08-006357PL Dr. Eric J. Smith, As Commissioner Of Education vs. Willie C. Green Status: Closed Recommended Order on Tuesday, July 14, 2009.

Summary: Petitioner did not demonstrate by clear and convincing evidence that Respondent committed an act of immorality or failed to protect students from conditions harmful to their safety.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, )

AS COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 08-6357PL

)

WILLIE C. GREEN, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 27, 2009, a duly-noticed hearing was held in

Tallahassee, Florida, before Administrative Law Judge Lisa

Shearer Nelson assigned by the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Thomas Crapps, Esquire

Crapps Law Firm, P.A.

1018 Thomasville Road, Suite 103

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent committed the acts alleged in the Administrative Complaint and if so, what

penalties should be imposed?

PRELIMINARY STATEMENT

On July 24, 2008, Dr. Eric Smith as Commissioner of

Education filed an Administrative Complaint against Respondent,

Willie C. Green, alleging violations of Section 1012.795(1)(c)

and (i), Florida Statutes (2006), and Florida Administrative Code

Rule 6B-1.006(3)(a). Respondent disputed allegations of material

fact and requested a hearing pursuant to Section 120.57(1),

Florida Statutes. On December 19, 2008, the matter was referred

to the Division of Administrative Hearings for assignment of an

administrative law judge.

On January 16, 2009, a Notice of Hearing issued scheduling

the case for March 31 and April 1, 2009. At the request of the

Respondent, the matter was rescheduled for April 27-28, 2009. At

hearing, Petitioner presented the testimony of Dr. Sonja Bridges,

Joseph Barnes, Marshae´ Best, T.M., 1/ and Shernikki Gunn.

Petitioner's Exhibits 1-4 were admitted into evidence. One of

Petitioner's witnesses, James Love, did not appear despite

service of a subpoena, and the record was left open for

Petitioner to attempt enforcement of the subpoena in circuit

court. Respondent testified on his own behalf and presented the

testimony of Annette Baker, James Brown, Rosetta Smith, Wendell

Gamble, K.W., Frances Harrell, Renee Presha, Brenda Holt, Erica

Farmer, Edgar Griffin, and Reginald Cunningham. Respondent's

Composite Exhibit 1 and Exhibit 2 were admitted. Although

scheduled for two days, the parties were able to finish in one

day.

On May 8, 2009, Petitioner filed a Status Report consistent

with a post-hearing Order issued April 29, 2009, indicating that

Petitioner would not be seeking enforcement of the subpoena

against James Love and that the case could be decided on the

existing record.

The proceedings were recorded and the three-volume

Transcript was filed with the Division on May 15, 2009. At the

request of the parties, the deadline for submission of proposed

recommended orders was extended until June 15, 2009. Both

submissions were timely filed and have been carefully considered

in the preparation of this Recommended Order.

Absent a statement to the contrary, all references to the

Florida Statutes shall be to the 2006 codification, which was in

effect at the time of the incidents at issue in this case.

FINDINGS OF FACT

1. Petitioner is the head of the state agency responsible

for certifying and regulating public school teachers in the State

of Florida.

2. At all times relevant to these proceedings, Respondent

is licensed in the fields of English (grades 6 through 12) and

English to Speakers of Other Languages. His Florida Educator's

Certificate Number is 416928.

3. Respondent has been employed by the Gadsden County

School District in educational positions since 1976. He has

worked both as a teacher and an administrator. At the time of

the events alleged in the Administrative Complaint, Respondent

was the principal at Carter Parramore Academy (Carter Parramore)

in the Gadsden County School District.

4. Respondent has a disciplinary history. On November 15,

2000, a Final Order was entered by the Education Practices

Commission incorporating a settlement agreement whereby

Respondent neither admitted nor denied the allegations brought

against him, and the Commission imposed a reprimand; suspended

his license for the periods July 1-30, 1999, and July 1-30, 2000;

and placed Respondent on probation for a period of one year.

5. Carter Parramore is an alternative public school for

students who are either one or two years behind academically or

who cannot function in a traditional high school setting. Many

of the students have a history of behavioral and discipline

problems, and a significant number have been the subject of

delinquency proceedings. Carter Parramore has been referred to

as a "last chance" school.

6. Carter Parramore not only has a school resource officer

assigned to it, but has at least two security guards as well.

Fights are not uncommon at the school, and on several occasions

prior to February 2007, pepper spray was used by law enforcement

or the school security guards to break up a fight. No witnesses

indicted that any controversy had arisen as a result of the prior

use of pepper spray.

7. Gadsden County School District has a policy dealing with

the use of reasonable force. Policy 5.31, adopted September 15,

2002, includes the following provisions:

(1) Maintaining a safe and orderly learning

environment is an important responsibility

for all educators. A variety of strategies

are available to maintain discipline and

encourage appropriate and responsible

behavior. Staff response to problem student

behavior shall always be proportional to the

nature and extent of the disruption, conflict

or problem.

(2) The use of reasonable force shall be

permitted by staff to protect a student from

the following conditions.

(a) Conditions harmful or injurious to the

student, other students, a staff member or

other school personnel.

(b) Conditions harmful to the student's

physical health.

(c) Conditions harmful to the student's

mental health.

(d) Conditions that create a harmful or

unsafe condition.

(e) Conditions that create serious harm to

learning or the learning environment.

(3) Physical force shall be used only when

it appears that other alternatives are not

feasible.

(4) A staff member's decision to use or not

use physical force, shall be based upon the

following factors. The level of force used

shall also be determined by these factors:

(a) The seriousness or severity of the

situation.

(b) The potential danger to the student,

other students or self.

(c) Patterns of participants' behaviors and

potential for volatility.

(d) The size and physical conditions of the

participants.

(e) Availability of other intervention

strategies.

(f) Other actions already attempted.

(g) The availability of assistance.

(5) The use of reasonable force shall not be

excessive, cruel or unusual in nature. The

use of pepper spray and other chemical agents

shall be permitted only by trained law

enforcement officers in critical situations.

. . . (Emphasis added.)

8. Although testimony was presented indicating that a

notebook containing school board policies was provided for every

school, no evidence was produced indicating that the policy had

been provided to Respondent or to the office manager for Carter

Parramore. No teacher, security officer or law enforcement

officer was aware of the policy, and no training on the use of

reasonable force had been provided to administrators or staff at

the school.

9. The Administrative Complaint concerns two incidents

alleging that Respondent inappropriately used pepper spray at

Carter Parramore.

10. The first incident occurred on February 22, 2007, and

involved a fight between two girls, B.M. and T.M.

11. B.M. was described as being loud, aggressive, and a

"pretty rough character." She had been suspended several times

and brought weapons on campus both before and after the incident

in question.

12. T.M. was described as "mouthy," and could be a handful

when with the wrong group of people.

13. At the end of the school day February 22, 2007, the two

girls had "words" over a perceived slight that occurred earlier

in the day. The girls yelled at each other, exchanged threats

and profanities, and B.M. challenged T.M. to leave campus to

fight. T.M. refused.

14. B.M. left campus only to return shortly thereafter. At

this point, the girls began to yell at each other again and a

crowd began to gather, urging the girls to fight. They began to

throw punches at each other and pull each other's hair. As the

girls fought, the crowd of students grew larger and louder. The

estimates indicated a crowd of perhaps 40-60 students. When the

fight began, School Resource Officer Barnes was sitting in his

vehicle, about fifty yards away, talking to Reginald Young, the

Safety and Security Officer for the School District, who was also

in his vehicle in the parking lot. Neither man was close enough

to the girls to be of realistic assistance.

15. Dr. Green was in his office when the commotion started.

When he left his office to see what was causing the disturbance,

two security guards had separated the students. Respondent spoke

to the girls, directed T.M. to follow him to the office and

indicated that she would be suspended for fighting. One of the

security guards was still holding B.M. The more credible

evidence presented indicates that Respondent did not, as alleged,

instruct the security guards to "let them go" and "let them

fight."

16. As Respondent headed to the office with T.M., B.M.

broke free from the security guard and started fighting with T.M.

again. As the altercation recommenced, Respondent found himself

between the two girls fighting each other, and surrounded by a

crowd of students egging them on. Respondent used his personal

pepper spray on the girls, and they stopped fighting immediately.

A teacher took T.M. into a restroom to wash off the pepper spray.

Office Barnes arrived and took B.M. to an outside water faucet to

do the same.

17. There was no credible evidence that Dr. Green continued

to spray T.M. as she ran from the scene.

18. Dr. Green had a reasonable fear that B.M. might have a

weapon, and had a reasonable fear that, given the growing crowd,

the fight would spread beyond the two students B.M. and T.M.

19. Following the fight, Respondent spoke to teachers and

students to determine what caused the fight, and learned that

B.M. had been the aggressor. As a result, Respondent decided to

rescind his earlier decision to suspend T.M.

20. T.M. sought medical attention after being sprayed with

the pepper spray. Her mother picked her up from school and took

her to an urgent care center where she was treated and given some

ointment.

21. The second incident occurred February 23, 2007. The

student involved, K.D., was a 16-year-old male who was described

as an often violent trouble-maker who was on criminal probation

at the time of the incident.

22. On February 23, 2007, a fight between K.D. and another

male student broke out in Ms. Farmer's classroom at Carter

Parramore. Ms. Farmer called for a security guard but neither a

security guard nor Officer Barnes was in the vicinity.

Ms. Farmer called the office and Dr. Green came to assist her.

23. Upon his arrival at the classroom, Dr. Green directed

the boys to stop fighting and they complied. Security Officer

Johnson arrived, and Respondent directed him to take K.D. to the

office. Johnson placed K.D. in handcuffs and took him to the

office. During this time, K.D. continued to shout profanities

and threatened to kill a female student, K.W., over whom the boys

fought. He also threatened to kill teachers and other students.

24. During the altercation, other students had entered the

hallway to watch the commotion. Respondent directed the students

to return to their classrooms, hoping to avoid an escalation of

violence from the original fight. As order was being restored,

K.D. came running back down the hallway, threatening again to

kill K.W. and others. Another teacher, Mr. Bradley, attempted to

speak with K.D. and calm him down. K.D. reacted by hitting

Mr. Bradley and continuing down the hallway yelling his threats

to kill K.W.

25. By the time K.D. got to Respondent, he was totally out

of control. He kicked Respondent and continued to threaten K.W.

Respondent sprayed K.D. with pepper spray one time, at which time

K.D. fell to the ground. Officer Johnson came and again

handcuffed K.D., and turned him over to the custody of Officer

Barnes.

26. At the time that Respondent used the pepper spray on

K.D., he had evaded the custody of a security officer who had

handcuffed him previously, had hit a teacher and was continuing

to threaten students and teachers at the school. There was no

credible evidence presented to indicate that any law enforcement

or security officers were in the vicinity to address K.D.'s

behavior. Given his violent history and his active threats to

the people around him, Respondent reasonably believed that use of

the pepper spray was necessary to stop the immediate problem and

prevent escalation of a dangerous situation.

27. There was significant evidence devoted to whether the

pepper spray used by Respondent was "law enforcement grade" or

the type a person can buy over the counter for personal

protection. While Petitioner contends that use of law

enforcement grade pepper spray by someone who is not a member of

law enforcement is prohibited by law, it did not provide, at

hearing or in its proposed recommended order, any citation to a

statute or regulation to support this assertion. Moreover, the

grade of pepper spray is not a determinative factor in this case.

The issue is whether the use of any type of pepper spray could be

justified.

28. The Gadsden County School District did not take

disciplinary action against Respondent for either incident.

Respondent continued to work as principal of Carter Parramore

through the rest of the school year and then for the 2007-2008

year. For the 2007-2008 school year, his evaluation reflects

that he was considered to be "very effective" in all categories.

29. During Respondent's tenure at Carter Parramore, as many

as twenty students graduated in a school year. At the time of

this hearing, for the 2008-2009 school year, Carter Parramore had

one student eligible to graduate.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes (2008).

31. This disciplinary action by Petitioner is a penal

proceeding in which Petitioner seeks to revoke Respondent's

professional teaching certificate. Petitioner bears the burden

of proof to demonstrate the allegations in the Administrative

Complaint by clear and convincing evidence. Department of

Banking and Finance v. Osborne Sterne & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

32. Clear and convincing evidence:

requires that the evidence must be found to

be credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and lacking in

confusion as to the facts in issue. The

evidence must be of such a weight that it

produces in the mind of the trier of fact a

firm belief or conviction, without hesitancy,

as to the truth of the allegations sought to

be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

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

33. Section 1012.795(1), Florida Statutes, gives the

Education Practices Commission the power to suspend or revoke the

teaching certificate of any person, or to impose any penalty

provided by law, if he or she is guilty of certain specified

acts.

34. The Administrative Complaint alleges the

following facts:

3. Respondent has a history of inappropriate

discipline of students. On or about

November 11, 2000, the Education Practices

Commission issued a Final Order accepting a

Settlement Agreement between Respondent and

the Department of Education the underlying

allegations of which included inappropriate

discipline of students.

4. On or about February 23, 2007, Respondent

intervened when T.M., a fifteen-year-old,

female student, and B.M., a thirteen-year-old

student, became involved in an altercation.

In an attempt to break up the fight,

Respondent, in violation of district policy,

sprayed both girls and a School Resource

Office [sic] with excessive amounts of pepper

spray. Respondent continued to spray T.M. as

she ran from the scene. At all times during

the altercation, a law enforcement officer,

who had access to pepper spray, was present.

T.M. required medical attention subsequent to

the incident.

5. On or about February 24, 2007, Respondent

sprayed K.D. a sixteen-year-old, male

student, with excessive amounts of pepper

spray in an attempt to gain control of K.D.

Respondent continued to spray K.D. even after

he had become compliant and fallen to the

ground. Present during this time was a law

enforcement officer with access to pepper

spray.

35. Clear and convincing evidence was presented to

demonstrate that on or about November 11, 2000, a Final Order was

entered by the Education Practices Commission imposing discipline

against Respondent pursuant to a Settlement Agreement. Clear and

convincing evidence was also presented to establish that on

February 22, 2007, Respondent intervened to break up a fight

between two girls, T.M. and B.M., and that in violation of

district policy, Respondent sprayed both girls with pepper spray,

causing T.M. to seek medical attention after the incident.

Similarly, clear and convincing evidence was presented to

demonstrate that on February 23, 2009, Respondent sprayed student

K.D. with pepper spray in an attempt to gain control of the young

man.

36. However, the evidence presented at hearing did not

substantiate the allegations that Respondent has a history of

inappropriate discipline of students, or that the prior

discipline against him involved inappropriate discipline of

students. While clearly the allegations, which were neither

admitted nor denied, alleged inappropriate contact with students,

there is no indication that the contact was in an effort to

discipline them. Moreover, in light of the fact that in the

Settlement Agreement approved in the Final Order, Respondent

neither admitted nor denied the allegations of the Amended

Administrative Complaint, the Final Order simply establishes

prior discipline, not the basis for that discipline.

37. With respect to the February 22, 2007, incident, the

evidence was not clear and convincing that Respondent sprayed the

girls with excessive amounts of pepper spray or that Respondent

continued to spray T.M. as she ran from the scene. Nor does the

evidence support the allegation that a law enforcement officer

with access to pepper spray was present or that Respondent

sprayed a security officer. The security guard, Mr. Gamble,

testified that he had his own pepper spray out and considered

using it, and could not be sure whether Respondent sprayed him

accidentally or whether his own pepper spray discharged. He also

testified, consistent with the testimony of all but one teacher,

that Respondent acted appropriately in light of the situation

presented.

38. Moreover, the overwhelming evidence presented indicates

that Officer Barnes was too far away from the fight to be of

realistic assistance. When the altercation started, Officer

Barnes was sitting in his vehicle some fifty yards away. While

he had exited his vehicle and was approaching the scene, he was

still much too far away to stop the fight or prevent the

escalation of the disturbance.

39. Similarly, the evidence was not clear and convincing

that Respondent sprayed K.D. with an excessive amount of spray,

or that he continued to spray K.D. after he had become compliant.

Nor was there a law enforcement officer with access to pepper

spray present at the time K.D. came running down the hall, struck

Mr. Bradley and continued to threaten another student.

40. The Administrative Complaint alleges in Counts One and

Two that Respondent's conduct violates Subsections 1012.795(1)(c)

and (i), Florida Statutes, which provide:

(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 a 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 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

teacher 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.

* * *

(i) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by the State Board of

Education Rules.

41. Count Three of the Administrative Complaint also

alleges a violation of Florida Administrative Code Rule 6B-

1.006(3)(a), which provides:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(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 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.

42. Immorality and moral turpitude are both defined in

Florida Administrative Code Rule 6B-4.009:

(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 service 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 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.

43. Moral turpitude has also been defined by the Supreme

Court of Florida as "anything done contrary to justice, honesty,

principle, or good morals, although it often involves the

question of intent as when unintentionally committed through

error of judgment when wrong was not contemplated." State ex

rel. Tullidge v. Hollingsworth , 108 Fla. 607, 146 So. 660, 661

(1933).

44. As the Department of Education has defined moral

turpitude in terms of criminal behavior, no further examination

of the facts are necessary to determine that the actions here do

not constitute acts of moral turpitude. No criminal behavior is

alleged or proven. Neither do the acts proven justify the

conclusion that Respondent committed an act of gross immorality.

Here, Respondent used pepper spray to subdue students who

presented a danger to themselves and those around them. Several

witnesses testified that Respondent acted appropriately given the

situations presented. While clearly the use of pepper spray was

not authorized and in fact was prohibited by School District

policy, the evidence did not demonstrate that the policy at issue

had been distributed to the school personnel it governed or that

Respondent even knew of its existence. The School District did

not discipline Respondent over either incident, notwithstanding

that it was the district's policy that was violated. Moreover,

the year following the two incidents in question, Respondent

received an evaluation in which he was rated "very effective" in

all areas. Clearly, these incidents did not impair his

effectiveness within the school district. Count One has not been

established in this case.

45. Whether a violation of Count Two has been proven

depends on whether the rule violation alleged in Count Three has

been established. Petitioner cites to two cases, Gallagher v.

Powell , DOAH Case Nos. 97-5828 & 98-2387 (Recommended Order 1999)

and Crist v. Swanson , DOAH Case No. 03-0178 (Recommended Order

2003), as support for a conclusion that Respondent's actions

constitute the failure to make a 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. In

Gallagher v. Powell , the teacher hit a student with a cane in

retaliation of the student's forceful opening of a door that hit

the teacher's foot, post-surgery. In Crist v. Swanson , the

offensive conduct involved taunting a football player at halftime

and throwing a helmet in the direction of a player and

accidentally hitting one of them, in an effort to motivate a

football team. Neither case dealt with students who were

actively fighting or threatening to kill others in the vicinity.

46. In order to determine whether Rule 6B-1.006(3)(a) has

been violated, one must consider not only the safety of the

actors, T.M., B.M. and K.D., but also the safety of the other

students present. With respect to the first incident, one of the

students had a history of bringing weapons to school and had left

campus only to return for the express purpose of fighting. A

large crowd was gathering, at the end of the school day,

encouraging a fight. The girls had already broken away from the

security officers and law enforcement was too far away to assist.

Under these circumstances, while not condoning the use of pepper

spray, it was reasonable for the principal to use whatever means

he had available to protect all of the students from harm. While

T.M. suffered some discomfort as a result of the pepper spray,

Respondent's actions served to protect her from further, more

serious, injury.

47. With respect to the second incident, the student

involved had already escaped the custody of a security guard and

had hit a teacher. He was actively threatening bodily harm to

another student, was on probation, and had a history of violence.

Once again, law enforcement was not there to handle the

situation. Respondent's actions served to protect others in the

vicinity and to contain a dangerous situation. Under these very

unique circumstances, Respondent's actions do not constitute a

violation of Rule 6B-1.006(3)(a).

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That the Education Practices Commission enter a final order

dismissing the Administrative Complaint.

DONE AND ENTERED this 14th day of July, 2009, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of July, 2009.

ENDNOTE

1 1/ Students who testified in this proceeding are identified by

their initials.

COPIES FURNISHED:

Matthew K. Foster, Esquire

Brooks, LeBoeuf, Bennett,

Foster & Gwartney, P.A.

909 East Park Avenue

Tallahassee, Florida 32301

Thomas Porter Crapps, Esquire

Crapps Law Firm, P.A.

1018 Thomasville Road, Suite 103

Tallahassee, Florida 32303

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Education Practices Commission

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

325 West Gaines Street, Room 244-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.