The Issue Whether respondent should be terminated from her employment as a continuing contract school teacher, pursuant to Section 231.36(6), Florida Statutes (1981), for alleged gross insubordination within the meaning of Section 231.36(6), Florida Statutes (1981), and Rule 6B-4.09(4), Florida Administrative Code.
Findings Of Fact Respondent Elva Jean Newland has been a school teacher for 36 years. She has a Bachelor's Degree in Education from Radford College, a Master's Degree in Learning Disabilities from the University of Virginia, and has completed numerous post-graduate courses. (Testimony of Respondent) She has spent her career teaching young children, ages five through eleven. For the past 16 years, she has been employed as a teacher by the School Board of Charlotte County. Until her suspension in May, 1982 (for alleged gross insubordination) , she was employed, under continuing contract, as a kindergarten teacher at Neil Armstrong Elementary School in Port Charlotte, Florida. (Testimony of respondent) She has developed a personal philosophy on discipline in the classroom. Essentially, she maintains that "You cannot teach a child unless you have that child's attention. You cannot get his attention if there is a disruptive influence. (Tr.-175) For many years, she handled disruptive influences in the classroom by using a small paddle which she referred to as "Mister Bolo." When students became disruptive (such as talking too loud or running about the room) she would invite "Mr. Bolo" to "talk" to them. This was accomplished by the child spanking his or her own hands or feet (after removing the shoes) with the bolo paddle. If the child did not administer the spanking, respondent would. (Testimony of respondent, Hrstka) At her principal's request, respondent eventually discarded the "Mr. Bolo" paddle. The School Board maintains that she used other methods of disciplining disruptive children, that she repeatedly administered corporal punishment in direct disobedience of orders of her superiors and rules of the School Board, and that such misconduct constitutes gross insubordination. Respondent denies having administered corporal punishment in violation of orders or rules, and denies the charge of gross insubordination. II. Rules for Administering Corporal Punishment During the 1980-81 and 1981-82 school years, respondent was aware of the rules of the School Board and the Neal Armstrong Elementary School governing corporal punishment. (Prehearing Stipulation, p. 4) These rules defined "corporal punishment" as: the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rules. However, the term corporal punishment does not include the use of such reasonable force by a teacher or principal as may be necessary to protect themselves or other students from disruptive students. (P-2) Essentially,a teacher may administer corporal punishment to enforce discipline (where other methods of seeking cooperation have failed) in accordance with specific criteria. Corporal punishment must be administered in the principal's office; prior approval of the principal is necessary; an adult witness must be present; the witness and the child must be told of the reasons for the corporal punishment; excessive force cannot be used; and, a written report of the incident must be filed with the principal and sent to the child's parents. (P- 2, P-5) Respondent concedes the propriety of these rules and that corporal punishment may not be administered without first complying with them. (Prehearing Stipulation, pp. 6-7) III. During the 1980-1981 School Years, Respondent Administered Corporal Punishment in Violation of the Rules of the School Board and in Defiance of the Orders of Her Principal In early 1981, Lawrence H. Nickler, then principal of Neal Armstrong Elementary School, received complaints from parents that respondent physically punished her students. Mr. Mickler reacted by issuing her a written order. The order, dated February 13, 1981, instructed her to put aside all references to corporal measures; any gesture which might be misconstrued as of a corporal nature; or the use of any devices in such a manner which might be considered as dealing corporal punishment. This includes or could include a ruler, paddle, bolo paddle, etc. (P-7) He specifically warned her that the continuing concern of parents could threaten her career, that her reputation and professional future were in jeopardy. (Testimony of Mickler, P-7) Nonetheless, on or about May 5, 1981, respondent administered corporal punishment to Michelle White, a student, by striking her on the head--a blow which broke the blue plastic headband she was wearing and bruised the child's scalp. Respondent administered this blow to Michelle in the classroom in the presence of other and without first taking her to the principal for corporal punishment, without first securing the presence of an adult witness, and without advising the witness of the reason for the punishment. She also failed to complete the report which must be filed with the principal and sent to the child's parents. (Testimony of respondent, White, P-8) Faced with this violation of his orders, principal Mickler called respondent to his office on May 6, 1981, and discussed the incident with her, informed her that her action violated his previous order, and specifically warned that any further violations would result in disciplinary action. (Testimony of Mickler, P-9) IV. During the 1981-1982 School Year, Respondent Administered Corporal Punishment in Violation of Rules of the School Board and Orders of Her Principal During the 1981-1982 school year, Robert Hrstka became principal of Neal Armstrong Elementary School. On the first day of school, he met with his teachers (including respondent) and reviewed the school handbook, including procedures for handling disciplinary problems. He specifically informed them that they could use corporal punishment only if they followed the rules; that any teacher who intended to use corporal punishment should report to him for a demonstration of the proper technique for administering it. Respondent, however, did not report to him for the demonstration. (Testimony of Hrstka, Prehearing Stipulation, p. 5) Respondent did, however, come to Mr. Hrstka's office the next day and explain to him how she used her "Bolo" paddle. He responded that her use of the paddle constituted corporal punishment, instructed her that she was to discontinue using it, and reminded her that if she wanted to administer corporal punishment she would have to follow the rules. (Testimony of Hrstka, Prehearing Stipulation, pp. 6-7) Nonetheless, during the ensuing school year, respondent administered corporal punishment to five students, on six separate occasions, in violation of the School Board's rules and her principal's orders. Emily Robarge. In October, 1981, respondent administered corporal punishment to Emily Robarge, a kindergarten student, by slapping her on the hands, causing her to cry. This was done in the classroom in the presence of other students, without securing an adult witness, without first taking the student to the principal's office, without first advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Hrstka, Respondent's Response to Requests for Admissions, para. 15) Rebecca Hoop. During February, 1982, Rebecca Hoop, a fourth grade student, was making noise by clicking the handle on the front door of the school. Respondent opened the door, pushed her back, and pinched her on the arm, breaking the skin and causing a black-and-blue bruise. This constituted corporal punishment and was administered without taking the student to the principal's office, without first securing an adult witness, without advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Jones, respondent, Hrstka) Brian Chelarducci. During March or April, 1982, respondent took Brian Ghelarducci, a student, into the restroom within her classroom and administered corporal punishment by striking him on the hands three or four times, using a ruler or other wooden object. 3/ This occurred in the presence of the other students and without respondent first securing an adult witness, without advising the witness of the reason for the corporal punishment, without taking the student to the principal's office, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Smoak, Hrstka) Emily Robarge. During the spring of 1982, Respondent again administered corporal punishment to Emily Robarge, a kindergarten student. Emily was late returning from recess and respondent met her outside the classroom door in the hallway. The door was closed. Respondent held the girl by one arm and spanked her fairly hard on the buttocks four or five times, causing the student to cry. (This was more than a series of taps or a nudging to encourage Emily to move more quickly.) This constituted corporal punishment and was administered without respondent first taking Emily to the principal's office, without securing the presence of an adult witness, without advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Hrstka, Collard) Jeff Elliot. In January, 1982, respondent administered corporal punishment to Jeff Elliot, a kindergarten student, by striking him on the hands. In the presence of other students, respondent took him behind a classroom bookcase, told him to hold out his hands, and asked if he was going to slap them or would she have to do it. Several slapping sounds ensued, followed by the boy's cries. 4/ This occurred without respondent first taking Jeff to the principal'S office, without securing an adult witness, without advising the witness of the reason for the corporal punishment, and without filing the report form required by the School Board. (Testimony of Barker) Robert Myers. During 1982, respondent administered corporal punishment to Robert Myers, a kindergarten student, by striking him on the buttocks with a yardstick while he leaned across a desk. She struck him three or four times, the blows were hard enough to hurt, and the boy cried. (She admits that she "swatted him on the backside." Tr.-186) Respondent took this action in the presence of other students, without first taking Robert to the principal's office, without first securing the presence of an adult witness, without first advising the witness of the reason for the punishment, and without completing and filing the report form required by the School Board. (Testimony of Barker) V. Respondent's Violation of Rules and Orders Governing Administration of Corporal punishment Was Intentional Respondent's repeated violations of rules and orders governing corporal punishment support an inference that the violations constituted willful and intentional disobedience of lawful authority. When Mr. Hrstka became principal, Endress Barker--a teacher's aide and friend who worked closely with respondent--asked her not to do anything to jeopardize her (respondent's) job--not to spank children without following the procedures and filing the necessary reports. Respondent replied, "Well, we'll see." (Tr.-154) When this statement is considered together with her admission that she was aware of the corporal punishment procedures--procedures which were clear and definite, and which she repeatedly violated--the willful, even defiant, nature of her violations is convincingly established. The evidence supports a conclusion that she made a conscious decision to continue disciplining children in her own way, notwithstanding the contrary rules of the School Board and the orders of her principal.
Recommendation Based on the foregoing, it is RECOMMENDED: That the School Board sustain charges that respondent engaged in gross insubordination, violative of Section 231.36(6), but allow reinstatement on a probationary basis, conditioned upon her acknowledging her duty to comply with the lawful orders of her principal and the rules of the Board. DONE AND RECOMMENDED this 15th day of March, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1983.
The Issue The issue is whether the teaching certificate of Scott Thomas Gray (Gray) should be permanently revoked or otherwise penalized based on the acts alleged in the Amended Administrative Complaint.
Findings Of Fact Gray held teachers certificate No. 541600 from the Department of Education for the State of Florida covering the area of emotionally disturbed students. The certificate was first issued on March 6, 1984, and was renewed and reissued until it expired on June 30, 1990. During the school years of 1983-1985, Gray was employed as an EMH teacher at Grove Park Elementary School in the Clay County School District. Gray resigned on June 10, 1985. Gray taught as an EMH teacher in the State of Georgia during the 1986-1987 school year. On November 27, 1986, Gray was arrested in Clay County, Florida, and charged with sexual battery. Gray posted bond of $10,002.00 and was released from jail. On December 12, 1986, Gray was charged by information with four counts of capital sexual battery and six counts of committing a lewd, lascivious and indecent act upon a minor. State of Florida v. Scott Thomas Gray, Case No. 86-925- CF, in the Circuit Court of the Fourth Judicial Circuit. Gray failed to appear for arraignment on these charges on December 18, 1986. Gray left the state and failed to appear for any court appearance on these charges. A Capias was issued for Gray's arrest for failing to appear. Gray was subsequently returned to Clay County to stand trial on these charges. Gray entered pleas of not guilty to all charges which were still viable after he had been returned to the state (three counts of capital sexual battery and two counts of lewd, lascivious and indecent acts on a child). These charges stemmed from various sexual acts which were perpetrated on children of ages 11 to 16 in Gray's classroom. On September 26, 1991, following a jury trial, Gray was convicted of three counts of capital sexual battery and of two counts of committing a lewd, lascivious, and indecent act upon a child. Gray was sentenced to terms of life imprisonment with a mandatory minimum of twenty five years per count, with the first two terms to run consecutively. He was also sentenced to two terms of fifteen years imprisonment for the two counts of committing lewd, lascivious and indecent acts on a child, to be served concurrently with the other sentences. Gray was charged with assault and battery in Clay County, Florida, on August 18, 1974, in Case No FL 046020. He also failed to appear in that case scheduled for October 22, 1974, and a Capias was issued. Despite the fact that these charges had not been resolved, in his three applications for teacher's certification, Gray answered "NO" to questions regarding arrests for any criminal charges which were pending against him. His false answers were sworn to by Gray as being true and correct.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Education Practices Commission enter a Final Order permanently revoking teaching certificate No. 541600 as issued to Scott Thomas Gray. DONE and ENTERED this 12th day of March, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 12th day of March, 1992.
The Issue Whether just cause exists to suspend Respondent from her employment with the Broward County School Board.
Findings Of Fact Background Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Broward County, Florida. At all times relevant to this proceeding, Respondent was employed as an art teacher at Western High School ("Western High"). Respondent's career with the School Board, which spans some 21 years, has not proceeded entirely without incident: on January 31, 1997, Respondent uttered profanity in the presence of her students, which resulted in the issuance of a written reprimand that directed her to "cease and desist from inappropriate remarks"; several months later, Respondent's further use of colorful language led to a second written reprimand; and, in August 2009, Respondent agreed to serve a three-day suspension "for inappropriate language." The School Board now seeks to suspend Respondent for five days based upon an allegation that, on August 16, 2013, she used profanity and "aggressively grabbed" a female student's arm during an episode in Western High's parking lot. The facts relating to the instant charges are recounted below. Instant Allegations On the morning of August 16, 2013——the final weekday before the start of the 2013-2014 school year——Respondent arrived at Western High's campus to place the finishing touches on her classroom. On several occasions throughout the day, one of Western High's assistant principals announced that the school's parking lot would be locked at 5:30 p.m. The final such warning, which was made at 5:15 p.m., prompted Respondent to exit the building approximately five minutes later. As she headed toward her vehicle, Respondent (accompanied by her mother, Carol Fischer, herself a longtime educator) noticed several groups of students decorating parking spaces in the school lot. As explained during the final hearing, the students' presence was not unusual, for incoming seniors at Western High were authorized, pursuant to a school fundraiser, to "purchase" a parking space and adorn it as each saw fit. Mindful that the school gate would soon be locked, Respondent walked toward the groups and, from a distance of approximately 50 yards, loudly directed them to pack up their belongings and leave the campus. Each of the groups complied, save for one, which prompted Respondent to approach the stragglers and repeatedly announce——with diminishing volume as she made her way closer——that they needed to go home. Suffice it to say that these importunings had no discernable effect on the group's activities; as a result, Respondent continued toward the parking spot where the students were working. Now in their immediate vicinity, Respondent informed the group (which included two female students, N.S. and T.C., both of whom were incoming seniors at Western High) that they had two minutes to gather their possessions and leave the campus. During the ensuing interaction, T.C. began to argue with Respondent and, to make matters worse, acted as if she intended to continue painting. Her patience understandably waning, Respondent reached toward T.C. and, in a non-violent fashion, placed her hand on the student's upper arm. This brief physical contact, intended to secure T.C.'s complete attention and gesture her in the direction of the exit, was instantly met with a vocal objection. Respondent immediately reacted by stepping backwards,1/ at which point the group began to gather up the painting materials. T.C. and the other students departed the parking lot a short time later. Contrary to the complaint's allegations, the credible evidence demonstrates that, although Respondent addressed the students with an elevated voice (but only as she approached from a distance), she at no point used profanity or any other inappropriate language.2/ Further, the record is pellucid that Respondent's momentary, gesturing contact with T.C. was completely innocuous and in no way constituted an "aggressive grab."3/ Indeed, T.C. acknowledged during her final hearing testimony that Respondent plainly intended no harm.4/ Finally, and with respect to the charge of insubordination, there has been no showing that Respondent's behavior ran afoul of any direct order. Although the School Board attempted to prove the existence of a "no touching whatsoever" rule, the testimony on that point was internally contradictory and ultimately unpersuasive. In any event, and as discussed shortly, a general policy——i.e., one applicable to all employees——does not constitute a direct order for the purpose of sustaining an insubordination charge. Ultimate Findings It is determined, as a matter of ultimate fact, that Respondent is not guilty of misconduct in office. It is determined, as a matter of ultimate fact, that Respondent is not guilty of insubordination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board enter a final order: exonerating Respondent of all charges brought against her in this proceeding; and awarding Respondent any lost pay and benefits she experienced as a result of the five-day suspension. DONE AND ENTERED this 3rd day of June, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 June, 2014.
The Issue The issue in this case is whether a district school board is entitled to dismiss a paraprofessional for just cause based principally upon the allegation that she struck a disabled student on the head with her elbows.
Findings Of Fact Background The Miami-Dade County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Miami-Dade County Public School System. As of the final hearing, Respondent Cynthia Thompson ("Thompson") had worked in the Miami-Dade County Public School System for approximately 16 years. From August 2002 forward, and at all times relevant to this case, Thompson was employed as an education paraprofessional at Neva King Cooper Education Center, where she provided educational services to students having severe developmental disabilities. The alleged events giving rise to this case allegedly occurred on January 6, 2006. The School Board alleges that on that date, in the cafeteria at around 9:00 a.m., as a breakfast session was winding down, Thompson used her elbows to strike one of the students in her charge, a profoundly mentally handicapped, 15-year-old female named K. P., on the head. This allegation is based on the account of a single eyewitness—— Latanya Stephenson, the school's assistant registrar.1 Thompson consistently has maintained her innocence, denying that she hit K. P. as charged. She claims——and testified at hearing——that she merely used her arms to prevent K. P. from getting up to rummage through the garbage can in search of food and things to put in her mouth. This, then, is a "she said——she said" case that boils down to a credibility contest between Thompson and Ms. Stephenson. If Ms. Stephenson's account is truthful and accurate, then Thompson is guilty of at least one of the charges against her. On the other hand, if Thompson's account is believed, then she is not guilty of misconduct. Given that the credibility determination drives the outcome, the undersigned will first, as a predicate to evaluating the evidence, set forth the two material witness's respective accounts of the incident in question, and then make determinations, to the extent possible, as to what might have happened. It is important to note, however, that the findings in the next two sections merely report what each witness said occurred; these do not necessarily correspond to the undersigned's findings about what likely took place in the cafeteria at Neva King Cooper Education Center on January 6, 2006. Stephenson's Story Ms. Stephenson recounts that on the morning in question, while on break, she went to the cafeteria to get a snack. She went through the line, bought a cookie, and, before leaving the building, stopped to chat with two custodians who were sitting in a closet that holds supplies. As she leaned against a wall, listening to the custodians' conversation, Ms. Stephenson looked back into the cafeteria and, at a distance of about 10 to 12 feet, saw Thompson interact with K. P. K. P. was sitting at a table, her chair pushed in close, hands in her lap. Thompson, whose hands were clasped in front of her body, approached K. P. from behind and——after "scanning" the room——struck her twice in the head, first with her right elbow and then, rotating her body, with her left elbow. Ms. Stephenson heard the blows, saw K. P.'s head move, and heard K. P. moan. Ms. Stephenson called out Thompson's name, and Thompson, apologizing, explained that K. P. repeatedly had tried to pick through the garbage can in search of things to eat. Thompson told Ms. Stephenson that she would not hit K. P. again, but that striking the student was an effective means of getting her to stay put. Ms. Stephenson did not check on K. P. to see if she were injured or in need of assistance. According to Ms. Stephenson, there were about 40 to 50 students in the cafeteria at the time, ranging in age from three to 22 years. There were also approximately 12 to 15 members of the instructional staff (i.e. teachers and paraprofessionals) present, meaning that, besides Thompson and Ms. Stephenson, about a dozen responsible adults were on hand at the time of the incident in dispute. Ms. Stephenson did not bring the incident to the attention of any of the teachers or paralegals who were in the cafeteria at the time. Thompson's Testimony Thompson was responsible for three students at breakfast that morning. The teacher under whose supervision she worked, Mr. Ibarra, was watching the other five students in the class. Mr. Ibarra was on one side of the table, Thompson the other. Thompson was feeding one of her students, "R.", while watching K. P. and a third student. R. did not want to eat, so to coax him into opening his mouth, Thompson was playing an "airplane game" with him, trying to make the feeding fun. Thompson had a plastic utensil in her right hand, with which she was feeding R. some applesauce (or similar food); in her left hand was a toy. At the time of the alleged incident, some students had finished breakfast and been brought back to their classrooms. Still, there were quite a few people in the cafeteria, 60 to 80 by Thompson's reckoning, including adults.2 K. P. was sitting at the table, behind Thompson; they had their backs to one another. Consequently, while feeding R., Thompson needed to look over her shoulder to keep an eye on K. P. Suddenly, Thompson noticed K. P. starting to rise from her chair. (K. P. has a history of darting to the garbage can, grabbing food and trash, and putting these things in her mouth to eat.) Thompson reached back with her right arm and, placing her elbow on K. P.'s left shoulder, prevented the child from getting up. K. P. then tried slipping out to her (K. P.'s) right, whereupon Thompson swung around and, with her left arm, blocked K. P.'s escape. Right after this happened, Ms. Stephenson spoke to Thompson, criticizing her handling of K. P. Thompson explained to Ms. Stephenson (who, as an assistant registrar, does not work directly with the children) that she simply had prevented K. P. from getting into the trash can. Ms. Stephenson walked away. Soon thereafter, Mr. Ibarra said, "Let's go." The children were escorted back to the classroom. Resolutions of Evidential Conflict The competing accounts of what occurred are sufficiently in conflict as to the crucial points that both cannot simultaneously be considered fully accurate. The fact- finder's dilemma is that either of the two material witnesses possibly might have reported the incident faithfully to the truth, for neither witness's testimony is inherently incredible, impossible, or patently a fabrication. Having observed both witnesses on the stand, moreover, the undersigned discerned no telltale signs of deception in the demeanor of either witness. In short, neither of the competing accounts can be readily dismissed as false. Of course, it is not the School Board's burden to prove to a certainty that its allegations are true, but only that its allegations are most likely true. As the fact-finder, the undersigned therefore must consider how likely it is that the incident took place as described by the respective witnesses. In her testimony, Ms. Stephenson told of an unprovoked battery on a defenseless disabled person. It is an arresting story, shocking if true. Ms. Stephenson appeared to possess a clear memory of the event, and she spoke with confidence about it. Nothing in the evidence suggests that Ms. Stephenson had any reason to make up the testimony she has given against Thompson. Nevertheless, some aspects of Ms. Stephenson's testimony give the undersigned pause. There is, to start, the matter of the large number of persons——including at least a dozen responsible adults, not to mention about 50 students——who were on hand as potential witnesses to the alleged misdeed. The undersigned hesitates to believe that Thompson would attack a child in plain view of so many others, particularly in the absence of any provocation that might have caused her suddenly to snap.3 The cafeteria would not likely have afforded Thompson a favorable opportunity for hitting K. P., were she inclined to do so. Next, it puzzles the undersigned that Ms. Stephenson did not immediately signal to someone——anyone——in the cafeteria for help. The undersigned expects that a school employee witnessing the beating of a disabled child under the circumstances described by Ms. Stephenson would promptly enlist the aid of other responsible persons nearby. Indeed, the undersigned can think of no reason (none was given) for Ms. Stephenson's rather tepid response to a violent, despicable deed——other than that it did not happen exactly the way she described it. Finally, Ms. Stephenson's incuriosity about K. P.'s condition after the alleged beating is curious. Having, she says, witnessed Thompson twice strike K. P. in the head with enough force that the blows could be heard over the din of dozens of children, and having heard K. P. moan, presumably in pain, Ms. Stephenson by her own admission made no attempt to ascertain whether the child was hurt or in need of attention. This indifference to the welfare of the alleged victim strikes the undersigned as inconsistent with Ms. Stephenson's testimony that Thompson attacked the child. Turning to Thompson's testimony, she, like Ms. Stephenson, has not been shown to have a motive for lying about the incident in question——assuming she is innocent of the charges, which the undersigned must do unless and until the greater weight of the evidence proves otherwise. Thompson is, however, a convicted felon, which is a chink in her credibility's armor. That said, there is nothing obviously discordant about her account of the relevant events. Her testimony regarding K. P.'s proclivity for diving into trashcans is corroborated by other evidence in the record, and the undersigned accepts it as the truth. Her testimony about the feeding of R. was not rebutted and therefore is credited. Her explanation for having used her arms and elbows (while her hands were full) to block K. P. from racing to the garbage is believable.4 If there is anything eyebrow-raising about Thompson's testimony, it is that the blocking maneuver she described, quickly twisting her body around from right to left, elbows and arms in motion, seemingly posed the nontrivial risk of accidentally hitting the child, possibly in the head. One is tempted to speculate that Thompson unintentionally might have struck K. P. in the course of attempting to keep her from engaging in a potentially harmful behavior, namely eating refuse from the garbage can.5 The undersigned does not, however, think or find that this happened, more likely than not, because of the "dog that didn't bark"6——or, more particularly, the teachers and paraprofessionals who never spoke up. Most likely, if Thompson had struck K. P. in the manner that Ms. Stephenson described, then the noise and commotion would have attracted the attention of someone besides Ms. Stephenson. There were, after all, approximately 12 other members of the instructional staff nearby in the cafeteria when this alleged incident occurred. Yet, no one in a position to have witnessed the alleged attack——except Ms. Stephenson——has accused Thompson of wrongdoing, nor has anyone come forward to corroborate the testimony of Ms. Stephenson. This suggests that nothing occurred which the instructional personnel, who (unlike Ms. Stephenson) regularly work directly with this special student population, considered unusual or abnormal. Taken as a whole, the evidence is insufficient to establish that, more likely than not, Thompson struck K. P. as alleged. Based on the evidence, the undersigned believes that, as between the two scenarios presented, the incident more likely occurred as Thompson described it; in other words, relative to Stephenson's account, Thompson's is more likely true. Accordingly, the undersigned accepts and adopts, as findings of historical fact, the statements made in paragraphs 6 and 9-15 above. The upshot is that the School Board failed to carry its burden of establishing, by a preponderance of the evidence, that Thompson committed a disciplinable offense. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Thompson is guilty of the offense of misconduct in office. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of gross insubordination. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's corporal punishment policy. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of unseemly conduct. The greater weight of the evidence fails to establish that Thompson is guilty of the offense of violating the School Board's policy against violence in the workplace.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order: (a) exonerating Thompson of all charges brought against her in this proceeding; (b) providing that Thompson be reinstated to the position from which she was suspended without pay; and (c) awarding Thompson back salary, plus benefits, that accrued during the suspension period, together with interest thereon at the statutory rate. DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 22nd day of December, 2006.
The Issue The issue in this case is whether Respondent committed misconduct in office and violated Petitioner's policies such that just cause exists to suspend her without pay and dismiss her from employment as a teacher with Miami-Dade County Public Schools.
Findings Of Fact The Parties Petitioner is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida, pursuant to Florida Constitution Article IX, section 4(b), and section 1012.23, Florida Statutes. At all times material, Respondent was a first grade teacher at Van E. Blanton Elementary School ("Blanton"), an elementary school within the Miami-Dade County Public Schools. Respondent's employment with Petitioner was governed by the collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade, Petitioner's policies and rules, and Florida law. Background of this Proceeding This matter had its genesis in November 2011, when Tangela Goa, the principal at Blanton, was contacted by D.M., the mother of S.K., who was a student in Respondent's first grade class. D.M. told Ms. Goa that S.K. did not want to go school because Respondent hit her and other students in the class. The school police investigated the complaint. The investigation resulted in allegations that Respondent hit students in her class with a stick, disciplined students by putting them in the bathroom with the door closed and lights off, and called students "stupid" and "dumb." As a result of the investigation, on February 15, 2012, Petitioner suspended Respondent without pay and took action to dismiss her from her employment with Miami-Dade County Public Schools. The Notice of Specific Charges alleges four grounds for Respondent's suspension and dismissal: misconduct in office; violation of School Board Policy 3210 – Standards of Ethical Conduct; violation of School Board Policy 3210.01 – Code of Ethics; and violation of School Board Policy 5630 – Corporal Punishment and Use of Reasonable Force. Alleged Incidents Giving Rise to Charges S.K., J.F., and P.H. are students who were assigned to Respondent's first grade class for the 2011-2012 school year.1/ At the time, they were six and seven years old. S.K., J.F., and P.H. each testified that Respondent hit students in her class with a green stick.2/ There were some differences in the students' testimony regarding details, such as whether Respondent tapped students or struck them hard with the stick, whether Respondent struck them on the head or other parts of their body, and how many and which students were struck.3/ S.K., J.F., and P.H. also testified that Respondent put students in the bathroom with the door closed and lights off for misbehaving or not doing their work, and for wetting their pants. Again, there was some difference in testimony regarding certain details, such as whether the restroom door locked from the inside or the outside. J.F. testified that Respondent called students in her class "stupid" when they got answers incorrect, while S.K. testified that Respondent told the students to "stop acting" stupid or dumb. P.H. testified that Respondent once used a curse word but did not call students "stupid" or "dumb." Principal Goa testified that the behavior in which Respondent is alleged to have engaged is not conducive to learning and that there are alternative strategies that may be employed, as appropriate, to manage student behavior. Ms. Goa testified that, assuming the allegations were shown to be true, her confidence in Respondent's judgment in managing her classroom has been significantly undermined. D.M. testified that she did not want S.K. attending school in an environment where she was afraid of being called names and hit. Respondent's Defenses Respondent denies that she struck students in her class with the green stick. She testified that she used the stick to point to words on the whiteboard. She testified that early in the school year, she used the stick to tap students as she called on them because she did not yet know all of their names. Respondent also denies that she disciplined students by locking them in the bathroom with the lights off and door closed. She testified that she would put them in the bathroom when they soiled themselves or wet their pants, to await receiving clean clothing. She further testified that the bathroom door locked from the inside, rather than the outside, so that she could not lock anyone in the bathroom. Respondent denies that she called students in her classroom "stupid" or "dumb." She acknowledges that when they would misbehave in class, she would tell them to "stop acting" stupid or "stop acting" dumb. Findings of Ultimate Fact Having fully considered all of the evidence in the record, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent struck students in her class with a stick and placed them in the bathroom with the lights off and door closed to discipline them. Petitioner did not prove, by a preponderance of the evidence, that Respondent called students "stupid" or "dumb." Although there were some differences in the students' testimony, they consistently testified that Respondent struck students in her class with a stick. The differences in testimony regarding certain details likely reflect the students' individual experiences and perceptions of the incidents, rather than being inconsistencies that call their credibility into question. Moreover, given the students' young ages and that the matters about which they testified took place over a year ago, it is reasonable to expect some differences regarding minor details. On balance, it is determined that the evidence Petitioner presented on this issue was more credible and persuasive than that presented by Respondent. The students also consistently testified that Respondent put students in the restroom with the door closed and lights out as a disciplinary measure. Respondent testified that she would put students in the bathroom when they soiled themselves or wet their pants, and S.K.'s testimony corroborated that explanation; however, this is not inconsistent with the testimony that Respondent also placed students in the bathroom with the lights out and door closed for other things such as misbehaving, crying, or not doing their work. Petitioner presented more credible and persuasive evidence on this issue than did Respondent. The students' testimony on the issue of whether Respondent called students "stupid" and "dumb" was not consistent; as noted above, the three students who testified each gave substantially different and contradictory accounts. Petitioner did not establish, by the greater weight of the evidence, that Respondent verbally abused students by calling them "stupid" or "dumb" as charged in the Notice of Specific Charges.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a Final Order upholding the suspension without pay of Respondent, Claudia Hye, and dismissing her from her employment as a teacher with Miami-Dade County Public Schools. DONE AND ENTERED this 13th day of December, 2012, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 13th day of December, 2012.
Findings Of Fact At all times relevant hereto, Respondent, Thomas Miller Collins, held teaching certificate number 489045 covering the area of substitute teaching. The certificate is valid through June 30, 1985. On July 2, 1982 Petitioner, Department of Education, Education Practices Commission, filed an Administrative Complaint alleging generally that on three occasions between November 1974 and November 1981 Respondent had pled guilty to various criminal charges which constituted conduct sufficient to warrant disciplinary action against his teacher's certificate. Respondent's request for an administrative hearing precipitated the instant proceeding. On or about November 20, 1974, Respondent was arrested for possessing in excess of five grams of cannabis. After pleading guilty to this offense on March 3, 1975, the Circuit Court in and for Broward County withheld adjudication and placed Respondent on probation for a period of eighteen months. On or about October 4, 1975, Respondent was arrested in Broward County for (a) possession of cocaine and (b) delivery of cocaine. As a result of a plea of guilty to delivery of cocaine on January 19, 1976, he was adjudged guilty and sentenced to state prison for a term of two years. The remaining charge was dropped. Respondent's civil rights were later restored on April 28, 1978 by the Office of Executive Clemency. On or about November 22, 1981, Respondent was arrested for (a) possession of a controlled substance, (b) possession of a drug without a prescription, and (c) for driving while intoxicated. He later pled nolo contendere to driving while under the influence and received six months reporting probation, a suspension of his driver's license for 90 days, a $236 fine, and a requirement that he attend and complete a DWI course. The other two charges were dismissed. On September 22, 1980 Respondent filed an application for employment as a part-time (substitute) teacher with the School Board of Broward County. Question ten of the application asks the following: Have you ever been convicted of a felony or a first degree misdemeanor? If a yes answer was given the applicant was then requested to state the charge, where convicted, and date of conviction. Respondent answered the question in the affirmative and then stated "will explain upon request." A copy of his fingerprints was also submitted with the application. After receiving the application, the School Board of Broward County conducted an investigation of Respondent. It required that Collins fill out an "arrest record information sheet" explaining the details of his arrest. Collins did so and stated only that he had been arrested by the Fort Lauderdale Police Department in 1974 for possession of cocaine and was found guilty. Since his arrest in 1974 was for possession of cannabis vis a vis cocaine, it is unclear whether he was referring to his 1975 arrest when he was arrested and convicted of delivery of a controlled substance (cocaine). However, based upon this explanation, and an interview with the Board's Division of Internal Affairs, he was authorized to be employed as a substitute teacher. After receiving a complaint from an undisclosed parent, the principal of Crystal Lake Middle School in Broward County, where Respondent occasionally taught, contacted the Division of Internal Affairs regarding Collins. It then ran a fingerprint check on Respondent with the Federal Bureau of Investigation which confirmed the arrests and convictions in 1974 and 1975. Thereafter, on November 5, 1981 the Board's associate superintendent wrote Respondent to advise him that his name was being removed from the substitute teacher list, and that he could not accept any further assignments within the County. Despite this letter, Collins was again employed as a substitute teacher. On January 14, 1982 the Board's director of personnel wrote Collins and stated that he was no longer authorized to substitute in the Broward County school system. On December 8, 1980 Respondent filed an application with the Teacher Certificate Section of the Department of Education in Tallahassee, Florida. In response to question 5, which asks whether the applicant has .... ever been convicted or had adjudication withheld in a criminal offense other than a minor traffic violation...", and if applicable to state where the arrest occurred, the date, the nature of charges, and disposition, Collins answered "yes" and indicated he had been arrested in Fort Lauderdale in 1974 and 1975 for possession of marijuana and cocaine and was found guilty of both charges. He also noted that his civil rights had been restored. On March 26, 1981, the Department's Professional Practices Services consultant wrote Collins requesting "more details regarding (his) arrest in order to complete the processing of (the) application." It asked that he be more specific concerning the date of arrest, date of adjudication, the court address where final disposition was rendered, and the nature of the charges. Before Respondent replied to this request a certificate was issued by the State at a later date. Petitioner contends it had no choice except to issue a certificate since the ninety-day statutory time period for issuing or denying a certificate had expired. It conceded it erred in not processing the application in a more timely manner so that a reasoned decision could be made within the statutory time constraints. There was no testimony to demonstrate whether Respondent's conduct "seriously reduced his effectiveness as a teacher." His principal at Crystal Lake Middle School characterized his work as "satisfactory", and stated that no complaints had been made regarding his school work performance from any other teacher or member of the administrative staff. Respondent did not testify in this proceeding. However, he did introduce letters from his pastor and a former employer which were treated as hearsay.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be given a public reprimand for violating Subsection 238.28(1) for having in his possession two marijuana cigarettes and one diazepam tablet; all other charges against Respondent should be DISMISSED. DONE and ENTERED this 30th day of December, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1982.
