05-003218PL John L. Winn, As Commissioner Of Education vs. Gladys Young-Smith Status: Closed Recommended Order on Tuesday, May 2, 2006.

Summary: An act of physical violence against a co-worker constitutes moral turpitude and subjects the educator to discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, AS COMMISSIONER )

OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 05 - 3218PL

)

GLADYS YOUNG - SMITH , )

)

Respondent . )

)

RECOMMENDED O RDER

Pursuant to notice a formal hearing was held in this case

on February 21, 2006, in Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Wh itelock, Esquire

Whitelock & Associates, P.A.

300 Southeast Thirteenth Street

Fort Lauderdale, Florida 33316

For Respondent: Richard B. Marx, Esquire

O. Frank Valladares, Esquire

Richard B. Marx and Associates

66 West Flagler Street , Suite 800

Miami, Florida 33130

STATEMENT OF THE ISSUE

Whether the Respondent, Gladys Young - Smith (Respondent),

committed the violations alleged in the Administrative Complaint

and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

This case originally came to the Division of Administrative

Hearings (DOAH) on January 27, 2005, and was assigned DOAH Case

No. 05 - 0360PL. The case was promptly scheduled for hearing but

was then continued two times at the request of the Respondent ,

who represented conflicts in scheduling and unavailability to

try the case. It was represented that settlement negotiations

betw een the parties were on - going. Indeed, such representations

continued throughout the case and ultimately concluded on the

day of the hearing. Such continuing representations supported

the extensions of time afforded the parties throughout these

proceedin gs.

For example, in May of 2005, the Respondent represented

that she was a 66 - year - old, retired teacher who did not intend

to seek re - employment as a public school teacher. Additionally,

the Respondent represented that numerous conflicts in scheduling

pre cluded the matter from being set for hearing. On May 12,

2005, DOAH Case No. 05 - 0360PL was closed to afford the parties

ample time within which to resolve the scheduling difficulties

and to refer the matter back to DOAH if a hearing would be

necessary to resolve the case.

The matter was referred back to DOAH on August 31, 2005,

and re - opened as DOAH Case No. 05 - 3218PL. A Notice of Hearing

scheduled the case for November 29 and 30, 2005. On

November 17, 2005, the Respondent’s next request for a

continuanc e was granted and the case was rescheduled for

January 6, 2006. On December 29, 2005, the Respondent filed

another Motion for Continuance and by Order entered January 4,

2006, the hearing was continued to February 21 and 22, 2006. On

February 16, 2006, t he Respondent filed an Emergency Motion for

Continuance. The Respondent maintained that medical problems

precluded her attendance at the hearing. The Respondent was

afforded additional time, up until the commencement of the

hearing, to provide the record with documentation from a

physician to corroborate the medical problem that purportedly

necessitated the continuation of the case. The Respondent

failed or otherwise refused to provide a physician’s medical

excuse. Accordingly, the matter proceeded to h earing as

scheduled.

At the hearing, the Petitioner, John Winn, as Commissioner

of Education, (Petitioner) presented testimony from Olga

Vanbeverhoudt, formerly the Assistant Principal at North Miami

Elementary School; Harriet Wilson, formerly a secretary at North

Miami Elementary School; Lonell Segars, formerly a secretary at

North Miami Elementary School; Reinaldo Benitez, a district

director for the Miami - Dade County Public Schools Office of

Professional Standards; and Judith Mager, an Assistant Principa l

at North Miami Elementary School. The Petitioner’s Exhibits 1 -

6, 7A, 7B, 16, 19, 21, and 22 were admitted into evidence.

The Respondent presented the following witnesses: Irma

Isidore, a teacher at Biscayne Gardens Elementary School; Paul

Greenfield, th e Respondent’s former p rincipal; Solomon Stinson,

a member of the Miami - Dade County School Board; Clayton Harrell,

an Assistant Pastor at the Mount Zion Baptist Church; and Carl

Johnson, Pastor at the 93 rd Street Baptist Church. The

Respondent’s Exhibits 1, 2, and 3 were received in evidence.

The transcript of the hearing was filed with DOAH on

March 10, 2006. Thereafter, the parties sought an extension of

the time within which to file their p roposed r ecommended o rders.

Such request was granted , and th e parties were afforded until

March 24, 2006, to file their proposed orders. The Respondent

then filed a Second Motion for Extension of Time to File

Proposed Recommended Order. By Order entered March 27, 2006,

the parties were granted leave until April 4 , 2006, to file

their proposals. Both parties filed Proposed Recommended Orders

that have been fully considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. At all times material to the allegations of this case,

the Respondent was a teacher employed by the Miami - Dade County

Public School District. She was assigned duties as a third

grade elementary teacher at North Miami Elementary School on the

date the matters complained of took place. The Respondent holds

a Florida Educator’s Ce rtificate (Certificate No. 147509) that

is valid through June 30, 2007.

2. On April 25, 2002, Lonell Segars (Ms. Segars) was

employed at North Miami Elementary School (the school) as a

school secretary. Among her duties were those associated with

being the school treasurer. As school treasurer, Ms. Segars

handled the processing of paperwork in order to procure school

supplies.

3. Each teacher at the school was given an allowance of

sorts from which school supplies could be purchased for the

classroom. There were two ways to draw on this “allowance.” A

teacher could purchase supplies with her own money and seek

reimbursement by submitting a receipt with the items fully

described or the teacher could submit a purchase order for the

supplies and process the request through the office. In either

instance the amount of the purchase was then applied back

against the teacher’s “allowance.” An allowance not used by a

certain date was forfeited.

4. Near the end of the allowance deadline, the Respondent

pres ented to the school’s office and sought to obtain school

supplies , but did not want to use either of the methods

described above to secure the supplies. Ms. Segars attempted to

resolve the issues regarding the procurement but was not

successful.

5. In a second effort to resolve the issue, Ms. Segars

sought to obtain a supply list from the Respondent so that she

could obtain the prices from an office supply company, obtain a

check for the Respondent (to cover the items sought), and assist

in the procuremen t of the items.

6. Ms. Segars and the Respondent did not communicate well

regarding the supply list and the prices attributable to the

items. The Respondent became incensed with Ms. Segars and

claimed she was “pissing her off.” The Respondent did not w ant

to work with Ms. Segars on the procurement of the school

supplies.

7. Ms. Segars later saw Ms. Vanbeverhoudt, the a ssistant

p rincipal, with the Respondent in the school hallway and

attempted to explain the matter to her. The Respondent left the

hall way (where Segars and Vanbeverhoudt were talking) and

stormed off with the procurement problem still unresolved.

8. The Respondent entered the office of another school

secretary, Ms. Wilson, followed by Ms. Segars and

Ms. Vanbeverhoudt. In Ms. Wilson’s o ffice, in full view of

Ms. Wilson and Ms. Vanbeverhoudt, an altercation between

Ms. Segars and the Respondent ensued.

9. The Respondent was talking to Ms. Wilson about the

difficulties with the procurement when Ms. Segars and

Ms. Vanbeverhoudt entered the office. Upon seeing Ms. Segars

the Respondent became irate. She mumbled that she was going to

hurt Ms. Segars. Ms. Segars did not call the Respondent “dumb,”

but claimed the situation (the confusion over the procurement

process) was “dumb.” In clear v iew of both Ms. Wilson and

Ms. Vanbeverhoudt, the Respondent violently punched Ms. Segars

about the head and rammed her into the door jam.

10. Ms. Segars did not do anything to provoke the attack,

did not retaliate or hit the Respondent back, and did no t

present in any way a physical threat to the Respondent. The

attack was senseless and completely uncalled for. The

Respondent lost her temper and in a moment of extremely poor

judgment resulted to physical violence to resolve a problem.

While the Respo ndent may have been frustrated at the continuing

issue to resolve the supply procurement, there was no immediate

threat or harm to the Respondent posed by the matter.

Ms. Segars is a petite, slightly built person who did not

present a physical threat to t he Respondent.

11. The Respondent left the office shortly after the

attack and did not respond to an “all call” over the public

address system for her to report to the office. After the fact

it was discovered that the Respondent left the school property

without permission and without signing out as was required by

school procedure.

12. As a result of the attack, Ms. Segars left school

employment and has a permanent impairment (loss of hearing and

vertigo).

13. On May 28, 2002, a conference for the reco rd was

scheduled with the Office of Professional Standards. The

Respondent was afforded an opportunity to present her side of

the incident in order to clarify the facts at issue. The

Respondent did not offer any detail or fact to support the

attack on Ms . Segars.

14. Shortly thereafter, facing disciplinary action by the

Miami - Dade County School Board, the Respondent resigned her

position with the school district and retired.

15. Prior to the incident complained of, the Respondent

had enjoyed a long, fav orable career with the Miami - Dade County

Public Schools. She had taught at several elementary schools

and had received good work evaluations.

16. Public school teachers are held to a high standard of

conduct. Violent physical outbursts are not tolerated . Such

incidents significantly diminish an educator’s effectiveness.

The Respondent’s conduct on April 25, 2002, impaired her ability

to effectively maintain her stature as an educator within the

Miami - Dade County School District. Moreover, since the

Re spondent never admitted her acts, never showed remorse for her

behavior, and never took responsibility for her behavior, such

lack of acknowledgement further demonstrates she does not

appreciate the severity of her conduct or the extent to which it

has imp aired her credibility and effectiveness within the School

District.

17. Finally, it is determined that the Respondent’s sworn

testimony as set forth in her deposition (filed in this cause as

Petitioner’s Ex. 1) demonstrates a lack of truthfulness

regard ing the incident with Ms. Segars and is not a credible

account of the events of April 25, 2002.

CONCLUSIONS OF LAW

18. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 120.569, 120.57(1), and 1012.796, Fla. Stat.

(2005).

19. The Petitioner bears the burden of proof in this

matter to establish by clear and convincing evidence the

allegations of the Administrative Complaint. See Department of

Banking and Finance, Division of Se curities and Investor

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

and Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987). The clear

and convincing standard requires:

. . . that the evidence must be found to be

credible; the facts to whic h the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fac t a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4 th DCA 1983).

20. The Administrative Complaint in this case charged the

Respondent with four vi olations in connection with an incident

that occurred on April 25, 2002. Count 1 alleged that the

Respondent was guilty of gross immorality or an act involving

moral turpitude; Count 2 claimed the Respondent had been guilty

of personal conduct which serio usly reduced her effectiveness as

an employee of the school board; Count 3 maintained that the

Respondent violated the Principles of Professional Conduct for

the Education Profession as denoted in the state rules; and

Count 4 contended that the Respondent had engaged in harassment

or discriminatory conduct that unreasonably interfered with an

individual’s performance of professional or work

responsibilities or with the orderly processes of education or

which created a hostile, intimidating, abusive, offensi ve, or

oppressive environment. As to all claims the Respondent denied

culpability and denied the underlying conduct that occurred on

April 25, 2002. To the contrary, the Respondent falsely claimed

the victim initiated the conduct and provoked the incid ent.

2 1 . Section 1012.795(1), Florida Statutes (2002), provides

in part:

(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 3 years,

thereby denyi ng that person the right to

teach 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 for a

period of time n ot to exceed 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person; may

suspend the educator certificate, upon order

of the court, of any person found to have a

delinquent ch ild 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.

* * *

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

2 2 . Florida Administrative Code Rule 6B - 4.009 provides

definitions that are instructive in this matter. Pertinent

provisions of that rule are:

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the

individual’s ser vice in the community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted standards

of the time a man owes to his or her fellow

man or to society in general, and the doing

of the act itself and not its prohibition by

statute fixes the moral turpitude.

2 3 . Case law defines “moral turpitude” as conduct that

implies or involves baseness or depravity. See State ex. rel.

Tullidge v. Hollingsw orth , 146 So. 660 (Fla. 1933). In Charlie

Crist, as Commissioner of Education v. Joseph H. Caruth , DOAH

Case No. 03 - 0303PL, a single act of domestic violence not

occurring on school property was held to constitute moral

turpitude for purposes of disciplin ing an educator.

2 4 . It should be noted that students are held to a strict

standard regarding violence occurring on school property. The

mandate for all public schools in Florida requires a zero

tolerance for school violence. See Fla. Admin. Code Rule 6A -

1.0404 . Similarly, teachers are held to a high standard of

conduct and must demonstrate professionalism. See Adams v.

Professional Practices Council , 406 So. 2d 1170 (Fla. 1 st DCA

1981).

2 5 . In this case, the Petitioner has established by clear

and convincing evidence that the Respondent committed a violent,

unprovoked act of physical aggression against a co - worker.

Three witnesses to the incident were clear as to all material

facts of the incident. The Respondent struck her co - worker

without provo cation or reasonable cause. The co - worker was

injured and suffers continuing impairment as a result of the

incident. The Respondent has not accepted responsibility for

her act and does not acknowledge that her credibility and

effectiveness as a teacher h as been seriously impacted as a

result of her outburst.

2 6 . The Petitioner has presented sufficient evidence to

support the allegations of the Administrative Complaint and to

justify the imposition of penalties appropriate to the charges.

It is further c oncluded that the Respondent’s act of physical

violence and unrepentant conduct is sufficient to find her

guilty of gross immorality or of having committed an act of

moral turpitude.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Education Practices Commission

enter a Final Order suspending the Respondent’s teaching

certificate and prohibiting her from seeking re - certification

for a period of not less than three years.

DONE AND ENTERED this 2nd day of May , 2006 , in Tallahassee,

Leon County, Florida.

S

J. D. PARRISH

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

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of May , 2006 .

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Florida Education Center

Department o f Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Mari an Lambeth, Program Specialist

Bureau of Educator Standards

Department of Education

Turlington Building, Suite 224 - E

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Richard B. Marx, Esquire

Richard B. Marx and Associates

Concord Building, Suite 80 0

66 West Flagler Street

Miami, Florida 33130

Charles T. Whitelock, Esquire

Whitelock & Associates, P.A.

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written except ions 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.