Street Tallahassee, Florida 32301 Philip J. Padovano, Esquire Post Office Box 873 Tallahassee, Florida 32302 Pamela Cooper, Esquire 213 South Adams Street Tallahassee, Florida 32301 Donald L. Griesheimer, Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301
