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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as Commissioner )

of Education, )

)

Petitioner, )

)

vs. ) Case No. 00-3718PL

)

VICTORIA LAUBACH, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

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

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on November 15, 2000, in Fort

Lauderdale, Florida.

APPEARANCES

For Petitioner: William R. Scherer, III, Esquire

Conrad & Scherer

633 South Federal Highway

Post Office Box 14723

Fort Lauderdale, Florida 33302

For Respondent: Victoria Laubach, pro se

4601 Southwest 42nd Terrace

Fort Lauderdale, Florida 33314

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the

allegations contained in the Administrative Complaint filed

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

taken against her, if any.

PRELIMINARY STATEMENT

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

of Education, issued an Administrative Complaint against

Respondent Victoria Laubach, alleging that she had violated

certain statutes and rules regulating her conduct as a teacher,

and Respondent timely requested an evidentiary hearing regarding

the allegations in that Administrative Complaint. Thereafter,

this cause was transferred to the Division of Administrative

Hearings to conduct the evidentiary proceeding.

At the commencement of the final hearing, Respondent's

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

representative to represent her in this proceeding.

Petitioner presented the testimony of Victoria Kaufman,

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

Jennifer Bass Glenn. Respondent testified on her own behalf and

presented the testimony of Julia McGritty. Additionally,

Respondent's composite E xhibit numbered 1 was admitted in

evidence.

Both parties submitted proposed recommended orders after

the conclusion of the final hearing. Those documents have been

considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Respondent holds Florida Educator's Certificate 762313,

covering the area of varying exceptionalities, valid through

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

employed as a varying exceptionalities teacher by the Broward

County School Board. She was assigned to the Wingate Oak

Center, a school for multiply-handicapped and mentally-

handicapped students, ages five through twenty-two.

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

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

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

physically attacked teachers, paraprofessionals, and other

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

signals.

3. A special system for disciplining autistic students was

in place at Wingate Oak Center. The professional management

crisis system, an intervention system, was comprised of four

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

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

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

first two steps were the responsibility of the classroom

teacher.

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

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

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

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

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

secretary in attendance would announce "Code Red" throughout the

entire school.

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

and persons certified in professional crisis management would

respond by immediately going to the room where the teacher or

other staff member needed assistance in controlling the child.

Certification was required because physical intervention needs

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

embarrass the student. The Code Red team uses personal safety

techniques and/or immobilization techniques to keep the student

from hurting himself or herself and/or transportation techniques

if the student requires being transported to another area to

calm down.

6. Although Respondent had been trained in the required

techniques, her certification expired prior to the 1998-1999

school year.

7. Respondent worked closely with Mary's parents and

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

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

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

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

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

reinforcement of having her hair brushed and wearing her hair

band, so she usually stopped misbehaving.

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

started to attack another student. Respondent handed her the

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

Instead, Mary started kicking Respondent and pulling

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

fell on the floor. Respondent told the paraprofessional to take

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

Code Red. The paraprofessional did so.

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

loose from Mary. Each time she was successful in breaking

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

kicking her again. Respondent attempted to restrain Mary so she

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

to pin Mary down and calm her.

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

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

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

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

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

11. Neither Respondent nor Mary suffered any injury during

their physical encounter.

12. Respondent was reported for failing to follow school

policy by restraining Mary herself.

13. Corporal punishment is forbidden at Wingate Oaks and

by Broward County School Board policy. Respondent did not

administer corporal punishment to Mary that day. She merely

defended herself by restraining Mary to keep Mary from injuring

herself, Respondent, or anyone else.

14. Although Respondent failed to follow the Code Red

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

to physically restrain Mary, the record in this cause suggests

that was not an option since Mary was kicking Respondent and

pulling Respondent's hair and clothes.

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

discipline or corporal punishment.

CONCLUSIONS OF LAW

16. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

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

17. The Administrative Complaint filed in this cause

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

thereby using inappropriate disciplinary and restraining

techniques. It alleges, therefore, that Respondent has violated

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

1.006(3)(a) and (e), Florida Administrative Code.

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

allegations by clear and convincing evidence. The evidence in

this cause is neither clear nor convincing.

19. The Administrative Complaint alleges that Respondent

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

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

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

occurred "several other times" is insufficient to place

Respondent on notice as to the dates she allegedly committed

inappropriate conduct. Further, although Respondent admits she

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

brushing her hair and returning the hair band, this technique

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

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

inappropriate.

20. The Administrative Complaint further alleges that

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

No evidence was offered as to any conduct by Respondent on

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

sat on Mary with her full weight. Although Respondent admits

and the evidence revealed that Respondent straddled Mary on

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

one testified that Respondent sat on Mary "with her whole

weight."

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

Statutes, authorizes disciplinary action against a teacher who

has been found guilty of personal conduct which seriously

reduces her effectiveness as an employee of the school board.

Petitioner has failed to prove that Respondent was guilty of

such conduct. Additionally, no evidence was offered that

Respondent's effectiveness as an employee has been reduced.

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

Statutes, prohibits violating the Principles of Professional

Conduct for the Education Profession prescribed by State Board

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

contains the Principles of Professional Conduct.

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

reasonable effort to protect a student from conditions harmful

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

physical safety. Petitioner has failed to prove that Respondent

violated this provision. Respondent's conduct in removing

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

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

conduct specifically designed to protect Mary, Respondent, and

the other students.

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

intentionally exposing a student to unnecessary embarrassment or

disparagement. No evidence was offered that Mary felt

embarrassed or disparaged.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding

Respondent not guilty and dismissing the Administrative

Complaint filed against her in this cause.

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

Tallahassee, Leon County, Florida.

___________________________________

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 22nd day of January, 2001.

COPIES FURNISHED:

Victoria Laubach

4601 Southwest 42nd Terrace

Fort Lauderdale, Florida 33314

William R. Scherer, III, Esquire

Conrad & Scherer

633 South Federal Highway

Post Office Box 14723

Fort Lauderdale, Florida 33302

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Florida Education Center

325 West Gaines Street, Room 224-E

Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel

Department of Education

The Capitol, Suite 1701

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.