09-005271TTS Manatee County School Board vs. Peggy A. Hill Status: Closed Recommended Order on Tuesday, May 25, 2010.

Summary: Respondent slapped a student and caused a second student to fall from a chair onto the floor. Recommend termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-5271

)

PEGGY A. HILL, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 7, 2010, a formal administrative hearing was

conducted in Bradenton, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Brian C. Ussery, Esquire

Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez &

Hearing, P.A.

201 North Franklin Street, Suite 1600

Tampa, Florida 33601

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

STATEMENT OF THE ISSUE

The issue in this case is whether the Manatee County School

Board (Petitioner) has just cause to terminate the employment of

Peggy A. Hill (Respondent).

PRELIMINARY STATEMENT

By an Administrative Complaint dated September 9, 2009, the

Petitioner alleged that on May 4, 2009, the Respondent slapped a

male student in the face with sufficient force to leave a red

mark. The Respondent denied the allegations and requested a

formal administrative hearing. On September 25, 2009, the

Petitioner forwarded the dispute to the Division of

Administrative Hearings, which scheduled the hearing to commence

on November 10, 2009, in accordance with suggested dates of

availability provided by the parties.

On October 22, 2009, the Respondent filed an Unopposed

Motion to Continue Hearing, which was granted, and the hearing

was rescheduled for December 9, 2009.

On November 24, 2009, the Petitioner filed a Motion to

Amend the Administrative Complaint to include an allegation that

the Respondent pulled a chair out from under a male student,

causing him to fall to the floor. The Respondent did not oppose

the motion to amend, but on December 2, 2009, filed a Joint

Motion to Continue Hearing to provide an opportunity to conduct

discovery related to the new allegation. The Joint Motion to

Continue Hearing was granted, and the hearing was rescheduled to

commence on April 7, 2010.

At the hearing, the Petitioner presented the live testimony

of 12 witnesses, one additional witness by deposition, and had

Exhibits 1 through 3 admitted into evidence. The Respondent

testified on her own behalf, presented the testimony of three

witnesses by deposition, and had Exhibits 1, 2, and 5 admitted

into evidence.

A Transcript of the hearing was filed on April 26, 2009.

Both parties filed Proposed Recommended Orders that have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner has employed the Respondent as a teacher

since October 1997. As a member of the Petitioner's

instructional staff, the Respondent's employment can be

suspended or terminated only for just cause.

2. During the 2008-2009 school year, the Respondent was

assigned to teach at Palmetto High School.

3. On May 4, 2009, the Respondent overheard a male student

entering her fourth period science class and using profanity

while talking with his classmates.

4. The Respondent asked the student to refrain from the

conversation. When he failed to comply with her request, the

Petitioner slapped the student on the left side of his face with

the open palm of her right hand. A red mark appeared on the

student's face at the location of the physical contact.

5. The Respondent's assertion that the physical contact

with the student was minimal was not supported by the greater

weight of the evidence and has been rejected.

6. The Petitioner prohibits corporal punishment. Teachers

who violate the Petitioner's prohibition against corporal

punishment have typically been terminated from employment.

7. In compliance with the Petitioner's prohibition, the

Palmetto High School student disciplinary policy did not

authorize corporal punishment as a penalty for classroom

profanity.

8. According to school policy, the punishment for a first

incident of profanity in the classroom was a one-day time out

for the student, and a second incident of classroom profanity

was punishable by a two-day time out.

9. On May 8, 2009, the Respondent was placed on paid

administrative leave pending the outcome of an internal

investigation conducted by Debra Horne, a specialist in the

Petitioner's Office of Professional Standards.

10. Upon completion of Ms. Horne's investigation, school

officials and school board personnel recommended to

Superintendent Timothy McGonegal that the Respondent's

employment be terminated.

11. After discussions with the president of the teacher's

union, Superintendent McGonegal attempted to resolve the matter

without terminating the Respondent's employment.

12. Superintendent McGonegal recommended that the

Respondent be suspended without pay for a period of 20 days,

that she participate in anger management training, and that she

return to an annual contract.

13. The Respondent rejected the superintendent's

disciplinary recommendation and requested a formal hearing. The

request was forwarded to the Division of Administrative

Hearings, and the hearing was scheduled.

14. Prior to the hearing, the Respondent was transferred

to Braden River Middle School for the 2009-2010 school year.

15. On or about October 20, 2009, the Respondent was

attempting to teach the students in her third period science

class. One student was behaving in a disruptive manner while

the Respondent was teaching and was leaning forward in his chair

with the rear legs of the chair off the floor.

16. The Respondent approached the misbehaving student from

behind and put her hands on the back of his chair.

17. The student fell from the chair and onto the floor.

The student testified that he was embarrassed when he fell, but

the evidence established that he was laughing at the time of the

event, as were some of his classmates.

18. The Petitioner has alleged that the Respondent pulled

the chair out from underneath the student, thereby causing him

to fall to the floor. The Respondent testified that she did not

pull the chair out from underneath the student.

19. At least one student present at the time testified

that the Respondent grasped the back of the student's chair and

pulled it away from the student.

20. At least one student saw the Respondent with her hands

on the chair, but did not see her pull the chair from underneath

the student.

21. The Respondent testified that students routinely fell

from the chairs onto the floor because the chairs slipped on the

tiled classroom floors. There was no credible evidence that

students routinely fell from the chairs onto the floors. There

was no evidence that the Respondent reported any safety concern

to school officials related to the allegedly slipping chairs.

22. The Respondent testified that she was concerned the

chair was going to slide out from underneath the student and

that she placed her hands on the back of the chair in an effort

to have the student sit properly and to prevent the chair from

slipping. There was no credible evidence that the Respondent

directed the student to sit properly prior to placing her hands

on his chair, and her testimony on this point has been rejected.

23. The evidence presented at the hearing was insufficient

to establish whether the Respondent pushed or pulled the chair

once she placed her hands on the chair back. However, it was

clear that the Respondent's actions precipitated the student's

fall from the chair to the floor, because the fall occurred

immediately after the Petitioner placed her hands on the back of

the chair.

24. Other students in the class reported the incident to

another Braden River Middle School teacher who forwarded the

information to appropriate school personnel.

25. On October 22, 2009, the Respondent was placed on paid

administrative leave pending the outcome of another internal

investigation conducted by Ms. Horne.

26. After the conclusion of Ms. Horne's investigation,

school officials and board authorities recommended to

Superintendent McGonegal that the Respondent's employment be

terminated. Superintendent McGonegal agreed with the

recommendation.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2009).

28. The Petitioner has the burden of proving, by a

preponderance of the evidence, the allegations underlying the

proposed termination of the Respondent's employment as set forth

in the Administrative Complaint. McNeill v. Pinellas County

School Board , 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School

Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990). As set

forth herein, the burden has been met.

29. At all times material to this case, the Respondent was

employed by the Petitioner as a member of the instructional

staff. Subsection 1012.33(1)(a), Florida Statutes (2009),

states that persons so employed may be dismissed during the term

of the contract only for just cause and provides as follows:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education:

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

30. Section 6.11(1) of the Policies and Procedures Manual

of the School Board of Manatee County provides as follows:

Suspension or Termination of Employees:

Any employee of the School Board may be

temporarily suspended, with or without pay,

or permanently terminated from employment,

for just cause including, but not limited

to, immorality, misconduct in office,

incompetence, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude,

violation of the Policy and Procedures

Manual of the School District of Manatee

County, violation of any applicable Florida

statute, violation of the Code of Ethics and

the Principles of Professional Conduct of

the Education Profession in Florida.

31. The Amended Administrative Complaint asserts that the

Respondent's action constitute immorality and misconduct in

office. Florida Administrative Code Rule 6B-4.009 provides the

following relevant definitions:

(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.

(3) Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, F.A.C., which is so serious as to

impair the individual’s effectiveness in the

school system.

32. The incidents established by a preponderance of the

evidence presented in this case do not constitute immorality.

The evidence fails to establish that the Respondent's conduct

was "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." It should be

noted that this alleged violation was not included within the

first Administrative Complaint, but was incorporated when the

Administrative Complaint was amended to set forth the allegation

that the Respondent intentionally pulled the chair from under

the misbehaving student, an allegation that was not proven at

the hearing.

33. As to misconduct in office, the Code of Ethics of the

Education Profession in Florida, set forth at Florida

Administrative Code Rule 6B-1.001, provides as follows:

6B-1.001 Code of Ethics of the Education

Profession in Florida.

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator’s primary professional

concern will always be for the student and

for the development of the student’s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one’s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

34. The Principles of Professional Conduct for the

Education Profession in Florida are set forth at Florida

Administrative Code Rule 6B-1.006 and provide, in relevant part,

as follows:

6B-1.006 Principles of Professional Conduct

for the Education Profession in Florida.

(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 as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental

and/or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

35. The evidence establishes that the Respondent committed

misconduct in office, violating the Principles of Professional

Conduct for the Education Profession in Florida, by slapping a

high school student and by causing a middle school student to

fall from a chair onto the floor. The Respondent failed to make

reasonable efforts to protect the students from conditions

harmful to learning and the students' health and exposed the

students to unnecessary embarrassment or disparagement. The

evidence establishes that the misconduct was sufficiently

serious to impair the Respondent's effectiveness as a teacher in

the school system.

36. Additionally, the Respondent violated the Petitioner's

policy prohibiting corporal punishment when she slapped the

Palmetto High School student. Although Superintendent McGonegal

initially attempted to resolve the incident through disciplinary

action short of employment termination, the policy violation is

sufficient under Section 6.11(1) of the Policies and Procedures

Manual of the School Board of Manatee County to warrant

termination of employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Manatee County School Board

enter a final order terminating the employment of Peggy A. Hill.

DONE AND ENTERED this 25th day of May, 2010, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 May, 2010.

COPIES FURNISHED :

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

Brian C. Ussery, Esquire

Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez &

Hearing, P.A.

201 North Franklin Street, Suite 1600

Tampa, Florida 33601

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Tim McGonegal, Superintendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 34206-9069

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.