10-010022PL Dr. Eric J. Smith, As Commissioner Of Education vs. Diana O'Neill Status: Closed Recommended Order on Wednesday, April 27, 2011.

Summary: Respondent engaged in regretful behavior, but Petitioner did not prove, by clear and convincing evidence, that Respondent's teaching certificate should be permanently revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10022PL

)

DIANA O'NEILL , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 25 and 26, 2011, in Sarasota, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weav er, Esquire

Post Office Box 5675

Douglasville, G eorgia 30154

For Respondent: Anthony D. Demma, Esquire

Meyer, Brooks, Demma & Blohm, P.A.

Post Office Box 1547

Tallahassee, Florida 32 3 02

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists to

sanction Respondent, Diana O'Neill (hereinafter "O'Neill"), for

violation of Florida Statutes and Florida Administrative Code

Rules governing the conduct of teachers in the State of Florida,

and, if so, w hat sanction(s) should be imposed.

PRELIMINARY STATEMENT

An Administrative Complaint was issued by Petitioner,

Dr. Eric J. Smith, as Commissioner of Education (hereinafter the

"Department"), on April 2, 2010. The complaint alleges

violations of specified statutory and rule provisions by O'Neill

relative to her status as a teacher during the 2007 - 2008 school

year (the "School Year"). O'Neill timely filed an Election of

Rights in response to the complaint, indicating her desire for a

formal administrative h earing.

At the final hearing, the Department called the following

witnesses: Patricia Sherknus, mother of a student; Kathryn

DiPiero, mother of a student; Deborah Hatfield, mother of a

student; Tamara Lynn Cooke, teacher's aide; Cindi Anderson,

teacher' s aide; Shirley Shaw, physical therapist; Mary

Pillsbury, registered nurse; Lora White, superintendent of

Sarasota County Schools; and Theresa Baus, principal at Venice

Elementary School (the "School"). The Department's Exhibits 1,

2 and 6 were admitted i nto evidence.

O'Neill called four witnesses: Jacquelyn Ramsay, teacher's

aide; Joyce Shattuck, teacher's aide; Theresa Miers - Pandolfi,

speech and language pathologist; and O'Neill. O'Neill's

Exhibits 1 and 3 through 7 were admitted into evidence.

(All hearsay evidence was admitted subject to corroboration

by competent, non - hearsay evidence. To the extent such hearsay

evidence was not corroborated or did not support other competent

evidence, it will not be used as a basis for any finding

herein.)

The parties advised the undersigned that a transcript of

the final hearing would be ordered. They were given 20 days

from the date the transcript was filed at the Division of

Administrative Hearings to submit proposed recommended orders.

The Transcript was f iled on February 23, 2011. The parties then

requested and were granted leave to file their post - hearing

submissions on or before April 4, 2011. Each party timely

submitted a Proposed Recommended Order, and both parties'

submissions were given due conside ration in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. The Department is responsible for overseeing all

teachers and staff members of public schools in the State of

Florida. It is the duty and responsibility of the Department to

e nsure that all teachers follow the rules of professionalism and

conduct set forth in the Florida Statutes and the Florida

Administrative Code. The Department issues a teaching

certificate to each instructor employed by a school and has the

right to sanction te achers for wrongdoing. Sanctions may

include revocation of the teaching certificate.

2. At all times relevant hereto, O'Neill was employed by

the School as a teacher for severely and profoundly mentally

handicapped children. During the School Year, O'Ne ill had five

or six students in her classroom. Relevant to the discussions

herein, three of those students are identified as O . , A . , and T .

3. O'Neill has a master's degree in curriculum and

instruction, a b achelor's degree in science and education, and a

certification in elementary and special education. She has been

certified as a teacher in Florida for over 21 years. She was

hired by the School in 1990 and taught mentally handicapped

children there without interruption until January 29, 2008. In

all the years O'Neill taught at the School, she received only

superior evaluations and had never been subject to discipline.

4. During the School Year, however, there were a number of

complaints made against O'Neill by her classroom teacher's aides

that resu lted in O'Neill's suspension and removal from the

classroom. Those allegations form the basis of the Department's

decision to impose sanctions against O'Neill.

The Students

5. O. was seven years old during the School Year. At ten

weeks of age, O. had be en diagnosed with a genetic heart

disorder which necessitated open - heart surgery. As a result, O.

is developmentally delayed and has severe hearing loss and some

negative vision issues. O. understands some of the things going

on around her to a limited d egree. She says only one word,

"Go," and cannot generally communicate with others. She laughs

at certain things, feels pain, and is only slightly ambulatory.

O. is not toilet - trained and has no sense of danger or awareness

of potential harm around her.

6. A. was eight years old during the School Year. He has

an atypical type of Downs Syndrome, i.e., while he does not have

the physical appearance of a Downs Syndrome child, he does have

the low muscle tone. A. was only beginning to learn to walk

during the School Year, but he could see and hear well. He is

not toilet - trained and needs assistance with all aspects of his

daily activities. When he began walking, A. utilized a standard

walker, then graduated to a pull - behind walker that helped him

stand mo re upright. When A. would tire of walking, he would

simply drop to the ground wherever he was at that moment. Due

to some gastro - intestinal problems, A. had a G - T ube port

surgically inserted in his stomach. The G - T ube port must be

cared for in order to prevent infection.

7. T. is a profoundly mentally handicapped girl , who was

11 years old during the School Year. She has a condition called

hemimegalencephaly and experiences seizures. T. has only

minimal vision and cannot walk or talk. She can hear so unds and

directions and is able to move her hands and arms. When she was

very young, T. underwent an operation called a hemispherectomy

that resulted in a row of stitches across her entire skull. The

area around the stitches is very sensitive, and T. dis likes

having her head touched for any reason. During the School Year,

T. was placed in a device called a "Stander" that allowed her to

stand upright for limited periods of time. She seemed to like

the Stander and her parents approved of it, but that devi ce is

no longer used at the School. Due to the extensive nature of

her condition, all therapies for T. have been discontinued.

The Classroom

8. O'Neill's classroom during the School Year was set up

so that she could deal with the various issues confronti ng

severely mentally and physically handicapped children. The

classroom contained restrooms for toileting the children and

various equipment and furnishings to assist in their educational

training. The primary focus for O'Neill was to develop as much

ind ependent functioning for the students as possible based upon

their individual abilities. None of the students in O'Neill's

classroom was able to understand even rudimentary academic work,

so the focus was on various daily living needs.

9. There were two teacher's aides in the classroom during

the School Year: Cooke and Anderson. Cooke was basically

trained as an aide , beginning with her first position in 2004.

She attended college for three years, but did not graduate. She

also worked with O'Neill dur ing the 2006 - 2007 school year, i.e.,

the year immediately prior to the period at issue in this

proceeding. Anderson had previously worked in O'Neill's

classroom in the 2004 - 2005 and 2005 - 2006 school years. Anderson

worked at a different school in the 200 6 - 2007 school year. When

Anderson elected to return to the School in 2007, O'Neill (who

was the union representative at the School), provided her with

some assistance. The degree or kind of assistance is disputed,

but it is clear that O'Neill did not obj ect to Anderson

returning as her aide.

10. Both aides in O'Neill's class respected her and

believed she knew how to teach mentally handicapped children.

Both admitted learning a lot from O'Neill. The aides, however,

were somewhat intimidated by O'Neill, ostensibly due to

O'Neill's status as a union representative. There does not

appear to have been any social interaction between O'Neill and

the aides outside of the school setting.

11. It was the duty of the aides to assist O'Neill in the

classroom. O'Ne ill gave them certain tasks and expected the

aides to perform them independently and effectively. O'Neill

created a kind of calendar setting forth each aide's duties on a

weekly or monthly basis. The aides would perform many of the

same tasks done by O'N eill, and there appears to have been a

generally amiable relationship between the women during the

first part of the School Year.

12. In addition to the aides, there were other adult

visitors to the classroom. One of the students had personal

nurses who w ould come into the classroom on a regular basis to

care for the child. Physical therapists, occupational

therapists, speech and language pathologists, and other

teachers, as well as the School principal would be in the

classroom at any given time.

13. The room itself had two doors, one that opened up to

the hallway and one that connected the classroom with a large

therapy room. Neither of the doors was kept locked on a regular

basis, but sometimes the door to the hallway would be locked if

someone forgot to physically unlock it in the morning. There

was a window out to the hallway, but that window was covered up

with equipment and the blinds closed at all times.

O'Neill's Actions

14. In the first half of October 2007, during the School

Year, O'Neill deci ded to attempt the use of a gait belt on A. ,

based on A. 's actions. He would often refuse to cooperate when

moving from the classroom to another room, he would sometimes

wander off, and he would often just sit down wherever he was.

A gait belt is a strap that can be secured around the torso of

an individual and used as a means of assisting the person when

they are walking. Gait belts are used on physically handicapped

individuals, the elderly, and children. A. had become less

cooperative as he became mo re ambulatory, and he would often

attempt to elope instead of returning to the classroom. O'Neill

believed that a gait belt would be helpful in this regard.

15. One day as the lunch period was ending and the class

was preparing to return to the classroom, O'Neill wrapped the

gait belt around A. , just below his armpits. She did not put

the belt lower, because she was being careful to avoid A. 's

G - T ube site. As she held the door open for other children, she

felt A. starting to slip away and held the belt t aut so as to

keep him from eloping. At this point , the descriptions of the

event differ greatly between O'Neill and the aides.

16. O'Neill says she felt the belt get taut, then looked

down and saw that A. had lifted his feet off the ground by

bending his knees. She then lowered him to the ground and

directed him to stand. At the same time, she lifted up on the

belt to assist him with rising up. Once he was off the ground,

however, he refused to unbend his knees , and she was essentially

holding him up in the air again. She lowered the belt and again

ordered A. to stand up. She raised him up a third time, but he

still would not cooperate. Frustrated, she removed the belt and

got A. to return to the classroom by manually picking him up

every time he drop ped to the ground.

17. Cooke remembers A. being placed in the gait belt. As

O'Neill had said, A. was not being cooperative. However, in

response to him falling to the ground, O'Neill began to yank the

belt -- and A. -- up and down like a yo - yo, yelling at A . the entire

time. The situation made Cooke very uneasy, and she thought

O'Neill's actions were improper.

18. Anderson remembers O'Neill warning A. that if he did

not begin to walk back to the classroom, she (O'Neill) would get

the gait belt. A. would sit, O'Neill would "boot him in the

bottom," and he would only move a little. So, O'Neill

eventually got out the gait belt and put it on A. She then

started yanking A . up and down by the belt "like a yo - yo."

Anderson told O'Neill to stop because she bel ieved O'Neill's

actions were improper. O'Neill laughed at Anderson, but she

also stopped yanking on A .

19. There was some evidence of abrasions or bruises on A .

at about the time of the incident, but the testimony was

insufficient to prove that the marks were caused by the gait

belt.

20. The testimony of the two aides is more credible based

upon their corroboration of each other, their absence of

pecuniary interest in the matter, and their demeanor. This is

not to say that O'Neill does not remember the ev ent exactly as

she described it, only that the description provided by the

aides seems more believable in consideration of all the

testimony.

21. During the School Year, O'Neill began to strike the

students with various objects, e.g., a water bottle wrappe d in a

k oozie, a tennis ball sleeve wrapped in carpet, a small

catalogue or magazine, and a cardboard sign covered with a piece

of carpet. O'Neill referred to the striking as a "bop" on the

head or arm, done lightly and solely for the purpose of getting

t he child's attention or playing with them. Again, the aides'

perception differs. They remember the strikes to be much

heavier in nature, done in anger or frustration. There is no

way to ascertain with any degree of certainty as to how O'Neill

used the o bjects on the students.

22. T. had one physical condition that is of significance

to this matter. Due to her physical development, T. 's bottom

lip would often become dry and flaky. It was necessary to keep

ointment on her lip and to carefully cut off the dried skin at

times. T. 's grandmother would often come to the school and take

care of that task.

23. On at least one occasion, but likely more than once,

O'Neill pulled the dried skin off T. 's lip, rather than remove

it with scissors. O'Neill admits to pulling the skin off during

a school year prior to the year at issue. She says it was done

because she did not want T. to go out in public with an

aesthetically displeasing appearance. Cooke, however, remembers

numerous instances during the School Year i n which O'Neill would

"yank [the skin] right off her mouth." T. would utter a cry of

pain , and O'Neill would simply laugh as if it were a funny thing

she had done. Cooke said T. 's mouth would bleed when this

happened, but T. 's mother did not testify as t o whether she saw

evidence of bleeding when T. came back from school.

24. O'Neill would also be somewhat caustic in her comments

about the students. She often referred to O. as "Oblivia" and

said T. was "just sitting there, using up oxygen" (or something

to that effect). When an aide raised questions about striking

the children with objects, O'Neill said something akin to, "So

what, am I going to cause them brain damage?" O'Neill admits

that her language was sometimes curt and that she used dark

humor in order to deal with a very stressful job. She denies

ever saying anything meant to harm or demean the students she

taught.

25. O'Neill struck one student, T. , on one occasion,

although the exact nature of the event is disputed. One day

while attempting t o instruct T. how to distinguish between food

and drink, O'Neill got frustrated. Despite O'Neill's best

efforts, T. would not cooperate by selecting the appropriate

picture placed in front of her. After numerous attempts,

O'Neill finally gave up and brus hed her hand against T. 's head.

O'Neill described the action as a soft brushing of T. 's hair;

the aides remember it differently. They describe O'Neill

actually hitting T. with a backhand motion, striking her with

sufficient force to make T. 's head move s uddenly. The aides saw

that event as egregious enough to report immediately and went

straight to the principal's office.

26. The aides' reporting of the incident with T. was, in

their view, necessary in order to prevent O'Neill from further

inappropriate behavior. While they had been reticent to report

O'Neill earlier because she was a union representative and held

some degree of authority over them, they finally had seen too

much. The aides had reported O'Neill's behavior to the school

nurse earlier. A fter that report, O'Neill stopped her

questionable behaviors for a while. The behaviors returned

however, and apparently got worse.

27. In response to the report, the principal placed

O'Neill on administrative leave pending an investigation. She

had been aware of prior alleged incidents involving O'Neill, but

did not take any action at that time as it appeared the

situation had been resolved by the aides' reporting to the

nurse. However, the latest incident, an alleged assault on a

student, required imme diate action. As a result of her

investigation, the principal then withdrew O'Neill permanently

from the classroom.

28. O'Neill has a long history of working with mentally

handicapped students. She started work in this area while still

a high school stud ent and became enamored with the subject from

the beginning. In addition to her teaching duties, O'Neill has

also done extensive volunteer work with the special needs

students. It is quite obviously her passion.

29. O'Neill is married and has a stepson. Her mother now

resides in the Sarasota area. She does not acknowledge any

particular stressors in her life during the School Year, but her

behavior indicated otherwise. Besides the aforementioned

actions concerning her students, O'Neill's interaction wi th

other professionals was also somewhat strained. At least one

professional consultant who interacted with O'Neill during the

School Year reported that she was less flexible and agreeable

than in the past. O'Neill's aides saw a great difference in her

d emeanor and behavior in that year versus prior years.

30. O'Neill denies feeling "burned out" during the School

Year, but there are numerous indicators to suggest that her

behavior had changed. The nature of her actions, vis - à - vis her

students, who she se emed to love, suggests a high degree of

stress. Her behaviors during the School Year were so different

from her historical style that something must have been amiss in

her life.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdict ion over the parties to and the subject matter of this

proceeding. The proceedings are governed by s ections 120.57 and

120.569, Florida Statutes (2010) . Unless specifically stated

otherwise herein, all references to Florida Statutes shall be to

the 2010 codification.

32. The Department has the authority to investigate and

prosecute alleged violations of s ection 1012.795(1), Florida

Statutes, which states in pertinent part:

The Education Practices Commission may

suspend the educator certificate of any

pe rson as defined in s . 1012.01 (2) or (3)

for up to 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, a fter 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 board or public school in

any capaci ty requiring direct contact with

students for up to 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 emplo yed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(c) Has proved to be incompetent to teach

or to perform duties as an employee of the

public school system or to teach in or to

operate a private school.

* * *

(g) Upon invest igation, has been found

guilty of personal conduct that seriously

reduces that personÓs effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribe d by State Board of

Education rules.

(k) Has otherwise violated the provisions

of law, the penalty for which is the

revocation of the educator certificate.

(l) Has violated any order of the

Education Practices Commission. . . .

33. Florida Admini strative Code Rule 6B - 1.006 states in

pertinent part:

(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 ind ividual to revocation

or suspension of the individual educatorÓs

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 condit ions harmful

to learning and/or to the studentÓs mental

and/ or physical health and/or safety.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

34. The Department is acting pursuant to its authorit y in

seeking to terminate O'Neill's teaching certificate based on

alleged violations including, inter alia, exposing her students

to unnecessary embarrassment or disparagement and failing to

protect them from physical harm.

35. Because this case involves t he potential loss of a

license to engage in a business or livelihood, the Department is

required to prove all elements of the violations charged by

clear and convincing evidence. Dep't of Banking and Fin., Div.

of Sec. and Investor Prot. v. Osborne Stern and Co. , 670 So. 2d

932, 933 (Fla. 1966); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). The clear and convincing evidence standard is succinctly

described in Evans Packing Co. v. Dep ' t of Agric . and Consumer

Serv . , 550 So. 2d 112, 116 n.5 (Fla. 1st DC A 1989), quoting

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

as:

[C]lear 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

evidence must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts and issues. The evidence

must be of such weight that it produces in

the mind of the trier of fact the firm

belief of conviction, without hesitancy as

to the truth of the allegations sought to be

established.

36. As set forth above, the testimony of each of the

witnesses was deemed credible and each witness seemed to

distinctly remember the events in question, although their

memories were divergent in some respect s. It does not appear

that any of the witnesses (including O'Neill) was stating

anything other than their truthful perception of the events that

occurred. Each of the F indings of F act set forth above is based

on clear and convincing evidence.

37. Inasmuc h as the events were described differently by

the witnesses, it can only be surmised that although each of

them was telling the "truth" as they remember it, the actual

truth may be something else altogether. It is the belief of the

undersigned Administrat ive Law Judge that O'Neill used less than

professional language about her students, caused objects to come

into contact with her students' heads, used a gait belt on one

student, and brushed another student's head with her hand.

However, it is also clear that O'Neill had no intention of

hurting her students or abusing them in any way, although her

actions had that affect.

38. From the totality of the clear and convincing evidence

presented at final hearing, it is clear that O'Neill engaged in

activity duri ng the School Year that could seriously reduce her

effectiveness as a teacher if such behavior continued. However,

O'Neill's history and obvious passion for working with severely

handicapped children militate against permanent revocation of

her teaching c ertificate. While there is evidence of misconduct

in office by O'Neill, as contemplated by statute, the misconduct

was isolated to a relatively short period of time and appears to

have been caused by stress or other factors.

39. There is, therefore, insuf ficient clear and convincing

evidence to establish the proposition that permanent termination

of O'Neill's teaching certification is warranted.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Dr. Eric H. Smith, Commissioner of Education, imposing upon

Respondent, Diana O'Neill, the following penalty: Suspension of

Respondent's teaching certificate through the end of the

2010 - 2011 school year, followed by two yea rs of probation .

DONE AND ENT ERED this 27th day of April , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Pa rkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of April , 2011 .

COPIES FURNISHED :

Kathleen M. Richards, Executive Directo r

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Str eet

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

Ron Weaver, Esquire

Post Office B ox 5675

Douglasville, Georgia 30154

Anthony D. Demma, Esquire

Meyer, Brooks, Demma and Blohm, P.A.

Post Office Box 1547

Tallahassee, Florida 32302

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.