13-001505TTS Duval County School Board vs. Beverly Howard Status: Closed Recommended Order on Tuesday, October 15, 2013.

Summary: Acts of persistently striking kindergarten student with book were cause for termination under the Duval County Teacher Tenure Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 13 - 1505TTS

BEVERLY HOWARD ,

Respondent .

/

RECOMMENDED ORDER

On August 27 and 28, 2013, a duly - noticed hearing was held

in Jacksonville, Flo rida, before F. Scott Boyd, an

administrative l aw j udge assigned by the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Rita Mairs, Esquire

Katy A. Harris, Esquire

City of Jacksonville

Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

For Respondent: David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

S TATEMENT OF THE ISSUE

Whether Respondent's employment as a teacher by the Duval

County School Board should be terminated for the reasons

specified in the Notice of Termination of Employment Con tract

and Immediate Suspension w ith out Pay dated March 27, 2013.

PRELIMINARY STATEMENT

The Duval County Superintendent of Schools sent a Notice of

Termination of Employment Contract and Immediate Suspension

without Pay to Respondent on or about March 27, 2013, advising

her of the alleged grounds for termination, and of her right to

an administrative hearing. On April 8, 2013, Respondent

requested an administrative hearing. The matter was referred to

the Division of Admini strative Hearings (DOAH) for assignment of

an administrative law judge on April 25, 2013. A fter a

continuance, the case was schedu led for final hearing on

August 27 and 28, 2013.

The parties entered into a stipulation, which was accepted

at hearing, and facts contained therein have been included among

the Findings of Fact below. Petitioner pres ented the testimony

of 12 witnesses, including former supervisors, pare nts, and

students, and offered E xhibits P - 1 through P - 19, which were

admitted into evidence. Respondent testified on her own behalf

and did not of fer any exhibits.

The three - volume tra nscript of the hearing was filed at

DOAH on September 12, 2013. A Joint Motion for Extension of

Time to File Proposed Recommende d Orders was filed on

September 18, 2013. This M otion was granted and the deadline

was extended to September 30, 2013. Petiti oner filed a Proposed

Recommended Order late, and it was not considered. Respondent

did not file a p roposed r ecommended o rder.

FINDINGS OF FACT

1. The Duval County School Board (School Board) is charged

with the responsibility to operate, control, and su pervise all

free public schools within the School Distri ct of Duval County,

Florida.

2. Ms. Beverly L. Howard has been employed by the Duval

County School Board as a classroom teacher for over 32 years.

She went to Paxton Senior High School and then to F lorida A & M

University, graduating with a b achelor of s cience degree in

e lementary e ducation.

3. The School Board seeks to terminate Ms. HowardÓs

employment. Her substantial interests are affect ed by this

intended action.

4. Ms. Howard has a history of past misconduct and

disciplinary action. While teaching at Hyde Grove Elementary

School in 1992, Ms. Howard received three memoranda from

Principal Theresa Stahlman concerning her interac tions with

parents and students and her teaching performance. Amon g other

comments, Ms. Stahlman noted that Ms. Howard needed significant

improvement to Ðshow sensitivity to student needs by maintaining

a positive school environment.Ñ Ms. Stahlman testified that

Ms. Howard exhibited a Ðvery loud punitive behavior manage ment

styleÑ and that she wanted to help Ms. Howard improve. A note

at the end of one memorandum indicates that Ms. Howard had said

that she did not need cadre assistance and that she would

request assistance if she needed it. A note on another

memorandum indicates that Ms. Howard refused to sign it.

5. Ms. Howard testified at hearing that the things

Ms. Stahlman wrote in the three memoranda were lies. Ms. Howard

said that Ms. Stahlman wa s a racist and was prejudiced.

6. Ms. Stahlman gave Ms. Howard an unsatisfactory

evaluation. The next year, Ms. Howard got an option to go to

another school.

7. On March 8, 1995, a conference was held between

Ms. Howard, a parent of one of her student s, and Principal Debbie

Sapp. The student had alleged that Ms. Howar d had pushed her

down. Principle Sapp noted in a memorandum that Ms. Howard

Ðvehemently denied this, in an extremely rude and unprofessional

mannerÑ and said that she would never put her hands on a student.

Principal Sapp advised Ms. Howard that being ar gumentative and

defensive with parents was unacceptable and only made bad

situations worse.

8. On March 10, 1995, Principal Sapp was making morning

classroom checks when she overheard Ms. Howard repeatedly yell at

a student, ÐGet out of my classroom.Ñ Ms . HowardÓs final comment

was ÐGet out before I throw you out.Ñ Principal Sapp then

entered the classroom and saw a student standing at her desk,

about to leave. Ms. Howard said that the student had been

misbehaving all morning. Principal Sapp told the s tudents that

she did not expect teachers to yell at them or threaten them and

admonished them to behave. In a memorandum to Ms. Howard,

Principal Sapp wrote that Ms. Howard needed to work on

controlling her temper, noted that Ms. HowardÓs classroom was

fr equently in disarray, and stated that yelling at students and

threatening them was inappropriate behavi or that only made things

worse.

9. Ms. Howard testified at hearing that when Ms. Sapp came

down the hall and heard a teacher y elling, Ms. Sapp never cam e

face - to - face with her, and that it could have been the voice of

anothe r teacher which Ms. Sapp heard.

10. On May 27, 2003, the Office of Professional Standards

investigated a complaint from a studentÓs parent that Ms. Howard

had grabbed the student by t he arm, choked him, and caused him

to vomit. The student said that Ms. Howard dug her fingernails

into his arm when he got up to retrieve a paper that another boy

had taken from his desk. He said that her nails were hurting

him, so he began hitting Ms. H oward. He then said that she put

her hand around his throat and made him choke. He said he felt

sick and threw up. Ms. Howard denied the accusation. She

stated that the student was in a fight with a female student in

her class and that she separated th em. She said she asked the

female student to sit down and attempted to gain control of the

male student. Ms. Howard showed the investigator a scratch on

her thumb that she said was made by the student. She stated

that after she assisted the student to h is desk he began gagging

and attempting to vomit. She said that only saliva came up and

she asked him to go to the bathroom to clean himself up. The

investigation was closed as Ðunable to prove or disprove.Ñ

11. The Office of Professional Standards inve stigated

allegations of unprofessional conduct against Ms. Howard on

April 28, 2004. The mother of student T.J. had left a message

with Ms. Howard to call her to talk about scratches on T.J.Ós

arm. Ms. Howard called the mother at her workplace, Universit y

of Florida Jacksonville Physicians. The mother asked Ms. Howard

if she knew where the scratches came from, and Ms. Howard said

they came from an incident in the library. The mother could

then hear Ms. Howard asking T.J. and another girl in her class

ab out what had happened. The other girl said that T.J. had done

things to cause the incident. Ms. Howard immediately relayed to

the mother that the i ncident had been T.J.Ós fault.

12. The mother became upset, realizing that Ms. Howard had

not been present and yet was completely accepting the other

girlÓs version of what had happ ened. The mother then told

Ms. Howard that this was not right and that she would go to see

the principal. Ms. Howard told the mother that she could talk

to whomever she wanted to, and then put the phone down as if

intending to disconnect the call, but the mother could still

hear what was going on in the classroom. Ms. Howard said,

ÐClass, isnÓt T.J. a nasty little girl?Ñ The class responded,

ÐYes, maÓam.Ñ The mother heard Ms. Ho ward say, ÐClass, donÓt I

send home paperwork?Ñ The children responded, ÐYes, maÓam.Ñ

The mother could hear T.J. trying to ask Ms. Howard a question,

and Ms. Howard saying, ÐGo sit your behind down.Ñ

13. At this point the mother became angry that Ms. Ho ward

was verbally abusing her child in front of the other children.

She asked her ÐleadÑ at her workplace to continue to monitor the

call. She immediately left, and drove directly to the school to

talk to the principal, Ms. Blackshear.

14. The investiga tor received statements from the motherÓs

lead and several co - workers which contained additional

statements Ms. Howard made to the students. Ms. Howard said:

[T.J.] get out of my face, you can go home

and tell your mama all of those lies. Yeah,

she is p robably going to want to have a

conference with Ms. Blackshear. Go ahead

and get out of my face with your nasty

disrespectful face. Ms. [T.J.] sit down, I

have already told your mama that you will be

retained in the second grade. You want to

be all that , well I can be more.

15. The investigator determined that the phone number

shown on the workplace c aller I D feature was the number of

Ms. HowardÓs cell phone.

16. When interviewed by the Office of Professional

Standards, Ms. Howard denied making the ab ove comments regarding

T.J. She stated that T.J. had been a problem all year and that

the studentÓs mother Ðgot an attitudeÑ with her. Ms. Howard did

admit she placed a Ðshelter kid,Ñ who was a juvenile inmate,

outside of her classroom without supervisio n Ðfor a few minutes.Ñ

She stated that everyone in the school knew it was a bad class,

but she was being blamed. Ms. Howard testified at hearing that

the lead and co - workers of T.J.Ós mother were lying when they

made statements about her interactions wit h the students in her

classroom. She said she put the phone in her purse, and the

purse in her desk drawer, and that no one could have heard any

conversations in the classroom.

17. Student T.J. was then reassigned f rom Ms. HowardÓs

class.

18. At hearing , T.J. tes tified that when she was in

Ms. HowardÓs third - grade class, she Ðgot her card flipped to

pinkÑ on a daily basis (this color indicating the worst conduct).

She admitted that she deserved this sometimes, but not all the

time. She testified that s he remembered that Ms. Howard used to

pinch her arm when she was Ðin trouble.Ñ T.J. remembered that

Ms. Howard called her names, saying she was nasty, disrespectful,

and in need of home training, in front of the other students.

She testified that she had problems in Ms. HowardÓs class because

she needed to go to the bathroom frequently and Ms. Howard would

only let her go once a day. She would sometimes wet her pants.

She then would have to wait until she was allowed to go to the

office to call her moth er to get clean clothing.

19 . On May 17, 2004, the Duval County School Board

administered discipline to Ms. Howard for her interactions with

her class as reported by T.J.Ós mother and her co - workers. She

was issued a written reprimand, suspended for five days without

pay, and required to attend an anger management session.

Ms. Howard was informed that she had been given the opportunity

of constructive discipline instead of a reduction of pay or

dismissal to afford her progressive discipline, and that any

further improper conduct on Ms. HowardÓs part would subject her

to more severe disciplinary action. The written reprimand set

forth Florida Administrative Code R ule 6B - 1.006(3)(a) in its

entirety, with its requirement that she Ðmake reasonable effort

to protect the student from conditions harmful to learning and/or

to the studentÓs mental and/or physi cal health and/or safety.Ñ

Ms. Howard signed a Receipt and Acknowledgement that she re ceived

a copy of the reprimand.

20. O n September 6, 2012 , s hortly aft er the star t of the

2012 - 2013 school year , Louis Sheffield Elementary School held an

open - hou se night. Ms. Lindsey Connor, a ssistant p rinciple at the

school, credibly testified to Ms. HowardÓs response to a parentÓs

assertion that Ms. Howard had refused t o allow her son, T.S., to

go to the bathroom and that he had wet his pants in her class.

Ms. Howard said to the mother of T.S., ÐWhat seems to be the

problem?Ñ in a harsh tone. After some discussion, Ms. Howard

said something to the effect of: ÐYour son is a liar. He lies.

He doesnÓt need to be in my classroom anymore.Ñ

21. Ms. Howard denied that she ever told the mother of T.S.

that her child was a liar. She stated that that would have been

unprofessional. Ms. Howard testified that Ms. ConnorÓs sta tement

that this had happened was a lie and that Ms. Connor was always

taking the parentsÓ side. Ms. Howard testified that she never

prevented a child from going to the bathroom and that T.S. just

wet himself.

22. Ms. Conner received numero us complaints about

Ms. Howard from parents of Ms. HowardÓs kindergarten students.

Ms. Connor received six requests from parents to remove their

children from Ms. HowardÓs class. Ms. Connor testified that this

was an unusually high number of requests and that she was

concerned.

23. J.F. was a student in Ms. HowardÓs kindergarten class

who exhibited behavioral problems. She would do acrobatic flips

in the classroom and would tie her shoelaces to the chairs. She

appeared to be hyper - active and would fall out of her ch air when

she was at her seat. J.F. would go all around Ms. HowardÓs

classroom and did no t listen to Ms. Howard. She would back - talk

Ms. Howard and showed her no respe ct. J.F. was frightened of

Ms. Howard and often cried. Ms. Howard testified that she w anted

to get specialized treatment or placement for J.F. but that the

parents would not agree.

24. In response to a complaint from the parents of J.F.,

Ms. Connor asked Ms. Howard to prepare a chart on which stickers

could be placed to document J.F.Ós pro gress in school.

Ms. Connor asked Ms. Howard to bring the chart to a meeting to

discuss how to help J.F. advance. Ms. Howard did not bring

anything to the meeting and said nothing about how she might be

able to help J.F.

25. The mother of W.B. te stified that her son was in

Ms. HowardÓs kindergarten class and that he loved Ms. Howard as a

teacher. On one occasion in Ms. HowardÓs classroom , W.B.Ós

mother observed Ms. Howard pull J.F. by the arm over to her when

J.F. had gotten into trouble. The mother st ated that J.F.

appeared scared and she would not have liked Ms. H oward to do

that to her child.

26 . In response to a call from the parent of C.B., a

student in Ms. HowardÓs class , Ms. Connor suspected that

Ms. Howard may have hit one or more of her kinder garten students

with a book. In a discussion with the Professional Standards

office, Ms. Connor was told that she should investigate, advise

the teacher, and contact the Department of Children and Families.

Ms. Conner conducted interviews with students a ssigned t o

Ms. HowardÓs class in the presence of a witness and took notes as

to what the students told her. She testified that she brought

the students into her office individually, that they didnÓt know

beforehand what she was going to talk to them about , and that

they had no opportunity to collaborate or coordinate their

statements.

2 7 . After conducting in terviews with the children,

Ms. Connor advised Ms. Howard of an allegation that Ms. Howard

struck J.F. on multiple occasions with a book. Ms. Howard

responded that she would not provide a written statement becau se

she had never hit a student.

2 8 . Ms. Connor notified the Department of Children and

Families. T he report and testimony of the c hild protective

i nvestigator indicated that J.F was open, happ y, and smiling

during the Ðnon - threateningÑ portions of the interview, but the

investigator testified that when asked about Ms. HowardÓs class,

J.F. became nervous, chewed on the ends of her clothes, began to

fidget , and asked if Ms. Howard was going to kn ow what J.F. was

saying. The investigator interviewed several students in the

class. The report indicated that J.F. was free of suspicious

marks or bruises. When the investigator interviewed Ms. Howard,

she denied ever hitting J.F. with a book or slammi ng her down in

her seat when J.F. was misbehaving. Ms. Howard indicated that

she was close to retirem ent and would not hit a child.

2 9 . Student J.F. testified at hearing that she did not like

Ms. Howard as her kindergarten teacher because Ms. Howard Ðdid

not want to be nice to me.Ñ She testified that Ms. Howard Ðhurt

me.Ñ She testified that Ms. Howard Ðhit me on the leg with a

book.Ñ She testified that Ms. Howard hit her with the book

because Ms. Howard had told her to get down on the carpet. She

held up five fingers when asked how many times Ms. Howard had hit

her. During cross - examination, she testified that she had been

hit five times in succession on a single occasion. On redirect,

she testified that she had be en hit on five separate days.

30 . S tude nt K.D., age d six , testified that J.F. did bad

things in Ms. HowardÓs class. He testified that J.F. put her

head in her shirt. He testified that the class would sit on the

carpet every day for a little while. He testified that sometimes

J.F. would s tay on the carpet when she was supposed to go to her

seat. He said that J.F. got spanked on her back by Ms. Howard

with a book. He testified that Ms. Howard hit her on more than

one day, and when asked how many days, said Ðsixteen.Ñ He did

not know how he knew it was 16 days. He later testified that Ms.

Howard hit her Ðsixteen times every day.Ñ

3 1 . The father of student J.C.M. testified that he

transferred J. C.M. from a Montessori school to Louis Sheffield

Elementary because his wife was going to have another baby and

that school was closer to their home, which would mean a shorter

drive for her. The first day that J.C.M. went to Ms. HowardÓs

class was February 11, 2013. The parents immediately began

receiving Ðagenda notesÑ from Ms. Howard saying tha t J.C.M. was

not behaving well. The father testified that J.C.M. did not want

to go back to Ms. HowardÓs class the next few days and would cry

when they dropped him off. The father testified that since

J.C.M. had never been a discipline problem and had d one well at

his prior school, he sent a note in after the second day to

schedule a conference with Ms. Howard. The father testified that

on the second or third day , J.C.M. came home complaining that his

arm hurt, but when questioned as to what had happene d, J.C.M.

gave different stories. First he said a lady had grabbed his ar m

in the classroom. When asked ÐWhat lady?Ñ J.C.M. said that it

was a friend, another student. Later , he said that the injury

had happened on the playground. Still later , he said that the

injury was caused by his grandfather. The father was confused by

these different answers. When the parents received no response

to the request to meet with Ms. Howard, the parents went to the

school and met with Ms. Connor, who advised them that Ms. Howard

was no longer in the classroom, but she did not tell them why.

Since J.C.M. now had a new teacher, his parents did not ask that

he be moved to another class.

3 2 . Student J.C.M., age d six, testified that he had been

moved into Louis Sheffield Elementary in the middle of the school

year and only had Ms. Howard as his teacher for a few days.

J.C.M. testified that on one of those days, ÐI was in the door

and then I -- I didnÓt kicked it. I didnÓt kicked it, I touched

it with my feet.Ñ He testif ied that Ms. Howard grabbed him and

put him by her desk or table and that his Ðarm hurted for a

little bit Î - a little bit long. Ñ He testified that he saw

Ms. Howard hit J.F. on the he ad with a book because she was no t

writing when she was supposed to be writing. He testified that

on a later day Ms. Howard also hit him on the head with a book

when he was on the rug, but he forgot if he was supposed to be on

the rug or not.

3 3 . Ms. Howard testified at hearing that she never put her

hands on any of the stu dents. She did not know why the children

would say that she had, except that they had been coerced to say

it. She testified that she had been under a doctorÓs care and

that she had had back surgery and that her medical condition

affected her ability to l ift or throw items. She testified she

could n o t bend over or lift heavy objects because it probably

would have torn her sutures. She testified that she had been

under a doctorÓs care since January 30 and that it took her until

February 14, the day she wa s reassigned, to recover. She

testified that not only was it not in her character to hit a

child, she was physically incapable of doing so at the time.

3 4 . The testimony of Ms. Connor that the kindergarten

children had no opportunity to coordinate their statements and

that they did not even know in advance why she wanted to talk to

them is credited. Ms. ConnorÓs notes as to what each child told

her supplement and corroborate the testimony of the children

later at hearing. Although the direct testimony a s to

Ms. HowardÓs actions all came from these young children, they

were capable of observing and recollecting what happened in

their kindergarten class and capable of relating those facts at

hearing. Their responses to questions at hearing showed that

the children had a moral sense of the obligation to tell the

truth. There was no objection from Respondent as to the

childrenÓs competency, and they were competent to testify.

These young childrenÓs accounts of events were sufficiently

credible and corrobor ative to prove that Respondent struck J.F.

with a book on multiple occasions. There was credible testimony

that J.F. was struck on her legs with a book when she would not

get down on the carpet as she was supposed to , was struck on her

back with a book wh en she would not get up off of the carpet as

she was supposed to , and was struck on the head with a book when

she would n o t write as she was supposed to. These physical

contacts took place in front of other students. While the exact

number of times she w as struck was not clear, the testimony that

it was deliberately done and was constantly repeated is

credited.

3 5 . Ms. Sonita Young is the c hief h uman r esource o fficer

of Duval County Schools. She reviewed Ms. HowardÓs personnel

file in making her recomme ndation to the Superintendent that

Ms. Howard be suspended withou t pay pending termination.

Ms. HowardÓs employment record, including both performance

issues and disciplinary issues, was considered in determining

the appropriate recommendation to be made to the Superintenden t

and ultimately to the Board.

3 6 . A Notice of Termination of Employment Contract and

Immediate Suspension w ithout Pay from her position as a

kindergarten teacher at Louis Sheffield Elementary was presented

to Ms. Howard on March 27, 2 013. The Notice alleged that

Respondent had violated certain provisions of the Code of

Ethics, contained in Florida Administrative Code Rule 6A - 10.080,

and a Principle of Professional Conduct for the Education

Profession in Florida, contained in rule 6A - 1 0.081.

3 7 . Ms. Howard challenged the grounds for her termination

and sought a hearing before an a dministrative l aw j udge with the

Division of Administrative Hearings.

3 8 . The rules cited above were adopted by the State Board

of Education and relate to th e public schools or the public

school system. Rule 6A - 10.081 was renumbered, but is

substantively identical to the rule cited to Ms. Howard earlier

in her May 17, 2004 , Written Reprimand. Ms. Howard was well

aware of her responsibility to protect student s from conditions

harmful to learning or to studentsÓ mental or physical health or

safety, because she had previously been di sciplined for failing

to do so.

3 9 . Ms. HowardÓs actions in striking J.F. with a book

failed to protect her students from conditio ns harmful to their

mental and physical health and safety i n violation of rule 6A -

10.081.

40 . Ms. HowardÓs constantly repeated actions in striking

J.F. constitute pe rsistent violation of the rule and are cause

to terminate her employment as a teacher.

4 1 . Ms. HowardÓs deliberate actions in striking J.F.

constitute willful refusal to obey the rule and are cause to

terminat e her employment as a teacher.

CONCLUSIONS OF LAW

4 2 . The Division of Administrative Hearings (DOAH) has

jurisdiction over the subjec t matter and par ties in this case,

pursuant to s ection 5 of the Duval County Teacher Tenure Act

(Tenure Act), chapter 21197, Laws of Florida (1941). Consistent

with the Tenure Act, and pursuant to section 120.65(11), Florida

Statutes (2012), the Duval Cou nty School Board has contracted

with DOAH to conduct these hearings.

4 3 . Petitioner seeks to terminate Respondent's employment,

which does not involve the los s of a license or certification;

therefore, Petitioner has the burden of proving the allegations

in its Notice of Termination of Employment Contract and

Immediate Suspension without Pay by a preponderance of the

evidence, as opposed to the more stringent standard of clear and

convincing evidence. See McNeill v. Pinellas Cnty. Sch. Bd. ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of

Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v.

Sch. Bd. of Dade Cnty. , 569 So. 2d 883, 884 (Fla. 3d DCA 1990) .

4 4 . Respondent has standing entitling her to a hearing

under the D uval County Teacher Tenure Act.

Applicable Law

4 5 . The Tenure Act was enacted into law in 1941. It has

occasionally been amended over the years through special act.

Chapters 70 - 671, 7 2 - 576, 84 - 425, and 89 - 489, Laws of Florida,

have no relevance to this case, but s ection 2 of c hapter 81 - 372,

Laws of Florida, amended section 5 of the Tenure Act to make

chapter 120 procedures applicable. 1/ See Denson v. Sang , 491

So. 2d 288, 289 (Fla. 1s t DCA 1986).

4 6 . Chapter 98 - 468, Laws of Florida, did not directly

amend the Tenure Act, but must also be considered. It provided

in pertinent part:

Notwithstanding any special act that applies

to Duval County, sections 231.29 and 231.36,

Florida Statute s, as amended by chapter 97 -

310, Laws of Florida, apply to school

district personnel in Duval County; however,

persons employed continuously by the

district school board of Duval County before

July 1, 1998, may retain all rights that

they have under chapte r 21197, Laws of

Florida, 1941, as amended.

Pursuant to this Special Law, school district personnel in Duval

County are generally subjec t to sections 231.29 and 231.36 .

However, individuals continuously employed prior to July 1,

1998, were "grandfather ed in,Ñ and for them, rights afforded

under th e Tenure Act continue to apply.

4 7 . The evidence shows that Respondent has been

continuously employed as a teacher with the Duval County School

Board for over 32 years. She has completed her period of

probati on. PetitionerÓs actions to terminate Respondent must

therefore comply with applicable provisions of the Tenure Act.

Altee v. Duval County Sch. Bd. , 990 So. 2d 1124, 1125 n.1 (Fla.

1st DCA 2008)(quoting s ection 3 of the Tenure Act to note that a

tenured teacher Ðshall not be discharged or demoted except for

one or more of the causes specified in Section 4 of this ActÑ).

4 8 . The Tenure Act comports with procedural due process

requirements. Norman v. Duval Cnty Sch. Bd. , 361 F. Supp. 1167,

1169 - 1171 (M.D. Fla. 1973).

4 9 . The Tenure Act takes precedence over provisions of

general law on the same subject. See Alford v. Duval Cnty. Sch.

Bd. , 324 So. 2d 174, 177 (Fla. 1st DCA 1975) ; Muldrow v. Bd of

Pub. Inst. , 189 So. 2d 414, 415 (Fla. 1st DCA 1966) ; Harley v.

Bd. of Pub. Inst. , 103 So. 2d 111, 112 (Fla. 1958).

Charges an d Specifications

50 . The Notice of Termination of Employment Contract

and Immediate Suspension w ithout Pay alleges that

Respondent has violated certain provisions of the Code of

Ethics, contained in r ule 6A - 10.080, and a Principle of

Professional Conduct for the Education Professi on in

Florida , contained in rule 6A - 10.081.

5 1 . The Notice goes on to allege that RespondentÓs

conduct falls within the definition of ÐcauseÑ provided in

section 1012.33. But as discussed above, the provisions of

section 1012.33 must give way to similar provisions on the

same subjec t contained in the Tenure Act.

5 2 . Respondent was not specifically charged with a

violation of the Tenure Act. Although the specifications

in the Notice of Termination are technically deficient for

this reason, i t is well - set tled that an administrative

complaint need not be cast with that degree of technical

nicety required in a criminal prosecution. Libby

Investigations v. DepÓt of State, Div. of Licensing , 685

So. 2d 69 (Fla. 1st DCA 1996). An administrative complaint

must only state the acts complained of with sufficient

specificity to allow an applicant a fair chance to prepare

a defense. Davis v. DepÓt of ProfÓl Reg . , 457 So. 2d 1074

(Fla. 1st DCA 1984). The specifications certainly might

have been crafted with more le gal precision, but the

alleged conduct of Respondent for which Petitioner seeks

termination and identification of the rules allegedly

violated are clear. At hearing, Respondent expressly

disclaimed any prejudice from the errors in the

specifications set f orth in the Notice of Termination, and

no prejudice is found.

Violation of Laws or Regulations

5 3 . Section 4 of the Tenure Act provides in pertinent

part:

Section 4. Causes for the discharge or the

demotion of a teacher shall be:

* * *

(b) Persistent v iolation of or willful

refusal to obey the laws of the State of

Florida or regulations adopted by authority

of law, relating to the public schools or

the public school syste m.

5 4 . Pursuant to se ction 1001.02, the State Board of

Education has authority to adopt rules to improve the sta te

system of public education.

5 5 . The State Board of Education has adopted rule 6A -

10.080, entitled Code of Ethics of the Education Profession in

Florida, which provides: 2/

(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 f or 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 judgmen t

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.

5 6 . The State Board of Education has also adopted rule 6A -

10.081, entitled Principles of Professional Conduct for the

Education Profession in Florida, whi ch provides in relevant

part:

(3) Obligation to the student requires that

the individual:

(a) Sh all 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.

5 7 . It has been noted that the precepts set forth in the

Ethics Code are "so general and so obvious ly aspirational as to

be of little practical use in defining normative behavior."

Miami - Dade Cnty. Sch. Bd. v. Brenes , Case No. 06 - 1758 (Fla. DOAH

Feb. 27, 2007; Miami - Dade Cnty. Sch. Bd. Apr. 25, 2007).

Attention should therefore be directed toward any violation of

the Principles of Professional Conduct for the Education

Profession in Florida, because violations of one of these

specific Principles would necessarily also violate the more

general an d aspirational Code of Ethics.

5 8 . Although the direct te stimony as to RespondentÓs

actions all came from young children, these accounts were

sufficiently credible to prove that Respondent took physical

actions against a kindergarten student, striking her with a book

on multiple occasions. These contacts took p lace in front of

other students. Protection of the physical and mental health

and safety of the students entrusted to their care is perhaps

the most fundamental duty of instructional personnel in the

public schools. It is axiomatic that the duty of a tea cher to

protect students from conditions "harmful to their mental and

physical health or safety" is completely breached when it is the

"protecting" teacher who resorts to physical acts against her

students in the p resence of her other students.

5 9 . Numero us cases involving school b oards or the

Educational Practices Commission have found physical acts

against students to constitute violations of the rule setting

forth this Principle, then numbered differently. Duval Cnty.

Sch. Bd. v. Hunter , Case No. 12 - 20 80TTS (Fla. DOAH Oct. 3, 2012;

Duval Cnty. Sch. Bd. Nov. 15, 2012)(teacherÓs actions shoving

student against wall with foot and slamming him against the wall

were violations of rule 6B - 1.006(3)(a)); Duval Cnty. Sch. Bd. v.

Brown , Case No. 11 - 1040 (Fla. DOA H Sept. 12, 2011; Duval Cnty.

Sch. Bd. Nov. 16, 2011)(striking of student in hallway by

teacher was violation of rule 6B - 1.006(3)(a)); Castor v. Likins ,

Case No. 93 - 0045 (Fla. DOAH Sept. 23, 1993; Comm Ó n o f Educ.

Oct. 6, 1995)(teacher's act of grabbing st udent by the feet and

pulling him from under the teacher's desk which resulted in

injury was violation of rule 6B - 1.006(3)(a)); Sch. Bd. of Dade

Cnty. v. Glansberg, Case No. 91 - 6338 (Fla. DOAH July 17, 1992,

Sch. Bd. of Dade Cnty. Aug. 25, 1992)(striking s tudent with

piece of wood on buttocks in forceful manner in anger and

frustration was violation of rule 6B - 1.006(3)(a)). Respondent's

act of hitting kindergarten - age d children in her classroom

clearly violates this Principle of Professional Conduct for th e

Education Profession in Florida.

60 . Petitioner proved by a preponderance of the evidence

that Respondent violated rule 6A - 10.081(3)(a), as well as the

Code of Ethics set forth in rule 6A - 10.080(1), (2), and (3).

These are rules relating to public scho ols and the public school

system which have been adopted by the State Board of Educa tion

under statutory authority.

Persistent Violation or Willful Refusal to Obey

6 1 . However, under the Tenure Act, as quoted earlier,

Petitioner must show not only that Re spondent violated a rule

relating to public schools, but that there were ÐpersistentÑ

violations of it, or that there was a Ð willfulÑ refusal to obey

it. ÐPersistentÑ is defined as Ðpersisting, especially in spite

of opposition or obstacles; persevering; lasting or enduring

tenaciously; constantly repeated; continued.Ñ See, e.g. , Random

House Dictionary , Random House, Inc. (2013), referenced online

at http://dictionary.reference.com/browse/persistent ; American

Heritage Dictionary of the English Language , 5th ed. (2011), at

www.ahdictionary.com/word/search.html?q=persistent ;

Merriam - Webster Online Dictionary , http://www.merriam -

webster.com/ dictionary/persistence .

6 2 . The Florida courts have concluded that "willful" means

that Ð the actor has intentionally done an act of an unreasonable

character in disregard of a known or obvious risk that was so

great as to make it highly probable that harm would follow. Ñ

Metro. Dade C nty . v. Dep't of Envtl. Prot., 714 So. 2d 512, 516

(Fla. 3d DCA 1998)(citing Thunderbird Drive - In Theatre, Inc. v.

Reed , 571 So. 2d 1341, 1344 (Fla. 4th DCA 1990)(willful "requires

intent and purpose that the act or condition take place") ) , rev.

denied , 577 So. 2d 1328 (Fla. 1991). The definition in BlackÓs

Law Dictionary is similar: Ð[p]ro ceeding from a conscious motion

of the will; intending the result which actually comes to pass;

designed; intentional ; malicious.Ñ BlackÓs L aw Dictionary Free

2d Ed. and the Law Dictionary , at

http://thelawdictionary.org/willful/ .

6 3 . There is scant Florida precedent involving the Tenure

ActÓs disciplinary standard of Ðpersistent violationÑ of

regulations or Ðwillful refusal to obeyÑ regulati ons, because

this language is something of an anomaly in Florida law today.

Very similar language has served as a standard for discharge of

school personnel in at least three other states, however.

6 4 . In California, a permanent employee may be dismiss ed

for Ð[p] ersistent violation of or refusal to obey the school

laws of the state or reasonable regulations prescribed for the

government of the public schools by the State Board of Education

or by the governing board of the school district employing him

o r her.Ñ Cal. Ed. Code £ 44932(a)(7) (2013). Under this

California law, four acts involving physical contact with

students, if supported by the evidence, were deemed sufficient

to constitute persistent violation of or refusal to obey school

laws and regul ations: shoving a male student during a fire

drill; taking a male student by the arms, shaking him, and

pushing a desk at him; intentionally pushing a male student

against a classroom wall; and kicking a female student in the

knee. Tarquin v. CommÓn on P rofÓl Competence , 84 Cal. App. 3d

251, 261 (Cal. App. 2d Dist. 1978).

6 5 . Pennsylvania law similarly establishes Ð persistent and

willful violation of or failure to comply with school laws of

this Commonwealth (including official directives and established

policy of the board of directors)Ñ as grounds for termination.

24 P.S. § 11 - 1122. The Pennsylvania Supreme Court has held that

persistency exists when a violation occurs either as a series of

individual incidents or as one incident carried on for a

subs tantial period of time, even when prior discipline has been

administered for a portion of the conduct. Gobla v. Bd. of Sch.

Dir . of Crestwood Sch. Dist. , 51 Pa. Commw. 539, 414 A.2d 772

(1980). The administration of corporal punishment to students

on two occasions and the isolation of two students without

proper sup ervision on a third occasion were held to constitute

persistent and willful violation of applicable school laws and

regulations. Harris v. Commw. Sec. of Ed. , 29 Pa. Commw. 625,

628 - 629 (Pa. C ommw. Ct. 1977).

6 6 . The Supreme Court of Missouri has come to similar

conclusions under that stateÓs statute, providing that an

indefinite contract with a permanent teacher may be terminated

for Ð[w]illful or persistent violation of, or failure to obey,

the school laws of the state or the published regulations of the

board of education of the school district employing hi m.Ñ

§ 168.114 R.S. Mo. In Board of Education v. Shank , 542 S.W.2d

779, 782 (Mo. 1976), the court was presented with findings that

a tea cher had slapped a male student in one incident, slapped

three males students in the face in a second incident, and

struck a male student about his buttocks in a third incident.

It was undisputed that the teacher had been specifically advised

of a publish ed regulation that permitted corporate punishment

only as a last resort and only when witnessed by another adult.

The court concluded:

"Willful" has been defined as "done

deliberately; not accidental or without

purpose; intentional" and "persistent" as

"c ontinuing in a course of action without

regard to opposition." Webster's Third New

International Dictionary. Certainly it may

reasonably be concluded that respondent

intended to do the acts heretofore recited

and that such acts were not accidental. The

b oard could also reasonably have concluded

that the repeated incidents indicate a

stubborn continuance of conduct which was in

opposition both to the regulation itself and

the admonitions of the principal and

superintendent.

Bd. of Ed. v. Shank at 782. Se e also Clark v. Bd. of Dir . , 915

S.W.2d 766, 775 (Mo. Ct. App. 1996)(under Teacher Tenure Act,

either persistent violations or a single willful violation

warrants termination); Shepard v. South Harrison R - II Sch.

Dist. , 718 S.W.2d 195, 197 - 198 (Mo. Ct. App . 1986)(teacher with

36 years tenure who struck two students in violation of

regulation was not entitled to warning letter before termination

of her contract on grounds of willful or persistent violation of

regulations).

6 7 . The evidence that RespondentÓs actions in violation of

applicable rules were both persistent and willful is convincing.

While the testimony of the students differed as to certain

details, the testimony was convincing that the same young girl

was a victim and that Respondent hit her wi th a book on numerous

occasions. The evidence was sufficient to show that this

physical and emotional abuse was not a single isolated incident,

but rather was an action that was constantly repeated over time.

RespondentÓs violation of the State Board of Education rules was

persistent within the meaning of the Du val County Teacher Tenure

Act.

6 8 . It is undisputed that R espondent was well aware of the

rule requiring that she make reasonable effort to protect her

students from conditions harmful to their me ntal or physical

health or safety. The text of the rule was set out in full in

her earlier written reprimand and she acknowledged receipt of it.

Respondent having previously been disciplined for violation of

this rule, delib erately striking a kindergarte n - age d child on

numerous occasions with a book clearly constitute d willful

refusal to obey it.

6 9 . Petitioner proved that Respondent persistently

violated regulations adopted by authority of law relating to the

public schools. Petitioner also proved that Respondent

willfully refused to obey these regulations. Either of these

constitutes cause for discharge pursuant to the Duval County

Teacher Tenure Act.

Progressive Discipline

70 . Article V. D. 1 of the Collective Bargaining Agreement

applicable to Resp ondent's employment, entitled Progressive

Discipline Policy, provides in relevant part as follows:

The following progressive steps must be

followed in administering discipline, it

being understood, however, that some more

severe acts of misconduct may warr ant

circumventing the established procedure.

a. Verbal Reprimand

1. No written conference summary

is placed in personnel file

2. Employees must be told that a

verbal reprimand initiates the

discipline process

b. Writ ten Reprimand

c. Suspension without Pay

d. Termination

7 1 . Respondent received a five - day s uspension without pay

in August 2004 for conduct in violation of rules 6B - 1.006(3)(a)

and (e). As Respondent stipulated at hearing, and as shown

above, termin ation is a possible next step in progressive

discipline.

Termination of Employment

7 2 . In full consideration of RespondentÓs long teaching

career, but also of the pattern of her past conduct, prior

disciplinary actions during that time, and the escalating nature

of her conduct, it is concluded that her persistent violation

of, and willful refusal to obey, regulations adopted by

authority of law relating to the public schools or the public

school system warrant RespondentÓs discharge from employment by

the Duval County School Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED

That the Duval County School Board enter a final order

terminating the employment of Beverly L. Howard.

DONE AND ENT ERED thi s 15th day of October , 2013 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 4 88 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of October , 2013 .

ENDNOTES

1/ Section 120.72 provides that references to chapter 120 or

portions of it include all sub sequent amendments unless

expressly provided otherwise.

2/ All rules cited here were transferred and renumbered in the

Florida Administrative Code on January 11, 2013, but were not

substantively changed.

COPIES FURNISHED :

David A. Hertz, Esquire

D uval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

Rita Marie Mairs, Esquire

City of Jacksonville

Suite 480

117 West Duval Street

Jacksonville, Florida 32202

Pam Stewart

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Nikolai P. Vitti , Ed.D.

Duval Co unty Superintendent of Schools

1701 Prudential Drive

Jacksonville, Florida 32207

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 thi s Recommended Order should be filed with the agency that

will issue the Final Order in this case.