The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact During all times relevant hereto, Petitioner served as head of the Florida Department of Education, the state agency charged with the responsibility of investigating and prosecuting complaints of violations of section 1012.795, Florida Statutes (2015),1/ against teachers holding Florida educator certificates. Respondent holds Florida Educator Certificate 725789, covering the areas of middle school integrated curriculum and physical education, which is valid through June 30, 2020. During all times relevant hereto, Respondent was employed as a physical education teacher at Lehigh Acres Middle School in the Lee County School District. Respondent has been a Florida educator for 24 years, all with the Lee County School District. The Administrative Complaint, as to the material allegations, contends that “[o]n or about February 18, 2016, Respondent engaged in a physical altercation with 13-year-old, female student, A.O., when A.O. refused to give Respondent A.O.’s cellphone [and that] Respondent held A.O. to the ground during the altercation.” The Video The altercation in question took place in the school gymnasium (gym). Activities in the gym are monitored by at least a single video surveillance camera. The images captured by the video camera are somewhat grainy, but it is possible to glean from the images the general nature of the interaction between Respondent and the student in question; there is, however, no audio associated with the surveillance video. Respondent is seen on the surveillance video walking around the gym while students (approximately 40) are positioned on the floor throughout the gym. The video shows student A.O. sitting on the gym floor with her back against the bleachers. It appears from the surveillance video that the nearest student to A.O. is approximately eight to ten feet away. The video also shows that Respondent appears to weigh at least twice as much as A.O. and stand at least four inches taller. It is undisputed that Respondent, while moving about the gym, observed A.O. using her cellphone. The video shows Respondent moving towards A.O. When she is approximately three feet from A.O., Respondent communicates in some way to A.O. that she needs to give Respondent her cellphone. The student, while continuing to sit on the floor, is then seen either placing or attempting to place the cellphone in the right- rear pocket of her pants. Respondent, without pausing, then positions herself over the student and attempts to remove the cellphone from either the student’s pocket or hand. The student then rolls onto her right side and positions herself so that her right rear pocket is pressed against the gym floor. At this time, the student is in a near fetal position. Respondent, while continuing to stand over the student, then tussles with the student for about 10 seconds while attempting to take the cellphone. The student then extricates herself from Respondent’s grasp, and while rising from the floor is then pushed in the back by Respondent, which then creates about an arms-length distance between Respondent and the student. The student, while standing, then turns towards Respondent and appears to swing at Respondent with her left hand. Respondent knocks away the student’s extended left arm and then pushes the student onto the lower bench portion of the bleachers. The student lands on her butt and then immediately rises and moves towards Respondent. Respondent and the student’s arms then become entangled. While their arms are entangled, Respondent pushes the student back several steps, forces the student into a seated position on the bleacher bench, and then pushes the student to the gym floor. Respondent then positions herself on top of the student and subdues her by pinning her to the gym floor with her right leg over the student’s left leg and her left leg across the student’s upper back and shoulder area. Respondent released the student after approximately 40 seconds. Before releasing A.O., the video shows that many of the students in class rushed to the area of the gym where the altercation occurred, formed a semi-circle around Respondent and A.O., and recorded the incident on their cellphones. A cellphone video capturing portions of the incident was admitted into evidence, and on this video, a student is heard suggesting to another student that the recording of the altercation should be posted to YouTube. Student A.O. A.O. was in the eighth grade when the incident with Respondent occurred. A.O. did not testify at the disputed fact hearing, but she did submit written statements to school officials following the altercation with Respondent.2/ On February 22, 2016, A.O. provided the following written statement: I was sitting down on my phone like some other kids were doing to, not knowing I wasn’t allowed to use it because it’s my first day in gym. So Ms. Parsons said give me the phone so I said no, I’m sorry Miss, and when I went to reach for my pocket to put it in and she reached down and pushed her elbow and arm up against my neck and chest so I was on the ground flat by that time and we ended up both getting up and trying to get the phone and she ended up pushing me and then somehow she ended up holding me down by holding my arms and sitting on top of me. After she had pushed me on the bleachers she had lightly hit my leg so I hit her in her head. On August 17, 2016, A.O. provided an additional written statement, which reads as follows: I would like to add, that when she was above me after she put her forearm on me I did not feel safe so I stood up. Also when she had pushed me on the bleachers and kept wrestling with me I had been kicking her so she could leave me alone. After I was escorted to ISS, then Mr. Restino’s office, I was brought to the clinic after he had seen the video and Ms. Garcia took pictures of all my red marks and some scratches, they weren’t deep though. Respondent’s Version of Events On February 18, 2016, the date of the altercation in question, Respondent prepared the following written statement: This afternoon as I was walking around the classroom monitoring the students, I was checking to make sure that the students were working on their projects. I saw that the young lady in question was on her phone. I asked her to give me her phone and I reached my hand out for the phone. She snatched it away and I continued to ask her for the phone. I took the phone and she said I wasn’t getting her phone and struggled with me. I got the phone and she stood up and punched me in my right ear. I pushed her back and she came at me again so I pushed her back again. She kicked me in the stomach. I grabbed one of her arms and her leg as she went to kick me again and I brought her down to the floor. I put my knee on her back as I held her arm and leg. I told her that I could not believe that she would do this over a phone [and] that I probably would have given it back to her at the end of the class period since it was near the end of the day. She said that she didn’t know that because she was new. I told her even if she was new that you don’t hit a grown-up or a teacher like that. I told her that I was going to let her up. She said okay. By that time coach McDowell came over and said th[at] coach Steidl had called for assistance. Deputy Matthews came in and I explained what happened. He talked with her for a few seconds. I asked him if I should give him the phone or give it back to her. He said to give it to her so I did and they left. Later, I noticed that I had some scratches and blood on my arm and I went to the clinic to get my arm treated. On June 30, 2016, Respondent sent an email to the human resources department for the School Board of Lee County. In this missive Respondent notes, in support of her belief that she did nothing wrong in this situation, that during the fracas with A.O. “students were cheering” for Respondent and that throughout the incident she was merely “responding to [A.O.’s] inappropriate and disrespectful behavior.” Respondent testified during the final hearing and her testimony was in material part consistent with her written statements. Cellphone Policy Ms. Neketa Watson was the principal of Lehigh Acres Middle School during the 2015-2016 school year. According to Ms. Watson, the Student Code of Conduct in effect at the time of the incident in question provides as follows: Students may possess cell phones and other personal electronic devices while on school grounds during regular school hours, however they must be turned off at all times unless utilized for an approved activity. Cell phone usage is allowed during non-instructional time or for an approved activity. Possession of all personal electronic devices, including cell phones, is done at the student’s own risk and the school assumes no responsibility, legal or otherwise, with regard to these items. During the 2015-2016 school year, Ms. Watson sent weekly emails to all school personnel reminding them about school policy and procedures. The weekly reminders would often include reference to the school’s cellphone policy, which provides that “if we see it, we hear it, we take the phone.” The cellphone policy reminders sent out by Ms. Watson also explained to school personnel that they should not use physical force when attempting to secure a cellphone from a student and that if a student refused to turn over a phone when requested, then personnel should “call for an administrative administrator who removes the student” and then processes the student for suspension. Ms. Watson explained that she did not include the reminder about the cellphone policy in each of her weekly emails to personnel, but she specifically recalled having done so the week of the incident in question. Ms. Watson testified that the reminder was sent on Sunday night (February 14, 2016). On February 18, 2016, Adrienne McDowell was employed by the School Board of Lee County as an educational paraprofessional for physical education and was assigned to Lehigh Acres Middle School. In explaining her understanding of the cellphone policy, Ms. McDowell testified as follows: A: What we were told via email a couple weeks prior to this event that Ms. Watson sent out, when a student has a cellphone out, if you see it or hear it, you need to ask for it. If they don’t place that phone in your hands willingly, then you call for a specialist to come and deal with that student. It is not our job to take a cellphone away from a student, we just call for a specialist. Q: By specialist, what do you mean? A: Security, administration, someone in the specialist team, guidance counselor, you know. There are different, -- like I said, a specialist is a security guard, administration or guidance counselor; anybody more equipped to handle the situation than we are. Respondent testified that she was unaware of Ms. Watson’s emails to personnel regarding the proper protocol for confiscating cellphones from non-compliant students. On June 17, 2016, Respondent, as part of the investigation conducted herein, sent an email to school board officials and stated therein that it was her belief that “[i]f I had not taken her phone, that the students would have disrespected and challenged me from that day forward.” In the same missive, Respondent, in an attempt to discredit one of the students who witnessed her altercation with A.O., noted that she disciplined the student witness “for his misbehavior by writing him a referral and having him escorted out of [her] classroom.” Given Respondent’s admitted general awareness of the school’s policy of referring misbehaving students to an appropriate administrator for disciplinary action, and her concerns about being challenged and disrespected, Respondent’s testimony that she was unaware of Ms. Watson’s directive regarding students who refuse to hand over their cell phones is not credible. Student Detention, Search and Seizure Lee County School Board Policy 4.03 sets forth procedures related to searching a student’s person and property. Numbered paragraph (3) of the policy provides in part that “[a]n administrative staff member or an instructional staff member designated by an administrator may search a student’s person [and] personal belongings . . . if there is reasonable suspicion to believe the search will result in evidence the student has violated Florida Statute or School Board Rule or if the student consents to such search.” Respondent was neither an administrative staff member nor an instructional staff member with authorization to conduct student searches, and therefore her actions of physically searching A.O. and taking her cellphone violated Lee County School Board Policy 4.03. Aggressor or Victim Respondent challenges the instant proceeding in part on the theory that the facts demonstrate that she was the victim and merely acted in self-defense against the actions of a combative student. Contrary to Respondent’s contention, the credible evidence, as captured by the surveillance video, establishes that Respondent committed the initial act of aggression when she, without hesitation, lorded over A.O. and physically grabbed the student in an unauthorized effort to confiscate A.O.’s cellphone. While it is true that the student, after initially being pinned to the gym floor by Respondent, eventually freed herself from Respondent’s grip and in her agitated state committed reflexive acts of aggression towards Respondent, the credible evidence establishes that these events would not have occurred but for Respondent’s initial use of unauthorized and unreasonable force. Respondent, without question, had the right to protect herself against the aggressive countermeasures initiated by the student. However, it is also the case that under the facts of this case the student equally had the right to protect herself against Respondent’s initial acts of aggression.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Respondent guilty of the violations alleged in counts one through three of the Administrative Complaint. It is further RECOMMENDED that the final order suspend Respondent's Florida Educator Certificate 725789 for a period of two years, to be followed by a one-year period of probation. The terms and conditions of Respondent's suspension and probation shall be established by the Education Practices Commission. DONE AND ENTERED this this 16th day of January, 2018, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of January, 2018.
Findings Of Fact The School Board of Dade County, Florida is a duly constituted school board established by Article IX of the Constitution of the State of Florida, and is charged with the duty to operate, control and supervise all free public schools within the Dade County school district pursuant to Article IX and Section 230.03 Florida Statutes. (Prehearing stipulation filed 6/12/86) At all times material, the Respondent, Bobby Anderson, was employed by the School Board of Dade County as a non-instructional employee, a school resource specialist. (Prehearing stipulation filed 6/12/86, and corrected at transcript, "tr.", page 7) Mr. Anderson was continually employed by the school board from 1976 when he was hired as a school monitor at North Miami Junior High. At the time of his suspension in 1986 he was working as a school resource specialist at Carol City High School. (tr-105,106) School resource specialists are non-law enforcement employees of the School Hoard's special investigative unit. They are assigned to a school on a full-time basis and supervise school monitors, patrol the halls, report violations of rules and law, and generally maintain a safe learning environment for students and a safe working environment for the staff. (tr-53, 107) Sometime in November 1985, the Carol City High School Principal and the School Board special investigative unit commenced an investigation of theft of school property and drug usage at the school. (tr-16, 57,75) Daniel McPhaul, the school's audio-visual technician, admitted to the use of cocaine and marijuana at school and the theft of approximately $12,000 to $13,000 of computers, televisions and video equipment from Carol City High School. (tr- 16,18) During the investigation Daniel McPhaul mentioned the names of several teachers and non- instructional staff at the school with whom he claimed to have used drugs. Bobby Anderson was one of the individuals he mentioned. (tr-19) Of the approximately nine individuals investigated, all were either recommended for disciplinary action or voluntarily resigned. (tr-77) Daniel McPhaul claims that he used cocaine on two occasions at Carol City High School with Bobby Anderson: the first occasion was in early 1985, and the second was approximately two months later. On both occasions Mr. Anderson allegedly brought the cocaine unsolicited to the audio-visual room near the library where Daniel McPhaul was working. On both occasions the alleged activity took place behind the locked door of that room, with no other persons present. (tr-20-28,47) Bobby Anderson and Daniel McPhaul were friends only in the sense that they saw each other frequently at school and talked about sports. They never socialized together outside the work environment. (tr-36,37,119,120) Daniel McPhaul admits that he is a frequent cocaine and marijuana user. He was in a drug rehabilitation program prior to employment at Carol City High School and has been back in a program since the investigation exposed his problems. He has been charged with grand theft but no criminal charges are pending as to the drugs. (tr-25, 29,31,33,50) In the approximate ten years of Bobby Anderson's employment with the Dade County School Board, Daniel McPhaul's allegation is the first complaint of any kind the School Board has received regarding this employee. (tr-65) Mr. Anderson unequivocally denies the allegations. He has never been arrested and has not been contacted by the State's attorney's office with regard to any criminal charges. (tr-118,120-121) The School Board, whose entire case rested on Daniel McPhaul's testimony at hearing, never elucidated why Bobby Anderson might risk his livelihood and reputation by sharing cocaine on school premises. No monetary motive was suggested, and the two men were not particularly buddies. Mr. McPhaul thinks, but is not sure, he mentioned to Bobby Anderson that he was a cocaine user. (tr-43) On the other hand, Daniel McPhaul admitted to his motive for getting Bobby Anderson. He erroneously believed that Bobby Anderson reported him to the Assistant Principal for smoking marijuana with a student and that this was the cause of the investigation and Mr. McPhaul's ensuing problems. (tr-46-48) This admission and the failure to explain Mr. Anderson's alleged action fatally eroded his credibility.
The Issue The issue for determination in this case is whether Respondent’s Florida Educator’s Certificate should be revoked or otherwise disciplined for misconduct as alleged in the Administrative Complaint.
Findings Of Fact Petitioner, FRANK T. BROGAN, as Florida Commissioner of Education, is statutorily responsible for maintaining teaching certification standards, and is authorized to enforce the provisions of Chapter 231, Florida Statutes. Respondent, JOEL M. BURKI, at all material times hereto, was a certified teacher in the State of Florida. STIPULATED FACTS Respondent holds Florida Educator’s Certificate 686763, covering the area of Art Education, which is valid through June 30, 1997. At all times pertinent hereto, Respondent was employed as an alternative education teacher at St. Pete Challenge School in the Pinellas County School District. During 1992, Respondent was reported to Professional Practices Services for allegedly using excessive force with students. On or about September 22, 1992, the Department of Education and Respondent entered into a Deferred Prosecution Agreement extending through the end of the first semester of the 1992-1993 school year. Respondent satisfactorily completed the agreement, and on or about April 9, 1993, the Commissioner issued a finding of no probable cause to take disciplinary action concerning his educator’s ceritficate. On or about January 30, 1996, the Pinellas County School District investigated Respondent for allegedly engaging in inappropriate conduct with students. The district subsequently reported Respondent to Professional Practices Services. On or about March 20, 1996, Respondent resigned his teaching position effective March 22, 1996. THE ALLEGED INCIDENT OF MISCONDUCT An incident occurred at the St. Pete Challenge School at some time shortly after January 26, 1996, in which five male students, aged nine-to-ten years old, fell down at the door outside Respondent’s art and music classroom. As a result of this incident one student suffered a cut lip, and one other complained of a headache. The students involved in this incident initially had been disrupting Respondent’s class prior to roll call. Respondent had instructed these students to wait outside the classroom door until Respondent attended to the remaining students in the classroom. Respondent then intended to address this disciplinary situation. The five misbehaving students were outside for a very short period of time when they observed another teacher approaching. Upon seeing the teacher approaching, the five students attempted to re-enter Respondent’s classroom; however, Respondent at this time was also opening the door from the other side. The force of Respondent opening the door caused a chain reaction resulting in the fall of the five students on the outside of the door. The injured students were taken to the front office for treatment. None of the injuries sustained was serious. Respondent did not intend to cause any physical contact with the five students, nor to cause any physical harm to the students. Respondent was not physically abusive to the five students involved in this incident. It is the policy of the Pinellas County School District that a teacher shall not use physical force upon a student absent extraordinary circumstances which require physical intervention for the protection of other students or school personnel. Respondent in this incident did not use physical force in a manner inconsistent with the policy of the Pinellas County School District. Respondent is considered mild-mannered, cordial, and friendly in both his professional and personal capacities. MOTION FOR LEAVE TO AMEND THE ADMINISTRATIVE COMPLAINT The Administrative Complaint filed in this matter alleged in paragraph 4 that "Respondent grabbed minor student J.M. and pushed him," and "Respondent also pushed minor student,” A.H. into other students causing A.H. and the other students to fall." No evidence was presented at final hearing to support these allegations; however, there was testimony from minor student, K.D., that Respondent pushed another of these students, B.W., which then caused the chain reaction fall. Petitioner, accordingly, made an ore tenus motion for leave to amend the administrative complaint to conform to the evidence. The student in question, B.W., testified at final hearing and did not state that Respondent pushed him. On cross- examination, B.W. testified that Respondent pushed some other unidentified student during the incident. There was no clear and consistent evidence that Respondent pushed any identified student including B.W. or A.H. during this incident. Another student involved in the incident, C.G., who also testified at final hearing, on cross-examination confirmed Respondent's account of this occurrence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order dismissing the Administrative Complaint filed in this matter. DONE AND ENTERED this 21st day of July, 1997, in Tallahassee, Leon County, Florida. RICHARD HIXSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1997. COPIES FURNISHED: Bruce P. Taylor, Esquire 501 First Avenue, Suite 600 St. Petersburg, Florida 33701 Mark Herdman, Esquire HERDMAN and SAKELLARIDES, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684 Karen B. Wilde, Executive Director Education Practices Commission 325 West Gaines Street, Room 224-E Tallahassee, Florida 32399
The Issue Whether or not on March 16, 1977, the Respondent, Verna A. Robinson, entered the home of Edward Johnson at 1100 Little River Drive, Miami, Florida, and fired several shots at Edward Johnson; who suffered gun shot wounds in the wrist, upper arm and hip. Whether or not this alleged conduct described is in violation of Section 231.36(6), and 231.09, Florida Statutes; together with Rules 6A-4.37, 6H-1 and 6H-5, Florida Administrative Code, in that it is conduct that is grossly immoral and a poor example for students. Further, whether or not such alleged conduct raises serious questions as to the Respondent's emotional preparedness to properly deal with the normal stresses which arise in classroom teaching.
Findings Of Fact This cause is brought upon the notice of charges by the Petitioner, dated September 22, 1977, as amended November 1, 1977. This action is placed against the Respondent, Verna A. Robinson, who is the holder of Florida Teaching Certificate no. 176010, Graduate, Rank II, valid through June 30, 1979; which covers the areas of Elementary Education and Junior College. The charging document prays for the dismissal of the Respondent as an employee of the Dade County School Board. The facts in this case show that the Respondent was acquainted with one Edward Johnson, to the extent that they had been intimate over a period of seven years. By .arch 16, 1977, the relationship between Mrs. Robinson and Mr. Johnson had diminished to some degree. On that date, in the late afternoon, a telephone conversation was held between the Respondent and Johnson. The discussion concerned getting together to attend a movie. Johnson declined to go with Robinson and this was the cause of some consideration on the part of the Respondent. The depth of that consternation was demonstrated when the Respondent went to the home of Johnson, later that afternoon and carried a pistol with her. When she arrived at the Johnson hone she was admitted by Mr. Johnson's son and there ensued a short conversation. It should be indicated that the Johnson and Robinson families were social friends, and Mrs. Johnson worked as a teacher in the same school where the Respondent was employed. After Mrs. Robinson entered the home the son indicated that his father was changing clothes, to which Mrs. Robinson replied "ice doesn't need any clothes". She then approached Johnson, who was in the bedroom area of his home and stated to him "I'll teach you to fuck with me". She then fired several shots, five or six in number, at Johnson, striking him with three-of the bullets in the area of his wrist, shoulder and hip. The wounds were not fatal. The Respondent then turned around and left the house and was followed by the Johnson's teenaged son who threw an object through her windshield as she was departing the scene of the confrontation. During the course of this exchange at the Johnson home, the Johnsons to include the victim, Edward Johnson, his wife and son, did not find the Respondent to be overly excited. The Respondent then went to the home of a fellow teacher one Linda Panapas. When she arrived, Mrs. Panapas described the Respondent as being agitated, disoriented, illogical and incoherent. She said the Respondent stormed about the house speaking in incompleted sentences and Mrs. Panapas found it very difficult to understand what had transpired. She did however discern that something had happened involving a shooting. The Respondent did not indicate who had been shot. Something in the conversation lead Mrs. Panapas to call the Johnson home where she was told that there had been a shooting. One other factor in the shooting which was described by the Respondent, was the fact that she had thrown the gun away afterwards. Early the next morning the Respondent voluntarily surrendered herself to the Dade County Public Safety department. She spoke with a police officer of that organization whose name is John Little. At that time the Respondent was given an opportunity to make a statement. After being advised of her constitutional rights she indicated that she remembered throwing out a gun while driving on Interstate 95 near Northwest 103 Street in Dade County, Florida. At the time of this interview, there was no sign of lack of control of her faculties, that could be detected by the officer. The principal of the elementary school where the Respondent was working at the time of the shooting was contacted on the day after the incident. The school is the Norwood Elementary School, in Dade County, Florida. The principal in that school is Betty Angell. Ms. Angell stated that at the time of the incident she was unaware of the involvement between the Respondent and Johnson. When Robinson contacted the principal she stated that she would be taking some days off, but did not indicate for what reason. Later, on the Sunday following the shooting, Robinson spoke to Ms. Angell at Ms. Angell's residence. Mrs. Robinson explained to Ms. Angell that Robinson and Johnson had, "got to liking each other too much and she had more than she could take." The Respondent was interested in knowing what would happen to her career in view of the incident. It was explained to Mrs. Robinson, by's. Angell, that she might be recommended for suspension or placed in some other school. Mrs. Robinson was not opposed to being placed in another school. During the conversation at the Angell home, the Respondent remained calm and appeared to be sorry for what had happened. The Respondent has not returned to the school where she teaches. According to Ms. Angell, prior to this event, the Respondent had been a teacher of high caliber, even though she recalled a few deficiencies in Mrs. Robinson's teaching effectiveness. Ms. Angell now holds the opinion that Mrs. Robinson's effectiveness as a teacher has been impaired because she has demonstrated an inability to manage conflict and in the mind of Ms. Angell this would translate itself into an ineffectiveness in dealing with the conflicts between the various students in Mrs. Robinson's class. Ms. Angell holds this view, notwithstanding the fact that the children and other people within the community and school are unaware of the incident itself. Moreover, Ms. Angell indicated that steps had been taken to keep the incident from becoming a matter of common knowledge within the community and within the Norwood Elementary School. She has made these efforts because she feels that if the incident became a matter of community knowledge it would create problems on the issue of the effectiveness of Mrs. Robinson. The Respondent was charged with the shooting of Edward Johnson under the terms of Chapters 782.04(1) ad 777.04(1), Florida Statutes. She was tried for those offenses of attempted murder in the first degree, and possession and display of a firearm. The outcome of that trial was a finding that the Respondent was not guilty because she was insane at the time of the commission of the offenses. This decision was reached in view of the opinion of several experts in the field of psychiatry and psychology. The same experts testified in the course of the hearing at bar. The experts testified about their observations of Mrs. Robinson shortly after the shooting and immediately prior to the hearing before the undersigned. The observations of the experts could be summarized; however, they are sufficiently critical to warrant examination separately. One of the specialists who saw the Respondent at the request of the Circuit Court, was Jeffrey J. Elenewski. Mr. Elenewski has a doctorate in clinical psychology. Elenewski saw the Respondent in May, 1977. From his observation he concluded that the Respondent was suffering an accute disassociative reaction at the time of the shooting incident involving Mr. Johnson. This reaction rendered the Respondent out of contact with reality. Elenewski arrived at this opinion after doing psychological testing on the Respondent and through clinical observation of the Respondent. Beginning on June 7, 1977, the Respondent was treated by Dr. Elenewski through individual psychotherapy. He saw her weekly for approximately one hour through the end of September, 1977. She has called and discussed her situation with Dr. Elenewski subsequent to September, 1977, as occasion demanded. On January 30, 1978, Dr. Elenewski saw the Respondent for purposes of examining her mental state in the context of the present time. Again he conducted clinical interviews and gave her a battery of tests. The clinical interview took approximately one hour and the testing a period of two to three hours. His overall opinion of the Respondent based upon his January 30, 1978 observations and prior history, was to the effect that she has made an adequate psychological adjustment after the incident. At the January 30, 1978 session he found her to be relatively free of anxiety, to be energetic and innovative and someone who is extremely conscientious and dedicated to her profession. Dr. Elenewski currently believes the Respondent does not present a danger to herself or to other people, and would not pose any specific danger to children of the age group which she teaches. Moreover, Dr. Elenewski feels that the Respondent possesses attributes that make her an excellent role model for children. In his view, the Respondent has strong self-confidence and through the recent past has developed a high tolerance for frustration. Dr. Elenewski believes that the shooting incident was an isolated incident and is extremely encapsulated and he does not feel that those stresses and pressures which lead to the incident would exist in the future. Because the incident itself was one that the Respondent was not conscious of, it was therefore an act without premeditation, according to Elenewski. The Respondent was also seen by Dr. Syvil Marquit. Dr. Marquit is a clinical psychologist who had examined Mrs. Robinson at the request of Mrs. Robinson's defense attorney. He saw her for a period of six or seven hours in the latter part of April, 1977, this interview sequence followed some initial testing in the beginning of April, 1977. His conclusions about the Respondent were that at the time of the offense, that she did not know right from wrong and was suffering from a frenzied disoriented state, to the extent that another personality emerged. By April, 1977, Dr. Marquis felt that the Respondent was no longer a danger to herself or to others but still might become a danger if not treated. Dr. Marquit saw Mrs. Robinson again on February 3, 1978. At that time the interview phase and psychological testing that was done took place over a period of two hours. He found Mrs. Robinson to be much improved and not as depressed as of the time of the interview in April, 1977. Based upon the February, 1978 observation, Dr. Marquit feels that the Respondent could handle herself well in a classroom setting in times of stress. In summary, Dr. Marquit felt that the Respondent was unaware of the events that took place during the course of the incident, but has sufficiently recovered to be able to continue in her role as a teacher. At the time of the criminal offense, the Circuit Court also ordered the Respondent to be examined by Dr. Arthur D. Stillman. Dr. Stillman is a psychiatrist. Dr. Stillman saw the Respondent in April, 1977. His initial observations of the Respondent was to the effect that she was serious minded and cooperative in a studied way. She was able to respond to the questions readily and had no fragmentation of thinking, looseness, or dysphoria or euphoria. She denied any delusions or hallucinations. Her memory, to his observation, was generally good except for the events in which she was found to be amnesiac. Those events pertained to the incident in question. At best she had vage screen memories of those parts of the incident. From his observations and the testing that was done, Dr. Stillman concluded that the Respondent showed evidence of a psychotic episode. He felt that she needed therapy for her condition, and that she presented potential for acting out. Specifically concerning the events that occurred in the shooting, Dr. Stillman felt that she was suffering from a temporary, transitory episode and was insane at the time of the commission of the offense. Dr. Stillman saw Mrs. Robinson again in February, 1978, in his mind there had been some improvement and although the Respondent was not totally aware of her situation in terms of an emotional perception of the incident, she was improving. In Dr. Stillman's opinion, the patient would benefit from further attention in the area of the difficulty involved in the shooting incident. Dr. Stillman felt like Mrs. Robinson had not achieved enough insight about the why of the events of the shooting incident. The type of treatment that she needs is not a structured treatment plan. However, in his view, the chances of such an event reoccurring are remote. He did not find her to be a danger to herself or others or in particular, children. In Dr. Stillman's mind the Respondent is a good role model because she is stable after having suffered through a rather traumatic experience, and additionally because she got sick and recovered. The incident in itself in Dr. Stillman's opinion is an isolated event, and now he feels that she is sufficiently recovered to deal with stress. In Dr. Stillman's analysis, the sickness caused her to commit the act, not a lack of morality. Finally, Dr. Stillman feels that Mrs. Robinson would be more effective in helping children deal with their problems of stress, because of the experience she has suffered through. One of the other witnesses that testified in the course of the hearing was Samuel Hudson Latimore. Mr. Latimore is the Detention Superintendent of the Dade Detention Facility. This facility deals with juvenile delinquents, and has as one of its functions the education of those children. Beginning in August, 1877, the Respondent volunteered to work in this facility. This voluntary service was not a condition imposed by any court. According to Latimore, the Respondent works at the facility twice a week, two or three hours a day and teaches 10 through 18 year old boys and girls. In his mind, the Respondent has demonstrated herself to he competent and effective in dealing with this type of young person. Latimore stated that she teaches survival skills, and aspects of getting jobs and helped to develop programs for these young people. In Latimore's opinion, its. Robinson would be capable of working with any children in an education setting. He feels that she is very qualified to fulfill this function and believes this even after being made aware of the shooting incident. Mrs. Robinson's husband, her minister and fellow employees at the school where she taught, also gave testimony. Those individuals stated that she has done well in the school setting in the past and has attempted to face up to the problem that lead to the incident with Mr. Johnson. Mr. Robinson, her husband, has stood by his wife during the pendency of the present charges and the criminal prosecution that was brought against her. His testimony demonstrated that he intends to continue living with his wife and to assist her in whatever fashion necessary to deal with the remnants of the problem which she has had. The Petitioner has charged the Respondent with a number of violations. Specifically, a violation of Sections 231.36(6) and 231.09, Florida Statutes; together with Rules 6A-4.37, 6B-1, and 65-5, Florida Administrative Code. The facts when considered in light of the language of those provisions of the Florida Statutes, and the Florida Administrative Code, demonstrate to the Petitioner that the Respondent is guilty of conduct which is grossly immoral and a poor example for students. The Petitioner further feels that those facts show that the Respondent is guilty of conduct which raises serious questions as to whether or not Verna A. Robinson is emotionally prepared to properly deal with the normal stresses which arise in classroom teaching. In examining the basis of the charges, the provisions of Section 231.36(6), reads as follows: Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may be suspended or dismissed at any time during the school year; provided that no such employee may be discharged or removed during the school year without opportunity to be heard at a public hearing after at least ten days' written notice of the charges against him and of the time and place of hearing; and, provided further that the charges must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. An examination of the testimony offered in the course of the hearing, with due regard to the fact that the testimony of the experts in the fields of psychiatry and psychology is unrefuted, leads to the conclusion that the Respondent is not guilty of immorality or conviction of any crime involving moral turpitude, as alleged. At the time the offense was committed, the Respondent was found to he insane by the jury, and therefore was not convicted of any crime involving moral turpitude. The same opinion which was expressed by the experts, to the effect that the Respondent did not appreciate the nature of her act, leads to the conclusion that she was not capable of committing an immoral act, because such acts of immorality prosuppose intent and knowledge. The Respondent being insane at the time of the commission of the act was incapable of such intent and knowledge. An examination of the provisions of Section 231.09, D-f Florida Statutes, leads to the conclusion that none of the provisions found in the charges have been violated by the act which the Respondent committed, for the reasons discussed in examining Section 231.36(6), Florida Statutes, to include the fact that the pupils in her school are unaware of the events for which Mrs. Robinson has been charged. Therefore, it can not be said that what she did is a poor example for pupils in their deportment and morals and in the future the accurate impression which has been offered by the psychiatrist and psychologist shows that she will be an example for people in their deportment and morals. The provision concerning deportment and morals comes directly from the Section 231.09(2), Florida Statutes. It should also be stated that that particular provision has been held unconstitutional in the case of Meltzer v. Board of Public Instruction of Orange County, Florida, etc., et al., 548 F.2d 559 (5th Circuit Court of Appeals). However, on petition for rehearing and petition for rehearing en banc, which is reported at 553 F.2d 1008, the U.S. Fifth Circuit Court of Appeals granted rehearing with the right for oral argument and the opportunity to submit supplemental briefs, with the date of the oral argument to be announced. That rehearing has been held but no decision has been rendered. Consequently, the remarks about the provision, Section 231.09(2), Florida Statutes, have boon offered with the caution that the section may be ultimately held unconstitutional. In the charging document, the Petitioner makes further reference to certain rules of the Florida Administrative Code. The first reference is to Rule 6A-4.37, Florida Administrative Code. That provision pertains to the procedures to be utilized in cases of this sort, and does not set forth substantive requirements, which if violated would constitute grounds for disciplinary action. Again, Rule 6B-1, Florida Administrative Code, sets forth the Code of Ethics of the education profession in the State of Florida; however, it does not delineate substantive requirements which would he cause for consideration under the factual allegations in these charges. Rule 6B-5.07, Florida Administrative Code, reads as follows: Management Techniques. In exercising management techniques, the competent educator shall: Resolve discipline problems in accordance with law, state board regulations, school board policy, administrative regulations and accepted school policies, Maintain consistency in the application of policy and practice, Use management techniques which are appropriate to the particular setting such as group work, seat work, lecture, discussion, individual projects and others, and Develop and maintain standards of conduct. These provisions should be read in conjunction with the provisions of 6B-5.10 and 5.11, Florida Administrative Code, which state: 65-5.10 Human and Interpersonal Relationships. Competent educators are held to possess effective human and interpersonal relations skills and therefore: Shall encourage others to hold and express differing opinions or ideas, Shall not knowingly misinterpret the statements of others, Shall not show disrespect for or lack of acceptance of others, Shall provide leadership and direction for others by appropriate example, Shall offer constructive criticism when necessary, Shall comply with reasonable requests and orders given by and with proper authority, Shall not assign unreasonable tasks, and Shall demonstrate self-confidence and self- sufficiency in exercising authority. 6D-5.11 Personal Requirements. In assessing the mental or physical health of educators, no decision adverse to the educator shall be made except on the advice or testimony of personnel competent to make such judgment by reason of training, licensure and experience. However, certain behaviors are held to be probable cause to examine, and each competent educator within the scope of delegated authority shall: Be able to engage in physical activity appropriate to the designated task except for temporary disability, Be able to communicate so effectively as to accomplish the designated task, Appropriately control his emotions, and Possess and demonstrate sufficient intellectual ability to perform designated tasks. When these requirements are examined in view of the facts that were offered in the course of the hearing, it is clear that the Respondent is able to resolve those problems of discipline in a proper manner and to deal with the interpersonal relationships between the students, to include students who are having conflict. Moreover, it is clear that the Respondent would be able to control her emotions in the classroom setting and is emotionally prepared to deal with the normal stresses in classroom teaching. In conclusion, the facts do not warrant the dismissal of Verna Armstrong Robinson as an employee of the Dade County School Board.
Recommendation It is recommended that the action for dismissal of the employee Verna Armstrong Robinson, he withdrawn and that Verna Armstrong Robinson be allowed to continue as a teacher employed by the Dade County School Board. It is further recommended that that employment he at some school other than the Norwood Elementary School. DONE AND ENTERED this 20th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jesse J McCrary, Jr., Esquire 300 Executive Building Suite 300 3050 Biscayne Boulevard Miami, Florida 33137 Elizabeth J. du Fresne, P.A. Suite 1782, One Biscayne Tower 2 South Biscayne Boulevard Miami, Florida 33131 Michael S. Hacker, Esquire Hacker, Phelps & Matters Suite 1400 - Ainsley Building 14 Northeast First Avenue Miami, Florida 33132 ================================================================= AGENCY FINAL ORDER ================================================================= SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY Petitioner, vs. CASE NO. 77-660 VERNA ARMSTRONG ROBINSON, Respondent. / ORDER OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA THIS CAUSE came on for hearing before The School Board of Dade County, Florida, at its regular meeting on June 28, 1978, upon the Hearing Officer's findings of fact, conclusions of law, and recommended order, recommending that the action for dismissal of Verna Robinson be withdrawn and that Verna Robinson be allowed to continue as a teacher employed by the School Board of Dade County, The attorneys for Robinson and the School Board have waived the 90-day requirement for rendition of orders under the provisions of the Florida Administrative Procedure Act. IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that: The Hearing Officer's Findings of Fact; attached hereto, are adopted by the School Board of Dade County, Florida. The Hearing Officer's Conclusion of Law are modified to the following extent and effect: Paragraph one of the Conclusions of Law is accepted. Paragraph two of the Conclusions of Law is rejected in that the action of the respondent, Verna Robinson, was immoral and cause for dismissal under the provisions of Florida Statutes section 231.36(6), and not in keeping with the duties of instructional personnel set forth in Florida Statutes section 331.09, and the Florida Administrative Code Chapter 6B-1 or Chapter 6B-5. Verna Robinson be and is hereby dismissed from her employment with The School Board of Dade County, Florida and that Verna Robinson shall receive no compensation from The School Board of Dade County, Florida from March 23, 1977 at 5:00 p.m. DONE AND ORDERED this 5th Day of July, 1978. THE SCHOOL BOARD OF DADE COUNTY, FLORIDA Phyllis Miller, Chairman
