04-002166PL Jim Horne, As Commissioner Of Education vs. Natalie Whalen Status: Closed Recommended Order on Wednesday, June 15, 2005.

Summary: Respondent, holding an educator`s certificate, was accused of maltreating her students. Held; Respondent maltreated one student on one occasion. Recommend a reprimand and probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, (formerly JIM )

HORNE), AS COMMISSIONER OF )

EDUCATION, )

)

Petitioner, )

) Case No. 04 - 2166PL

vs. )

)

NATALIE WHALEN, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on May 3 and 4, 2005, in Perry,

Florida.

APPEARANCES

For Petitioner John L. Winn, as Commission er of Education

(formerly Jim Horne, as Commissioner of Education):

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, 2nd Floor

Tallahassee, Florida 32301

For Respondent: Mary Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether the allegations contained in the

Second Amended Administrative Complaint file d by Petitioner are

true, and if so, what discipline should be imposed.

PRELIMINARY STATEMENT

By an Administrative Complaint dated March 10, 2004, the

Commissioner of Education (Commissioner), alleged that Natalie

Whalen (Dr. Whalen), a teacher employed b y District School Board

of Taylor County, Florida(School Board), utilized inappropriate

physical restraint techniques on a student by chaining the

student to a chair during 1999; by berating students for an

extended period of time and by maltreating S.O. o n November 20,

2002; and by physically maltreating students in April 2003. On

August 18, 2004, leave was granted to the Commissioner to file

an Amended Administrative Complaint which added the allegation

that Dr. Whalen had grabbed student S.A. by the hai r of his head

and had threatened to "pull the hair out of his head." On

March 4, 2005, leave was granted to file a Second Amended

Administrative Complaint which additionally alleged, among other

things, that on January 19, 2005, Dr. Whalen bit student J. R.

Dr. Whalen timely asserted her right to an administrative

hearing with regard to the Administrative Complaint, the Amended

Administrative Complaint, and the Second Amended Administrative

Complaint.

A hearing was set for August 23 and 24, 2004, in Per ry,

Florida. Subsequent to the filing of the Amended Administrative

Complaint the hearing was rescheduled for October 13 and 14,

2004. Pursuant to Respondent's Uncontested Motion to Continue

Hearing, the matter was rescheduled for December 8 and 9, 2004.

Pursuant to Petitioner's Motion to Continue, the matter was

rescheduled for January 25 and 26, 2005. Pursuant to a Motion

to Continue by Respondent, citing a medical emergency, the

matter was rescheduled for March 21 and 22, 2005. Subsequently,

upon th e filing of the Second Amended Administrative Complaint,

and the consolidation for hearing of this case with Taylor

County School Board v. Natalie Whalen , DOAH Case No. 05 - 0759,

the case was continued yet again. The case was thereafter set

for May 3 and 4 , 2005, in Perry, Florida, and heard as

scheduled.

This case was tried in conjunction with DOAH Case No.

05 - 0759, which was an action against Dr. Whalen brought by the

School Board, seeking to terminate her employment as a teacher.

The School Board and th e Commissioner called eleven

witnesses, and the Commissioner had Exhibit Nos. 1 through 12

entered into evidence. The School Board had Exhibit Nos. 1

through 6 entered into evidence.

Dr. Whalen testified on her own behalf and called five

witnesses. She had Exhibit Nos. 1 through 2 entered into

evidence.

A Transcript was filed on May 20, 2005. Petitioner and

Respondent timely filed Proposed Recommended Orders and they

were considered in the preparation of this Recommended Order.

References are to Flori da Statutes (2004) unless otherwise

noted.

FINDINGS OF FACT

1. The School Board has employed Dr. Whalen since 1997.

She first worked as a teacher at Gladys Morse Elementary School.

When Morse closed she was transferred to Taylor Elementary

School, a new school. She continued teaching at Taylor

Elementary School until January 19, 2005. Her employment was

pursuant to a professional services contract. Dr. Whalen holds

Florida Educator's Certificate No. 530568.

2. Dr. Whalen has been confined to a wh eelchair for almost

55 years. She cannot move her lower extremities and she is

without feeling in her lower extremities. On January 19, 2005,

she was approximately 58 years of age.

3. During times pertinent Dr. Whalen taught a "varying

exceptionalitie s" class. A "varying exceptionalities" class is

provided for students who have a specific learning disability,

or have emotional difficulties, or who have a physical handicap.

She has been an exceptional student education teacher for about

20 years. She has never been disciplined by an employer during

her career. In addition to her teaching activities she is also

County Coordinator for the Special Olympics.

4. The Commissioner of Education is the chief educational

officer of the state and is responsib le for giving full

assistance to the State Board of Education in enforcing

compliance with the mission and goals of the K - 20 education

system. The State Board of Education's mission includes the

provision of certification requirements for all school - based

personnel. The Education Practices Commission is appointed by

the State Board of Education and has the authority to discipline

teachers.

Nonviolent Crisis Intervention

5. Kathy Kriedler is currently a teacher at Taylor

Elementary School. She is certif ied in teaching emotionally

impaired children and has taught emotionally impaired children

in Taylor County since 1983. She is an outstanding teacher who

was recently named Taylor County Elementary School Teacher of

the Year and Taylor County District Tea cher of the Year.

6. Ms. Kriedler is a master level instructor in Nonviolent

Crisis Intervention, which is a program of the Crisis Prevention

Institute. The use of skills associated with the program is

generally referred to as CPI. CPI arms teachers wit h the skills

necessary to de - escalate a crisis involving a student, or, in

the event de - escalation fails, provides the skills necessary to

physically control students. Ms. Kriedler has been the School

Board's CPI teacher since 1987.

7. CPI teaches that t here are four stages of crisis

development and provides four staff responses to each stage.

These stages and responses are: (1) Anxiety - Supportive;

(2) Defensive - Directive; (3) Acting Out Person - Nonviolent

Physical Crisis Intervention; and (4) Tension R eduction -

Therapeutic Rapport. The thrust of CPI is the avoidance of

physical intervention when possible.

8. The CPI Workbook notes that, "The crisis development

model . . . is an extremely valuable tool that can be utilized

to determine where a person i s during an escalation process."

It then notes, helpfully, "Granted, human behavior is not an

orderly 1 - 4 progression."

9. The CPI Workbook provides certain responses for a

situation that has devolved into violence. CPI physical control

techniques inclu de the "children's control position" which is

also referred to as the "basket hold." CPI also provides a

maneuver called the "bite release" which is used when a child

bites a teacher and the "choke release" which is used when a

child chokes a teacher.

10. CPI specifically forbids sitting or lying on a child

who is lying on the floor because this could cause "positional

asphyxia." In other words, an adult who lies upon a child could

prevent a child from breathing. CPI holds are not to be used

for punishm ent.

11. The School Board encourages teachers to learn and

apply CPI in their dealings with students. The use of CPI is

not, however, mandatory School Board policy nor is it required

by the State Board of Education.

12. Dr. Whalen took and passed Ms . Kriedler's CPI course

and took and passed her refresher course. She had at least 16

hours of instruction in CPI. She could not accomplish some of

the holds taught because of her physical handicap.

The alleged chain incident

13. Ms. Amanda Colleen Fuq uay taught with Dr. Whalen when

both of them were teachers at Gladys Morse Elementary School.

Ms. Fuquay, like Dr. Whalen, taught exceptional children.

14. Ms. Fuquay's first teaching job after receipt of her

bachelor's degree was at Morse Elementary S chool. At the time

Ms. Fuquay began teaching, Dr. Whalen was also a teacher at

Morse. The record does not reveal when Ms. Fuqua initially

began teaching at Morse, but it was after 1997 and before

August 2002, when Morse Elementary merged into the new T aylor

Elementary School.

15. During Ms. Fuqua's first year of teaching she entered

Dr. Whalen's class. She testified that upon entry she observed

a male student chained to a chair at his desk. The chain may

have been about the size of a dog choker. She said that the

chain ran through the student's belt loop and around the chair.

Ms. Fuqua said that she inquired of Dr. Whalen as to the reason

for the chain and she replied, in perhaps a joking way, that the

student wouldn't sit down.

16. The evidence does not reveal when this occurred or

even in what year it occurred. The evidence does not reveal the

name of the alleged victim. The evidence does not reveal the

victim's response to being chained to the chair. The evidence

does not reveal whether Dr. Whalen chained the child or if

someone else chained the child or if it just appeared that the

child was chained. Robin Whiddon was Dr. Whalen's aide for

school years 1998 - 99, 1999 - 2000, and 2000 - 2001, and she

testified at the hearing. She did not mention this incident.

17. Ms. Fuqua could not discern if this was a serious

matter or whether it was some sort of a joke. She said, "I

didn't have a clue." Ms. Fuqua failed to report this incident

because she was new to teaching and she had not, "learned the

ropes."

18. Dr. Whalen denied under oath that she had ever chained

a student to a chair, and specifically denied that she had done

it in 1999, which is within the time frame that Ms. Fuqua could

have observed this. Moreover, she specifically denied havin g

chains in her classroom.

19. The Commissioner has the burden of proving the facts

in this case, as will be discussed in detail below, by clear and

convincing evidence. Undoubtedly, Ms. Fuqua saw a chain of some

sort that appeared to be positioned in such a manner as to

restrain the unidentified student. However, the lack of any

corroborating evidence, the paucity of details, and the denial

of wrong - doing by Dr. Whalen prevents a finding, by clear and

convincing evidence, of maltreatment.

The alleged incident involving S.A.

20. On August 13, 1998, at Morse, Ms. Kriedler was called

by Dr. Whalen to her class. When Ms. Kriedler entered the class

she observed Dr. Whalen holding S.A.'s arms to his desk with her

right hand and holding the hair of his hea d by her left hand.

She stated to Ms. Kriedler that, "If he moves a quarter of an

inch, I'm going to rip the hair out of his head." Dr. Whalen

also related that S.A. had kicked her.

21. Dr. Whalen also said to S.A., in the presence of

Ms. Kriedler, "G o ahead and kick me because I can't feel it."

This referred to her handicap. By this time S.A. was

motionless. After a discussion with Ms. Kriedler, Dr. Whalen

released S.A. and Ms. Kriedler took him to her classroom.

Subsequently, Ms. Kriedler request ed that he be transferred to

her class and that request was granted.

22. Ms. Kriedler reported this incident to Shona Murphy,

the Taylor County School District Exceptional Student Education

Administrator. Ms. Murphy stated that Ms. Kriedler reported to

her that that S.A. was flailing about and kicking when

Dr. Whalen threatened to pull his hair.

23. Robin Whiddon was Dr. Whalen's aide on August 13,

1998. She recalls S.A. and described him as a troubled young

man who was full of anger. He would somet imes come to school

appearing disheveled. He had blond hair that was usually short.

Ms. Whiddon has observed him lash out at others with his hands.

24. Ms. Whiddon was not present in the classroom when the

incident described by Ms. Kriedler occurred. However, upon her

return to the classroom, Dr. Whalen informed her that she had

grabbed S.A. by the hair until she could control him.

25. Ms. Murphy discussed the incident with Principal Izell

Montgomery and Superintendent Oscar Howard in late August 199 8.

As a result of the discussions, these officials decided to

video - tape Dr. Whalen's classroom, and to take no other action.

26. Dr. Whalen denied under oath that she grabbed S.A.'s

hair.

27. Despite Dr. Whalen's assertion to the contrary and

upon co nsideration of all of the evidence, it has been

proven by clear and convincing evidence that Dr. Whalen grabbed

and held S.A.'s hair and threatened to pull it out.

28. Grabbing a student's hair is not an approved CPI hold.

However, at the time this oc curred Dr. Whalen was not required

to use CPI methods. Grabbing a student's hair is generally

unacceptable conduct unless, for instance, it is done in self -

defense, or in order to protect the student or others.

29. It has been not been proven by clear a nd convincing

evidence that grabbing S.A.'s hair was impermissible.

Dr. Whalen told Ms. Kriedler that S.A. had been kicking her.

This statement raises the possibility that the action was

initiated as a self - defense measure. When one considers that

Dr. Whalen has limited mobility, and that her aide was not

present, she was permitted to take reasonable actions to defend

herself. Grabbing a student's hair may have been reasonable

under the circumstances and, in the event, the record does not

provide enoug h evidence to permit a determination.

The video - tape of November 20, 2002

30. A video - tape, that included audio, and which was made

part of the record of the case, portrays events on the morning

of November 20, 2002. The video - tape was brought to the

att ention of the school administration by a parent who had

received the video - tape from Dr. Whalen. The picture quality of

the video is satisfactory but the audio is derived from a

microphone near Dr. Whalen's desk. Therefore, it is clear that

the microphon e did not record all of the words spoken in the

classroom at the time and date pertinent. Accordingly, facts

found as a result of viewing the video - tape are limited to those

which are clearly depicted by it.

31. The School Board had discussed the wearing of apparel

with representations of the Confederate battle flag on them in a

meeting immediately prior to November 20, 2002. Early in the

morning of November 20, 2002, there was a discussion with regard

to the School Board deliberations among some of Dr. Whalen's

students. The discussion came close to degenerating into

physical conflict. This was reported to Dr. Whalen's aide,

Ruth Ann Austin. It was further reported that some students

called some of their fellow students "rebels," and others called

o ther students "Yankees" and "gangsters."

32. Assistant Principal Verges visited the classroom at

the beginning of the school day, at Dr. Whalen's request, and he

explained the matters discussed at the School Board meeting.

33. Upon the departure of Assis tant Principal Verges,

Dr. Whalen unleashed a torrent of criticism upon her students

addressing the subject of name - calling. Dr. Whalen spoke to the

students in a loud and threatening tone of voice. While

delivering this tirade, Dr. Whalen traveled to a nd fro in her

motorized wheelchair. The video - tape revealed that this

wheelchair was capable of rapid movement and that it was highly

maneuverable.

34. The lecture was delivered in a wholly confrontational

and offensive manner. The lecture continued fo r more than 30

minutes. This behavior was the opposite of the de - escalating

behavior that is suggested by CPI. However, Dr. Whalen had

never been directed to employ CPI.

35. S.O. was a student in Dr. Whalen's class and was

present on November 20, 2002. He was a student of the Caucasian

race who had, prior to this date, displayed aggressive and

violent behavior toward Assistant Principal Verges and toward

Ruth Ann Austin, Dr. Whalen's aide. Some on the school staff

described him, charitably, as "non - com pliant."

36. S.O. was quick to curse and had in the past, directed

racial slurs to Ms. Austin, who is an African - American. Because

of his propensity to kick those to whom his anger was directed,

his parents had been requested to ensure that he wear sof t shoes

while attending school.

37. On November 20, 2002, S.O. was wearing cowboy boots

and a Dixie Outfitters shirt with the Confederate battle flag

emblazoned upon the front. Subsequent to Dr. Whalen's tirade,

S.O. slid out of his chair onto the c arpeted floor of the

classroom. Dr. Whalen instructed him to get back in his chair,

and when he did not, she tried to force him into the chair. She

threatened S.O. by saying, "Do you want to do the floor thing?"

38. When S.O., slid out of his chair aga in, Dr. Whalen

forcibly removed S.O.'s jacket. Thereafter, Ms. Austin

approached S.O. Ms. Austin is a large woman. Ms. Austin

removed S.O.'s watch and yanked S.O.'s boots from his feet and

threw them behind his chair. Dr. Whalen drove her wheelchair

in to the back of S.O.'s chair with substantial violence.

Thereafter, Ms. Austin removed S.O. from the classroom.

39. Removing S.O.'s jacket, watch, and boots was

acceptable under the circumstances because they could have been

used as weapons. The act of d riving the wheelchair into the

back of S.O.'s chair, however, was unnecessary and unhelpful.

40. A memorandum of counseling was presented to Dr. Whalen

by Principal Ivey on December 2, 2002, which addressed her

behavior as portrayed by the video - tape.

The S.O. and C.C. incidents

41. Reports from time to time were made to Assistant

Principal Verges, and others, that Dr. Whalen engaged in an

activity commonly referred to as "kissing the carpet." This

referred to physically taking children down to the floo r and

sitting on them.

42. During April 2003, Dr. Whalen reported to Assistant

Principal Verges and Ms. Kriedler that she had recently put two

students on the carpet. During the four years Mr. Verges was

Dr. Whalen's Assistant Principal, Dr. Whalen repo rted a total of

only about four instances of having to physically restrain

students. Dr. Whalen has never told Mr. Verges that she has

regularly restrained children on the floor.

43. Dr. Whalen's agent for using physical restraint is her

aide, Ms. Austin , because Dr. Whalen's handicap does not permit

her to easily engage in physical restraint. Ms. Austin

physically restrained children five or six or seven times during

the four years she was Dr. Whalen's aide. On four occasions a

child actually went to t he floor while being restrained by

Ms. Austin.

44. One of the two students who were reported to have been

physically restrained during the April 2003, time frame was S.M.

45. During this time frame S.M. became a new student in

Dr. Whalen's class. S .M. was unhappy about being placed in a

"slow" class.

46. It was Ms. Austin's practice to meet Dr. Whalen's

students when they exited the school bus in the morning.

Accordingly, she met S.M., the new student. S.M. was "mouthy"

when she exited the bus an d would not get in line with the other

children.

47. S.M. and the rest of the children were taken to the

lunch room in order to procure breakfast. While there, S.M.

obtained a tray containing peaches and other food and threw the

contents to the floor. Ms. Austin instructed S.M. to clean up

the mess she made. S.M. responded by pushing Ms. Austin twice,

and thereafter Ms. Austin put S.M. in a basket hold. S.M.

struggled and they both fell on the floor. Ms. Austin called

for assistance and someone named "Herb" arrived. Herb put a

basket hold on S.M. while Ms. Austin tried to remove S.M.'s

boots because S.M. was kicking her. S.M. was almost as tall as

Ms. Austin and was very strong.

48. At the end of the day, Ms. Austin was trying to "beat

the rush" an d to get her students on the school bus early. She

was standing in the door to the classroom attempting to get her

students to form a line. She and Dr. Whalen had planned for

S.M., and another student, with whom she had engaged in an

ongoing disagreement , to remain seated while the rest of their

classmates got on the bus. While the line was being formed,

S.M. and her fellow student had been directed to sit still.

49. Instead, S.M. rose, said that she was not going to

wait, and tried to push by Ms. Austi n. Ms. Austin responded by

asking her to sit down. S.M. said she would not sit down and

pushed Ms. Austin yet again. Ms. Austin tried to restrain her

and told the other students to get to the bus as best as they

could because she was struggling with S.M . and was having

substantial difficulty in restraining her.

50. Ms. Austin asked for help. She and S.M. fell to the

floor. S.M. was on the carpet. Dr. Whalen slid from her

wheelchair and attempted to restrain the top part of S.M.'s

body. Ms. Austin he ld the bottom part of her body and attempted

to remove her boots with which S.M. was kicking. S.M. was

cursing, screaming, and otherwise demonstrating her anger.

51. Dr. Whalen talked to her until she calmed down. They

then released S.M. The actions t aken by Ms. Austin and Dr.

Whalen were appropriate responses to S.M.'s behavior.

52. The S.M. affair precipitated the C.C. incident. C.C.

was a large male student who had no history of violence. C.C.

teased S.M. about having been "taken down" by Ms. Aus tin. C.C.,

teasingly, told Ms. Austin, that he did not think Ms. Austin

could take him down. Ms. Austin said she could put him in a

basket hold which she did. C.C. challenged Ms. Austin to put

him on the floor and she did. This was considered a joke by

C.C. and Ms. Austin. This incident was nothing more than

horseplay.

53. As the result of the comments made by Dr. Whalen,

addressing the S.M. and C.C. incidents, to Ms. Kriedler and to

Assistant Principal Verges, a memorandum issued dated April 7,

2003 . It was signed by Principal Sylvia Ivey.

54. The memorandum recited that Dr. Whalen's comments

raised concerns with regard to whether Dr. Whalen was using

appropriate CPI techniques. The memorandum stated that

Dr. Whalen's classroom would be video - t aped for the remainder of

the school year, that Dr. Whalen was to document each case of

restraint used, that she should use proper CPI techniques, and

that she should contact the office should a crisis situation

arise in her classroom.

The J.R. incident

55. On January 19, 2005, J.R. was a student in

Dr. Whalen's classroom. On that date, J.R. was a ten - year - old

female and in the third grade. J.R. had been a student in

Dr. Whalen's classroom only since about January 10, 2005.

56. Dr. Whalen did not know much about J.R.'s history on

January 19, 2005. At the hearing J.R. appeared physically to be

approximately as large as Dr. Whalen. A determination as to

exactly who was the larger could not be made because Dr. Whalen

was seated in a wheelchair.

5 7. Assistant Principal Verges found that J.R.'s physical

strength was greater than average for an elementary school

student on an occasion when he had to restrain her after she bit

another person.

58. J.R. brought a CD player to class on January 19, 2005 ,

and after lunchtime, Dr. Whalen discovered it and confiscated

it. Dr. Whalen took possession of the CD player because school

rules forbid students to have CD players in class. Dr. Whalen

put it in a drawer by her desk. When this happened, in J.R.'s

w ords she, "Got mad."

59. A heated discussion between Dr. Whalen and J.R., about

the dispossession of the CD player ensued, but after a brief

time, according to Dr. Whalen's aide, Angela Watford, "the

argument settled." Even though Ms. Watford's lunch bre ak had

begun, she remained in the room, at Dr. Whalen's request, until

she was satisfied that the dispute had calmed.

60. Subsequent to the departure of Ms. Watford, J.R.

approached Dr. Whalen, who was seated behind her desk working.

The configuration of the desk and furniture used by Dr. Whalen

was such that she was surrounded by furniture on three sides.

In order to obtain the CD player, it was necessary for J.R. to

enter this confined space. J.R. entered this space, moving

behind Dr. Whalen, and reac hed for the drawer containing the CD

player in an effort to retrieve it. When Dr. Whalen asked her

what she was doing, J.R. said, "I am getting my CD player and

getting out of this f _ _ _ _ _ _ _ class."

61. Dr. Whalen told J.R. to return to her desk. J.R.

continued in her effort to obtain the CD player and succeeded in

opening the drawer and grasping the headset part of the CD

player. Dr. Whalen attempted to close the drawer. J.R. reacted

violently and this surprised Dr. Whalen. J.R. attempted to

st rike Dr. Whalen. Dr. Whalen reared back to avoid the blow and

then put her arm around J.R. When J.R. pulled away, this caused

Dr. Whalen to fall from her wheelchair on top of J.R.'s back at

about a 45 - degree angle.

62. Immediately thereafter, J.R. bit D r. Whalen several

times. The bites broke Dr. Whalen's skin in three places and

the pain caused her to cry. J.R. began cursing, screaming, and

kicking. J.R. said she was going to "kick the s _ _ _" out of

her teacher. In fact, while on the carpet, J.R. kicked

Dr. Whalen numerous times. Dr. Whalen believed she would be in

danger of additional harm if she allowed J.R. to regain her

feet. This belief was reasonable. J.R. was in no danger of

asphyxiation during this event because Dr. Whalen removed part

of her weight from J.R. by extending her arms.

63. Upon returning from lunch Ms. Watford spotted T.B., a

boy who appears to be eight to ten years of age. T.B. was

standing outside of Dr. Whalen's classroom and he calmly said to

Ms. Watford, "Help."

64. Ms. Watford entered the classroom and observed

Dr. Whalen lying on top of and across J.R., who was face down on

the carpeted floor, and who was cursing and kicking while

Dr. Whalen tried to restrain her. Ms. Watford ran over to

assist in restraining her by putting her legs between J.R.'s

legs. J.R. thereafter tried to hit Ms. Watford with her right

hand. Ms. Watford grabbed J.R.'s right arm and was severely

bitten on the knuckle by J.R. The three of them ended up,

Ms. Watford related, "in a wad."

65 . Within seconds of Ms. Watford's intervention, Frances

Durden, an aide in the classroom next door came on the scene.

She was followed by Takeisha McIntyre, the dean of the school,

and Assistant Principal Verges. Ms. McIntyre and Mr. Verges

were able to calm J.R. and safely separate her from Dr. Whalen.

66. Then J.R. stated that Dr. Whalen had bitten her on the

back.

67. Dr. Whalen and Ms. Watford went to the school's health

clinic to have their wounds treated. The wounds were cleaned

and Ms. Watfor d subsequently received an injection.

68. While Dr. Whalen and Ms. Watford were at the health

clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was

raised and the persons present observed two red marks between

her shoulder blades.

69. Dr. Whal en said that the marks must have been produced

by her chin or that possibly her teeth may have contacted J.R.'s

back. She said that she had forced her chin into J.R.'s back in

an effort to stop J.R. from biting her. Ms. McIntyre took

photographs of the m arks. The photography was observed by

Mr. Verges.

70. The photographs reveal two red marks positioned

between J.R.'s shoulder blades. The two marks are vertical,

parallel, and aligned with the backbone. They are from one, to

one and one half inches in length. The skin is not broken.

There is no wound. Teeth marks are not discernible.

71. A teacher who has many years of experience in the

elementary or kindergarten education levels, and who has

observed many bite marks, may offer an opinion as to whe ther a

mark is a bite mark. Mr. Verges has the requisite experience to

offer an opinion as to the nature of the marks on J.R.'s back

and he observed the actual marks as well as the photographs. It

is his opinion that the two marks were caused by a bite.

Ms. McIntyre, who has also observed many bite marks in her

career, and who observed the actual marks as well as the

photographs, stated that the marks were consistent with a bite.

Registered Nurse Cate Jacob, supervisor of the School Health

Program obse rved Julia's back on January 19, 2005, and opined

that the red marks on J.R.'s back were bite marks.

72. J.R. reported via her mother, the day after the

incident, that she had been bitten by a boy on the playground of

Taylor Elementary School, by a black boy with baggy pants,

possibly before the incident with Dr. Whalen. Facts presented

at the hearing suggest that it is unlikely that J.R. was bitten

on the playground under the circumstances described in this

report.

73. T.B. was the only nonparticipant close to the actual

combat who was a neutral observer. He did not see Dr. Whalen

bite J.R., but did see her chin contact J.R.'s back and he heard

Dr. Whalen say words to the effect, "I am going to make you say

'ouch.'"

74. Dr. Whalen denied biting J.R. She stated at the time

of the event, and under oath at the hearing, that she forcibly

contacted J.R.'s back with her chin. She stated that it was

possible that in the heat of the struggle her teeth may have

contacted J.R.'s back.

75. The opinion of the school personnel as to the origin

of the marks upon J.R.'s back is entitled to great weight. On

the other hand, a study of the photographs exposed immediately

after the incident, reveals no teeth marks and no broken skin.

The marks could be consistent w ith pressing one's chin upon

another's back or pressing one's teeth in one's back. In the

latter case, whether J.R. was bitten may be a matter of

definition. Generally, a bite occurs when the victim

experiences a grip or would like that experienced by Ms . Watford

or Dr. Whalen in this incident. Although J.R. asserted that the

marks occurred because of the actions of, "a boy on the

playground," given J.R.'s general lack of credibility, that

explanation is of questionable reliability.

76. The evidence, ta ken as a whole, does not lend itself

to a finding of the origin of the marks on J.R.'s back. Because

proof by clear and convincing evidence is required in this case,

it is not found that Dr. Whalen bit J.R.

77. Principal Ivey's memorandum of April 7, 200 3,

specified that ". . . Mr. Howard and I informed you that we will

video - tape your classroom . . . ." Thus it is clear that it was

not Dr. Whalen's duty to cause the classroom to be video - taped.

It is clear that for many months Dr. Whalen's classroom wa s

video - taped and until the November 20, 2003, incident, none of

her actions caused attention to be drawn to her teaching

methods.

78. It is found that the assault on Dr. Whalen was sudden

and unexpected. Any actions taken by Dr. Whalen were taken in

per missible self - defense.

79. J.R. was suspended from Taylor Elementary School for

ten days following this incident.

Miscellaneous Findings

80. Sylvia Ivey has been the principal of Taylor

Elementary for three years. She has evaluated Dr. Whalen three

time s. She has evaluated Dr. Whalen as "effective," which is

the top mark that a teacher may receive.

81. From approximately 1997, when the S.A. hair pulling

allegedly occurred, until December 2, 2002, not a single

document was created indicating dissatisfa ction with

Dr. Whalen's teaching methods.

82. Dr. Whalen's normal voice volume is louder than

average. She would often elevate her already loud voice,

intimidate students and pound on her desk. The aforementioned

activities are not part of CPI. On the other hand, these

methods worked for Dr. Whalen for 20 years. She was not

required to use CPI until subsequent to the memorandum of

April 7, 2003. There is no evidence that she failed to use CPI

once she was required to employ it.

83. As revealed by the testimony of Dr. Whalen,

Ms. Kriedler, Assistant Principal Verges, Ms. Austin, and

others, some of these children would strike, kick, bite, throw

objects, curse, and hurl racial epithets at their teachers.

Teaching some of these children was diffi cult.

CONCLUSIONS OF LAW

84 The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

85. The Commissioner has the burden of proving by clear

and convincing evidenc e the factual allegations set forth in the

Second Amended Administrative Complaint. Department of Banking

and Finance, Div. of Securities and Investor Protection v.

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

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

86. Clear and convincing evidence is that which is

credible, precise, explicit, and lacking confusion as to the

facts in issue. The evidence must be of such weight that it

produces in the mind of the trier - of - fact the firm belief of

convict ion, without hesitancy, as to the truth of the

allegations. Slomowitz v. Walker , 429 So. 2d 797 (Fla. 4th DCA

1983).

87. The grounds established to support imposition of

disciplinary action against Dr. Whalen's educator's certificate

must be those specif ically alleged in the Second Amended

Administrative Complaint. Cottrill v. Department of Ins. , 685

So. 2d 1371 (Fla. 1st DCA 1996) and Hunter v. Department of

Professional Regulation , 458 So. 2d 842 (Fla. 2d DCA 1984).

88. Becoming a teacher does not d eprive a person of the

right to defend herself. There is nothing in the Florida K - 20

Education Code which deprives a teacher of the right to defend

herself. Section D of Article VII of the Master Teacher

Contract entered into by the School Board and the Taylor

Education Association, provides that "an employee may use such

force as is deemed reasonable in protection from attack . . . ."

89. Section 1012.795 provides as follows:

(1) The Education Practices Commission may

suspend the educator certificate of any

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

for a period of time not to exceed 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

b oard or public school in any capacity

requiring direct contact with students for a

period of time not to exceed 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 order

of the court, of any person found to have a

delinquent child support obligation; or may

impose any other penalty provided by law,

provided it can be shown that the person:

* * *

(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 that person's effectiveness as an

employee of the district school board.

* * *

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Ed ucation rules.

90. Count 1 alleges that Dr. Whalen is in violation of

Section 1012.795(1)(c), to wit: gross immorality or an act

involving moral turpitude.

91. With regard to Count 1, Florida Administrative Code

Rule 6B - 4.009(6), provides as follows:

( 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 doi ng

of the act itself and not its prohibition by

statute fixes the moral turpitude.

92. Nothing proven rises to the serious level required to

prove an act of moral turpitude. Accordingly, the allegations

of Count 1 should be dismissed.

93. Count 2 all eges a violation of Section 1012.795(1)(f),

to wit: engaging in personal conduct which seriously reduces

her effectiveness as an employee of the School Board. No

evidence was adduced which proves that Dr. Whalen's

effectiveness has been reduced. She has been consistently rated

as "effective." Count 2 should be dismissed.

94. Count 3 alleges a violation of Section 1012.795(1)(i),

to wit: violating the Principles of Professional Conduct for

the Education Profession prescribed by State Board of Education

rules. These rules are specifically addressed in Counts 4

through 9. As will be discussed herein, Dr. Whalen violated the

rule set out in Count 4, and is thus, also guilty of Count 3.

95. Count 4 alleges a violation of Florida Administrative

Code Rule 6B - 1.006(3)(a) to wit: failing ". . . to make

reasonable effort to protect the student from conditions harmful

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

physical health and/or safety. Dr. Whalen, on November 20,

2002, intentionally and fo rcefully rammed her motorized

wheelchair into the back of S.O.'s chair, while he was, more or

less, in the chair, and therefore did not protect her student's

physical safety. Although there is no evidence that S.O. was

injured, he could have been.

96. Co unt 5 alleges a violation of Florida Administrative

Code Rule 6B - 1.006(3)(c) to wit: unreasonably denying a student

access to diverse points of view. This count was not proven and

should be dismissed.

97. Count 6 alleges a violation of Florida Administr ative

Code Rule 6B - 1.006(3)(e) to wit: intentionally exposing a

student to unnecessary embarrassment or disparagement. The

lecture delivered and captured on the video - tape made

November 20, 2002, was loud and unnecessarily long. No evidence

was adduced tending to demonstrate that there was any intent to

embarrass a student and there was no evidence adduced that any

student was embarrassed. This allegation was not proven.

98. Count 7 alleges a violation of Florida Administrative

Code Rule 6B - 1.006(3)(i ) to wit: failing to keep in confidence

personally identifiable information obtained in the course of

professional services, unless disclosure serves professional

purposes or is required by law. This Count addresses the

release of the video - tape to a par ent.

99. Neither the Second Amended Administrative Complaint,

nor Petitioner's Proposed Recommended Order, identifies any

statute that might make providing a video - tape of class

activities to a parent confidential. Section 1022.22(3)

provides parents w ith access to certain documents, and this

arguably includes video - tapes of classroom proceedings. Records

with more than one student's information require redaction. How

this is to be done where the record is a video - tape is not

revealed.

100. Florida Administrative Code Rule 6A - 1.0955, Education

Records of Pupils and Adults, which has not been amended since

the Florida K - 20 Education Code was enacted, does not illuminate

whether the release of a video - tape to a parent is permissible.

Whether or not t his is a school record that can be made subject

to confidentiality statutes is questionable. See Owasso

Independent School Dist. No. I - 011 v. Falvo , 543 U.S. 426

(2002).

101. This violation is insufficiently alleged in that it

does not identify the law o r rule prohibiting the release of

classroom video - tapes. Count 7 should be dismissed.

102. Count 8 alleges a violation of Florida Administrative

Code Rule 6B - 1.006(4)(b) to wit: intentionally distorting or

misrepresenting facts concerning an educational matter in direct

or indirect public expression.

103. Florida Administrative Code Rule 6B - 1.006(4)(b)

provides as follows:

(4) Obligation to the public requires that

the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts conce rning an educational

matter in direct or indirect public

expression.

104. There is no evidence of record to support this

allegation and therefore, Count 8 should be dismissed.

105. Count 9 alleges a violation of Florida Administrative

Code Rule 6B - 1.006 (5)(a) to wit: failing to maintain honesty in

all dealings.

106. Florida Administrative Code Rule 6B - 1.006(5)(a)

provides as follows:

Obligation to the profession of education

requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

107. No evidence was adduced which demonstrates that

Dr. Whalen violated Florida Administrative Code Rule 6B -

1.006(5)(a). Accordingly, Count 9 should be dismissed.

108. In summary, the evidence proved Counts 3 and 4, in

that Dr. Whalen viola ted Section 1012.795(1)(i), as elucidated

by Florida Administrative Code Rule 6B - 1.006(3)(a). These

offenses are multiplicious for purposes of determining a

penalty.

109. Florida Administrative Code Rule 6B - 11.007(2)(j),

provides as follows:

(2) The f ollowing disciplinary guidelines

shall apply to violations of the below

listed statutory and rule violations and to

the described actions which may be basis for

determining violations of particular

statutory or rule provisions. Each of the

following disci plinary guidelines shall be

interpreted to include "probation" with

applicable terms thereof as an additional

penalty provision.

* * *

(j) Misuse of corporal

punishment/Inappropriate methods of

discipline in violation of S. 231.28[now

1012.795(1)(i)], (1 )(b), (c), (f), (i), F.S.,

Rule 6B - 1.006(3)(a), (e) -- Revocation to

reprimand.

110. Florida Administrative Code Rule 6B - 11.007(2)(j),

provides for mitigating and aggravating factors to be considered

when assessing a penalty, as follows:

(3) Based upon consideration of aggravating

and mitigating factors present in an

individual case, the Commission may deviate

from the penalties recommended in subsection

(2). The Commission may consider the

following as aggravating or mitigating

factors:

(a) The severi ty of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has

been previously disciplined by the

Commission;

(f) The length of time the educator has

practiced and the contribution as an

educator;

(g) The actual damage, physical or

otherwise, caused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educator's livelihood;

(j) Any ef fort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the

licensee to correct or stop the violatio n;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalties imposed and

penalties served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offens es

under subsection (2) above;

(q) Pecuniary benefit or self - gain enuring

to the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of physical and/or

mental condition contributing to the

violation including rec overy from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

111. Dr. Whalen rammed her wheelchair into the back of

S.O.'s chair and that is a severe offense although no personal

injury was proven to have been sustained by the victim. It is

also the single offense proven and it occurred recently.

Dr. Whalen has never been disciplined by the Commission in the

more than 20 years she has been an educator.

112. Dr. Whalen is a handicapped person, and if she i s

denied the opportunity to continue teaching she will be

financially devastated. She has willingly and enthusiastically

taught "varying exceptionalities" classes, which are more

difficult than teaching classes of ordinary students.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED that Respondent be found guilty of Counts 3 and

4, that she be issued a reprimand, that she be placed on

probation as that term is defined in Florida Administrative Code

Rule 6B - 11.00 8, for a period of one year.

DONE AND ENTERED this 15th day of June, 2005, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flo rida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of June, 2005.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Edu cation Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399 - 0400

Mary F. Aspros, Esquire

Meyer and Brooks, P.A.

2544 Blairstone Pines Drive

Tallahassee, Florida 32302

Brian A. Newman, Esquire

Penningt on, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Tallahassee, Florida 32301

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 04 00

Marian Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

325 West Gaines Street, Suite 224 - E

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.