08-005205PL Jeanine Blomberg, As Commissioner Of Education vs. Patti Rose Withers Status: Closed Recommended Order on Wednesday, March 25, 2009.

Summary: Petitioner proved by clear and convincing evidence that the teacher failed to protect students from harm.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEANINE BLOMBERG, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 08-5205PL

)

PATTI ROSE WITHERS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 15, 2009, in Land O'Lakes, Florida, and

continued to January 21, 2009, in Zephyrhills, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Kelly B. Holbrook, Esquire

Zachary A. Harrington, Esquire

Broad and Cassel

100 North Tampa Street, Suite 3500

Tampa, Florida 33602

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33605-0638

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner should impose

a sanction against Respondent for alleged violations of statutes

and rules relating to the practice of teaching.

PRELIMINARY STATEMENT

On September 5, 2007, Petitioner, Jeanine Blomberg,

Commissioner of Education, filed an Administrative Complaint

against Respondent, Patti Rose Withers ("Withers"), seeking to

impose certain sanctions. Withers timely filed an Election of

Rights form requesting a formal administrative hearing.

The Administrative Complaint and Election of Rights form

were forwarded to the Division of Administrative Hearings

("DOAH") on October 20, 2008. At the final hearing, commenced

on January 15, 2008, Petitioner called three witnesses: Norman

Brown, assistant principal at Pasco County High School ("Pasco

High"); Debra Neel, Spanish teacher and department head at Pasco

High; and Patrick Reedy, principal at Pasco High. Petitioner's

Exhibits 1 through 6 were admitted into evidence.

Withers testified on her own behalf and offered Exhibits 1

through 4 into evidence, each of which was received (with the

caveat that Exhibits 3 and 4 were admitted solely to establish

that the incident in question received public attention; the

substance of the information in those exhibits was not admitted

into evidence). Withers then asked that the proceeding remain

open until a second witness, Dr. Pius Jacob, could be deposed or

questioned under oath. The record was kept open and on

January 21, 2008, the parties and the Administrative Law Judge

reconvened at the office of Dr. Pius where his sworn testimony

was taken.

The parties advised the undersigned that a transcript would

be ordered of the final hearing. Upon request, the parties were

given 30 days from the date the transcript was filed at DOAH to

submit proposed recommended orders. The Transcript was filed at

DOAH on February 6, 2009. Withers requested and the parties

were granted an additional two days to file their post hearing

submissions. Each party timely submitted a Proposed Recommended

Order, and they were given due consideration in the preparation

of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the person responsible for, inter alia ,

licensing and monitoring school teachers in the State of

Florida.

2. Withers is a licensed and certified teacher in the

State of Florida; she holds Florida Educator's Certificate

No. 795790 covering Foreign Language-French and history.

Withers' certificate is valid through June 30, 2010.

3. Withers has been teaching school for over 22 years,

beginning as a teacher's aide in New York. Withers has been

under a continuing contract with Pasco County Public Schools

since 1998. She was a teacher at Pasco High from 1998 until

May 22, 2006.

4. Withers' state certification allows her to teach French

and history. She also holds a county certification (through the

HOUSSE program) which allows her to teach Spanish, but only in

Pasco County Public Schools. The only formal reprimand received

by Withers concerned her falling asleep during class on numerous

occasions.

5. Withers is currently teaching at Wiregrass High School,

another school under the authority of the Pasco County Public

Schools.

6. During the 2005-2006 school year, Withers was teaching

Spanish, French, and intensive reading at Pasco High. She held

State of Florida certifications for French and history, but had

not yet passed the examination for certification in Spanish.

Pasco County Public Schools, at that time, allowed a

non-certified teacher to teach subjects outside their field for

up to five years without becoming State-certified. The French

curriculum was being phased out at Pasco High, so Withers

understood the need to obtain certification to teach Spanish.

7. During the 2005-2006 school year, Withers took the

Spanish certification test (for the fourth time). She was under

the impression that failure to pass the test would mean she

would lose her job and/or not be able to teach Spanish any

longer at Pasco High.

8. On or about Saturday, May 20, 2006, Withers received a

letter indicating that she had not passed the Spanish

certification exam on her latest attempt. She had failed by a

mere six points. The letter made Withers very despondent, and

she became depressed and upset by the news. Almost immediately,

Withers began to think her career was over and her thoughts

turned dark. She began at that time to think about the idea of

committing suicide.

9. At that point of time in her life, Withers was not in

good health. She was suffering from a number of illnesses,

including asthma, arthritis, Type II diabetes, high blood

pressure, high cholesterol, paradoxical vocal chord disorder,

anxiety, and depression, as well as the onset of Parkinson's

disease. Withers was extremely overweight and under the

influence of over 16 different medications. The medications

caused side effects such as drowsiness, insomnia, increased

sweating, and sensitivity to light, as well as exacerbation of

her other symptoms. Withers would unilaterally change the

dosages or frequencies of her medications, thus further

affecting her mental state.

10. From Saturday, May 20, 2006, until arrival at school

on Monday, May 22, 2006, Withers contemplated ending her life.

She mulled over the idea until reaching a decision sometime

during the school day on Monday. That day was the first day of

final exams for the school year, and Withers proctored final

exams in her French classes throughout the day.

11. Some time during the course of that day, Withers

drafted a number of "suicide notes" to be left behind when she

died. 1 The notes were handwritten on different sizes and kinds

of paper, indicating they were likely done over a period of

hours (or perhaps on different days).

12. At the conclusion of the school day on May 22, 2006,

Withers gathered together a number of medications, including

Valium and Ativan. She then obtained water for the purpose of

helping her take a large number of pills. She intended to

ingest enough medicine to terminate her life.

13. The school day ended at 2:05 p.m. (final bell). At

some point just after school let out, and while Withers was

sitting at her desk in the portable classroom, she was visited

by fellow teachers Debra Neel and Ms. Snell. They wanted to

make sure Withers was handling the news of her latest

certification examination results without any problems. Neel

had also become concerned, because Withers did not answer her

classroom telephone earlier. Neel and Snell went into the

classroom and spoke briefly with Withers.

14. Withers, in an unusually brusque tone, asked Neel and

Snell whether there was anything else she could do for them.

Neel and Snell, feeling they were not welcome any longer, left

the classroom. 2 It was between 2:30 p.m., and 2:45 p.m., at that

time.

15. Neel noticed that Withers was unusually curt and that

there was a bottle of water sitting on the desk. That was

unusual as well, because Neel never knew Withers to drink water

during the day. When Neel left Withers' classroom, she called

another teacher to express her concern about Withers' behavior.

16. Once Neel and Snell were gone, Withers locked the door

of her classroom (a portable building set apart from the main

campus). Withers first made sure things were ready for exams to

be given to her students the next day; she then began to take

the medications. After taking an undetermined number of pills,

Withers ran out of water. She then went outside, got on her

motorized scooter and headed toward the main campus to locate

some more water. 3

17. On her way to the main campus buildings, Withers

crossed paths with Norman Brown, the assistant principal at

Pasco High. Withers did not acknowledge Brown as they passed

and that concerned Brown; it was contrary to Withers' nature to

be rude or to ignore her peers.

18. Withers then encountered other fellow teachers who

somehow determined that Withers was trying to ingest the pills.

The teachers began to argue with Withers and everyone got

agitated. Neel saw the confrontation and ran to Principal

Reedy's office to tell him what was going on. Reedy immediately

issued a 911 call over the school radio system to obtain

assistance from any available source. 4

19. Meanwhile, Brown saw the confrontation going on just

as he heard the 911 call over the radio. Brown immediately went

to offer his assistance to Withers and the teachers. At that

time, Brown discovered a pill bottle in Withers' hand and

wrestled it away from her. Withers produced another bottle, and

Brown was able to knock that bottle out of Withers' hand, as

well.

20. This confrontation was going on just outside the

administration building. At one point Brown noticed some

students observing their actions, so he convinced Withers to

move into the clinic so the students could not witness anything

more than they had already seen. Shortly after entering the

clinic, paramedics arrived and removed Withers to the hospital

by way of ambulance.

21. Pasco High issued a statement to its staff and

teachers generally describing what had happened. The statement

said the school would offer counseling to any students who

requested it as a result of the incident. (That statement was

Pasco High's only attempt to identify the students who had

observed the confrontation. There is no evidence that any of

the students ever requested or obtained counseling.)

22. Pasco High's administration was most concerned about

two things: First, that Withers would be despondent enough to

try to take her own life. Second, that she would do so on

school grounds where students may witness the act or even

discover her body after her death. The latter concern was less

probable, because no students had keys to the portable classroom

and custodians would likely have been the persons to discover

the body. However, students often remain on campus after school

hours to engage in any number of activities. That is why

Withers took her pills with her when she went to get more water.

23. Prior to ingesting the pills, Withers had left several

suicide notes and some cash in her classroom. The notes

addressed her despondency and pain at having failed the Spanish

certification exam. The notes also directed the school to use

Withers' money to throw a party for students, to contribute

money to the teachers' end-of-the-year party, and to give some

of her personal belongings (toys and things) to students.

24. Withers presumed that her body would be discovered by

janitors, rather than by any student, but her exact rationale

for that presumption was not adequately discussed at final

hearing.

25. Withers has not worked at Pasco High since the date of

the incident. She is otherwise gainfully employed in the

teaching profession.

26. Withers continues to be under the care of a

psychologist (counselor) and a psychiatrist. She continues to

suffer the same mental illness that she was experiencing on the

date of her suicide attempt. She continues to receive

essentially the same medications that she was taking on that

date.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2008). 5

28. The Department of Education has the authority to

investigate and prosecute alleged violations of Subsection

1012.795(1), Florida Statutes, and Florida Administrative Code

Rule 6B-1.006. Petitioner has the right to take action on a

complaint filed against a person who held a valid certificate

during the period in which the alleged violation occurred. In

this case, Withers held a valid certificate in May 2006.

29. Petitioner has the burden of proof in this case and

must prove the charges set forth in the Administrative Complaint

by the standard of clear and convincing evidence. Department of

Banking and Finance, Division of Securities and Investor

Protection v. Osborne Stern & Co. , 670 So. 2d 932, 933 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292, 294 (Fla. 1987);

and McKinney v. Castor , 667 So. 2d 387, 388 (Fla. 1st DCA 1995).

30. Clear and convincing evidence is an intermediate

standard of proof which is more than the "preponderance of the

evidence" standard used in most civil cases, but less than the

"beyond a reasonable doubt" standard used in criminal cases.

See State v. Graham , 240 So. 2d 486 (Fla. 2d DCA 1970). Clear

and convincing evidence has been defined as evidence which:

[R]equires 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 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

fact 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. 4th DCA 1983)

(citations omitted).

31. The allegations in the Administrative Complaint which

must be proved by Petitioner are straight-forward and brief

enough to include herein in their entirety:

[Paragraph 3] On or about May 22, 2006,

[Withers] attempted to take her own life by

swallowing an excessive amount of

prescription drugs in the presence of

students and other members of the faculty.

[Count 1] [Withers] is in violation of

Section 1012.795(1)(c), Florida Statutes, in

that [Withers] has been guilty of gross

immorality or an act involving moral

turpitude.

[Count 2] [Withers] is in violation of

Section 1012.795(1)(i), Florida Statutes, in

that [Withers] has violated the Principles

of Professional Conduct for the Education

Profession prescribed by the State Board of

Education rules.

[Count 3] The allegations of misconduct set

forth herein are in violation of Rule

6B-1.006(3)(a), Florida Administrative Code,

in that [Withers] has failed 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.

32. Subsection 1012.795(1)(c), Florida Statutes, allows

for sanctions against a teacher who "[h]as been guilty of gross

immorality or an act involving moral turpitude."

33. Subsection 1012.795(1)(i), Florida Statutes, allows

the Education Practices Commission to take action against a

teacher who "[h]as violated the Principles of Professional

Conduct for the Education Profession prescribed by State Board

of Education rules."

34. As stated in Florida Administrative Code Rule

6B-1.006(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.

35. Neither "gross immorality" nor "moral turpitude" is

defined in Section 1012.795, Florida Statutes. However, Florida

Administrative Code Rule 6B-4.009 applies to disciplinary

actions by school districts. The Rule is instructive in

defining the terms used in Section 1012.795, Florida Statutes.

36. Immorality is defined in Florida Administrative Code

Rule 6B-4.009(2), as:

[C]onduct 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.

37. Gross immorality, which is not defined by statute or

rule, must be interpreted by its plain meaning, i.e., that it

involves immorality of an extreme nature. There is no clear and

convincing evidence in this case that Withers is guilty of gross

immorality.

38. Moral turpitude is defined in Florida Administrative

Code Rule 6B-4.009(6) as:

[A] crime that is evidenced by an act of

baseness, vileness or depravity in the

private and social duties, which, according

to the accepted stands 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.

39. Moral turpitude has also been defined by this tribunal

as anything contrary to justice, honesty, principle, or good

morals. See Gallagher v. Dupree , Case No. 99-2533 (DOAH

February 11, 2000). However, that definition does not include

the element of "crime" as set forth in the rule. There is no

evidence that Withers in this matter was convicted of a crime

related to her actions.

40. Withers did attempt to take her own life by taking

excessive amounts of pills while on the school campus. However,

whether she did so "in the presence of students or other members

of the faculty," is not clear. Certainly there were students

and faculty members on campus, and the evidence of that fact is

clear and convincing. But it is also clear that no students or

faculty members actually witnessed Withers taking the pills.

41. The remaining question, therefore, is whether Withers

made "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. Clearly, Withers made a conscious decision (albeit

somewhat affected by her intake and misuse of medications) to

take her own life on school grounds. Withers said the school

was the one place she was "ever truly happy." It was,

therefore, her desired location for ending her life.

43. Although Withers was lucid enough to make sure her

suicide attempt took place after the end of the school day, her

choice of a school classroom during a time that students would

likely be in the vicinity did not reasonably protect her

students from conditions harmful to their mental health. First,

there is no guarantee students could not have come into the

classroom, even if the door was locked. Second, it is extremely

likely that students would become aware of the fact of her death

(had she been successful) and would have had to deal with that

fact while taking final exams. Third, any students who used

that classroom may have some difficulty being in a room where a

person had died.

44. All in all, Withers' actions were not indicative of

the use of reasonable caution to protect students from harm.

Petitioner met its burden of proof regarding Count III of the

complaint.

45. Petitioner's recommended penalty in this matter

presumes a finding of guilt on all three counts in the

Administrative Complaint. For the reasons set forth above, only

one of the counts was proven by clear and convincing evidence.

Thus, the penalty should not be as severe as Petitioner

recommends.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Withers is guilty of misconduct and should be placed on

monitored probation for a period of two years. Further, a

letter of reprimand concerning her actions should be placed in

Withers' employee file.

DONE AND ENTERED this 25th day of March, 2009, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

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 25th day of March, 2009.

ENDNOTES

1/ Withers is very unclear as to when she actually drafted any

of the suicide notes, but there is reason to believe as least

some of them were done while at school on that day.

2/ While Neel was in the room, she remembers a student coming in

to give Withers a picture. Withers has no recollection of the

student coming in.

3/ Withers took her medications with her, ostensibly so that

they would not be accessible should any students come into the

portable while she was away.

4/ Reedy was justified in his concern. During the prior school

year, Withers had been asked to leave campus due to her illness.

However, when she reached her vehicle, Withers closed the door

and did not start her engine. The outside heat was

approximately 90 degrees and Withers soon passed out. Luckily,

fellow employees found her and were able to keep her stable

until paramedics arrived.

5/ Unless otherwise specified herein, all further references to

the Florida Statutes will be to the 2007 version.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

325 West Gaines Street, Room 224

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33605-0638

Kelly B. Holbrook, Esquire

Zachary A. Harrington, Esquire

Broad and Cassel

100 North Tampa Street, Suite 3500

Tampa, Florida 33602

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.