Findings Of Fact Respondent holds Florida teaching certificate 066623, covering the areas of Elementary Education, Junior College, Reading, Early Childhood Education and Administration and Supervision. She has earned a bachelor's and master's degree, and a doctorate. Until her suspension in August, 1982, she served as Principal of West Riviera Elementary School ("West Riviera") in the Palm Beach County School District. On January 24, 1983, a final order was entered by the Palm Beach County School Board dismissing her from her employment and cancelling her continuing contract with the district. During Respondent's tenure as Principal at West Riviera, (1973-1982) it was her policy to maintain and rigorously enforce strict discipline, or as she put it, "law and order." Her approach to maintaining "law and order" is illustrated by the following events. When Marie Rusch joined West Riviera as a substitute Kindergarten teacher in October of 1979, Respondent explained that she wanted Ms. Rusch to maintain law and order in the school: "I don't care if these children learn nothing, I want law and order." Ms. Rusch was surprised by Respondent's attitude, particularly with regard to kindergarten children. This was Ms. Rusch's first opportunity to teach in a public school. During a conference in 1973 with Nancy Pullam, (another kindergarten teacher) regarding student behavior, Respondent gave Ms. Pullam two or more rulers taped together with masking tape and told "her beat them and they will learn." Respondent passed out 18" rulers to each member of the teaching staff at West Riviera and told them that she expected them to use the rulers in administering corporal punishment. Until on or about May 7, 1980, Respondent permitted teachers to administer corporal punishment in their classrooms, contrary to Palm Beach County School Board Policy 5.18(9). She permitted teachers to administer corporal punishment for any type of misbehavior until she changed that policy on or about March 12, 1982. At that time, she advised her faculty that corporal punishment was to be administered only for fighting and foul language. Prior to March 12, 1982, Respondent failed to set any guidelines for the faculty at West Riviera concerning offenses or infractions for which corporal punishment was authorized. In her view, the only "offense" which did not warrant corporal punishment was the failure of a student to do his assigned classwork. The only alternatives to corporal punishment utilized at West Riviera were suspension from school or deprivation of a fun activity (including depriving a student of physical education or use of the library). If a child would not accept paddling, it was Respondent's policy that the student be automatically suspended for a period of five days. Respondent constantly emphasized her philosophy of strict law and order through her use of the expression "Your behind is mine," meaning that if a child misbehaved he or she would receive a paddling. Respondent repeatedly used this expression in addressing children, faculty and staff, both personally and over the school's public address system. Respondent's manner of administering West Riviera created a fearful and military-like atmosphere. She often told teachers that she wanted it so quiet in faculty meetings, and in classrooms, that she could "hear a rat piss on cotton." When Marjorie Russo was hired to teach third grade, Respondent told her that corporal punishment used at West Riviera. Respondent told the faculty at the beginning of each school year that they each had a paddle, and she expected them to keep law and order. It they didn't, they would be "blackballed" in the county. Respondent told substitute teachers that her primary concern was that they maintain law and order, that she didn't care whether the substitute taught the children anything. Dr. Howard Levarity, Assistant Principal at West Riviera, became concerned about the extent to which corporal punishment was utilized under Respondent's administration. He was so concerned that he tried to transfer to another school. He observed occasions when children were corporally punished without good reason. At West Riviera, teachers were given great latitude in administering corporal punishment so that "law and order" - as defined by respondent - could be maintained. As a result of Respondent's policies regarding the use of corporal punishment, there were 3,246 separate instances in which students were administered corporal punishment during the 1979-1980 school year. A total of 451 students (78% of the school's students, ranging in number from 576 to 607) received corporal punishment during that school year. During the 1980-1981 school year, there were 1,176 instances in which corporal punishment was administered to students. Out of a school population of 550 students, 290 (52.8%) received corporal punishment during that year. During the 1981-1982 school year, there were 560 separate instances of corporal punishment. Out of a school population of 537, 214 students (40.9%) received corporal punishment during that year. Although most of these punishments were not administered in Respondent's presence, their frequency was a direct result of her policy to encourage - even insist - that corporal punishment be applied to maintain law and order. During the 1979-1980 school year, fourth grade student Greg Aronson was corporally punished 59 times. Greg's mother was never notified by the school that he received corporal punishment on 70 different occasions. Second grade student Sterling DeShields received corporal punishment on 45 occasions. Fourth grade student Robert Duguette received corporal punishment on 61 occasions. Fourth grade student Steve Geck received corporal punishment on 43 occasions. Sixth grade student Thomas Gradison received corporal punishment on 48 occasions, four of which occurred within a one hour period of time on October 25, 1979. In each instance, Thomas received the maximum of 5 strokes, for a total of 20 strokes within one hour. Fourth grade student Keith Griffin received corporal punishment on 52 occasions. Lucius Jackson, a fifth grade student, received corporal punishment on 44 occasions, three of which occurred during the morning of December 6, 1979. In each of his 44 paddling, Lucius received the maximum of 5 strokes. Fourth grade student Mark Nunnally received corporal punishment on 41 occasions. David Pender, a fourth grade student, received corporal punishment 58 occasions. Second grade student Cameron Walker received corporal punishment on 38 occasions, with Respondent administering 17 of the paddling. Fourth grade student Elinor Williams received 34 paddling. Kindergarten student Leonard Williams received 31 paddling, three of which occurred within one and one-half hours on the morning of September 18, 1979. (Petitioner's Exhibit 2) During the 1980-1981 school year, Greg Aronson received another 8 paddling, but again his parents were never notified. Lucius Jackson was corporally punished on 55 occasions. Lucius received 4 paddling on February 11, 1981, totaling 20 strokes. Fourth grade student Rufus Mitchell was administered corporal punishment on 25 occasions, two of which were eight minutes apart on October 15, 1980. Rufus received the maximum of 5 strokes during each of these paddling. Fourth grade student Lendrick McGrady was paddled 30 times. Sixth grade student Mark Oats received corporal punishment on 30 occasions. Sixth grade student Kenneth Studstill received corporal punishment on 28 occasions. Sixth grade student Hurie Whitfield received corporal punishment on 26 occasions. (Petitioner's Exhibit 2) Although Respondent admitted that corporal punishment was ineffective for Lucius Jackson, he was paddled 44 times during the 1979-1980 school year, 55 times during the 1980-1981 school year. Respondent witnessed each of the 4 paddling which Lucius received on May 8, 1981, near the end of that school year. Although student William Dinkins was administered corporal punishment in 1979-1980, 1980-1981, 1981-1982 school years, his mother was never notified of the punishment, contrary to Administrative Directive D-5.35(9) of the Palm Beach County School Board. Respondent used excessive and unreasonable force on numerous occasions when she personally administered corporal punishment to elementary school students at West Riviera. Many times, she interrupted paddling which were being administered by teacher. She would take the paddle from the teacher and administer the punishment herself, because the teacher, in her view, was not striking the child hard enough. On one occasion, Respondent interrupted teacher Vickie Culton and took over the paddling because Ms. Culton was not hitting the child hard enough. When the child pulled away, Respondent followed him around the room, striking him repeatedly. The child received more than the maximum 5 strokes allowable under school board policy. In paddling another kindergarten child named Theron, Respondent pushed his head against a wall, causing him to scream and cry to such an extent that teachers stuck their heads into the hall to see what was happening. On another occasion, Respondent took Theron into a bathroom and paddled him while his classmates and teacher listened in the adjacent classroom. Respondent had just paddled Theron in her office and brought him back to the classroom. Since he continued to scream and cry, she administered the second paddling in the bathroom. Respondent interrupted Ms. Culton's paddling several times because Respondent felt she was not hitting the child hard enough. Teacher Joyce Wojtowicz had the same experience. On one occasion, she was paddling a third grade student named Carol, while Respondent observed a as a witness. Respondent interrupted the paddling and proceeded to give the girl a severe paddling, administering five strokes. In the meantime, another third grade student, Tammy was standing nearby watching. When Respondent finished paddling Carol, Tammy was shaking violently; terrified, she began to vomit. Ms. Wojtowicz was also shaken by the severity of the paddling. Respondent gave some tissue to Tammy, ordered her to clean up the vomit, and told her that she was not going to avoid paddling by throwing up. After cleaning up the vomit, Respondent paddled Tammy, giving her the maximum 5 strokes. On another occasion, Ms. Wojtowicz overheard Respondent administering corporal punishment to a child in the school clinic. As Respondent hit the child with the paddle, Ms. Wojtowicz heard Respondent say, "Are you going to piss on my carpet?" As the child was given another stroke, Respondent said, "Are you going to pee on my floor?" As Ms. Wojtowicz walked out of the bathroom, she saw that Respondent was paddling a small kindergarten child. With each stroke, the child's feet went out from under him. Another teacher, Leslie Smith, witnessed Respondent paddle a five year old kindergarten boy. Respondent hit the boy very hard on the first stroke causing him to fall on the floor, then struck him two or three times while he was on the floor. Another teacher, Marcie Ann Wolfe, sent a student with an emotional problem to the office for the purpose of having Respondent talk to him. Instead, the student returned with a disciplinary slip indicating that Respondent had paddled him. At that point, Ms. Wolfe resolved that she would no longer send students to the office for discipline. Teacher Lynne McDowell witnessed Respondent administer corporal punishment to third grade student Craig Griffin. Craig had never been paddled at school before, and he resisted Ms. McDowell's attempt to paddle him in the office. Respondent intervened, took the paddle from Ms. McDowell, and administered the paddling to Craig, striking him wherever the blows fell -- on his legs and hands. Ms. McDowell observed Respondent administer a severe paddling to another student, Shawn, with the strokes landing so hard that it "rang my ears." If a child moved or fidgeted while Respondent was paddling them, she would start over. Third grade teacher Marjorie Russo observed Respondent paddle a kindergarten or first grade boy so hard that he came up off the floor. The little boy managed to get away from Respondent and tried to go under her desk. Respondent kept hitting him while he was on the floor. In Ms. Russo's view, Respondent hit the child "ridiculously hard" for a boy that size. Kindergarten teacher Mary Rudin witnessed Respondent administer corporal punishment to kindergarten student James J. Martin in her class and in the presence of other students. Ms. Rudin had asked James to make some circles on a piece of paper, but he refused. So, Ms. Rudin asked Respondent to come to her class in an effort to get James to cooperate. Respondent then asked James to perform the task; again he refused. At that point, Respondent administered five strokes to James. She sat him down and again requested that he perform the task. Once again he refused, and once again, she stood him up and gave him five more strokes. She then made a third request for him to perform the task; he responded, "I'll do it if you get away from me." This angered Respondent. She picked him up again and paddled him a third time. After the third paddling, James performed the task. He never returned to his class after that day because he was withdrawn from school by his parents. His father, James Martin, a teacher at Suncoast High School removed James because of the severity of the paddling. Photographs taken two days after the paddling show pronounced red marks from the to of his buttocks half way down his legs to hi knees. When Mr. Martin and his wife first observed the marks, they called their doctor, who agreed to see them that evening. The doctor was shocked by what he saw, and advised that he would have to report the case as an incident of child abuse. He recommended that Mr. Martin consult an attorney. Mr. Martin spoke to Respondent the following day. She apologized, explaining that she "lost her cool." Mr. Martin went to James' classroom to get his belongings; however, James would not go inside. He remained outside in the hallway, visibly shaken. In addition to Mr. Martin, Barbara Wright and Betty Deurloo complained to the school about their children being subjected to excessive punishment. Like Mr. Martin, Ms. Wright and Ms. Deurloo removed their children from West Riviera. In Respondent's view, if a student constantly wet his pants, it was an offense warranting corporal punishment. Although Respondent testified that the only "offense" that did not justify corporal punishment was when a child refused to do his or her lesson, the testimony of Ms. Rudin and Mr. Martin indicates that Respondent did not follow her own guideline. On numerous occasions, Respondent used profanity and made inappropriate, improper, and unprofessional remarks to students at West Riviera. After paddling a student named Lawrence in her office on April 14, 1982, Respondent told Lawrence to sit down. She pointed to a heater cord and threatened to tie him up with the heater cord if he didn't sit still. Respondent told Leslie Smith's kindergarten class that if they didn't shut up she would "kick their butts through the ceiling and kill them all." Respondent referred to a female student in Ms. Wojtowicz's class named Carolyn as a "thug." Respondent told Janet Zendel's first grade students who were line up to go to the bathroom, "If you've got to piss, piss, but there's not going to be no line." Respondent asked one of Mary Rudin's kindergarten students, "What are you looking at me for? Do I have piss all over my face?" She used a loud and sarcastic tone of voice. On another occasion when a child apparently urinated in a stairwell, Respondent announced over the public address system at the school, in a loud, angry voice, "Someone peed in my stairwell. When I find out who it is, I am going to beat you bloody, bloody, bloody." Respondent repeated this several times, reiterating that when she found out who the offender was, she would beat them "bloody, bloody, bloody." Respondent also used profanity in addressing members of the faculty and staff at West Riviera. She often told faculty members, "Get your shit together," and "I want it so quiet that I can hear a rat piss on cotton." Respondent commented to Jill Proce that she wanted Ms. Proce to take her paycheck and "buy some damn pants." During the first faculty meeting of the 1981-1982 school year, Respondent discussed the possibility of angry parents using profanity toward teachers. Respondent made a remark to the effect that teachers might even be called "mother fuckers." Respondent then defined the term mother fucker, and asked a faculty member, "How do you know I didn't fuck my mother?" Teacher Roma Smith heard Respondent use profane words such as fuck, shit, piss and mother fucker, in faculty meetings at West Riviera. After accusing teacher Mary Rudin of being insubordinate for not setting up tables in the hallway for registration, Respondent told Ms. Rudin, "do you see that doorway there? Don't let it hit you on the ass on your way out, if you don't like it here at West Riviera." At a preschool meeting before the commencement of the 1975-1976 school year Respondent presided over a faculty meeting wearing a T-shirt with a picture of excrement on it and the caption, "Get your shit together." Respondent used improper, inappropriate and unprofessional language in addressing faculty members at West Riviera. AT the end of Jill Proce's first day as a teacher at West Riviera, Respondent called Ms. Proce into her office, pulled her (Respondent's) pants up tight between her legs and told Ms. Proce, "This is the way you look with the lips of your vagina hanging out." Respondent asked Ms. Proce what she was trying to do to the fourth grade boys, if she was trying to give them some ideas. Respondent then proceeded to tell Ms. Proce that if Respondent was a parent and she walked into Ms. Proce's classroom, she would think that her child was being taught by a prostitute. Ms. Proce's pants were not too tight, and she was dressed appropriately for an elementary school teacher. At the beginning of each year, Respondent issued handbooks to her teachers, with instructions that they had a paddle and respondent expected them to keep law and order. If they did not keep law and order, Respondent told them they could be "blackballed" in the county. After Respondent walked in Ms. McDowell's classroom one day and found the students noisy and disorganized, she told Ms. McDowell in a conference that Respondent had friends in high places; that if she did not shape up, she would have her blackballed in Palm Beach County and she would never teach there again. After buying new clothes in an effort to meet Respondent's criticisms regarding her attire, Ms. Proce approached Respondent one day and asked her if the clothes she was wearing were suitable. Respondent answered by saying that Ms. Proce wasn't there to suit her, she was there to suit her job, and if she didn't like it she could be blackballed of Palm Beach County. On another occasion, Respondent yelled at teacher Joyce Washington in front of Ms. Washington's class, accusing her of losing a student's medical form. Ms. Washington had not lost the student's medical form. Respondent told her if she could not get her act together, that she was going to lose her job, which she spelled out "J...O...B." During the 1981-1982 school year, primary resource teacher Patsy McClain received a telephone call from Respondent, who at the time was admitted to the Palm Beach Gardens Hospital. Respondent asked Ms. McClain to bring two students to the hospital for the purpose of braiding Respondent's hair. After getting the Assistant Principal's permission, Ms. McClain selected two girls, Elinor Williams and Jamilia Dailey. After getting permission from their parents, she drove them to Palm Beach Gardens Hospital. The girls were taken out of school in mid-morning and were gone approximately two hours. AT the hospital, they braided Respondent's hair. In November 1980, Respondent approached teacher Joyce Washington during an open house at West Riviera and instructed Ms. Washington to change student Joshua Logan's grades to all "S's." Ms. Washington had previously prepared her report cards, and had issued several "U's," indicating unsatisfactory, to Joshua. Respondent told Ms. Washington to change his grades to "S's" and to give Joshua all "S's," indicating satisfactory, on his report card for the remainder of the year. The reason given was that she did not want any more hassles from the child's parents. Although in Ms. Washington's opinion Joshua's work did not warrant all "S's," she nevertheless gave the child "S's" for the remainder of the school year. When the other students in Ms. Washington's class learned of Joshua's new grades, their grades started going down. Many teachers were frightened by Respondent and taught in an oppressive atmosphere of tension and intimidation. Jill Proce had begun to look for other employment in another county. Music could not be taught except at Christmas. Music books and instruments were removed from the classrooms. So were record players. Crayons were removed out of fear that students would get crayon marks on the floors. Joyce Washington intended to seek a transfer, but volunteered to leave West Riviera when an opening occurred elsewhere. Assistant Principal Levarity tried to get a transfer because of Respondent's heaving reliance on corporal punishment. During the fall of 1979, Fran Gill, North Area Superintendent for the Palm Beach County School District, spoke to Respondent about administration of corporal punishment at West Riviera. Ms. Gill had been advised that teachers were administering corporal punishment to student sin the classroom, in violation of school board policy and administrative directive. During that meeting, Ms. Gill explained to Respondent that she must follow the school board's Administrative Directive D5.35 and gave Respondent a copy. Among other things, this directive required that the Principal or his/her administrative designee must, in ever case, determine the necessity for corporal punishment and, in ever case, designate the time, place and member of the instructional staff who will administer the punishment. In addition, the directive provided that no teacher may be required to administer corporal punishment. Notwithstanding Ms. Gill's directive to comply with Administrative Directive D5.35, Respondent continued to require teachers to administer corporal punishment to students in the classroom in order to maintain law and order at West Riviera. When Ms. Gill again became aware in May 1980 of Respondent's noncompliance with the directive, she called her and asked whether students were still being paddled in the classroom. Respondent indicated that she was still permitting students to be paddled in the classroom by teachers. This conversation occurred on May 6, 1980. ON May 8, 1980, Ms. Gill confirmed their conversation in a written memorandum to Respondent, emphasizing her prior verbal instructions. In March of 1982, Ms. Gill again met with Respondent regarding concerns expressed to her by parents. Ms. Gill found that the directive was not being followed, and that the only change which had been made was that children were being brought to the office to be paddled. The teachers were still exercising their discretion as to whether or not corporal punishment would be administered, and parents were not being contacted beforehand. Ms. Gill expressed her concern to Respondent regarding her failure to follow the school board's administrative directive. Respondent sent a letter to Ms. Gill, date March 12, 1982, in response to Ms. Gill's concerns. In her letter, Respondent states, "I held a faculty meeting this morning and explained to teachers that we will no longer paddle students for every misbehavior." As a result of Respondent's failure to follow her specific instructions concerning adherence to school board policy and administrative directives relating to administration of corporal punishment, Ms. Gill prepared a list of fourteen specific questions for Respondent to answer regarding corporal punishment at West Riviera. Respondent received the written questions on March 18, 1982, and furnished her written responses on March 31, 1982. Respondent provided false answers to these questions. In response to question one, Respondent falsely stated that in each instance of inappropriate behavior the teacher brought the student to the office and conferred with the Principal or Assistant Principal prior to utilizing corporal punishment. In response to question three, Respondent falsely indicated that teachers were not required to paddle students. In response to question six, Respondent falsely indicated that whenever a student received corporal punishment for the first or second time, a copy of the student discipline referral slip was sent to their parents. In response to question seven, Respondent indicated that the alternatives to corporal punishment were in-house suspension or suspension from school, when in fact the alternatives utilized at West Riviera included depriving the student of attending physical education or utilizing the library. In response to question eleven, Respondent failed to indicate that alternative types of punishment included depriving the student of physical education or use of the library. In response to question thirteen concerning changes made in the administration of corporal punishment within the past three years, Respondent replied that she had complied with Ms. Gill's instructions on May 6, 1980, to refrain from allowing teachers to paddle students in their classroom. In fact, Respondent continued to permit teachers to determine whether corporal punishment was appropriate and to administer it at their discretion. Although Respondent testified that failing to do one's school work did not warrant corporal punishment, Respondent administered three consecutive paddling to kindergarten student J.J. Martin for failing to do a handwriting lesson. Although Respondent changed her policy in March, 1982 by restricting the use of corporal punishment to cases of fighting or foul language, she later administered corporal punishment to one of Ms. Wolfe's students for misbehaving in her class. Ms. Wolfe had specifically requested that Respondent talk to the student, not paddle him. Respondent admits that she did not follow Administrative Directive D5.35 prior to May 7, 1980. Yet Fran Gill had specifically directed her to comply with that directive and school board policy concerning corporal punishment in the Fall of 1979. Respondent failed to prepare guidelines for administering corporal punishment at West Riviera which identified the types of punishable offenses, the conditions under which the punishment would be administered and the specific personnel on the school staff authorized to administer the punishment, contrary to Section 232.27(1), Florida Statutes. Respondent ridiculed and humiliated children by paddling them in their classrooms in the presence of their classmates on several occasions, contrary to Administrative Directive D5.35(4). She used profane and abusive language with them. In the professional opinion of Kenneth Schrimsher, Assistant Superintendent for Personnel Relations with the Palm Beach School Board, the number of incidents of corporal punishment administered at West Riviera during the 1979-1980 school year was excessive. In his view, Respondent's effectiveness as an employee of the school board has been seriously reduced. His opinion is credible and accepted as persuasive. Despite the atmosphere of fear and intimidation that prevailed at West Riviera during Respondent's tenure, student achievement on standardized tests improved dramatically. When she arrived at West Riviera, it was among the five worst schools in the county, rated by test scores; when she left in 1982, it was among the top five, out of a total of more than 50 elementary schools. Her methods also caused West Riviera to become one of the cleanest and best maintained elementary schools in the county. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Recommendation Based on the foregoing, it is RECOMMENDED: That Respondent's teaching certificate be revoked for five (5) years (with opportunity for reapplication) for violation of Section 231.28(1), Florida Statutes, and Rule 6B-1.06, Florida Administrative Code. DONE and RECOMMENDED this 1st day of May, 1984, in Tallahassee, Leon County, 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 1st day of May, 1984. COPIES FURNISHED: J. David Holder, Esquire 128 Salem Court Post Office Box 1694 Tallahassee, Florida 32302 William M. Holland, Esquire 605 Clematis Street Post Office Box 2648 West Palm Beach, Florida 33402-2648 Donald Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Ralph D. Turlington, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The first issue in this case is whether, as the district school board alleges, a teacher abused, mistreated, or otherwise behaved inappropriately towards one of his special-needs students; if the allegations of wrongdoing are proved to be true, then it will be necessary to decide whether the school board has just cause to terminate the teacher's employment.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. At all times relevant to this case, Respondent Edouard Jean ("Jean") was employed as an Exceptional Student Education ("ESE") teacher in the Broward County public schools, a position which he had held for the preceding 16 years. During that period, Jean taught students with disabilities, who typically receive specially designed instruction and related services pursuant to individual educational plans. Ahead of the 2013-14 school year, Jean was transferred to Crystal Lake Middle School, where he had not previously worked. He was placed in an "SVE" class and assigned to teach ESE students having "varying exceptionalities." Jean's class contained a mix of high- and low-functioning students, about nine in number. Jean's colleague, Ray Montalbano, taught a similar SVE class in a nearby room. At the beginning of the school year, the two ESE teachers agreed to share responsibility for their respective students under an arrangement that separated the higher functioning students from the lower functioning students. Jean and Mr. Montalbano took turns teaching the two groups, exchanging one for the other at midday. In this way, each teacher spent roughly equal time with the respective sets of students. For the last hour of the day, they combined the two groups and jointly instructed the approximately 18 students in Mr. Montalbano's classroom, which was larger. There were two paraprofessionals, or teacher's assistants, working in Jean and Mr. Montalbano's SVE classes. One, named Lisa Phillips, was assigned to both teachers; she alternated between their classrooms during the day. The other, Donna Rollins, was assigned to Mr. Montalbano's class, where Jean spent an hour each afternoon. In view of the cooperative arrangement between Jean and Mr. Montalbano, both of the teacher's assistants regularly worked in the same classroom as Jean and assisted with the provision of instruction and services to the 18 students for whom Jean and Mr. Montalbano were responsible. On October 15, 2013, Jean was removed from his classroom and informed that he was the target of a criminal investigation arising from allegations that he recently had abused one of his pupils, a 13-year-old boy with Down Syndrome named Z.P., who was among the lower functioning students. Jean's accuser was an occupational therapist named Lisa Taormina, who at all relevant times worked as an independent contractor for the School Board, providing services to students at various public schools in Broward County. Jean consistently has denied Ms. Taormina's allegations, which shocked and surprised him. Ms. Taormina, who that year was seeing students at Crystal Lake Middle School once per week each Friday, reported having observed Jean mistreat Z.P. on October 4, 2013, and again on October 11, 2013. Ms. Taormina claimed that the alleged events of October 4 took place in Jean's classroom with Ms. Phillips in attendance. The alleged events of October 11, in contrast, purportedly took place in Mr. Montalbano's classroom during the hour when the two SVE classes were combined. Thus, the alleged abuse supposedly occurred in the presence of Mr. Montalbano, Ms. Phillips, Ms. Rollins, and a substitute teacher named Shirley Ashcroft who happened to be there that day. Ms. Taormina's allegations were investigated by the Broward County Sheriff's Office and the Broward District Schools Police Department. During these investigations, neither Z.P. nor any of the other students were interviewed, because most of them (including Z.P.) are either nonverbal or too intellectually limited to be reliable witnesses.1/ All of the adults were questioned, however, and none of them corroborated Ms. Taormina's allegations. Unsurprisingly, therefore, no criminal charges were brought against Jean. On the strength of Ms. Taormina's allegations, the School Board nevertheless determined that Jean had abused Z.P. and thus should be fired. As it happens, Ms. Taormina's final hearing testimony is the only direct evidence against Jean, whose colleagues Mr. Montalbano, Ms. Phillips, Ms. Rollins, and Ms. Ashcroft, to a person, credibly denied under oath having ever seen him mistreat Z.P. or any other student. The outcome of this case, therefore, depends on whether Ms. Taormina's testimony is believed likely to be an accurate account of the relevant historical events. In assessing Ms. Taormina's credibility, the undersigned finds it especially significant that Jean's co- workers, who were able to observe him for extended periods of time on a daily basis in the classroom, never witnessed him engage in any troubling or suspicious behavior during the roughly seven weeks he taught at Crystal Lake Middle School; to the contrary, everyone who testified (except Ms. Taormina) who had seen Jean in the classroom praised his performance generally, and his relationship with Z.P. in particular. The undersigned credits the consistent, mutually corroborative, and overwhelmingly favorable testimony about Jean's exemplary conduct. Because an isolated incident, however out of character, can be squared with evidence of otherwise superlative performance, the fact that Jean was well regarded by the employees with whom he closely worked does not exclude the possibility that Jean abused Z.P., but it does diminish the likelihood that he could have abused Z.P. on multiple occasions. For that reason, if Ms. Taormina claimed only to have seen Jean mistreat Z.P. once, her testimony likely would have been more believable. Ms. Taormina claims, however, to have seen Jean abuse Z.P. on two separate days——on consecutive weekly visits to the school, no less. If Ms. Taormina is to be believed, Jean's alleged abuse of Z.P. was not an isolated incident but was rather, if not necessarily part of a pattern of behavior, at least something Jean was capable of repeating. Here it bears emphasizing that Ms. Taormina saw Jean, at most, once per week for relatively brief periods of less than 30 minutes apiece. Within the context of this limited contact, Ms. Taormina (if she is believed) happened to witness Jean abuse Z.P. on back-to-back visits, while Jean's colleagues, who saw him every workday, never noticed anything amiss. Logically, there are, broadly speaking, two possible explanations for this anomalous situation. First, Jean might have abused Z.P. only when Ms. Taormina was present in the classroom, which would explain why no one else ever saw him mistreat the student, so long as the failure of the four other adults in the room on October 11 to witness the alleged misconduct——a lack of attentiveness that defies reasonable expectations——is overlooked. Given that Ms. Taormina's brief weekly visits comprised such a tiny percentage of Jean's total time with the students, however, to abuse Z.P. only in her presence probably would have required Jean to act according to a plan, which beggars belief;2/ otherwise, Ms. Taormina's presence at the very moments that all such abuse occurred was a most remarkable coincidence. At any rate, while the probability that Jean abused Z.P. only when Ms. Taormina was around to witness his misdeeds is perhaps greater than zero percent, the undersigned regards this explanation as far too implausible to be considered likely. Alternatively, and likelier, Jean might have abused Z.P. not only in Ms. Taormina's presence, but also in her absence. Because Ms. Taormina is the only person who has ever claimed to have seen Jean mistreat Z.P., however, to accept this explanation requires believing that Jean's co-workers never saw him abusing Z.P., or that everyone who witnessed such abuse except Ms. Taormina resolved not to report it.3/ Yet both situations are unworthy of belief. More likely than not, if Jean were abusing Z.P. at times when Ms. Taormina was not in the room, which was most of the time, then at some point over the course of seven weeks Mr. Montalbano or one of the paraprofessionals would have noticed something wrong4/——and none of them did, as found above. Similarly, it is difficult to imagine——and impossible reasonably to infer in the absence of any supporting evidence——that another teacher or paraprofessional, or some combination of these employees, would fail to report suspected child abuse and lie under oath to protect Jean. In any event, the undersigned has found that Jean's fellow employees never saw Jean abuse Z.P., which means that, in all likelihood, Jean did not abuse Z.P. when Ms. Taormina was not in the room. In sum, it is unlikely that Jean repeatedly abused Z.P. only in Ms. Taormina's presence; and yet, it is unlikely that Jean ever abused Z.P. during the vast majority of the time when Ms. Taormina was not in the room (but another adult or adults typically were). Therefore, the logical conclusion is that Jean likely never abused Z.P. at all, contrary to Ms. Taormina's allegations. The foregoing reasons are sufficient for the undersigned to reject Ms. Taormina's testimony as ultimately unpersuasive and to find that the School Board has failed to prove its allegations against Jean. Nevertheless, Ms. Taormina was a good witness in many respects. Her story has been consistent, her recollection seemingly clear, her testimony vivid and detailed. Ms. Taormina is articulate and her demeanor at hearing suggested sincerity. She had barely known Jean before the events at issue and was not shown to have had grounds to dislike him or any other motive for damaging him with false allegations of misconduct. Thus, while not necessary to the disposition, it is desirable to examine Ms. Taormina's specific accusations in greater detail. Ms. Taormina claims that on October 4, 2013, while Z.P. was lying on his back on the floor, Jean spun Z.P. around, using the student's legs as a handle for twirling the boy's body. Then, she says, Jean tapped Z.P. with a ruler to prod him into getting up from the floor. Z.P. refused to rise, and Jean resumed spinning the student. Ms. Taormina recognized that Jean and Z.P. were "playing around" and concluded nothing "abusive" had occurred, but she deemed Jean's conduct "inappropriate." As mentioned, Z.P. is cognitively limited in consequence of Down syndrome. He was also, at the time of the events at issue, aggressive, sometimes mean and abusive towards teachers, including Jean, and known to bite, scratch, kick, and spit on others. Z.P., who was a big boy, could be difficult to redirect. By October 2013, however, Jean had established a rapport with Z.P. The student liked his teacher, and Jean and Z.P. would play with each other. One activity that they enjoyed entailed Jean spinning Z.P. around——which is what Ms. Taormina observed. Except for Ms. Taormina, no one who witnessed Jean playfully spinning Z.P.——which Jean admits doing——considered this activity to be inappropriate. There is no persuasive evidence in the record establishing an objective standard of conduct that Jean might have violated when he played with Z.P. in this manner. Striking Z.P. with a ruler would be another matter, of course. Jean denies ever having done that, however, and no one but Ms. Taormina claims to have observed Jean misbehave in such fashion. The undersigned finds, based on the greater weight of the evidence, that Jean did not hit Z.P. with a ruler on October 4, 2013, as alleged, but rather tapped the floor with it, as he testified. According to Ms. Taormina, Jean's conduct the following week, on October 11, was worse. She testified that, upon arriving in the classroom, she noticed that Jean's fingers were resting on the back of Z.P.'s neck as he (Jean) moved the student around. To Ms. Taormina, "it looked . . . like [Jean] was searching for, like, a pressure point or tender point . . . ." In fact, Jean was not searching for a pressure point, and he did not dig his fingers into a tender spot on Z.P.'s neck, which explains why no one (including Ms. Taormina) saw or heard the student cry out or grimace in pain. The undersigned credits Jean's testimony that he touched Z.P.'s back and shoulders to guide or comfort him, not to hurt him. Ms. Taormina asserted that after putting his fingers on the back of Z.P.'s neck, Jean gave Z.P. a "violent shaking" which caused Z.P.'s head to rock up and down ("just flapping back and forth") so fast that Z.P.'s features were an unrecognizable blur, but only for "just a few seconds." Somewhat incongruously, however, she characterized this "mockery" as being "more, like, playing" and noted that Jean, who was smiling, did not appear to be acting out of anger. The behavior that Ms. Taormina recounted is indeed disturbing. Yet some of the details seem a bit off. For example, although no expert testimony was presented, the undersigned's rudimentary understanding of simple biomechanics makes him think that violently shaking a passive or helpless person so hard that his features become blurry (assuming this could be accomplished in just a few seconds' time) would cause the victim's dangling head, not to flap up and down (rapidly nodding), as Ms. Taormina described, but to rotate uncontrollably. The undersigned finds it difficult, too, to imagine that such abuse could ever look "like playing." Moreover, it seems peculiar, given the number of adults in the room, that Ms. Taormina did not immediately intervene or speak up to protect Z.P., if Jean were harming the student as she has stated. More important, it is likely that a vigorous physical battery such as the attack on Z.P. that Ms. Taormina recalls would have caused a considerable commotion. And yet, even though there were four other adults in the room besides Jean and Ms. Taormina, no one but the occupational therapist noticed Jean inflicting this alleged abuse. The undersigned cannot find, based on the greater weight of the evidence, that Jean violently shook Z.P. as alleged. This incident, therefore, was not proved. After Jean allegedly shook Z.P., according to Ms. Taormina, the student climbed up on a table, where he proceeded to eat a banana. Ms. Taormina testified that all of the students and adults in the room (except her) laughed at Z.P. when someone exclaimed that he looked like a monkey. She said that Jean then led Z.P. to a garbage can and made him spit out the piece of banana in his mouth. When Z.P. got down on the floor afterwards, said Ms. Taormina, Jean hit the student with a broom to compel him to stand and, having no success with that, lifted Z.P. by his shirt and pants and shook him a few times before standing the boy upright. Once on his feet, Z.P. wet his pants, Ms. Taormina stated. Based on a preponderance of the evidence, the undersigned finds that Z.P. did, in fact, eat a banana while standing on a table. Further, Jean did hustle Z.P. to the garbage can to spit out the banana in his mouth because the boy was gagging on the fruit. The evidence does not support a finding that the adults laughed at Z.P., although one student did call him a monkey, which prompted Jean to reprimand the offender. The evidence does not support a finding that Jean struck Z.P. with a broom, an act of abuse which Jean credibly denied, or that Jean picked up Z.P. and shook him, a feat which likely could not be accomplished, given the student's size and weight, and which Jean credibly denied. Z.P. did urinate on himself, as Ms. Taormina reported, but the greater weight of the evidence establishes that this was not a response to stress, fright, or abuse, but a common occurrence. In sum, the evidence does not support a determination that Jean likely mistreated Z.P. as alleged. Determinations of Ultimate Fact The greater weight of the evidence fails to establish that Jean is guilty of the offense of immorality as defined in Florida Administrative Code Rule 6A-5.056(1).5/ The greater weight of the evidence fails to establish that Jean is guilty of the offense of misconduct in office, which is defined in rule 6A-5.056(2).6/ The greater weight of the evidence fails to establish that Jean is guilty of incompetency, which is defined in rule 6A-5.056(3).7/ It is undisputed that Jean was never charged with, much less found guilty of, any crime as a result of the events which gave rise to this proceeding. Therefore, the School Board does not have just cause to terminate his employment pursuant to section 1012.33(1)(a), Florida Statutes, for "being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order exonerating Jean of all charges brought against him in this proceeding, reinstating him as an ESE teacher, and awarding him back salary as required under section 1012.33(6)(a). DONE AND ENTERED this 23rd day of December, 2014, 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 23rd day of December, 2014.
Findings Of Fact Respondent currently holds Florida teaching certificate number 576645, which covers the areas of elementary education and mathematics. Respondent's certificate is valid through June 30, 1992. During the 1990-91 school year, Respondent was employed as a third grade teacher at Markham Elementary School in the Broward County School District. 1/ On an undetermined date during the 1990-91 school year, Respondent hit, M.R., a female student, with a wooden ruler that was twelve inches long and one inch wide. Respondent's action was in response to M.R.'s behavior of talking in class without permission. M.R. was hit on the palm of her hand with the ruler in front of the class. M.R. was embarrassed by the incident, but she did not cry. On another occasion, M.R. was talking in class. There was a dispute in the testimony as to whether M.R. was using profanity. Respondent testified that M.R. was using profanity, while M.R. denied using profanity. Respondent took M.R. to the bathroom at the rear of the classroom, told M.R. to place soap on her hands, and made M.R. wash her mouth out with soap. 2/ During the 1990-91 school year, Respondent hit K.S., a female student, on the palm of the hand with the twelve inch wooden ruler. This discipline occurred at the door to the bathroom at the rear of Respondent's classroom. K.S. became upset and began to cry. Another student saw K.S. crying. On one occasion, while talking to K.S. in the bathroom, Respondent told K.S. to pretend to cry to make the other students believe that she had been punished. Respondent had not administer corporal punishment to K.S. on that occasion, but Respondent wanted the other students to believe that they would be punished if Respondent took them to the bathroom. The Respondent hit K.C., a male student, on the palm of the hand with a wooden ruler, and on the buttocks with a small board. On one occasion the Respondent took K.C. into the bathroom and hit him with a ruler. The Respondent threatened on other occasions to hit K.C. with a ruler. The Respondent threatened to hit L.S., a female student with a ruler. L.S. witnessed the Respondent hitting other students on the hand with a ruler. The Respondent hit V.D., a female student, on the palm of the hand with a ruler. V.D. cried after being hit with the ruler. The Respondent hit K.C., a female student, on the palm of the hand and buttocks with a ruler. The Respondent hit K.C. in the bathroom and in the classroom. The Respondent hit S.T. 3/, a female student, on the palm of the hand with a wooden ruler, causing S.T. to cry. The Respondent hit or tapped T.B., a male student, on the hand with a ruler. The Respondent's conduct in hitting the students with a ruler was not done in self-defense, but as a disciplinary measure that was intended to both punish and intimidate the students. At hearing, the Respondent offered a composite exhibit of permission forms, purporting to demonstrate parental permission to use corporal punishment against K.S., T.B., K.C. (female student) and D.R. (a student who did not testify). Respondent did not offer any permission forms from the parents of M.R., S.T., K.C. (male student), or V.D., although the evidence established that Respondent struck these students with a ruler. Regardless of parental permission, the discipline administered by Respondent violated district policy, which forbids corporal punishment of any kind. After an investigation into allegations that the Respondent had struck students, students were called to the school office to be interviewed. The Respondent discussed the pending investigation with her class. Several students recalled that on the day that they were to be interviewed she told them she might go to jail if students told the investigators that she had hit them. None of the students testified that Respondent told them, as a group, to lie to the investigators. In fact each of the students testified that the Respondent told the class to tell the truth. There was a conflict in the evidence as to whether Respondent told S.T. and V.D. individually not to reveal that she had hit them, or to say that she had hit them fewer times than she actually had. This conflict is resolved by finding that Respondent's denial that she told either S.T. or V.D. to lie is more credible than the testimony to the contrary from S.T. and V.D. Therefore, it is found that Petitioner failed to establish that Respondent told her students to lie about her discipline practices.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which adopts the findings of facts and conclusions of law contained herein, which provides that a letter of reprimand be issued Respondent by the Education Practices Commission, and which places Respondent's certification on probation for a period of two years. It is further recommended that the terms and conditions of probation be identical to those recommended by Petitioner in its post-hearing submittal. RECOMMENDED in Tallahassee, Leon County, Florida, this 19th day of May, 1992. CLAUDE B. ARRINGTON 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 19th day of May, 1992.
The Issue Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this proceeding, Roosevelt Harvey (Respondent) held Florida teaching certificate numbered 134571, valid through June 30, 1997. He is certified in the areas of mathematics, junior college, and administrative supervision. He has been employed by the Escambia County School Board for approximately 25 years, and scheduled to retire on August 1, 1991. During the 1987-88 and 1988-89 school years, Respondent was assigned to the Judy Andrews Middle School Center. 1/ In May 1989, Respondent was specifically assigned to assist Marc Brown, a classroom teacher, with maintaining discipline in Brown's classroom. The class was comprised of students with learning difficulties related to behavioral problems and lack of self control. The students had difficulty focusing on and completing tasks, and were often disruptive. On May 18, 1989, Brown's class was particularly disruptive. Respondent was first required to escort one sixth grade student, D. S., to the school dean's office to resolve a disciplinary referral submitted to the dean by Brown on the day before. The student was suspended. However, because there was no transportation available, the suspension was effective the following day and D. S. was returned to Brown's classroom. On May 18, 1989, other students in Brown's classroom were involved in altercations and leaving the classroom without approval. Respondent was subsequently directed to remain outside Brown's classroom and prevent students from leaving the area. Respondent was in the habit of using a double edged shaving razor blade to scrape errant marks off of duplicated copies of various written materials. The blade was not attached to any type of handle. On May 18, 1989, he was using the razor blade to remove stray marks from duplicated "National Geographic" articles which were to be used as part of a school project, while he monitored the hallway outside Brown's classroom. As Respondent stood outside Brown's classroom, the already suspended D. S. approached. Upon Respondent's inquiry, D. S.'s stated that he was on his way to the restroom. D. S. had no written restroom pass and Respondent instructed D. S. to return to the classroom. D. S. approached a second time and inquired about Respondent's razor blade. Respondent held the blade so that D. S. could see it, moved his hand holding the blade up and down vertically and stated, "Do you know what blood is? I'll show you blood." Respondent did not attempt any physical contact with D. S. and did not move towards the student. D. S. reentered the classroom. Some time thereafter, Respondent entered Brown's classroom to ascertain the whereabouts of another student. Upon Respondent's entry into the room, student J. C. approached and inquired about the razor blade. Respondent, otherwise occupied, ignored J. C., who persisted in his efforts to see the blade. Respondent eventually held the blade toward J. C. and stated, "I'm want to see some blood. Do you want to show me some of yours?" J. C. walked away from Respondent. Brown's classroom was in such a disorderly state, that Brown was distracted during the razor blade incidents. He did see student J. C. near the Respondent, and partially overheard Respondent's comment to J. C., but saw nothing that would suggest that the students were threatened by Respondent's behavior. Respondent believed that the students were "playing games" with him during the razor blade incidents. The razor blade was visible while he worked on the articles. He did not intend to harm or embarrass the students. Other than to encourage D. S. to return to the classroom, there is no behavior which directly involved an attempt to discipline a student. Although D. S. testified that he was "starting to get scared", neither D. S. nor J. C. yelled or attempted to run from Respondent. However, Respondent acknowledges that the actions were inappropriate and ill-advised. In 1986, Respondent received a three day suspension without pay from the Escambia County School Board for striking a student. In 1988, Respondent received A ten day suspension without pay from the Escambia County School Board for absences without authorization. Prior to the May, 1989 incident, the Respondent had sought transfer into a regular teaching position. Following the incident, he was suspended with pay from the Judy Andrews Center and then transferred to Pine Forest High School where he returned to classroom teaching. Other than the timing of the transfer, there is no evidence that the reassignment as directly related to the razor blade incident.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Education Practices Commission enter a Final Order suspending the teaching certificate of Roosevelt Harvey for a period of one year during which time Mr. Harvey shall be required to complete college-level course work on the subjects of assertive discipline and classroom management, followed by a one year probationary period. It is further recommended that, prior to employment in a classroom situation, Respondent submit to a psychological evaluation, to be supervised by the Education Practices Commission, in order to determine that the Respondent poses no threat of harm to students. DONE and RECOMMENDED this 28th day of August, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of August, 1991.
Findings Of Fact Although Wesley John Baker was born on November 13, 1963, he was only in the seventh grade in January of 1979, at the Dunnellon Middle School. He was one of twenty-five students in mathematics class respondent taught right after lunch hour. One day, after about seventeen of respondents students had assembled for postprandial instruction in mathematics, and after the class bell had rung, young Wesley sauntered into the classroom with both hands atop his head. Respondent stood in front of the class waiting for the stragglers to be seated. As Wesley passed between respondent and his classmates, he let his arms drop to his sides, striking respondent in the fact with his forearm in the process. The other children laughed to see one of their number hit the teacher. Wesley said, I'm sorry." "That's not enough," answered respondent as he struck Wesley with the back of his hand. This also elicited laughter from the young mathematicians. In subsequent conversations with school officials about the incident, respondent explained, "He hit me so I hit him back." When respondent hit Wesley back, the blow landed above Wesleys left eye, breaking the skin. Wesley's eye watered and hurt for the remainder of the day, and he was unable to keep his eye open. When his mother, Mrs. Ernestine Baker, saw him, she asked what had happened and took him to a doctor. No damage was done to the eye tissue, but a faint scar remained above the eye, at the time of the hearing. The school board of Marion County, in which Dunnellon Middle School is located, has written policies regulating corporal punishment. These regulations require that corporal punishment "be administered only after it has been authorized by the principal in writing, designating the person who may administer the punishment, " petitioner's exhibit No.4, and that administration of corporal punishment shall be witnessed by at least one other adult." Id. School Board policy also specifies that "[no other student shall be present during the administration of corporal punishment." Petitioner's exhibit No. 4. These regulations also require that corporal punishment be administered posteriorly by striking the student below the waist and above the knees"; and that corporal punishment "not be administered with malice towards the student nor at a time when the person administering the punishment is angered or impassioned.... Petitioner's exhibit No. 4. Respondent was aware of these regulations but questioned their wisdom. In the Dunnellon Middle School Registration and Information Handbook 1978-79, corporal punishment is defined 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." Petitioner's exhibit No. 2.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department of Education suspend respondent's teaching certificate for ninety (90) days. DONE and ENTERED this 24th day of December, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Craig R. Wilson, Esq. Professional Practices Council 315 Third Street West Palm Beach, Florida 33401 Mr. Michael J. Cushing 890 St. Rt. 80 Belle Glade, Florida 33430
The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Frank T. Brogan, as the Commissioner of Education, is the state official charged with investigating complaints against teachers and, upon a finding of probable cause, with filing formal administrative complaints against teachers' certificates. Section 231.262, Fla. Stat. The Education Practices Commission is the state agency charged with the responsibility for issuing final orders and imposing penalties. Id. At all times material to this case, Loretta L. Young held Florida Educator's Certificate 591375, covering the area of biology. Ms. Young currently holds this certificate, which is valid through June 30, 1999. During the 1993-1994 school year, Ms. Young was employed as a science teacher at North Dade Middle School in Dade County, Florida. During that school year, she taught a seventh-grade science class which consisted mostly of African-American children. A male student named C. M. was a member of this class. This seventh-grade science class was large, and the students were very unruly. Ms. Young had a very difficult time controlling the class, and she often became irritated with the students. In addition, the students used to ignore her when she told them to be quiet, and they would "pick at her" and make derogatory comments about her to one another in voices pitched loud enough for her to hear. On March 14, 1994, C. M. was in the back of the classroom playing cards and gambling with several other students. Ms. Young told C. M. to stop gambling. C. M., who was described as a bad student who was consistently disrespectful to Ms. Young and generally disruptive in her classroom, reacted to this order with anger. He walked to the front of the classroom and tapped her on the shoulder. She turned around quickly and struck C. M. in the stomach with her elbow. C. M. loudly accused her of hitting him and threatened to go to the office and tell what she had done. Ms. Young sent a student to summon security, and C. M. was removed from the classroom. Ms. Young consistently referred to the students in her class as "niggers." One of the students who testified at the hearing gave the following as an example of the remarks Ms. Young often made: "Ya'll niggers, ya'll niggers don't know how to act, ya'll don't have no home training." Although children sometimes refer to each other as "niggers," the use of such an epithet by a teacher when addressing students is unprofessional; it causes students to feel uncomfortable in the teacher's classroom, thereby diminishing the teacher's effectiveness. Even Ms. Young admitted that the term "nigger" is derogatory and degrading. It is not acceptable for a teacher to hit a student. Not only does such an act expose the student to physical harm, it diminishes the teacher's effectiveness in the classroom and is in violation of school board policy. There is, however, no violation of school board policy when a teacher inadvertently touches or bumps into a student. The evidence presented by the Commissioner is sufficient to establish that Ms. Young often addressed the students in the seventh-grade science class identified herein as "niggers." The evidence presented by the Commissioner is not, however, sufficient to establish that Ms. Young intentionally hit C. M. in the stomach with her elbow. The greater weight of the evidence presented by eyewitnesses to the event involving C. M. establishes that C. M. startled Ms. Young when he approached her from behind and tapped her on the shoulder, causing her to turn quickly and inadvertently strike him in the stomach.1
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission issue a Final Order finding that Loretta L. Young violated section 231.28((1)(i), Florida Statutes, and rule 6B-1.006(3)(e), Florida Administrative Code, and placing Ms. Young on probation for a period of three years, subject to such conditions as the Commission deems appropriate. DONE AND ENTERED this 5th day of May, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 1997.
The Issue The issue in this case is whether a veteran teacher should be dismissed for having drawn and displayed a kitchen knife while quieting a noisy class.
Findings Of Fact The Broward County School Board ("School Board"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Broward County Public School System. As of the final hearing, Respondent Lynn Deering ("Deering") had been a teacher for about 34 years. She holds a certificate to teach in Florida. During the 2004-05 school year, Deering was employed as a science teacher at Marjory Stoneman Douglas High School, which is a public school in Broward County. For reasons that will soon be apparent, it is pertinent to note that Deering contracted polio at a young age and as an adult has suffered from post-polio syndrome. As a result of these illnesses, Deering's upper-body is weak, the range of motion of her upper extremities is limited, and she has little grip strength in her right hand, which is dominant. Since 1985, Deering has been confined to a wheelchair.1 The incident giving rise to this case occurred on March 2, 2005. When the bell rang that day to start Deering's sixth period anatomy and physiology class, the students were excited and talkative. As was her practice, Deering raised her hand to signal that she was ready to begin teaching; this gesture usually quieted the class. This time, however, the students continued to talk, and the classroom was noisy——too noisy for Deering to be heard. So Deering, who was sitting (in her wheelchair) in front of a demonstration table located at the head of the classroom, hitched up her right shoulder, reached back behind her body, and grabbed a utensil from the top of the table. She then used the utensil to tap on a glass beaker——which was filled with water and flowers——to get the students' attention. The "utensil" in question happened to be a knife. It was a chef's knife,2 bearing the Chefmate™ brand on its blade. Measured from butt to point, the knife was approximately 10 and one-half inches long. From heel to point, the blade was roughly five and three-quarters inches in length; it was no wider than about three-quarters of an inch from edge to spine. The knife was in Deering's classroom at the time because she had been using it to slice flowers and potatoes for demonstrations in her biology class.3 Upon hearing the distinctive "tap, tap, tap" of blade on beaker, most of the students stopped talking. Some in the back of the room, however, perhaps being out of earshot, continued to converse. Two were especially oblivious. Presently, Deering wheeled over to their lab table, still holding the knife in her right hand, between her thumb and fingers. When she reached the students' table, Deering turned the knife over in her hand, so that the point was down and the edge faced away from the students (toward Deering herself). Deering leaned over the table, in front of the where the two students were sitting, raised the knife an inch or two above a couple of sheets of paper that were lying on the tabletop, and, loosening her grip, let gravity pull the knife down between her fingers.4 Driven by the knife's own weight, the point punched through the papers, leaving small slits in them, and scratched the surface of the tabletop. Now gripping the knife's handle more tightly (for had she let go the knife would have fallen), Deering said, "Hello!"——which she pronounced "Heh-LOW!"——"Do I have your attention?" She did. The students stopped talking. Some were startled or frightened; others were amused or nonplussed. None, however, reacted as one might when facing a genuine threat of harm, e.g. by screaming or fleeing. As she returned to the front of the classroom, Deering joked, "Don't mess with a postmenopausal woman . . . with a knife!" This was meant to be humorous and was not uttered in a threatening tone of voice. Following this incident, Deering taught her lesson as usual, and the class unfolded in routine fashion. Her use of the knife, in other words, produced no discernible immediate fallout. At least a few students, however, were sufficiently upset by Deering's conduct to report the matter to the administration, and they did.5 The students' report not only set in motion an internal investigation, but also prompted the administration to call the police. Somehow, as well, the incident rapidly made its way into the local news. At least one local TV station aired a brief, 35-second story on the incident, which was short on facts, long on sensationalism, and notably unbalanced, in that Deering's side was not shown. The undersigned cannot comment on the contents or accuracy of other media reports, for they are not in evidence. In due course, the Broward County Sheriff's Office commenced an investigation that brought forth a criminal charge against Deering, who found herself accused of having improperly exhibited a dangerous weapon. The crime of improper exhibition, which is a misdemeanor, is defined in Section 790.10, Florida Statutes, as follows: If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self- defense, the person so offending shall be guilty of a misdemeanor of the first degree[.] Deering ultimately pleaded no contest to the criminal charge and was sentenced by the county court to three months' probation and a $30 fine. Meantime, the School Board decided that Deering should be fired, voting at its regular meeting on August 2, 2005, to accept the superintendent's recommendation that she be suspended without pay pending termination of employment. Following her suspension, Deering accepted a teaching position at the Upper Room Christian Academy, where she was working as a science and math teacher at the time of the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order (a) rescinding its previous decision to suspend Deering without pay pending dismissal and (b) awarding Deering the back salary, plus benefits, that accrued during the administrative proceedings, together with interest thereon at the statutory rate. DONE AND ENTERED this 31st day of July, 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 31st day of July, 2006.
The Issue The issue for consideration in this matter is whether Respondent should be suspended without pay for five days from employment with the School Board because of the matters alleged in the charging letter issued herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Polk County School Board, (Board), was the county agency responsible for the provision of public instruction from pre-kindergarten through secondary and adult education in Polk County, Florida, and operated Haines City High School in Haines City. Respondent had been employed at HCHS for eight years and in the last two years prior to the incidents in issue, taught in the school's Diversified Cooperative Training Program, (DCT) under a continuing contract of employment. In January, 1994, Respondent was administered a verbal reprimand as a result of reports that she has been consuming alcohol in the presence of her students at an out of town conference. A part of the basis for that reprimand was her reported comments to students to the effect that her predecessor as DCT instructor had advised her not to let Black students into the program because they caused trouble. These comments by Respondent were communicated to Black students who were upset by them. At some point during the 1993-1994 school year, Respondent reportedly overheard a student, Alisha Tanner, (now, Forsythe), in a discussion with another student regarding her breakup with her boyfriend. Respondent is alleged to have stated to Ms. Tanner that, "...if you have a vibrator, you won't need a boyfriend." Both Ms. Tanner and another female student who allegedly heard the statement, claim to have been shocked and embarrassed by hearing a teacher make such a statement, and a third student, Delana Muncy, indicated Ms. Tanner was crying as a result of the comment made to her. Evidence was also presented to indicate that about the same time, Respondent was overheard by several other students to have asked a male student, Jonathan Bradley, if he masturbated. Respondent does not deny using the term, "vibrator" to the female student. Her version of the conversation is somewhat different than those of the students, however. Respondent admits that she overheard the two girls discussing one's breakup with her boyfriend and that she joined the conversation. She, however, indicates that she did so to remind them of the dangers of reckless sexual behavior and suggested that the young lady find other ways, including the use of a vibrator, to satisfy her sexual needs. Respondent denies, however, the use of the word "masturbate" to Bradley. Only two of the students in or near the conversation recall Respondent making such a comment. Notwithstanding these comments were alleged to have been made during the early or middle part of the school year, no mention of them was made by any of the students to Respondent, her immediate supervisor, parents, school administration, or Board personnel until late in the school year, just shortly before graduation. At that time, a group of the students allegedly involved met for lunch at Pizza Hut off campus and in the course of their conversation, Respondent's alleged indiscretions surfaced. Prior to leaving campus, some of these students who now testify against Respondent passed a list of complaints against her around and, though denied, there is at least some indication the students were trying to get Respondent fired. Some of the students refused to sign the list. It was only several months after the inappropriate comments were allegedly made that the first official complaint was made. Other information presented at hearing indicates that during the school year several of the students involved in the reporting of this incident became dissatisfied with Respondent's conduct of her class. Respondent was alleged by students to have used such words in class as "shit", "hell", and "pissed off", and is reported to have commented, on a hot day, "I've got sweat running down between my breasts and the crack of my ass." No specific incident was presented to explain or elaborate on this. In addition, Respondent allowed a class discussion on marketing to inappropriately discuss the sale of condoms as a demonstrative example. In this case, she allowed any student who was offended by the discussion to leave the room, but this was not a satisfactory solution, as the students' excusal served only to focus unwelcome attention on the excused students. More specifically, Respondent was alleged to have become upset with student Bradley because, contra to the instructions she had given him about picking up the DCT jerseys from the printer, he disobeyed her instructions and picked them up without her permission. Respondent chastised Bradley for this. It is entirely possible the allegations against Respondent are the result of her disciplining of Mr. Bradley, thereby antagonizing him and his clique. Another allegation made against the Respondent by the Principal is her reported permission to several of her students to grade, average and record student grades, which allowed them access to her grade book. The HCHS teacher handbook, of which Respondent had previously been given a copy, specifically prohibits teachers from making grade books available to students and proscribes allowing students to record grades. Both the principal, Mr. Partain, and the Board's Director of Employee Relations indicated, without specific examples being provided, that Respondent's sexually inappropriate comments and her failure to abide by Board rules have impaired her effectiveness as a teacher in the school system. In general, her misconduct diminished her stature as a role model for her students, and her failure to obey Board rules compromised her ability to enforce discipline, but not to the degree that her effectiveness as a teacher was destroyed. Prior to the initiation of this action, the only disciplinary action taken against Respondent since she started working for the Board in 1988 was the verbal warning, (reduced to a letter), in January, 1994 regarding the drinking in front of students at conference and the untoward reference to Blacks. Other than that, her personnel record, commencing with the teacher evaluation done during the 1988-1989 school year, reflects positive comments and no criticism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Mary L. Canova be reprimanded for improperly allowing students to grade the papers of other students, to average grades, and to have access to her grade book. RECOMMENDED this 6th day of November, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 6th day of November, 1995. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 94-4483 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. & 2. Accepted and incorporated herein. & 4. Accepted and incorporated herein. First two sentences accepted. Conclusions as to misconduct rejected. Accepted that a comment was made by Respondent to a student which included a reference to a vibrator. Exact wording as alleged not proven. Not proven. Accepted that condoms were discussed, but it is not established that the suggestion to use condoms as an example came from Respondent or that she agreed to the discussion other than reluctantly. In any event, this discussion was not listed as a basis for discipline. Not proven and not a listed basis for discipline. & 11. Accepted and incorporated herein. 12. Accepted as a restatement of the witnesses' testimony. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. Accepted and incorporated herein with the exception of the last sentence which is not proven. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. First two sentences accepted. Third sentence a non proven conclusion. COPIES FURNISHED: Donald H. Wilson, Jr., Esquire Lane, Tron, Clarke, Bertrand, Vreeland & Jacobsen, P.A. Post Office Box 1578 150 East Davidson Street Bartow, Florida 33831 Mark Herdman, Esquire Herdman and Sakellarides, P.A. 24650 U.S. 19 North Suite 308 Palm Harbor, Florida 34684 John A. Stewart Superintendent Polk County Schools Post Office Box 391 1915 South Floral Avenue Bartow, Florida 33830
The Issue The issues to be determined are whether Respondent, Ms. Claudine Etienne, violated section 1012.795(1)(j), Florida Statutes (2011),1/ and implementing administrative rules, as alleged in the Administrative Complaint; and, if so, what is the appropriate sanction.
Findings Of Fact The Commissioner is responsible for investigating and prosecuting allegations of misconduct against individuals holding educator's certificates. Ms. Etienne holds Florida Educator's Certificate 845026, covering the areas of English and mathematics, which is valid through June 30, 2018. At all times relevant to the complaint, Ms. Etienne was employed as an English teacher at Miami Springs High School in the Miami-Dade County School District. On or about January 20, 2012, an unknown student ignited a smoke bomb or large firecracker in a locker in Ms. Etienne's classroom. Ms. Etienne was unsure what the device was or how it was ignited. Smoke was generated from the device, and it filtered into the classroom. One or more students requested to leave the room because of the smoke. In her deposition, Ms. Etienne indicated that at the time of the incident, she was aware that one of the students assigned to her class, C.E., had asthma because she had a conversation with C.E.'s mother in December about it. Ms. Etienne testified that she did not recall C.E. asking her to leave the room on the day of the incident, however, and in fact did not remember if C.E. was even in class that day. Ms. Etienne did not believe the smoke was sufficiently serious to require her to allow the students to leave the room. She was uncertain how to proceed until administrators who had been called arrived in the classroom. Ms. Etienne instructed the students to stay in the room until an administrator arrived. One student subsequently required medical attention as a result of the smoke inhalation. In her written statement, C.E. stated that paramedics came to the school to assist her because she could not breathe after her exposure to the smoke in the classroom.2/ Ms. Etienne later received a verbal reprimand from the school district.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a final order finding Ms. Claudine Etienne in violation of section 1012.795(1)(j), Florida Statutes, through her violation of Florida Administrative Code Rule 6B-1.006(3)(a), issuing her a letter of reprimand, and assessing a fine against her in the amount of $500. DONE AND ENTERED this 7th day of February, 2017, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 2017.
Findings Of Fact Respondent holds teaching certificate number 230805 issued by the State of Florida, Department of Education. Respondent's teaching certificate is valid through June 30, 1996. Respondent is certified in administration, supervision, and physical education. Respondent has been employed by the Orange County School District for approximately 20 years (the "District"). Respondent was employed as a physical education teacher at Hungerford Elementary School for approximately 13 years ("Hungerford") until 1991 when he was transferred to Orlando Vocational Technical Center. Respondent is currently the Dean of Students at Orlando Vocational Technical Center. While he taught at Hungerford, Respondent was respected by his peers and by his students. Students generally enjoyed Respondent's physical education classes. Respondent holds a black belt in karate and is a weight lifter. He routinely allowed several students at a time to jump on him during physical education class and wrestle with him. Respondent was a strict teacher at Hungerford. He believed strongly in discipline. Students in his classes were generally well-behaved. Physical Force Against Students At Hungerford, Respondent frequently used physical contact to gain the attention of misbehaving male students. He typically tapped boys on top of their heads, in the sternum with an open hand or fist, or in the rear end with a track baton. Respondent never intended to embarrass or disparage any of his male students. The vast majority of students recognized that Respondent was merely attempting to gain their attention or playing around. Respondent's discipline in karate gave him more than adequate control to prevent harm to any misbehaving student when Respondent used physical contact to gain their attention. Respondent never lost that control in his classes. No student was physically injured as a result of physical contact from Respondent. Respondent's physical contact was not calculated to cause misbehaving students any pain or discomfort. Respondent was criticized by some who thought he was too severe a disciplinarian. In 1987, some students lodged complaints against Respondent for alleged physical abuse. Two legal proceedings were brought by the Department of Health and Rehabilitative Services over allegations of physical abuse. Respondent successfully defended both proceedings. Sometime in 1988 or 1989, Respondent tapped Andre Hunter in the chest with an open hand. At the time, Andre was a third grade student at Hungerford. Respondent did not hurt Andre. Andre ". . . didn't feel nothing. It didn't hurt. It just felt like he tapped me." Transcript at 24. On separate occasions in 1988 or 1989, Respondent tapped Billy Washington on the head with his fist and hit him on the behind with a track baton. Billy was in Respondent's physical education class during the second, third, and fourth grades. When Respondent tapped Billy on the head, "It was funny. It didn't hurt." Transcript at 34. When Respondent hit Billy on the behind with a track baton, "It stung a little bit, but it didn't bother me." Id. Emotionally, Billy ". . . felt all right." He ". . . didn't think about it. It didn't bother me." Transcript at 35. On separate occasions in 1988 or 1989, Respondent tapped Bobby King in the chest with Respondent's fist. At the time, Bobby was in the first or second grade. It hurt Bobby and made him mad. Bobby did not understand why Respondent struck him. On September 22, 1989, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for using unnecessary physical force against a student on March 20, 1989. The letter directed Respondent to refrain from the use of threatening behavior and physical force against students. Attendance And Inadequate Supervision During the 1988-1989 and 1989-1990 school years, Respondent sometimes failed to properly supervise students in his class. Respondent was late to class a few times. A few times, he left the school campus prior to the end of the school day without permission. Respondent failed to let other school employees know that he would not be at school. However, his attendance record neither adversely affected his teaching effectiveness nor impaired his relationship with his colleagues or students. On February 14, 1990, Respondent received a letter of reprimand from the District. The District reprimanded Respondent for leaving the school campus without permission from the principal, not adequately supervising his students on one occasion, and for acting in a threatening or intimidating manner toward the principal when confronted about Respondent's supervision of his students. Transfer To Vo-Tech On August 21, 1990, Respondent was removed from his classroom duties at Hungerford and placed on relief of duty status with full pay and benefits. The District took the action as a result of allegations of inappropriate discipline, leaving students unsupervised, and insubordination. Respondent was subsequently transferred to Orlando Vocational and Technical School. Respondent continues to enjoy wide respect as a teacher from parents, other teachers, and community leaders. As Dean of Students, Respondent currently holds a responsible position of employment with the District. Respondent functions effectively in that position. Deferred Prosecution Agreement On October 8, 1991, Respondent and Petitioner entered into a Deferred Prosecution Agreement. On or before October 8, 1992, Respondent agreed to successfully complete college courses in Assertive Discipline, Classroom Management, and Methods of Teaching Elementary Physical Education. Respondent further agreed to provide written verification that Respondent completed the required courses. Respondent failed to complete the required courses in a timely manner. Although Respondent ultimately completed the required courses, he had not supplied Petitioner with written verification as of the date of the formal hearing. If Respondent had timely complied with the Deferred Prosecution Agreement, this proceeding would not have been instituted. Respondent believed in good faith that his transfer out of the classroom to his position as Dean of Students made the courses on classroom techniques unnecessary. Respondent was notified in 1993 that he was in violation of the Deferred Prosecution Agreement. Respondent promptly enrolled in the required classes and completed them. Respondent has now complied with all of the conditions of the Deferred Prosecution Agreement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Educational Practices Commission enter a Final Order finding Respondent guilty of the charge that he failed to make a reasonable effort to protect students from conditions harmful to their learning and not guilty of the remaining charges in the Administrative Complaint. It is further recommended that the Commission issue a letter of reprimand to Respondent and, pursuant to Section 231.262(6)(c), impose an administrative fine not to exceed $750. RECOMMENDED this 22d day of November, 1994, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22d day of November, 1994.
