The Issue The issue for determination is whether Respondent should be suspended without pay and dismissed from employment with Petitioner.
Findings Of Fact Mr. Hurst holds a Florida teaching certificate. Mr. Hurst was employed as a teacher with the School Board. He has been employed with the School Board since 1984. Mr. Hurst taught at Poinciana Elementary School, Citrus Cove Elementary School, Crystal Lakes Elementary School, and Lake Worth Middle School. At each of these schools, Mr. Hurst received disciplinary actions. No dispute exists as to paragraph numbered 7 of the Petition, which states: "On or about September 3, 1996, Respondent [Mr. Hurst] received a written reprimand from his principal for failing to allow a child to use the restroom causing her to wet her pants and, as a result, incur public humiliation; failing to use good judgment by going to a student's house unannounced, at a time when parents are not normally at home, for the purpose of informing the parents that the child had not turned in a math paper; and for his continued use of sarcastic comments towards parents. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of this discipline." No dispute exists as to paragraph numbered 8 of the Petition, which states: "On or about March 10, 1998, Respondent [Mr. Hurst] received a formal written reprimand for inappropriate behavior because of his use of offensive nicknames towards students, including the use of phrases such as "shut-up" and "hiney," and for not reporting a child who had left Respondent's [Mr. Hurst's] class to go to his school's front office. Respondent [Mr. Hurst] was advised that his use of sarcasm and teasing of students must stop immediately, or he would be considered grossly insubordinate and more serious disciplinary action would be taken. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of the discipline." No dispute exists as to paragraph numbered 9 of the Petition, which states: "Between February 4, 1999 through February 10, 1999, Respondent [Mr. Hurst] served a five (5) day suspension without pay for pushing a student and using profane language towards the student. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of the discipline." No dispute exists as to paragraph numbered 10 of the Petition, which states: "On or about February 1, 2001, Respondent [Mr. Hurst] began serving, and did serve, a ten (10) day suspension without pay for inappropriately touching a student and for making inappropriate romantic/sexual comments towards a co-worker while working as a teacher at Crystal Lakes Elementary School. Respondent [Mr. Hurst] did not grieve or otherwise appeal the imposition of the discipline." No dispute exists as to paragraph numbered 11 of the Petition, which states: "Subsequent to the aforementioned suspension, Respondent [Mr. Hurst] was transferred to Starlight Cove Elementary School. His first day of work was on or about February 15, 2001." At each disciplinary action, Mr. Hurst was advised and directed that any future inappropriate conduct would result in further disciplinary action, up to and including dismissal. During the 2001-2002 school year, Mr. Hurst was employed with the School Board pursuant to a professional services contract. At hearing, Mr. Hurst did not deny the previous disciplinary actions. Furthermore, he agreed that the pertinent time period for proving the allegations of fact of the Petition was February 15, 2001 through March 16, 2001. Mr. Hurst is a member of the collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (PBCTA). Mr. Hurst was aware that the School Board engages in progressive discipline. Furthermore, he was aware that the use of profanity and other inappropriate conduct for which he was previously disciplined was not allowed and violated the laws and rules under which the School Board operated. At Starlight Cove Elementary School (Starlight Cove), Mr. Hurst was to assist where needed. He was eventually assigned to assist another teacher, Mr. Barrett, with his fifth grade class. Mr. Hurst's assignment with Mr. Barrett's fifth grade class was to be a temporary assignment. Mr. Barrett's class was one of the most challenging classes at Starlight Cove. The students needed structure and a disciplinarian. Mr. Barrett had no problems with his class. In the beginning, Mr. Hurst and Mr. Barrett were in the classroom together. Some time later, Mr. Barrett took leave for the birth of his child, which resulted in Mr. Hurst's being in the classroom alone, as the sole teacher. Temporary and substitute teachers usually have a difficult time with students in the area of discipline. Students, recognizing that a teacher is temporary or a substitute, generally become discipline problems. On or about March 2, 2001, Mr. Hurst was the sole teacher. One of the students in the fifth grade class complained to Mr. Hurst that another student had used profanity. Mr. Hurst gave the class, what he considers his routine lecture on the use of profanity, giving them examples as to what may be accepted language and as to what may be unacceptable language for which the students could be disciplined. On or about March 2, 2001, after school, the principal of Starlight Cove, Susan Saint John, inquired of Mr. Hurst about his routine lecture on profanity because she had received several written communications from the students in his class, complaining that he had used profanity. At hearing, Ms. Saint John testified that Mr. Hurst informed her that he used both a profane word and alphabet substitutes for profane words in his examples during his routine lecture. Moreover, Ms. Saint John testified that her notes of the incident, which were made at the time of her conversation with Mr. Hurst and which showed that he used the word "ass," were accurate. Mr. Hurst denies that he used profanity but insists that he used only alphabet substitutes for the profane words. The more credible evidence is that Mr. Hurst used both alphabet substitutes for profane words and used the profane word "ass" in his routine lecture.2 The evidence also shows that students complained of Mr. Hurst using profane language although the evidence is insufficient to show that he used all the profane words, other than "ass," complained of by the students. The evidence is insufficient to show that Mr. Hurst used profanity other than in the routine lecture and that he used any other profane word than "ass." The evidence is insufficient to show that Mr. Hurst was advised that the use of alphabet substitutes for profane words was unacceptable and would be contrary to the directive for him not to use profane words. The use of profanity, whether by words or alphabet substitutes, by teachers with students constitutes unethical conduct. Ms. Saint John reported the incident to the School Board's Professional Standards department on or about March 2, 2001, but the intake sheet for Professional Standards was not completed until about a week later. Since 1996, Starlight Cove has used a system of discipline for students that uses color codes from green to red. The color of green is the beginning point and indicates that a student is following the rules. If a student fails to follow the rules, the colors progress from green to yellow (a warning) to red. The color code system is posted in classrooms and in the teachers' faculty handbook. Mr. Barrett used the color code system of discipline, and it was posted in his classroom. On March 2, 2001, Ms. Saint John was frequently called to the classroom at which Mr. Hurst was substituting for Mr. Barrett for discipline reasons. Her prior experience with the class was that Mr. Barrett had control of the class and that she had not been called into the classroom for discipline problems. Furthermore, previously, when persons, other than Mr. Barrett, were in charge of the class, she had been infrequently called to the class for discipline reasons. When Ms. Saint John entered the classroom on March 2, 2001, one of the things that she noticed was the color code had been changed from green to yellow and red. Based upon her prior experience with the class, she assumed that Mr. Hurst was incorrectly utilizing the color code system of discipline since the color had changed to yellow for the entire class. At no time did she discuss her assumption with Mr. Hurst. Mr. Hurst denied incorrectly using the color code system. However, he admitted that he "bluffed" the students into behaving appropriately by telling them that he would change the color code for the entire class from green to yellow. Because the students were well-behaved when Mr. Barrett was in the classroom, Mr. Hurst had no opportunity to observe Mr. Barrett using the color code system. Ms. Saint John does not recall specifically advising or training Mr. Hurst on the use of the color code system. The color code system is reviewed at faculty meetings. Mr. Hurst attended the faculty meetings. Mr. Hurst was aware of the color code system and of how to use the system. The evidence is insufficient to demonstrate that Mr. Hurst incorrectly or inappropriately used the color code system. On March 16, 2001, Mr. Hurst was transferred to Lake Worth Middle School. On June 29, 2001, the Petition was executed by the Superintendent of the School Board. An investigation was performed before the determination was made to seek suspension and termination of Mr. Hurst from employment with the School Board. As part of the investigation, statements from some of the students in Mr. Hurst's class were taken. These statements by the students, as well as the previously indicated disciplinary actions against Mr. Hurst, were some of the documents relied upon by the School Board for the determination to seek suspension and termination of Mr. Hurst. After the determination to suspend and terminate was made, the statements were sworn to by the students.3 The evidence at hearing shows that, based upon the evidence before the School Board at its meeting, the School Board's action to suspend and dismiss Mr. Hurst was reasonable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order: Suspending Dennis W. Hurst as a teacher. Dismissing Dennis W. Hurst from employment. DONE AND ENTERED this 31st day of December, 2003, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 31st day of December, 2003.
Findings Of Fact The Respondent, Robert Ressler, holds Florida Teaching Certificate No. 396920 covering the areas of social studies, history, physical education, administration and supervision, which is valid through June 30, 1991. The Respondent was employed as a teacher at the Land O'Lakes High School in the Pasco County School District from 1984 until April, 1990. The Respondent is currently 43 years of age and weighs 215 pounds. During the years of the '88-89, and '89-90 school year, he taught three mainstream classes and two alternative education classes as a part of the Alternative Education Program at Land O'Lakes High School. There were approximately 80 students in his combined classes. The Alternative Education Program was a program at Land O'Lakes High School for students that lacked motivation, were poor in attendance, were failing courses, and had low self-esteem. One evening, in February of 1989, a mainstream class student, Wes Harden, and others, vandalized the Respondent's home and van by throwing eggs at it. Subsequently, the Respondent heard rumors that Harden was the individual who vandalized his home and van. Later, when Harden came into the Respondent's class, he took him in the hallway and angrily told him that he did not ever want to see him on his property again. After class, the student, Harden, went to an administrator, Mr. Broadbelt, and reported the incident. He initially lied about his involvement in the vandalism, and alleged that Respondent threatened to break every bone in his body, and would kill him if he ever saw him around Respondent's neighborhood again. The next day, Respondent discussed the incident with Assistant Principal Broadbelt, and no disciplinary action was taken against Respondent following this event. In August, 1989, just prior to the beginning of the school year, teacher, Viginia Lupo, complained that she had a disagreement with Respondent, and that Ressler showed disapproval toward her and the school administrators. Ressler went to Ms. Lupo's classroom to retrieve some world history textbooks. Lupo first denied that she had the textbooks, but after searching, she found them. Lupo admitted that she had mixed up Mr. Ressler with Mr. Russell, and thought that she had already given the books away. During this episode, Respondent became angry, loud, and excited, but did not degrade her. In October, 1989 at an open house for Alternative Education parents, Ressler became angry and raised his voice toward Virginia Lupo for allowing students to sit on the desks and the floor in his classroom. Lupo was upset by Respondent's conduct. Lupo complained to two school administrators regarding Respondent's conduct, but no disciplinary action was initiated against Respondent. On October 17, 1989, Respondent brought a student, Michael Moore, into Assistant Principal Carolyn Fabal's office, for extreme misbehavior, including spitting, throwing food, and making obscene gestures toward him. Respondent had written up disciplinary referrals several times on Michael Moore prior to this incident, and the student had previously been suspended, and otherwise disciplined on grounds of defiance of authority and misconduct. While in Carolyn Fabal's office, Michael Moore raised his voice, and was extremely angry. Respondent was also angry, and raised his voice in order to be heard over the student and inform Fabal about what happened. During the course of this incident, Respondent demonstrated the obscene gesture which was made by Michael Moore toward him by grabbing his crotch. This was inappropriate behavior on the part of Respondent when attempting to discipline a student. Robert Ressler did not fill out disciplinary forms in connection with the Michael Moore incident on the day in question. Respondent had also complained regarding his perceived lack of support from the administration, and that he had asked for support from Ms. Fabal regarding policies in school suspensions. Shortly thereafter, Ms. Fabal wrote an informal "letter of clarification" regarding these incidents directed to Respondent which was not placed in his file. During that same school year on December 5, 1989, the Respondent attended a Land O'Lakes High School varsity girls basketball game as an assistant coach. During the game, two technical fouls were called on the opponent's head coach, and one technical on his team's head coach. At the conclusion of the game, the Respondent expressed his dissent concerning the calls made during a game by approaching one of the officials and stating that he had done a really poor job, and that both head coaches from each school felt that way. He asked the official to make sure he put his name in the score book. As a result of this exchange with the official, the principal of the school, Albert Bashaw, received a letter from Fred Rozelle, the Executive Secretary for the Florida High School Athletic Association. This letter reproached the Respondent for acts unbecoming a coach. The letter charged that, "the Respondent's conduct tended to incite the spectators and players, and showed a poor example of good sportsmanship." The letter went on to state, "under no circumstance shall a coach attempt to publicly criticize, berate, or intimidate the official which should be shown the utmost courtesy, dignity, and respect." Upon receipt of the letter, the principal discussed its contents with Mrs. Marion Ressler, the girls varsity coach. He did not talk with Respondent or give him a copy of the letter. There was no competent evidence to support these allegatoins. During the 1988-89 and 1989-90 school year, the Respondent frequently allowed the students in his Alternative Education classroom to use inappropriate language; to-wit, cursing between themselves and occasionally between himself and his students. Respondent did not encourage inappropriate language in his classroom, and did reprimand and write-up students who swore excessively. Respondent tried to handle the problem himself by either talking it through, or by using humor. The Administrator at Land O'Lakes High School received some complaints from parents and students regarding the Respondent's use of vulgar language in the classroom. During the 1988-89 school year, an Administrator, Peter Kennedy, at Land O'Lakes gave him a written warning which the Respondent signed regarding his inappropriate use of language when he brought a student to the office for discipline. The administration of Land O'Lakes High School never made any mention of these allegations concerning the use of profanity or inappropriate language in Respondent's evaluations. An Alternative Education class requires informality. Foul language may sometimes be overlooked, since the goal is to get these students, who are disinterested and disruptive, to stay in school and learn. Behavior, not language, is the appropriate focus of the Alternative Education classroom. During the 1988-89 school year, Respondent became angry and began shouting when he caught two EH students using the back of the school to go back and forth between classes. An EH teacher, Ms. Monique Vinski, had received permission for her students to pass behind the school. Because the Administration had a general rule which prohibited students from going in this area between classes, Respondent did not accept her statement that the students had permission to use that route and was visibly angry. Ms. Vinski was subsequently told by the Administration to take her students through the hallway. Respondent was never formally or informally disciplined for this event, nor was there any record of the event in his personnel file. During the same period of time, Respondent stopped another emotionally handicapped student for being in an inappropriate area. Respondent became very angry, and was shouting at the student. During the '89-90 school year at Land O'Lakes, the Respondent had in his class an Alternative Education student by the name of Billy Eviston. During a discussion on racism and abortion, in American History class, Eviston expressed an opinion that was opposed by the Respondent. Whereupon the student felt that Respondent had demeaned him, and he reported his recollection of the event to the Administration. No disciplinary action was taken for this incident. During the 1989-90 school year, Sgt. Richard Thiel, who was a recruiter in the National Guard, taught employability skills classes at the different high schools in Pasco County. Sgt. Thiel had scheduled months in advance a classroom presentation to several classes, including Respondent's class, through the Occupational Specialist, Woody Wall. Thiel and his assistant walked into Respondent's class in civilian clothes, pushing a cart with a movie projector on it. He did not identify himself. Upon the Sgt.'s entry into the classroom, the Respondent said he did not know who Sgt. Thiel was, and that he was expecting Woody Wall to teach the class. Whereupon Respondent exited the classroom in a futile search to find Wall. Thiel felt that Respondent's attitude toward him was very arrogant and he decided he would not teach the class that day. He and his assistant left Respondent's classroom prior to the return of Respondent. There was no altercation between Respondent and the Sgt. and his assistant. No disciplinary action was taken in connection with this incident. In March of 1990, an Alternative Education student, Terekita Brown, date of birth, 9/2/72, was in the Respondent's 10th grade class. She was a disruptive student, who had a history of poor grades, high absenteeism, and disruptive and rude behavior. Brown came late to class with an admit slip for readmittance into the ecology class which she gave to the Respondent, who questioned it's authenticity. Miss Brown became angry and responded by saying "fuck you." When other students became agitated with her, she swore at the other students as well, and made vulgar comments to Respondent about his wife, and continued to repeat "fuck you" in a loud and angry manner. Finally, to diffuse the situation, Respondent tried to use humor and said to Brown, "right here in front of the class?". Respondent did not return profanity toward Brown, or the students that day. The mood in the room was laughter, and Brown was also laughing concerning the interchange. When the class quieted down, Respondent taught the remainder of the class, and Terekita Brown finished out the remainder of the class without incident. The entire incident lasted between two to five minutes. Following the class, the incident was reported to the Administration who assigned James Davis, Director of Instructional Employees Relations to investigate. Davis concluded the Respondent did not call Brown a prostitute directly, but did so by implication, and should be disciplined. The method used by Respondent to diffuse the Brown situation was an acceptable technique in alternative education. Each assessment evaluation for the period of 1984 to 1990 rated Respondent as a very satisfactory teacher. The March 7, 1990 evaluation, performed by an assistant principal and signed by the principal, classified Respondent "as a very fine teacher and a credit to Land O'Lakes High." On or about April 4, 1990, the Respondent was suspended without pay by the District School Board of Pasco County. On or about May 2, 1990, the Respondent's employment contract with the District was terminated as a result of their finding of misconduct in office, gross insubordination, and neglect of duty.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Robert Ressler did not violate the provisions of Sections 231.262(6) and 231.28(1), Florida Statutes, and Rule 6B-1.006(5), Florida Administrative Code, but did violate Rule 6B-1.006(3), Florida Administrative Code, due to his loss of temper. It is further RECOMMENDED that a Final Order be issued reprimanding Respondent for the above violations. DONE AND ENTERED this 20th day of November, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1991. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,7 (in part), 8 (in part), 9 (in part), 10, 11, 13 (in part), 18, 19 (in part), 20, 22 (in part), 23 ( in part), 24, 25, 26, 28 (in part), 29, 30, 31, 32, 33 (in part), 34, 35, 37, 38, 42, 43, 46, 47, 49, 54, 56 Rejected as against the greater weight of evidence or irrelevant: paragraphs 7(in part), 8(in part), 9(in part), 12, 13(in part), 14, 15, 16, 17, 21, 22 (in part), 23 (in part), 27, 28 (in part), 33 (in part), 36, 39, 40, 41, 44, 45, 48, 50, 51, 52, 53, 55 Rejected as subsumed or conclusions of law: paragraphs 57, 58, 59, 60, 61, 62, 63, 64, 65 Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,2,3,4,5,6,9 (in part), 11, 12, 13, 14, 16, 18, 20, 21, 22, 23, 24, 25, 27 (in part), 29, 30, 32, 33 (in part), 34 (in part), 36, 37 (in part), 39, 41, 42 (in part), 43, 44, 45 46 (in part), 47, 48, 56, 58, 59, 60, 61 (in part), 62, 63 Rejected as subsumed, irrelevant or argument: paragraphs 7, 8, 9 (in part), 10, 15, 17, 19, 26, 27 (in part), 28, 31, 33 (in part), 34 (in part), 35, 38, 40, 46 (in part), 49, 50, 51, 52, 53, 54, 55, 57, 61 (in part), 64, 65 Copies furnished: Lane Burnett, Esquire 331 E. Union Street, Ste #2 Jacksonville, Florida 32203 Lorna Sills Katica, Esquire 1950 NCNB Plaza 400 N. Ashley Drive Tampa, Florida 33602 Karen Barr Wilde Executive Director 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry Moore, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issues in this case are whether Respondent violated Section 231.28(1)(i), Florida Statutes (2000), and Florida Administrative Code Rule 6B-1.006(3)(a) and (e), by using unauthorized methods of disciplining a student before allowing the student to visit the school nurse. (All chapter and section references are to Florida Statutes (2000) unless otherwise stated. Unless otherwise stated, all references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order.)
Findings Of Fact Petitioner is the state agency responsible for regulating certified teachers in the state. Respondent holds Florida Educator's Certificate Number 416888. Respondent's Florida teaching certificate is valid through June 30, 2003. Respondent is employed as a Special Education Teacher at Moore Haven Junior High School (the "school") in the Glades County School District (the "District"). Respondent has a long-standing practice in his classroom of disciplining male students by making them do push-ups and hold books while their arms are extended in front of them. Both practices violate rules and policies of the school and the District. Respondent had actual or constructive knowledge that discipline by push-ups and holding books violated the policies of the school and the District. The student handbook distributed to each teacher, including Respondent, prescribed the authorized methods of discipline. None of the authorized methods included pushups or holding books. Respondent submitted some evidence that administrators in the school deviated from officially stated policies and rules by condoning unauthorized methods of discipline such as pushups or holding books. However, the evidence submitted by Respondent was less than a preponderance of the evidence and was adequately refuted by evidence submitted by Petitioner. All of the students in Respondent's class are exceptional education students. Each student has an identified disability. Any method of discipline other than that authorized by applicable policies and rules must be clearly stated and authorized in each student's individual education plan ("IEP"). C.W. was an exceptional education student in Respondent's class on February 9, 2000. The IEP for C.W. did not authorize any alternative methods of discipline. During class on February 9, 2000, Respondent approached C.W. because C.W. had his head on his desk during class. Respondent instructed C.W. to do his assignment. C.W. complained that he felt sick and requested to see the school nurse. Respondent and C.W. exchanged brief repartees. The evidence is less than clear and convincing that during the exchange Respondent prevented C.W. from going to the nurse's office. Some witnesses testified that Respondent refused C.W.'s request to go to the nurse's office. Other witnesses in the classroom during the exchange testified that Respondent initially instructed C.W. to go to the nurse's office but that C.W. refused either to go to the nurse's office or to do his assignment. The testimony of all of those witnesses was credible. Because C.W. refused to do his assignment in class, Respondent instructed C.W. to stand at the back of the class with his arms extended in front of him. C.W. complied with Respondent's instruction. Respondent successfully completed the alternative method of discipline that required C.W. to stand at the back of the class. However, Respondent failed to effectuate other unauthorized methods of discipline that Respondent attempted. When Respondent placed books in C.W.'s arms, C.W. did not hold the books in his arms. Rather, C.W. dropped his arms, and the books fell to the floor. When Respondent instructed C.W. to do push-ups, C.W. refused Respondent's instruction. C.W. left Respondent's classroom under his own volition and went to the office of the school nurse. The evidence does not reveal the amount of time that transpired between Respondent's initial instruction for C.W. to stand at the back of the class and the time when C.W. left for the nurse's office. Therefore, there is no evidentiary basis to quantify the delay in medical attention. When C.W. arrived at the nurse's office, the school nurse determined that C.W. was feverish, suffered chills, and that his complexion was "splotchy." The nurse telephoned C.W.'s parents. The parents took C.W. home and subsequently to the hospital. The examining physician at the hospital diagnosed C.W. as suffering from mastoiditis. The physician admitted C.W. to the hospital for two days and successfully treated the medical condition. The medical condition represented an exigent threat of harm to C.W.'s physical safety within the meaning of Rule 6B-1.006(3)(a). As previously found, however, the evidence is less than clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect the student from a medical condition that was harmful to the student's physical safety. Conflicting evidence was less than clear and convincing evidence that Respondent delayed C.W.'s attempt to see the school nurse or the length of any delay allegedly caused by Respondent. C.W. left Respondent's class under his own volition and went directly to the nurse's office. The conflicting evidence was less than clear and convincing that any delay between Respondent's initial contact with the student and the student's departure to the school nurse was significant enough that Respondent failed to make a reasonable effort to protect C.W. from conditions harmful to the student's physical safety. The evidence is clear and convincing that Respondent violated Rule 6B-1.006(3)(a) by failing to make a reasonable effort to protect C.W. from conditions harmful to learning. The methods of discipline attempted by Respondent were harmful to C.W.'s ability to learn, violated C.W.'s IEP, and violated school policy. For the same reasons, Respondent violated Rule 6B-1.006(3)(e) by intentionally exposing a student to unnecessary embarrassment and disparagement. Administrative staff at the school conducted a full investigation of the matter. Upon conclusion of the investigation, the District issued a written letter of reprimand to Respondent. The letter of reprimand issued by the District is disciplinary action by Respondent's employer. The judicial doctrine of double jeopardy does not preclude disciplinary action by Petitioner against Respondent's license. No evidence shows that Respondent has any prior disciplinary history by either Petitioner or the District. Petitioner seeks to have Respondent's teaching certificate suspended for 12 months. However, Petitioner's proposed penalty is based on the premise that Respondent committed all of the allegations in the Administrative Complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent guilty of violating Section 231.28(1)(i) and Rule 6B-1.006(3)(a) and (e), and suspending Respondent's teaching certificate in Florida for six months. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2001. COPIES FURNISHED: Ron Weaver, Esquire Ron Weaver & Associates 528 East Park Avenue Tallahassee, Florida 32301-1518 Kathleen M. Richards, Executive Director Educational Practices Commission Department of Education 224-E Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Jerry W. Whitmore, Program Director Professional Practices Commission Department of Education 325 West Gaines Street, Suite 224-E Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Carl Zahner, Esquire Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399 Moses N. Mwaura 214 Tenth Street Post Office Box 856 Moore Haven, Florida 33471
The Issue Whether Respondent violated section 1012.795(1)(j), Florida Statutes, and Florida Administrative Code Rule 6A-10.081(3)(a), as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Florida Education Practices Commission is the state agency charged with the duty and responsibility to revoke or suspend, or take other appropriate action with regard to teaching certificates as provided in sections 1012.795 and 1012.796, Florida Statutes (2016). § 1012.79(7), Fla. Stat. Petitioner, as Commissioner of Education, is charged with the duty to file and prosecute administrative complaints against individuals who hold Florida teaching certificates and who are alleged to have violated standards of teacher conduct. § 1012.796(6), Fla. Stat. Respondent holds Florida Educator's Certificate 962539, covering the areas of English, English for Speakers of Other Languages, Middle Grades Integrated Curriculum, and Reading, which is valid through June 30, 2017. During the 2013-2014 school year, Respondent was employed as a science teacher at Sims Middle. He continued teaching at Sims Middle for the 2014- 2015 school year, and currently teaches at Woodham Middle School in Escambia County. Among his teaching assignments, Respondent taught an eighth-grade honors science class during the school day’s first period. Among his students in that class was T.L. T.L had, in 2010, been diagnosed with Type I diabetes. By her eighth-grade year, T.L. was an “independent diabetic,” using an insulin pump and capable of carrying her meter and lancing device with her. On March 6, 2014, during a discussion of the consequences of the failure of various organs, Respondent made a comment that was substantially similar to that alleged in the Administrative Complaint, i.e., “Your pancreas can die and you could go into sugar shock; go into a coma and die, like (T.L.) could.” Respondent was standing in front of T.L.’s desk at the time. His position meant that the students were, or should have had their attention directed to Respondent. Thus, his statement would have been obvious. The investigation performed by Mr. Stokes indicated that comments similar to that involving T.L. “are often made” by Respondent; that T.L. likely took the statement “the wrong way” due to Respondent’s “dry sense of humor”; that Respondent “often makes comments trying to be funny but it usually just makes people feel weird”; and that he has made similar comments regarding other students in the past. The statements contained in Mr. Stokes’ report are not accepted for the truth of the matters asserted, but are used herein as evidence of Respondent’s overly loose and unsuccessfully “funny” teaching style. The statements contained in Mr. Stokes’ report also support a finding, made herein, that Respondent did not single T.L. out for disparate treatment, but (misguidedly) used her condition, with benign intent, to reinforce the importance of his lesson plan. In that regard, even T.L.’s mother, who was aggravated by the incident, admitted that the instruction as to what can happen when one’s pancreas dies “would have been appropriate in the classroom,” with her concern being the personalization of the instruction. However, she acknowledged that Respondent’s “unprofessional” comments had previously been directed to other students, and were not restricted to T.L. The evidence suggests that T.L.’s diabetic condition was not unknown. T.L.’s close circle of friends knew, having been told by T.L. C.P. testified that T.L.’s diabetes was fairly common knowledge. On at least one occasion prior to Respondent’s statement, the alarm on T.L.’s insulin pump went off during class. Respondent asked the class whether the sound was a cell phone, to which T.L. replied “Oh, that is my pump, sorry,” and turned the alarm off. T.L. carried the pump in her pocket, and she testified that the other students “probably just thought I had something weird in my pocket, but didn’t really know what it was.” T.L.’s mother testified that “her tubing was usually visible, depending on what she was wearing.” Finally, the topic of T.L.’s award-winning science project was the effect of contaminants at the site of a finger stick when testing one’s blood for glucose. While there was no evidence that T.L.’s diabetes was the subject of a general announcement, or that it was a topic of particular concern amongst her peers, the preponderance of the evidence indicates that it was unlikely that her condition was unknown to those in her class. The comment that forms the basis for the Administrative Complaint, though related to the class lesson plan, was inappropriate and unnecessary. Despite the fact that T.L.’s diabetes was not unknown to her peers, Respondent’s act of using her as an example was embarrassing to her. Respondent’s testimony that his use of T.L. as an example of an unchecked diabetic reaction was purely happenstance is not plausible. The evidence is convincing that Respondent was well aware of T.L.’s diabetes, and used her as an example of someone who had the condition that was the topic of discussion. However, there was no evidence that Respondent made the statement maliciously, or with the intent to embarrass or humiliate T.L. Prior to the incident in question, T.L., along with other students, used her telephone with Respondent’s permission in his class after completing Florida Writes testing, and Snapchatted a video to a friend. That became known when the friend asked Respondent why students in her later class period could not use their phones in similar circumstances. Respondent verbally admonished both T.L. and her friend, with his primary concern seeming to be that he could get in trouble for having allowed his first-period students to use their phones in class. T.L. was not written up for the incident, and there was no adverse effect on her grades. On March 5, 2014, Respondent received a letter of reprimand from Sims Middle regarding the incident of allowing students to use telephones in class. Although the incident that forms the basis for the Administrative Complaint occurred on March 6, 2014, there is insufficient evidence to establish a causal connection between the two. The suggestion that the incident in question was retaliation, or was otherwise precipitated by the Snapchat incident, is not accepted. On March 28, 2014, Respondent received a letter of reprimand from Sims Middle for the incident in question. Other than the two reprimands described herein, both having been issued in the span of little more than three weeks, he had not been the subject of any previous disciplinary actions during his eleven-year period of employment with the Santa Rosa County School District. There was no evidence that T.L.’s mental health was actually affected by the incident. The testimony of T.L. and her mother is evidence that she was, and remains, a bright, articulate, well-adjusted, straight-A student. However, rule 6A-10.081(3)(a) “does not require evidence that Respondent actually harmed [T.L.]'s health or safety. Rather, it requires a showing that Respondent failed to make reasonable efforts to protect the student from such harm.” Gerard Robinson, as Comm’r of Educ. vs. William Randall Aydelott, Case No. 12-0621PL ¶ 76 (Fla. DOAH Aug. 29, 2012; EPC Dec. 19, 2012). Under the circumstances described herein, Petitioner proved that Respondent, though without specific intent or malice, failed to make reasonable effort to protect T.L. from embarrassment, a condition reasonably contemplated to be harmful to her mental health pursuant to rule 6A-10.081(3)(a).
Recommendation Upon consideration of the Findings of Fact and Conclusions of Law reached herein, it is RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent violated rule 6A-10.081(3)(a). It is further recommended that Respondent be issued a reprimand. DONE AND ENTERED this 7th day of December, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 7th day of December, 2016.
