03-000412 Ruth Henderson vs. Brevard County School Board Status: Closed Recommended Order on Thursday, July 3, 2003.

Summary: Petitioner utilized corporal punishment in violation of school board prohibition; actions physically harmed students in violation of Rule 6B-1.006, Florida Administrative Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RUTH HENDERSON, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0412

)

BREVARD COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice , the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a formal administrative hearing in this case

on April 10 and 11, 2003, in Viera, Florida.

APPEARANCES

For Petitioner: Adrienne Eent, Esqui re

700 North Wickham Road, Suite 107

Melbourne, Florida 32935

For Respondent: Alan S. Diamond, Esquire

Amari & Theriac, P.A.

96 Willard Street, Suite 302

Cocoa, Florida 32922

STATEMENT OF THE ISSUE

Whether Respondent's, Brevard County School Board, decision

to terminate Petitioner's, Ruth Henderson, continuing teaching

contract was appropriate based on allegations that Petitioner

physically abu sed three students.

PRELIMINARY STATEMENT

On December 6, 2002, Richard A. DiPatri, Superintendent of

the Brevard County School District, petitioned Respondent for

dismissal of Petitioner as an instructional employee and

termination of her continuing teachi ng contract. The petition

indicated that the dismissal and termination was based on the

following alleged acts by Petitioner: (a) striking and hitting

a student with her shoe; (b) slapping a student in the face; and

(c) grabbing and shaking a student, ca using the student to fall

and bump his head.

The petition further alleged that these acts constituted

child abuse and battery as defined by Florida Statutes and

corporal punishment in violation of Brevard County School Board

Rule 5630.

The petition alleged that the described conduct constituted

misconduct in office, gross insubordination and conduct

unbecoming a member of the instructional staff, exposed the

students to conditions harmful to their physical health and

safety, brought the education professio n in disrepute, and

seriously impaired Petitioner's effectiveness as a teacher.

On December 10, 2002, Respondent dismissed Petitioner as an

instructional employee and terminated her continuing teaching

contract effective December 11, 2002.

On December 13, 2002, Petitioner appealed her dismissal and

termination. On January 30, 2003, Petitioner's appeal was

forwarded to the Division of Administrative Hearings by

Respondent which requested assignment of an Administrative Law

Judge.

On February 6, 2003, an In itial Order was sent to the

representatives of both parties. On February 19, 2003, the case

was scheduled for final hearing in Viera, Florida, on April 10

and 11, 2003.

At the final hearing, Petitioner testified in her own

behalf and presented three witne sses: Joanne Theil, a teacher,

and two kindergarten students, S.S. and D.L. Petitioner's

performance appraisals were received into evidence as

Petitioner's Exhibit 1 by stipulation of the parties.

Petitioner requested that judicial, in this context

offic ial, notice be taken of the Notice of No Information filed

in Brevard County Circuit Court case number 02 - 64347, State of

Florida v. Ruth Henderson , the criminal case filed as a result

of the child abuse and battery allegations. The undersigned

Administra tive Law Judge indicated that the decision on official

notice would be taken under advisement and suggested that it be

considered by the parties in their proposed recommended orders.

Formal notice of Petitioner's intention to seek official notice

was give n by filing her Motion to Take Judicial Notice on

April 10, 2003, the first day of the final hearing. This is not

"timely notice" as contemplated by Subsection 90.203(1), Florida

Statutes. Neither party presented any argument regarding the

appropriatene ss of taking official notice, although Petitioner

did cite Florida Evidence Code, Section 90.202, Florida

Statutes, as authority in her proposed recommended order.

Official notice will not be taken; the Notice of No Information

has little bearing on the R ecommended Order herein.

Respondent presented nine witnesses: Cocoa Police

Detective David Baker; School Principal Sandra Brown; four

kindergarten students, S.L., J.T., R.G., and J.A.; and three

parents. The videotape interviews of S.L., J.T., R.G., and

portions of the interview of J.A. were admitted into evidence as

Respondent's Exhibit A.

The Transcript of Hearing was filed with the Division of

Administrative Hearings on May 23, 2003. On Petitioner's Motion

for Extension, the time for filing proposed r ecommended orders

was extended from May 30, 2003, to June 6, 2003.

On June 18, 2003, a post - hearing telephone conference was

held to discuss concerns regarding the confidentiality of the

videotapes of the child witnesses and documents related to

Petitioner 's teaching contract and Brevard County School Board

Bylaws and Policies. Subsequent to the telephone conference,

counsel submitted an Order Sealing Video of Child Victims,

entered on June 23, 2003, by a circuit judge in the Eighteenth

Judicial Circuit i n and for Brevard County, Florida, which is a

part of the record in this case and which governs access to the

videotapes of the child witnesses which are included with this

Recommended Order. The record also includes the documents filed

on June 23, 2003, including Article 11 of the Collective

Bargaining Agreement, Petitioner's Continuing Contract of

Employment, and Brevard County School Board Bylaws and Policies

3139, 3140, and 3210. Both parties timely filed Proposed

Recommended Orders which were thought fully considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of fact are made:

1. Petitioner is a teacher who was employed by Respondent

from September 1958 to December 2002. In May 1965, Petitioner

and Respondent entered into a Continuing Contract of Employment

which continued until her termination. She had taught at

Cambridge Elementary School, Cocoa, Florida, from September 1980

until her termination in 2002. Petitioner has a bac helor's of

science degree in elementary education and a master's of science

degree in reading, K - 12. Petitioner's annual performance

evaluations over her 44 - year teaching career reflect that she

was an effective teacher with no indication of the problems of

which she stands accused.

2. Respondent operates, controls, and supervises the free

public schools of Brevard County, Florida. It has entered into

individual and collective agreements with the teachers it

employs and publishes bylaws and policies that control the

activities of its teaching professionals.

3. School started on August 8, 2002, for the 2002 - 2003

school year. Historically, Petitioner had taught third grade;

this year she was teaching kindergarten for the first time.

4. On August 22, 2002 , S.L. and R.G., two of the most

active and disruptive children in Petitioner's kindergarten

class, were engaged in a crayon fight (throwing crayons at each

other).

5. Petitioner removed S.L. from his normal seat and placed

him in the "time out" chair, a form of approved discipline.

S.L. required assistance in the form of taking him by the hand

or arm and leading him to the "time out" chair because he

sometimes refused to go as directed. On this occasion, August

22, 2002, Petitioner held S.L. by the arm and shook him as she

placed him into the "time out" chair, accidentally causing him

to bump his head against a bookcase.

6. When S.L. arrived home from school that day, he

tearfully reported the incident to his mother, Y.J. She

observed a bump/lump on hi s head consistent with his story of

bumping his head on the bookcase. The following morning,

Friday, August 23, 2002, Y.J. went to Cambridge Elementary and,

in the absence or unavailability of the principal, reported the

incident to Bernadine Blake, a gui dance counselor. Ms. Blake e -

mailed Principal Sandra Brown, informing her of Y.J.'s report of

the incident. This e - mail was first read by Principal Brown on

Tuesday, August 27, 2002.

7. On that day, August 27, 2002, R.G. was involved in a

disciplinary i ncident with Petitioner. As a result of R.G.'s

misconduct, Petitioner instructed R.G. to stay behind in the

classroom while the other children left the room. Petitioner

then removed her sandal and spanked R.G.'s buttocks with the

sandal. Even though the children were removed outside the

classroom, the incident was observed by a child, J.T.

8. When R.G. was picked up at school that day, he reported

the incident to his step - father; later the same afternoon,

R.G.'s parents returned to Cambridge Elementary and reported the

incident to Principal Brown.

9. On August 27, 2002, a meeting took place among

Petitioner, Principal Brown and R.G.'s parents; at that time,

Petitioner denied the incident as reported by R.G. and later

denied the incident as reported by S .L.

10. On the same day, August 27, 2002, the incident

involving R.G. was reported to the Cocoa Police Department.

11. On August 28, 2002, Cocoa Police Department Detective

David Baker, an officer specially trained in child abuse

investigation, initiated an investigation of both incidents. He

interviewed parents, student victims, and student witnesses and

arranged to have several children interviewed by the Brevard

County Child Protection Team. Most of the child victims and

witnesses were interviewed by the Child Protection Team on

September 3, 2002; one child witness was interviewed on

September 10, 2002.

12. Child Protection Team interviews are conducted in a

non - threatening environment by individuals specially trained to

elicit information by asking age - appropriate questions designed

to educe responses regarding various forms of child abuse.

These interviews take place in a children's playroom at a local

hospital and are videotape recorded by hidden cameras.

13. The testimony of the child victims an d witnesses

preserved on videotape and elicited at the final hearing

contained inaccuracies and confusion one would expect of

children who were five and six years old. However, each child's

testimony was credible considering their age and innocence. On

t he whole, the testimony of the child victims and witnesses was

consistent regarding the occurrence of the incidents giving rise

to the Petition For Termination.

14. One child, J.T., reported having been slapped by

Petitioner. This report is not consider ed credible based on the

lack of timeliness of the report and lack of corroborating

witnesses.

15. As a part of Petitioner's continuing contract with

Respondent, she agreed to faithfully observe rules and

regulations of Respondent as they related to her t eaching

responsibilities.

16. Respondent has a rule against corporal punishment of

students. Petitioner was aware of the rule against corporal

punishment of students.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction of the parties and the subject matter. Section

120.57 and Subsection 231.36(6)(a)2., Florida Statutes (2001).

18. Subsections 230.03(2) and (3), Florida Statutes

(2001), read as follows:

(2) SCHOOL BOARD. – In accordance with the

provisions of s. 4(b) of Art . IX of the

State Constitution, district school boards

shall operate, control, and supervise all

free public schools in their respective

districts and may exercise any power except

as expressly prohibited by the State

Constitution or general law.

(3) S UPERINTENDENT. – Responsibility for

the administration and management of the

schools and for the supervision of

instruction in the district shall be vested

in the superintendent as the secretary and

executive officer of the school board, as

provided by law.

19. A district school board is considered the "public

employer," as that term is used in Chapter 447, Part II, Florida

Statutes, "with respect to all employees of the school

district." Subsection 447.203(2), Florida Statutes. As such,

it has the right "to direct its employees, take disciplinary

action for proper cause, and relieve its employees from duty

because of lack of work or other legitimate reasons." Section

447.209, Florida Statutes. Any instructional staff member who

is under continuing cont ract may be suspended or dismissed at

any time during the school year for misconduct in office, gross

insubordination, or willful neglect as those terms are defined

by the State Board of Education. Subsection 231.36(4)(c),

Florida Statutes (2001).

20. "U nder Florida law, a school board's decision to

terminate an employee is one affecting the employee's

substantial interests; therefore, the employee is entitled to a

formal hearing under section 120.57(1) if material issues of

fact are in dispute," for "a s chool board is a state agency

falling within Chapter 120 for purposes of quasi - judicial

administrative orders." Sublett v. District School Board of

Sumter County , 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

21. The appropriate standard of proof in a school board

dismissal proceeding is preponderance of evidence, unless the

collective bargaining agreement covering the bargaining unit of

which the employee is a member prescribes a more demanding

standard of proof. McNeill v. Pinellas County School Board , 678

So. 2d 476 (Fla. 2d DCA 1996); Sublett v. Sumter County School

Board , 664 So. 2d 1178 (Fla. 5th DCA 1995). Neither party here

has pointed to or offered evidence of any contractual provision

that would require Respondent to satisfy a more strict standard

of proof.

22. Because the statute and rules providing grounds for

terminating Petitioner's contract are penal in nature, they must

be construed in favor of the employee. Rosario v. Burke , 605

So. 2d 523 (Fla. 2d DCA 1992); Lester v. Department of

Profess ional Regulations , 348 So. 2d 923 (Fla. 1st DCA 1977).

23. When a school board seeks to terminate an employee's

contract for cause, it must establish each and every element of

the charge. MacMillan v. Nassua County School Board , 629 So. 2d

226 (Fla. 1st DCA 1993).

24. Any disciplinary action taken against the employee may

be based only upon the conduct specifically alleged in the

written notice of specific charges. Lusskin v. Agency for

Health Care Administration , 731 So. 2d 67, 69 (Fla. 4th DCA

1999); Cottrill v. Department of Insurance , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996); Klein v. Department of Business and

Professional Regulation , 625 So. 2d 1237, 1238 (Fla. 2d DCA

1993); and Delk v. Department of Professional Regulation , 595

So. 2d 966, 967 (F la. 5th DCA 1992).

25. Respondent's order dated January 30, 2003, indicates:

"[T]he Respondent is dismissed from his [sic] employment and her

continuing contract terminated effective December 11, 2002, for

reasons set forth in the attached Petition For D ismissal." The

Petition For Dismissal, dated December 6, 2002, lists the

following reasons:

3. Respondent should be dismissed from

employment with the Brevard County School

District and her continuing contract

terminated for the following reasons:

(a) In or about August, 2002, Respondent

did intentionally strike and hit with her

shoe, R.G., a five - year - old student in

Respondent's kindergarten class.

(b) In or about August, 2002, Respondent

did intentionally strike and slap with her

hand the fac e of J.T., a six - year - old

student in Respondent's kindergarten class.

(c) In or about August, 2002, Respondent

did intentionally grab and shake by the arm,

S.G., a six - year - old student in Respondent's

kindergarten class with the result that S.G.

fell and struck his head on a bookcase

causing a contusion or bump on his head.

4. The actions of Respondent as described

above constitute child abuse in violation of

Section 827.03(1), Fla. Stat ., battery in

violation of Section 748.03(1)(a), Fla.

Stat. , a nd corporal punishment of a student

in violation of Brevard County School Board

Rule 5630.

5. Respondent's actions as described

above constitute misconduct in office, gross

insubordination and conduct unbecoming a

member of the instructional staff of t he

Brevard County School District.

6. Respondent's actions also exposed the

students to conditions harmful to their

physical health and safety in violation of

The Code of Ethics and The Principles of

Professional Conduct of the Education

Profession In Florida as set forth in State

Board of Education Rule 6B - 1.006, F.A.C.

7. Respondent's actions are of such a

serious nature as to bring the education

profession in disrepute and to seriously

impair Respondent's effectiveness as a

teacher and constitute just cause for

dismissal under Section 231.36(4)(c), Fla.

Stat .

26. The allegations in the Petition For Dismissal that

Petitioner's actions constitute child abuse and battery,

Subsections 827.03(1) and 748.03(1)(a), Florida Statutes, absent

evidence of criminal convictions, have little bearing on this

administrative proceeding. No evidence of convictions was

presented.

27. Respondent alleges that Petitioner's actions

constitute "corporal punishment of a student in violation of

Brevard County School Boa rd Rule 5630." Brevard County School

Board Bylaw and Policy 5630 reads as follows:

Corporal Punishment

A teacher or other member of the certified

staff shall assume such authority for the

control of students who are assigned to

him/her by the princi pal or designee and

shall keep good order in the classroom. The

use of corporal punishment is prohibited.

Alternative disciplinary procedures, which

include timeout, peer review, or other forms

of positive reinforcement should be used to

bring about appr opriate student classroom

behavior.

Professional staff as well as classified

staff, within the scope of their employment,

may use and apply reasonable force and

restraint to quell a disturbance threatening

physical injury to others, to obtain

possession of weapons or other dangerous

objects upon or within the control of the

student, in self - defense, or for the

protection of persons or property.

28. Petitioner acknowledged being aware of the prohibition

against corporal punishment (Brevard County School Board Bylaw

and Policy 5630). Clearly, Petitioner's actions in disciplining

the two children in question rise to the definition of corporal

punishment.

29. Petitioner's Continuing Contract of Employment for

Instructional and Administrative or Supervis ory Personnel of

Public Schools reads as follows:

3. The Teacher hereby accepts the above

described appointment and agrees to perform

in a thorough and professional manner all of

the duties of the position for which he is

employed and to observe and en force

faithfully the rules and regulations

lawfully prescribed by legally constituted

school authorities insofar as such rules and

regulations may be applicable to the

position held by him.

* * *

9. The power of the County Board to

suspend or dismiss the Teacher for cause, as

provided by law, is in no manner impaired or

effected by this contract.

30. Subsection 231.36(4)(c), Florida Statutes (2001),

reads as follows:

(c) Any member of the district

administrative or supervisory staff and any

member of the instructional staff, including

any principal, who is under continuing

contract may be suspended or dismissed at

any time during the school year; however,

the charges against him or her must be based

on immorality, misconduct in office,

in competency, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of a crime involving moral turpitude, as

these terms are defined by rule of the State

Board of Education. Whenever such charges

are made against any such employee of th e

district school board, the district school

board may suspend such person without pay;

but, if the charges are not sustained, he or

she shall be immediately reinstated, and his

or her back salary shall be paid. In cases

of suspension by the district scho ol board

or by the superintendent of schools, the

district school board shall determine upon

the evidence submitted whether the charges

have been sustained and, if the charges are

sustained, shall determine either to dismiss

the employee or fix the terms u nder which he

or she may be reinstated. If such charges

are sustained by a majority vote of the full

membership of the district school board and

such employee is discharged, his or her

contract of employment shall be thereby

canceled. Any such decision a dverse to the

employee may be appealed by the employee

pursuant to s. 120.68, provided such appeal

is filed within 30 days after the decision

of the district school board.

31. Respondent's Petition For Termination, in paragraph 5,

alleges that Petitioner 's actions "constitute misconduct in

office, gross insubordination, and conduct unbecoming a member

of the instructional staff of the Brevard County school

District." Two of these offenses are found as bases of

suspension or dismissal in Subsection 231.36 (4)(c), Florida

Statutes (2001), cited immediately above.

32. The terms "misconduct in office" and "gross

insubordination" are not defined in Subsection 231.36(4)(c),

Florida Statutes (2001); these terms are defined in Rule 6B -

4.009, Florida Administrativ e Code, as follows:

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, FAC., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, FAC., which is so serious as to

impair the individual's effectiveness in the

school system.

(4) Gross insubordination or willful

neglect of duties is defined as a constant

or continuing intentional refusal to obey a

direct order, reasona ble in nature, and

given by and with proper authority.

33. The "Code of Ethics of the Education Profession," Rule

6B - 1.001, Florida Administrative Code, reads as follows:

(1) The educator values the worth and

dignity of every person, the pursuit of

tr uth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Awar e of the importance of

maintaining the respect and confidence of

one's colleagues, of students, of parents,

and of other members of the community, the

educator strives to achieve and sustain the

highest degree of ethical conduct.

34. The "Principles of P rofessional Conduct for the

Education Profession in Florida," Rule 6B - 1.006, Florida

Administrative Code, reads as follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Flori da.

(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.

(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.

(b) Shall not unreasonably restrain a

student from independent action in pursuit

of learni ng.

(c) Shall not unreasonably deny a student

access to diverse points of view.

(d) Shall not intentionally suppress or

distort subject matter relevant to a

student's academic program.

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or

deny a student's legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political be liefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

(h) Shall not exploit a relationship with

a student for personal gain or advantage.

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves professional purposes or

is required by law.

(4) Obligation to the pub lic requires

that the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and those

of any educational institution or

organization with which the individual is

affiliated.

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

(c) Shall not use institutional

privileges for personal gain or advantage.

(d) Shall accept no gratuity, gift, or

favor that might influence professional

j udgment.

(e) Shall offer no gratuity, gift, or

favor to obtain special advantages.

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

(b) Shall not on the bas is of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition if otherwise

qualified, or social and family background

deny to a colleague professional benefits or

advantages or participation in any

professional organization.

(c) Shall not interfere with a

colleague's exercise of political or civil

rights and responsibilities.

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's pe rformance

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.

(e) Shall not make malicious or

intentionally false statements about a

colleague.

(f) Shall not use coercive means or

promise special treatment to influence

professional judgments of colleagues .

(g) Shall not misrepresent one's own

professional qualifications.

(h) Shall not submit fraudulent

information on any document in connection

with professional activities.

(i) Shall not make any fraudulent

statement or fail to disclose a materi al

fact in one's own or another's application

for a professional position.

(j) Shall not withhold information

regarding a position from an applicant or

misrepresent an assignment or conditions of

employment.

(k) Shall provide upon the request of th e

certificated individual a written statement

of specific reason for recommendations that

lead to the denial of increments,

significant changes in employment, or

termination of employment.

(l) Shall not assist entry into or

continuance in the professio n of any person

known to be unqualified in accordance with

these Principles of Professional Conduct for

the Education Profession in Florida and

other applicable Florida Statutes and State

Board of Education Rules.

(m) Shall self - report within forty - eig ht

(48) hours to appropriate authorities (as

determined by district) any arrests/charges

involving the abuse of a child or the sale

and/or possession of a controlled substance.

Such notice shall not be considered an

admission of guilt nor shall such notice be

admissible for any purpose in any

proceeding, civil or criminal,

administrative or judicial, investigatory or

adjudicatory. In addition, shall self - report

any conviction, finding of guilt,

withholding of adjudication, commitment to a

pretrial diversion program, or entering of a

plea of guilty or Nolo Contendere for any

criminal offense other than a minor traffic

violation within forty - eight (48) hours

after the final judgment. When handling

sealed and expunged records disclosed under

this rule, school d istricts shall comply

with the confidentiality provisions of

Sections 943.0585(4)(c) and 943.059(4)(c),

Florida Statutes.

(n) Shall report to appropriate

authorities any known allegation of a

violation of the Florida School Code or

State Board of Educa tion Rules as defined in

Section 231.28(1), Florida Statutes.

(o) Shall seek no reprisal against any

individual who has reported any allegation

of a violation of the Florida School Code or

State Board of Education Rules as defined in

Section 231.28(1), Florida Statutes.

(p) Shall comply with the conditions of

an order of the Education Practices

Commission imposing probation, imposing a

fine, or restricting the authorized scope of

practice.

(q) Shall, as the supervising

administrator, cooperate w ith the Education

Practices Commission in monitoring the

probation of a subordinate.

35. The offense of "misconduct in office" has two

elements: first, violation of the "Code of Ethics of the

Education Profession," Rule 6B - 1.001, and the "Principles of

Professional Conduct for the Education Profession in Florida,"

Rule 6B - 1.006, Florida Administrative Code; and, second, that

violation of the aforementioned Code of Ethics and Code of

Professional Conduct was so serious as to impair the

individual's effect iveness in the school system. Without

discussing whether Petitioner violated the Code of Ethics or the

Code of Professional Conduct, no evidence was presented that

addressed whether Petitioner's effectiveness as a teacher had

been impaired. Therefore, no findings of fact have been made

regarding this element of the proof of "misconduct in office."

Respondent has failed to carry its burden of proof that

Petitioner's actions were so serious that her effectiveness as a

member of the instructional staff was impaired, and neither the

nature of the two offenses nor the circumstances in which they

were committed can reasonably support an inference that

Petitioner's effectiveness as a teacher was impaired. While it

is acknowledged that the presentation of specif ic evidence to

support the allegation of impaired teaching effectiveness is not

absolutely necessary, see , for example, Purvis v. Marion County

School Board , 766 So. 2d 492, 498 (Fla. 5th DCA 2000), nothing

in the evidence presented leads the undersigned A dministrative

Law Judge to conclude that Petitioner's teaching effectiveness

is impaired by the two reported incidents.

36. The offense of "gross insubordination" is defined as a

constant or continuing intentional refusal to obey a direct

order, reasonabl e in nature, and given by and with proper

authority. No evidence was offered that supported the

contention that the conduct alleged in the Petition For

Termination was insubordinate. Two occasions of excessive

discipline do not give rise to the suggestio n that Petitioner

constantly refused to obey reasonable, direct orders. In order

to constitute "gross insubordination" or "willful neglect," a

teacher's conduct must be more than an isolated incident of

refusing to comply with an order; indeed, it must be on a

constant or continuing basis. Smith v. School Board of Leon

County , 405 So. 2d 183, 185 (Fla. 1st DCA 1981). "Constant" has

been defined as continually recurring and persistent. Rutan v.

Pasco County School Board , 435 So. 2d 399, 400 (Fla. 2d DCA

1983). An examination of Petitioner's performance evaluations

reflect the opposite of a grossly insubordinate or willfully

negligent teacher. These performance evaluations show 44 years

of exceptional performance as an elementary school teacher.

37. Par agraph 6 of the Petition For Termination alleges

that "Respondent's actions also exposed the students to

conditions harmful to the physical health and safety" in

violation of the Code of Ethics and Principles of Professional

Conduct. Subsection 3(a) of th e Principles of Professional

Conduct for the Education Profession in Florida, Rule 6B - 1.006,

Florida Administrative Code, reads as follows:

Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's m ental

and/or physical health and/or safety.

38. Petitioner's conduct in striking a student on his

buttocks with her sandal and shaking another student and placing

him in the "time out" chair in such a manner as to accidentally

cause him to bump his head violates Rule 6B - 1.006(3)(a), Florida

Administrative Code, in that such conduct fails to protect the

students from conditions harmful to their physical health and

safety.

39. While neither child suffered any lasting impairment to

his physical health, Peti tioner should have reasonably foreseen

that an unintended consequence of her conduct could cause

physical harm. As such, her conduct failed to protect her

students from harm to their physical health and safety.

RECOMMENDATION

Based on the foregoing Findin gs of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent enter a final order finding

that Petitioner inappropriately utilized corporal punishment in

the discipline of two students, endangering their physical

health and safety; that she be suspe nded from employment without

pay for seven months beginning December 11, 2002; and that she

be placed on 24 months' probation upon her return to teaching.

DONE AND ENTERED this 3rd day of July, 2003, in

Tallahassee, Leon County, Florida.

S

________________ ___________________

JEFF B. CLARK

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

File d with the Clerk of the

Division of Administrative Hearings

this 3rd day of July, 2003.

COPIES FURNISHED :

Alan S. Diamond, Esquire

Amari & Theriac, P.A.

96 Willard Street, Suite 302

Cocoa, Florida 32922

Adrienne Eent, Esquire

700 North Wickham Roa d, Suite 107

Melbourne, Florida 32935

Honorable Jim Horne

Commissioner of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Stree t

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Dr. Richard A. DiPatri, Superintendent

Brevard County School Board

2700 Judge Fran Jamieson Way

Viera, Florida 32940 - 6699

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to s ubmit 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.