09-003491PL Dr. Eric J. Smith, As Commissioner Of Education vs. Sultan A. Hassan Status: Closed Recommended Order on Thursday, December 24, 2009.

Summary: Petitioner demonstrated by clear and convincing evidence that Respondent confronted and threatened his principal at a faculty meeting. Recommend suspension, probation and anger management classes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-3491PL

)

SULTAN A. HASSAN, )

)

Respondent. )

)

RECOMMENDED ORDER

On October 27, 2009, a duly-noticed hearing was held by

means of video teleconference with sites in Tallahassee and

Jacksonville, Florida, before Lisa Shearer Nelson, an

administrative law judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154

For Respondent: Sultan A. Hassan, pro se

3014 Phyllis Street

Jacksonville, Florida 32205

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent committed

the acts alleged in the Administrative Complaint and if so, what

penalties should be imposed?

PRELIMINARY STATEMENT

On February 4, 2009, Dr. Eric Smith as Commissioner of

Education filed an Administrative Complaint against Respondent,

Sultan A. Hassan, alleging violations of Section 1012.795(1)(c),

Code Rule 6B-1.006(5)(d). Respondent disputed the allegations

and on March 11, 2009, requested a hearing pursuant to Section

120.57(1), Florida Statutes. On June 25, 2009, the matter was

referred to the Division of Administrative Hearings for

assignment of an administrative law judge.

On July 7, 2009, Petitioner filed Petitioner’s First

Requests for Admissions to Respondent and Petitioner’s First Set

of Interrogatories to Respondent. A Notice of Hearing was issued

on July 17, 2009, setting the hearing by video teleconference for

September 16, 2009.

Respondent did not respond timely to the Request for

Admissions, and on September 8, 2009, Petitioner filed a Motion

to Deem Petitioner’s First Requests for Admissions to Respondent

as Admitted and to Relinquish Jurisdiction. Because of the

proximity of the Motion to the scheduled hearing, on

September 11, 2009, a hearing on Petitioner’s Motion was held via

telephone. As a result of the arguments presented, an Order

Granting Continuance and Re-scheduling Hearing for October 27,

2009, was entered on September 11, 2009. In the Order,

Respondent was directed to file his answers to the Request for

Admissions, as well as responses to the outstanding

Interrogatories on or before September 16, 2009. If no responses

were filed, the Order stated that the undersigned would conclude

that no material dispute of fact remained, and jurisdiction would

be relinquished to the Commission. On September 16, 2009,

Respondent filed his responses to discovery as ordered, and the

case proceeded to hearing October 27, 2009.

At hearing, Petitioner presented the testimony of

Dr. Darrell Perry, Cheryl T. McGuffie, Kay D. Ahearn, Alan Moore,

and Dewayne Thomas. Respondent presented no witnesses, and

neither party submitted exhibits. The Transcript of the

proceedings was filed with the Division on November 23, 2009, and

on December 3, 2009, Petitioner filed its Proposed Recommended

Order. To date, no post-hearing submission has been filed by

Respondent.

FINDINGS OF FACT

1. At all times relevant to the Administrative Complaint,

Respondent held Florida Educator's Certificate No. 821684,

covering the area of Mathematics, which was valid through

June 30, 2008.

2. At all times pertinent to the allegations in the

Administrative Complaint, Respondent was employed as a math

teacher at Paxon Middle School (Paxon) in the Duval County School

District.

3. Cheryl McGuffie was a teacher at Paxon and had a

classroom adjoining Respondent's. On or about November 20, 2007,

during first period, Ms. McGuffie's class was involved in a

lively and somewhat loud discussion. At some time during this

class period, she heard a knock on the wall, coming from

Respondent's adjoining classroom. A student in Ms. McGuffie's

class went over to the wall and knocked back. Ms. McGuffie

admonished the student to return to his seat and told her class

to settle down so as not to disturb Respondent's class.

4. Later, during third period, Ms. McGuffie again heard

knocking on the wall. At this point, her students were working

on a worksheet. She went over to the door between the

classrooms, opened it, and saw students standing at the front of

the class and Respondent standing about four feet away. She

asked who knocked on the wall, and received no answer, so

returned to her classroom.

5. Sometime later during the same class period, students

from Respondent's classroom came into her classroom. They were

not supposed to be in her class and were disrupting the work her

students were doing. Ms. McGuffie ushered them out and told the

students to return to Respondent's classroom. While she was

standing at the door to her classroom, Respondent came to the

door of his classroom. She told Respondent, "those kids don't

need to be coming into my classroom like that."

6. Respondent apparently was offended by Ms. McGuffie's

statement and replied, "The way I see it, if you're the adult in

the room then you need to handle the situation." He continued by

saying, "I've been letting you slide anyway." Ms. McGuffie

described Respondent's tone as quiet and menacing, and that he

was motioning with his hands and standing close to her. She was

uncomfortable as a result of the conversation.

7. The students from Respondent's third period class were

in Ms. McGuffie's fourth period class. Several of these students

overheard the interchange between Ms. McGuffie and Respondent,

and they were discussing the incident when they came in to her

classroom. The students' behavior during class was rowdy and

hard to control, which was not usual for this group of students,

to the point that Ms. McGuffie was forced to call Dr. Perry, the

principal, in order to regain control of the classroom.

8. Ms. McGuffie did not normally have a problem with

classroom control.

9. Ms. McGuffie was uncomfortable with Respondent following

the incident. A few days afterward, Dr. Perry had a meeting with

both teachers to address the situation between them. While

Ms. McGuffie remained professional, Respondent became

belligerent.

10. Several months later, on or about April 16, 2008,

teachers were scheduled to attend a teacher training session in

the afternoon. Dr. Perry, Paxon's principal, was standing in the

middle of the media center where the training was to take place

when Respondent came into to media center. By all accounts,

Respondent was angry and upset when he entered the media center,

and his anger was directed at Dr. Perry.

11. Respondent approached Dr. Perry and stated that the

administration was in a conspiracy to get him fired, and became

loud. Dr. Perry suggested that they move to his office to

discuss whatever was bothering Respondent, and Respondent

refused, saying he wanted to address the situation "here and

now." As Dr. Perry walked away from him, Respondent made

statements such as "You're trying to get me in trouble," and that

Dr. Perry "didn't know who he was messing with." He referred to

Dr. Perry's office as a snakepit.

12. Respondent continued to be very upset and advanced

toward Dr. Perry, making threatening statements. Other faculty

members tried to calm him down, telling him this was not the

place for this kind of behavior. Respondent could not be calmed

down, and eventually had to be escorted from the media center by

other faculty members.

13. As a result of Respondent's behavior, Dr. Perry had to

leave the media center in an attempt to diffuse the situation.

He perceived Respondent's threats toward him to be real, as did

other staff members. Even after leaving the media center,

Respondent continued to be upset. When Assistant Principal Alan

Moore saw him outside the media center, he was still out of

control and angry, especially toward Dr. Perry. The evidence did

not reveal what had caused Respondent to be so upset.

14. After the incident, Dr. Perry called the district

office. He believed that Respondent's actions compromised his

effectiveness as a teacher because of the Efect it had on other

staff members. Dr. Perry did not want Respondent to continue

teaching at his school, and his employment was terminated.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2009).

16. This proceeding is a disciplinary proceeding to take

action against Respondent's certification to teach in the State

of Florida. Petitioner bears the burden of proof to demonstrate

the allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

17. Clear and convincing evidence:

requires that the evidence must be found to

be credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and lacking in

confusion as to the facts in issue. The

evidence must be of such a weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy,

as to the truth of the allegations sought to

be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

18. Section 1012.795(1), Florida Statutes (2007), 1/

authorizes the Commission to suspend, revoke, or otherwise

discipline a teaching certificateholder, where it is shown that

he or she:

(c) Has been guilty of gross immorality or

an act involving moral turpitude.

* * *

(f) Upon investigation, has been found

guilty of personal conduct which seriously

reduces his effectiveness as an employee of

the school district.

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

19. Florida Administrative Code Rule 6B-1.006 provides in

pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation or

suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

* * *

(5) Obligation to the profession of education

requires that the individual:

* * *

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual’s performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

20. The Administrative Complaint alleges the following

facts which the Commission asserts create a basis for discipline

pursuant to Section 1012.795, and the Principles of Professional

Conduct for the Education Profession:

3. In or around November 2007, the

Respondent made derogatory comments to

another teacher in front of students. The

Respondent's comments caused the students to

become disruptive and disrespectful toward

the other teacher. The learning environment

was adversely impacted due to the

Respondent's comments.

4. On or about April 16, 2008, during the

start of a faculty meeting, the Respondent

became confrontational toward the principal

of the school. The Respondent became

menacing, and uttered threats and curses

toward the principal.

21. The Commission has proven by clear and convincing

evidence that Respondent made derogatory comments to another

teacher in front of students. It also proved that following the

interchange between Respondent and Ms. McGuffie, the students in

Ms. McGuffie's class were unusually disruptive. However, the

evidence is not clear and convincing that it was the comments

made by Respondent that made the students disruptive and that the

learning environment was adversely impacted as a result. The

unruly behavior could just as easily be attributed to some other

event occurring on campus that day.

22. The Commission has also proven by clear and convincing

evidence that Respondent became confrontational at the beginning

of a faculty training session, and that he acted in a

disrespectful and threatening manner toward the principal of the

school.

23. Count One of the Administrative Complaint charges

Respondent with gross immorality or an act involving moral

turpitude, in violation of Section 1012.795(1)(c), Florida

Statutes (2007). The Education Practices Commission has not

defined "gross immorality" or "moral turpitude" for the purposes

of discipline to be imposed pursuant to Section 1012.795, Florida

Statutes. The Commission has, however defined "immorality" and

"moral turpitude" for use by school districts in taking action

against instructional personnel in Florida Administrative Code

Rule 6B-4.009. This rule, which may provide guidance in this

context, provides in pertinent part:

(2) Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or disrespect

and impair the individual's service in the

community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties;

which, according to the accepted standards of

the time a man owes to his or her fellow man

or to society in general, and the doing of

the act itself and not its prohibition by

statute fixes the moral turpitude.

24. Moral turpitude has also been defined by the Supreme

Court of Florida as "anything done contrary to justice, honesty,

principle, or good morals, although it often involves the

question of intent as when unintentionally committed through

error of judgment when wrong was not contemplated." State ex

rel. Tullidge v. Hollingsworth , 108 Fla. 607, 146 So. 660, 661

(1933).

25. The Commission has proven a violation of Count One. By

threatening his principal and placing other faculty members in

fear of his conduct, Respondent acted in a way that is

inconsistent with adulthood, much less the behavior expected of

an adult entrusted with teaching in a high school setting.

Persons in Respondent's position are expected to diffuse hostile

situations, not ignite them. Count One was proven by clear and

convincing evidence.

26. Count Two charges Respondent with violating Section

1012.795(1)(f), Florida Statutes (2007), by committing personal

conduct which seriously reduces his effectiveness as an employee

of the school district. With respect to the factual conduct

alleged in paragraph three of the Administrative Complaint, the

facts proven do not support a finding that Respondent violated

Section 1012.795(1)(f). While the Commission has proven that

Respondent spoke to Ms. McGuffie in a manner that was

disrespectful and derogatory, it did not prove that his comments

to her resulted in the disrespectful and unruly behavior of the

students. To make such a finding would require reliance on the

hearsay statements attributed to students who did not testify.

See § 120.57(1)(c), Fla. Stat. (2009).

27. However, Respondent's confrontation with Dr. Perry in

the media center does support a finding that Respondent violated

Section 1012.795(1)(f). Respondent's behavior was unprofessional

and threatening. He disrupted the faculty session that Dr. Perry

was about to commence, and impaired Dr. Perry's ability to

interact with other teachers on the faculty. Count Two has been

proven by clear and convincing evidence.

28. Count Three alleges a violation of the Principles of

Professional Conduct for the Education Profession, as prescribed

in the State Board of Education rules. This charge depends upon

a finding that Respondent violated Florida Administrative Code

Rule 6B-1.006(5)(d), as charged in Count Four of the

Administrative Complaint. As explained below, both counts have

been proven by clear and convincing evidence.

29. When Respondent made derogatory comments to

Ms. McGuffie, he engaged in harassment that resulted in an

intimidating environment. His behavior was childish, made her

uncomfortable, and is inconsistent with the behavior expected in

a collegial setting. Likewise, Respondent's outburst directed at

Dr. Perry unreasonably interfered with the planned faculty

activities of the afternoon and created a hostile and

intimidating environment, both for Dr. Perry and for other

faculty members present. The outburst also created apprehension

amongst the facility regarding any ongoing interactions with

Respondent.

30. Based on the foregoing, Respondent is guilty of

violations charged in Counts One through Four of the

Administrative Complaint.

31. Section 1012.796(7), Florida Statutes (2007), provides

the penalties for violations of Section 1012.796 and Rule 6B-

1.006. Those penalties include denial of a certificate;

revocation or suspension; probation, subject to such conditions

as the Commission may specify; restriction of the authorized

scope of practice; and administrative fines not to exceed $2,000

per count or offense.

32. The Commission's disciplinary guidelines, adopted at

Florida Administrative Code Rule 6B-11.007, provide a range of

penalties for the violations proven in this case, from probation

to revocation. Petitioner recommends permanent revocation.

33. While the evidence supports the violations charged,

permanent revocation is not an appropriate penalty. Rule 6B-

11.007 also provides a list of aggravating and mitigating

circumstances that may be taken into consideration when

determining penalty. Included in this list are the number of

repetitions of the violation; any previous discipline against the

certificateholder; any actual damage caused by the violation; the

effect of the penalty on the certificateholder's livelihood; and

the degree of physical or mental harm to a student or a child.

Rule 6B-11.007(3)(c), (e), (g), (i), and (r).

34. There are two factual bases for discipline in this

case: the incident between Ms. McGuffie and Respondent, which is

minor in nature, and the confrontation with Dr. Perry. While the

confrontation with Dr. Perry clearly represents a serious breach

of Respondent's responsibilities as a faculty member, it appears

to be an isolated incident. There is no evidence of prior

discipline against Respondent, and there is no evidence of actual

damage caused by the incident. Moreover, no student or child was

involved in the incident. Finally, permanent revocation, as

suggested by Petitioner, would deprive Respondent of pursuing the

profession for which he has trained.

35. By all accounts, Respondent is a gifted teacher. He

has a positive rapport with his students, and with the benefit of

maturity, could become an invaluable role model. He must

however, learn to control his temper and to work with his peers

within the structure of the education system.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Education Practices Commission enter a Final Order

finding Respondent guilty of Subsections 1012.795(1)(c), (f) and

(i), Florida Statutes (2007), and Florida Administrative Code

Rule 6B-1.006(5)(d). In addition, it is recommended that the

Commission suspend Respondent's certificate for a period of three

months, followed by probation for two years. As a condition of

probation, it is recommended that Respondent be required to take

a course or courses in anger management.

DONE AND ENTERED this 24th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of December, 2009.

ENDNOTE

1/ Petitioner has cited to the 2009 codification of Section

1012.795, which renumbers the violations charged as subsections

the violations charged. However, licensees can only be found to

have violated the statutory provision in effect at the time of the

conduct alleged. Delk v. Department of Professional Regulation ,

595 So. 2d 966 (Fla. 5th DCA 1992).

COPIES FURNISHED:

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

Sultan A. Hassan

3014 Phyllis Street

Jacksonville, Florida 32205

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 3399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.