00-003718PL Tom Gallagher, As Commissioner Of Education vs. Victoria Laubach
 Status: Closed
Recommended Order on Monday, January 22, 2001.


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Summary: Petitioner only offered evidence of matters with which Respondent was not charged and failed to offer evidence of those matters with which Respondent was charged.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8TOM GALLAGHER, as Commissioner )

13of Education, )

16)

17Petitioner, )

19)

20vs. ) Case No. 00-3718PL

25)

26VICTORIA LAUBACH, )

29)

30Respondent. )

32___________________________________)

33RECOMMENDED ORDER

35Pursuant to notice, this cause was heard by Linda M. Rigot,

46the assigned Administrative Law Judge of the Division of

55Administrative Hearings, on November 15, 2000, in Fort

63Lauderdale, Florida.

65APPEARANCES

66For Petitioner: William R. Scherer, III, Esquire

73Conrad & Scherer

76633 South Federal Highway

80Post Office Box 14723

84Fort Lauderdale, Florida 33302

88For Respondent: Victoria Laubach, pro se

944601 Southwest 42nd Terrace

98Fort Lauderdale, Florida 33314

102STATEMENT OF THE ISSUE

106The issue presented is whether Respondent is guilty of the

116allegations contained in the Administrative Complaint filed

123against her, and, if so, what disciplinary action should be

133taken against her, if any.

138PRELIMINARY STATEMENT

140On July 20, 2000, Petitioner Tom Gallagher, as Commissioner

149of Education, issued an Administrative Complaint against

156Respondent Victoria Laubach, alleging that she had violated

164certain statutes and rules regulating her conduct as a teacher,

174and Respondent timely requested an evidentiary hearing regarding

182the allegations in that Administrative Complaint. Thereafter,

189this cause was transferred to the Division of Administrative

198Hearings to conduct the evidentiary proceeding.

204At the commencement of the final hearing, Respondent's

212husband, Harold Laubach, was accepted as Respondent's qualified

220representative to represent her in this proceeding.

227Petitioner presented the testimony of Victoria Kaufman,

234Cindy Dean, Keith Span, Dennis Morrison, Akilah Singletary, and

243Jennifer Bass Glenn. Respondent testified on her own behalf and

253presented the testimony of Julia McGritty. Additionally,

260Respondent's composite E xhibit numbered 1 was admitted in

269evidence.

270Both parties submitted proposed recommended orders after

277the conclusion of the final hearing. Those documents have been

287considered in the entry of this Recommended Order.

295FINDINGS OF FACT

2981. Respondent holds Florida Educator's Certificate 762313,

305covering the area of varying exceptionalities, valid through

313June 30, 2004. At all times material hereto, Respondent was

323employed as a varying exceptionalities teacher by the Broward

332County School Board. She was assigned to the Wingate Oak

342Center, a school for multiply-handicapped and mentally-

349handicapped students, ages five through twenty-two.

3552. During the 1998-1999 school year, Respondent taught

363autistic students, having six to nine students in her class.

373Mary, one of those students, was very aggressive. She

382physically attacked teachers, paraprofessionals, and other

388students. She was non-verbal and communicated by using hand

397signals.

3983. A special system for disciplining autistic students was

407in place at Wingate Oak Center. The professional management

416crisis system, an intervention system, was comprised of four

425steps: (1) crisis prevention; (2) de-escalation; (3) actual

433crisis intervention in a physical crisis; and (4) post-crisis

442intervention, returning the student to his or her activity. The

452first two steps were the responsibility of the classroom

461teacher.

4624. If a child continued his or her disruptive, aggressive,

472or self-injurious behavior despite the classroom teacher's use

480of the first two steps, any staff member would press a buzzer in

493the room and yell "Code Red." In the front office of the

505school, the intercom would flash the room number, and the

515secretary in attendance would announce "Code Red" throughout the

524entire school.

5265. The Code Red team composed of administrators, staff,

535and persons certified in professional crisis management would

543respond by immediately going to the room where the teacher or

554other staff member needed assistance in controlling the child.

563Certification was required because physical intervention needs

570to be accomplished in a safe and effective manner that does not

582embarrass the student. The Code Red team uses personal safety

592techniques and/or immobilization techniques to keep the student

600from hurting himself or herself and/or transportation techniques

608if the student requires being transported to another area to

618calm down.

6206. Although Respondent had been trained in the required

629techniques, her certification expired prior to the 1998-1999

637school year.

6397. Respondent worked closely with Mary's parents and

647conferred with them regularly. Mary wore a hair band and her

658hair in a ponytail. When Mary misbehaved in class, a technique

669that worked well was to remove Mary's hair band and mess up her

682hair. Mary was told that if she behaved, her hair band would be

695returned and her hair would be brushed. Mary liked the positive

706reinforcement of having her hair brushed and wearing her hair

716band, so she usually stopped misbehaving.

7228. On February 18, 1999, Mary threw her desk aside and

733started to attack another student. Respondent handed her the

"742comfort" towel to calm her down but that did not work.

753Instead, Mary started kicking Respondent and pulling

760Respondent's hair and clothes. As Mary pulled at her, they both

771fell on the floor. Respondent told the paraprofessional to take

781the other students to the other side of the room and to call

794Code Red. The paraprofessional did so.

8009. Respondent kept trying to calm Mary down and to break

811loose from Mary. Each time she was successful in breaking

821loose, Mary grabbed Respondent's hair and clothes and began

830kicking her again. Respondent attempted to restrain Mary so she

840could not grab Respondent's hair and clothes again. She managed

850to pin Mary down and calm her.

85710. When the Code Red team entered Respondent's classroom,

866Mary was lying on the floor on her back. Respondent was

877straddling Mary, with a knee on the floor on each side of Mary,

890holding Mary's arms in a crossed position across Mary's chest.

900Mary was calm and quiet. Respondent was not sitting on Mary.

91111. Neither Respondent nor Mary suffered any injury during

920their physical encounter.

92312. Respondent was reported for failing to follow school

932policy by restraining Mary herself.

93713. Corporal punishment is forbidden at Wingate Oaks and

946by Broward County School Board policy. Respondent did not

955administer corporal punishment to Mary that day. She merely

964defended herself by restraining Mary to keep Mary from injuring

974herself, Respondent, or anyone else.

97914. Although Respondent failed to follow the Code Red

988protocol on that day by waiting for the Code Red team to arrive

1001to physically restrain Mary, the record in this cause suggests

1011that was not an option since Mary was kicking Respondent and

1022pulling Respondent's hair and clothes.

102715. Respondent did not pull Mary's hair as a form of

1038discipline or corporal punishment.

1042CONCLUSIONS OF LAW

104516. The Division of Administrative Hearings has

1052jurisdiction over the parties and the subject matter of this

1062proceeding. Sections 120.569 and 120.57(1), Florida Statutes.

106917. The Administrative Complaint filed in this cause

1077alleges that Respondent pulled Mary's hair and sat on her,

1087thereby using inappropriate disciplinary and restraining

1093techniques. It alleges, therefore, that Respondent has violated

1101Sections 231.28(1)(f) and (i), Florida Statutes, and Rules 6B-

11101.006(3)(a) and (e), Florida Administrative Code.

111618. The law is well settled that Petitioner must prove its

1127allegations by clear and convincing evidence. The evidence in

1136this cause is neither clear nor convincing.

114319. The Administrative Complaint alleges that Respondent

"1150pulled on" Mary's hair on February 11, 1999, "and several other

1161times." No evidence was offered that Respondent "pulled on"

1170Mary's hair on February 11, 1999, and the allegation that such

1181occurred "several other times" is insufficient to place

1189Respondent on notice as to the dates she allegedly committed

1199inappropriate conduct. Further, although Respondent admits she

1206removed Mary's hair band in order to modify Mary's behavior by

1217brushing her hair and returning the hair band, this technique

1227was used effectively by others as well. Such a technique is

1238quite different than pulling Mary's hair, which would be

1247inappropriate.

124820. The Administrative Complaint further alleges that

1255Respondent sat on Mary "with her whole weight" on March 1, 1999.

1267No evidence was offered as to any conduct by Respondent on

1278March 1, 1999, and no evidence was offered that Respondent ever

1289sat on Mary with her full weight. Although Respondent admits

1299and the evidence revealed that Respondent straddled Mary on

1308February 18, 1999, to stop Mary's continuous attack on her, no

1319one testified that Respondent sat on Mary "with her whole

1329weight."

133021. Section 231.28(f), now Section 231.2615(f), Florida

1337Statutes, authorizes disciplinary action against a teacher who

1345has been found guilty of personal conduct which seriously

1354reduces her effectiveness as an employee of the school board.

1364Petitioner has failed to prove that Respondent was guilty of

1374such conduct. Additionally, no evidence was offered that

1382Respondent's effectiveness as an employee has been reduced.

139022. Section 231.28(i), now Section 231.2615(i), Florida

1397Statutes, prohibits violating the Principles of Professional

1404Conduct for the Education Profession prescribed by State Board

1413of Education rules. Rule 6B-1.006, Florida Administrative Code,

1421contains the Principles of Professional Conduct.

142723. Rule 6B-1.006(3)(a) prohibits the failure to make

1435reasonable effort to protect a student from conditions harmful

1444to learning and/or to the student's mental health and/or

1453physical safety. Petitioner has failed to prove that Respondent

1462violated this provision. Respondent's conduct in removing

1469Mary's hair band was not a condition harmful to Mary. Further,

1480Respondent's restraining of Mary on February 18, 1999, was

1489conduct specifically designed to protect Mary, Respondent, and

1497the other students.

150024. Rule 6B-1.006(3)(e) forbids a teacher from

1507intentionally exposing a student to unnecessary embarrassment or

1515disparagement. No evidence was offered that Mary felt

1523embarrassed or disparaged.

1526RECOMMENDATION

1527Based on the foregoing Findings of Fact and Conclusions of

1537Law, it is

1540RECOMMENDED that a final order be entered finding

1548Respondent not guilty and dismissing the Administrative

1555Complaint filed against her in this cause.

1562DONE AND ENTERED this 22nd day of January, 2001, in

1572Tallahassee, Leon County, Florida.

1576___________________________________

1577LINDA M. RIGOT

1580Administrative Law Judge

1583Division of Administrative Hearings

1587The DeSoto Building

15901230 Apalachee Parkway

1593Tallahassee, Florida 32399-3060

1596(850) 488-9675 SUNCOM 278-9675

1600Fax Filing (850) 921-6847

1604www.doah.state.fl.us

1605Filed with the Clerk of the

1611Division of Administrative Hearings

1615this 22nd day of January, 2001.

1621COPIES FURNISHED:

1623Victoria Laubach

16254601 Southwest 42nd Terrace

1629Fort Lauderdale, Florida 33314

1633William R. Scherer, III, Esquire

1638Conrad & Scherer

1641633 South Federal Highway

1645Post Office Box 14723

1649Fort Lauderdale, Florida 33302

1653Kathleen M. Richards, Executive Director

1658Education Practices Commission

1661Department of Education

1664Florida Education Center

1667325 West Gaines Street, Room 224-E

1673Tallahassee, Florida 32399-0400

1676Michael H. Olenick, General Counsel

1681Department of Education

1684The Capitol, Suite 1701

1688Tallahassee, Florida 32399-0400

1691NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1697All parties have the right to submit written exceptions within

170715 days from the date of this Recommended Order. Any exceptions

1718to this Recommended Order should be filed with the agency that

1729will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/23/2001
Proceedings: Final Order filed.
PDF:
Date: 04/20/2001
Proceedings: Agency Final Order
PDF:
Date: 01/22/2001
Proceedings: Recommended Order
PDF:
Date: 01/22/2001
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/22/2001
Proceedings: Recommended Order issued (hearing held November 15, 2000) CASE CLOSED.
PDF:
Date: 12/19/2000
Proceedings: Proposed Final Order of Petitioner, Tom Gallagher, as Commissioner of Education (filed via facsimile).
Date: 12/08/2000
Proceedings: Transcript filed.
PDF:
Date: 11/27/2000
Proceedings: Letter to Judge L. Rigot from H. Laubach In re: response to allegations filed.
Date: 11/15/2000
Proceedings: CASE STATUS: Hearing Held; see case file for applicable time frames.
PDF:
Date: 11/13/2000
Proceedings: Amended Notice of Hearing issued. (hearing set for November 15, 2000; 9:00 a.m.; Fort Lauderdale, FL, amended as to location of hearing).
PDF:
Date: 11/07/2000
Proceedings: Letter to Judge L. Sartin from V. Laubach In re: request for Harold Laubach to act as representative (filed via facsimile).
PDF:
Date: 11/03/2000
Proceedings: Letter to H. Laubach from Judge Sartin In re: response to letter dated October 30, 2000 filed.
PDF:
Date: 11/01/2000
Proceedings: Letter to Judge S. Smith from H. Laubach In re: respondents exhibits and witness list filed.
PDF:
Date: 10/26/2000
Proceedings: Petitioner`s Witness List (filed via facsimile).
Date: 09/29/2000
Proceedings: Notice of Taking Deposition of V. Laubach (filed via facsimile).
PDF:
Date: 09/19/2000
Proceedings: Unilateral Response to Revised Initial Order (filed via facsimile).
PDF:
Date: 09/19/2000
Proceedings: Order of Pre-hearing Instructions issued.
PDF:
Date: 09/19/2000
Proceedings: Notice of Hearing issued (hearing set for November 15, 2000; 9:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 09/07/2000
Proceedings: Request for Hearing; Notice of Appearance (by V. Laubach) filed.
PDF:
Date: 09/07/2000
Proceedings: Administrative Complaint filed.
PDF:
Date: 09/07/2000
Proceedings: Notice of Sanction Against Teachers Certificate filed.
PDF:
Date: 09/07/2000
Proceedings: Election of Rights filed.
PDF:
Date: 09/07/2000
Proceedings: Agency referral filed.
Date: 09/07/2000
Proceedings: Initial Order issued.

Case Information

Judge:
LINDA M. RIGOT
Date Filed:
09/07/2000
Date Assignment:
11/13/2000
Last Docket Entry:
04/23/2001
Location:
Fort Lauderdale, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

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