09-006987PL Dr. Eric J. Smith, As Commissioner Of Education vs. Patricia Ann Mackroy Status: Closed Recommended Order on Wednesday, March 31, 2010.

Summary: Respondent hit a student and lied to police about the conduct of a student, resulting in the student's being arrested.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 09-6987PL

)

PATRICIA ANN MACKROY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on, February 25, 2010, in Lake Wales, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: (No appearance)

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Florida Statutes (2007), 1 and Florida Administrative Code Rules

f),

6B-1.006(4)(b), 6B-1.006(5)(a), 6B-1.006(5)(d), and

6B-1.006(5)(f), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On May 28, 2009, Dr. Eric J. Smith, as Commissioner of

Education, hereinafter referenced as Petitioner, filed an

Administrative Complaint against Respondent, Patricia Ann

Mackroy (Ms. Mackroy), alleging that she had violated

Florida Statutes, and Florida Administrative Code Rules

f),

6B-1.006(4)(b), 6B-1.006(5)(a), 6B-1.006(5)(d), and

6B-1.006(5)(f).

Ms. Mackroy requested an administrative hearing, and the

case was transmitted to the Division of Administrative Hearings

on December 23, 2009. A Notice of Hearing was issued on

January 6, 2010, scheduling the hearing for February 25, 2010.

On February 11, 2010, an Amended Notice of Hearing was issued,

requiring the parties to check at the administration desk at the

location of the hearing for a room assignment. Both notices

were sent to Ms. Mackroy.

The final hearing was scheduled to commence at 9:00 a.m.

Neither Ms. Mackroy nor a representative of Ms. Mackroy appeared

at 9:00 a.m. The commencement of the final hearing was delayed

until 9:26 a.m. to give Ms. Mackroy an opportunity to appear.

Neither she nor a representative appeared, and no communication

was made to the Division of Administrative Hearings why there

was no appearance.

At the final hearing, Petitioner called the following

witnesses: Tiffany Holden, Janette Bell, Jennifer Leeks, Rodney

Fowler, Terry Benton, and Manny Rodriguez. Petitioner’s

Exhibits 1 through 12 were admitted in evidence.

The Transcript was filed on March 10, 2010. Proposed

recommended orders were to be filed within 20 days of the filing

of the Transcript. On March 23, 2010, Petitioner filed its

Proposed Recommended Order, which has been considered in the

preparation of this Recommended Order. As of the date of this

Recommended Order, Respondent had filed no post-hearing

submittal.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

certifying and regulating public school teachers in Florida.

Ms. Mackroy is licensed to teach in the fields of emotionally

handicapped and sociology pursuant to Florida Educator’s

Certificate No. 385206, which is valid through June 30, 2011.

2. At all times pertinent to the Administrative Complaint,

Ms. Mackroy was employed as the lead teacher at the Exceptional

Student Education Countywide McLaughlin Center (McLaughlin

Center) in the Polk County School District.

3. On September 6, 2007, Officer Tiffany Holden, a school

resource officer employed with the Lake Wales Police Department,

was dispatched to McLaughlin Center to investigate a report of a

disruptive student, A.H.

4. When Officer Holden arrived at McLaughlin Center, she

observed A.H. sitting quietly in a chair with his arms inside

his shirt, looking as if he was napping. Officer Holden also

observed that the front office area was in disarray, with papers

and a doughnut box on the floor and several chairs that had been

overturned.

5. Ms. Mackroy told Officer Holden that A.H. had been

disruptive and was responsible for overturning the chairs and

throwing the papers and doughnut box on the floor. Ms. Mackroy

told Officer Holden to arrest A.H. because the school staff

could do nothing with him.

6. Based on Ms. Mackroy’s statement that A.H. was

responsible for the trashing of the front office, Officer Holden

handcuffed and arrested A.H., who began to cry. A.H. was

transported to the police station. He told Officer Holden that

he did not throw the items on the floor and did not overturn the

chairs. A.H. stated that, while he was seated outside the

office door, he had observed Ms. Mackroy throw the papers on the

floor and overturn the chairs.

7. Because of the conflicting evidence, Officer Holden did

not charge A.H. with disorderly conduct, but took A.H. home and

spoke to his mother.

8. On October 25, 2007, during an unrelated, subsequent

investigation, Officer Rodney Fowler interviewed Terry Benton

(Ms. Benton), who at that time was a teacher at McLaughlin

Center. Ms. Benton had witnessed the incident involving A.H.

and advised Officer Fowler that A.H. had not put the front

office in disarray, but Ms. Mackroy had knocked over the chairs

and put the papers and other items on the floor. She knew that

Ms. Mackroy had falsely accused A.H., but she was intimidated by

Ms. Mackroy and was afraid that Ms. Mackroy would lie in order

to get her fired. Ms. Benton was told by Ms. Mackroy that she

had contacts with the police department and would know if

Ms. Benton said anything against her.

9. The information received from Ms. Benton concerning

A.H. was relayed to Officer Holden, who filed a complaint

affidavit with the State Attorney’s Office charging Ms. Mackroy

with filing a false police report.

10. Officer Fowler had been dispatched to McLaughlin

Center on October 25, 2007, to investigate allegations that

Ms. Mackroy had hit D.C., a student, on the head. During the

investigation, he learned that, approximately two or three weeks

before the investigation, D.C. had gotten upset during class.

Ms. Mackroy came into the classroom and took D.C. out of the

classroom and told him to go to the end of the hallway. D.C.

got to the end of the hallway and got on the floor, lying on his

stomach. While D.C. was lying on the floor, Ms. Mackroy bent

down and hit him on his head with her hand. D.C. was not trying

to harm Ms. Mackroy at the time of the incident; he was crying

and asking her to stop hitting him.

11. As a result of Officer Fowler’s investigation, he

charged Ms. Mackroy with simple battery.

12. The Polk County School District began an investigation

into the incidents involving Ms. Mackroy and the two students,

A.H. and D.C. At the conclusion of the investigation, it was

recommended that Ms. Mackroy be terminated from her position

with the Polk County School District. Ms. Mackroy resigned in

lieu of termination on December 19, 2007.

CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

14. Petitioner has the burden to establish the allegations

in the Administrative Complaint by clear and convincing

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

15. Petitioner has alleged that Ms. Mackroy violated the

following subsections of Subsection 1012.795(1), Florida

Statutes:

(1) Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

16. Florida Administrative Code Rule 6B-1.006 constitutes

the Principles of Professional Conduct for the Education

Profession in Florida. Petitioner has alleged that Ms. Mackroy

violated the following sections of Florida Administrative Code

Rule 6B-1.006:

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student’s legal rights.

* * *

(4) Obligation to the public requires that

the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(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.

* * *

(f) Shall not use coercive means or promise

special treatment to influence professional

judgments of colleagues.

not defined in the context of Section 1012.795, Florida

Statutes, but guidance may be found in Florida Administrative

Code Rule 6B-4.009, which provides the basis for charges upon

which dismissal action by the school districts against

instructional personnel may be taken. Florida Administrative

Code Rule 6B-4.009 provides:

(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.

18. “Moral turpitude” has also been defined by the Florida

Supreme Court as follows:

Moral turpitude involves the idea of

inherent baseness or depravity in the

private social relations or duties owed by

man to man or by man to society. It has

also been defined as anything done contrary

to justice, honesty, principle, or good

morals, though, 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 , 146 So. 660, 661

(Fla. 1933).

19. Petitioner has demonstrated by clear and convincing

evidence that Ms. Mackroy is guilty of moral turpitude. She hit

a defenseless student, and she intentionally made a false claim

to law enforcement officials for the purpose of having a student

arrested and removed from McLauglin Center. Petitioner has

failed to demonstrate that Ms. Mackroy is guilty of gross

immorality. There was no evidence that Ms. Mackroy’s actions

impaired her service in the community. Thus, Petitioner has

established that Ms. Mackroy violated Subsection 1012.795(1),

Florida Statutes.

20. Petitioner has established by clear and convincing

evidence that Ms. Mackroy is guilty of personal conduct which

seriously reduces her effectiveness as an employee of the

district school board in violation of Subsection 1012.785(1)(g),

Florida Statutes. A teacher who hits students without

provocation and lies to get a student arrested is not an

effective teacher. Her behavior intimidated other teachers.

21. Petitioner has established that Ms. Mackroy violated

Florida Administrative Code Rules 6B-1.006(3)(a) and

6B-1.006(3)(f) by clear and convincing evidence. Obviously,

striking a student without provocation is not a reasonable

effort to protect the physical safety of a student and is a

violation of a student’s legal rights.

22. Petitioner has established by clear and convincing

evidence that by throwing items on the floor of the front office

and then lying to law enforcement officers about who did it in

order to have A.H. arrested is a violation of Florida

Administrative Code Rules 6B-1.006(3)(d), 6B-1.006(3)(e),

6B-1.006(4)(b), 6B-1.006(5)(a), and 6B-1.006(5)(d).

23. Ms. Mackroy intimidated Ms. Benton to the extent that

Ms. Benton was afraid to inform law officials that Ms. Mackroy

had given the police false information about A.H. and that

Ms. Benton was afraid that Ms. Mackroy would intentionally lie

in order to get Ms. Benton fired.

24. Petitioner has established that by violating the

above-referenced principles of professional conduct that

Ms. Mackroy has violated Subsection 1012.795(1)(j), Florida

Statutes.

25. Because of the seriousness of these offenses pursuant

to the disciplinary guidelines contained in Florida

Administrative Code Rule 6B-11.007, permanent revocation of

Ms. Mackroy’s educator certification is the appropriate penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Ms. Mackroy violated Subsections 1012.795(1)(d),

1012.795(1)(g), and 1012.795(1)(j), Florida Statutes; finding

that Ms. Mackroy violated Florida Administrative Code Rules

f),

6B-1.006(4)(b), 6B-1.006(5)(a), and 6B-1.006(5)(d); and

permanently revoking Ms. Mackroy’s educator certificate.

DONE AND ENTERED this 31st day of March, 2010, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 31st day of March, 2010.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2007 version.

COPIES FURNISHED :

Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Patricia Mackroy

2201 Evie Street

Lake Wales, Florida 33898

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

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, 32399-0400

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.