14-000429TTS Walton County School Board vs. Harriet Hurley Status: Closed Recommended Order on Wednesday, May 14, 2014.

Summary: Respondent's actions in entering another teacher's classroom and loudly berating a student that she did not teach in order to assist her granddaughter constituted misconduct in office and warrants three-day suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WALTON COUNTY SCHOOL BOARD ,

Petitioner,

vs.

Case No. 1 4 - 0429TTS

HARRIET HURLEY ,

Respondent.

/

RECOMMENDED ORDER

On Ma rch 27, 201 4 , a duly - noticed hearing was held in

Tallahassee, Florida, before F. Scott Boyd, an A dministrative

L aw J udge assigned by the Division of Administrative Hearings.

U APPEARANCES

For Petitioner: Holly A. Dincman , Esquire

Melissa S. Leonard, Esquire

Coppins, Monroe, Adkins, and Dincman, P.A.

1 319 Thomaswood Drive

Tallahassee , Florida 3 23 17

For Respondent: Clay B. Adkinson , Esquire

Adkinson Law Firm, LLC

41 South 6th Street

Defuniak Springs, Florida 3 2435

STATEMENT OF THE ISSUE

Whether Respondent commi tted the actions set forth in the

Notice of Charge of Misconduct in Office, dated December 18,

2013, and if so, whether the se actions constitute just cause for

suspension.

PRELIMINARY STATEMENT

Respondent , a teacher at Walton Middle School (WMS),

received a Notice of Charge of Misconduct in Office on

December 18, 2013, advising h er of allegations that she engaged

in misconduct and advising her that the Superintendent of

Schools would be recommending th at she be suspended for a period

of ten days without pay. She was advised of her right to

request an administrative hearing within 15 days. In a n e - mail

communication that same day, Respondent requested an

administrative hearing . On January 24, 2014, t h e matter was

referred to the Division of Administrative Hearings ( " DOAH " ) for

the assignment of an a dministrative l aw judge , and t he case was

scheduled for final hearing on March 27, 2014 .

The parties stipulat ed to certain facts , which w ere

accepted at hea ring , and are included among those set out below.

Petitioner presented the testimony of seven witnesses :

Ms. Black, a teacher at WMS; S.A., a sixth - grade student of

Ms. Black; Mr. Campbell, Assistant Principal; Ms. A . , parent of

S.A.; Ms. Howell, Guidance Counselor; Mr. Hope, Principal; and

Ms. Alford, Human Resource Director of Walton County Schools.

Petitioner offered exhibits P - 1 through P - 13 at hearing , which

were admitted into evidence. Respondent testified and present ed

the testimony of one other witness , Ms. Liming, a teacher at

WMS . Respondent offered no exhibits. Official recognition was

given to several statutes and administrative rules and

RespondentÓs admissions in response to Requests for Admissions

were accepted as conclusively est ablished .

Without objection, Petitioner was authorized at hearing to

submit a late - filed exhibit to show whether Walton County School

Board Policy 6.25 had been adopted pursuant to the provisions of

chapter 120 and so was an adopted ÐruleÑ within the mea ning of

section 120.57(1)(e) , Florida Statutes . Respondent filed no

response or objection to the late - filed exhibit, whic h was

admitted as E xhibit P - 14.

The three - volume Transcript of the hearing was filed at the

Division of Administrative Hearings on April 14, 2014. Pursuant

to RespondentÓs Motion, time for filing Proposed Recommended

Orders was extended to May 2, 2014. Proposed Recommended Orders

were timely filed by both parties and were carefully considered .

FINDINGS OF FACT

1. The Walton County School Board (School Board) is

charged with the responsib i l ity to operate, control, and

supervise the public schools within the School District of

Walton County, Florida.

2 . During the 2013 - 2014 school year, Ms. Harriet Hurley

was a teacher at Walton Mid dle School.

3 . Ms. Hurley had earlier been a teacher in Georgia for

eight years, had been employed in Walton County Schools in 1984

for a period of three years, and taught in Okaloosa County

Schools for five years . She then returned to Walton County

Schools where she has been ever since, for a career of over 30

years.

4 . In addition to her responsibilities as a teacher at

Walton Middle School, Ms. Hurley assists in scheduling parent -

teacher conferences for students at Walton Middle School.

5 . Ms. HurleyÓs responsibilities in scheduling conferences

are limited to a coordination function. She is not responsible

for addressing the substance of the issues to be addressed in

the conferences or becoming involved in attempt ing to resolve

them. Principal Hope never asked Ms. Hurley to assume a role as

a guidance counselor.

6 . Ms. Hurley is employed by the School Board. As a

member of the School BoardÓs instructional staff, Ms. HurleyÓs

employment is subject to s ection 10 12.33, Florida Statutes

(2013), which provides that her employment will not be suspended

or terminated except for Ðjust cause.Ñ

7 . As a teacher, Ms. Hurley is required to abide by all

Florida Statutes which pertain to teachers, the Code of Ethics

and the Principles of Conduct of the Education Profession in

Florida, and the Policies and Procedures of the School Board of

Walton County, Florida.

8 . Ms. Hurley is not the legal guardian of her

granddaughter, B.C., who is a student at Walton Middle School.

9. On November 20, 2013, Ms. HurleyÓs granddaughter, B.C.,

approached her in the adult dining area about a group math

ass ignment that was upsetting her.

10 . B.C. told Ms. Hurley that she had been told by her

sixth - grade math teacher, Ms. Black, that her Ðh igh grade was

goneÑ because o f the failure of her group to complete a group

math assignment. B.C. told Ms. Hurley that she blamed S.A.,

another student in her group , for their failure to complete the

work .

11 . Ms. Hurley immediately left the adult dining area with

her lunch only partially eaten and went with B.C. back to

Ms. BlackÓs classroom. B.C. had been released for lunch a few

minutes before the other students because she was an A/B Honor

Roll student, so the other students were still in the classroom

when Ms. Hurley arrived there .

12 . Whe n Ms. Hurley and B.C. arrived at the classroom, the

students were packing up their personal items in preparation for

their release for lunch. Ms. Black testified in part :

At that time, I think it was because the

students leave five minutes early, A/B honor

roll students. I donÓt really want to go

ahead and teach them anything, because

theyÓre missing that opportunity to learn.

At that time I get them to pack up and get

their things together to leave for lunch.

There was a high level of noise in the classroom. Ms. Black , in

her first year as a teacher, was at her desk trying to help some

students who did n o t understand something , and was in a verbal

altercation wi th S.A. , who was walking away from her.

13 . On November 20, 2013, S.A. was not a student in one of

Ms. HurleyÓs classes.

14 . Ms. Hurley addressed S.A. , telling him that he should

not talk to his teacher that way.

15 . Ms. Hurley told S.A. to Ðcome here to me.Ñ She was

upset with S.A. and told him that he needed to stop playing

around. In a loud and forceful tone of voice, she told him that

he was not going to be the cause of a Ðstraight AÑ student

getting a bad gra de and that he needed to concentrate on his

schoolwork. She told him that she knew his mother, who worked

at a KFC - Taco Bell restaurant in Miramar Beach , and that she

would talk to his mother if necessary . S.A. denied that his

mother worked at KFC, and M s. Hurley restated that she knew that

his mother did . The other students in the class heard

Ms. HurleyÓs disparagement and public discipline of S.A. The

bell rang and Ms. Hurley and the students began to leave the

classroom.

16 . S.A. was embarrassed and upset by the incident.

17 . Due to the fact that the students were already packing

up their things to leave, and because Ms. Black had been in a

verbal altercation with S.A., the actions of Ms. Hurley in

Ms. BlackÓs class did not disrupt the studentsÓ l earning

environment.

18 . Ms. HurleyÓs actions were unnecessary. She might have

comforted B.C., and encouraged B.C. and her parents to pursue

the issue with Ms. Black. S.A. was not one of Ms. HurleyÓs

students and at the time she decided to go to Ms. B lackÓs class

Ms. Hurley had not directly witnessed any behavior by S.A. that

called for immediate correction. Even had it been appropriate

for Respondent herself to take action based up on her

granddaughterÓs information , there was no emergency which

requi red that Ms. Hurley intrude upon a colleagueÓs class and

loudly berate S.A. in front of other students. She used her

institutional privileges as a teacher to gain access to

Ms. BlackÓs classroom in order to assist her granddaughter.

1 9. As Ms. Black was leaving her classroom, she saw that

S.A. was reluctantly moving toward the door and she noticed he

was crying. She attempted to comfort him. Ms. Black then

reported the incident to Mr. Jason Campbell, Assistant

Principal, who was in the student lunch room. A few minutes

later, S.A. also approached Mr. Campbell to report his version

of the incident.

20 . Ms. Hurley returned to her lunch in the adult dining

room . When Ms. Black came in to the dining room later,

Ms. Hurley apologized t o her for coming into her classroom.

21 . That evening, Ms. Hurley drove to Miramar Beach and

went to dinner at the fast food restaurant where she knew Ms. A .

worked. Ms. Hurley was one of Ms. AÓs teachers when Ms. A . had

been in the seven th grade, and th e two were casual

acquaintances. Ms. Hurley told Ms. A . what had happened that

morning with S.A. and B.C. in their math group. Ms. Hurley told

Ms. A . that she had Ðkind of stepped out and went into grandma

modeÑ and had Ðgotten ontoÑ (disciplined) S.A. Ms. Hurley

relayed that she had told S.A. that she knew his mother and that

if he did not improve his conduct, she was going to let his

mother know about his behavior. During the course of the

conversation, Ms. A . relayed that she was concerned about an

i ncident involving a damaged globe from Mr. PriceÓs classroom ,

which was S.A.Ós S PEAR classroom (Ðhome roomÑ).

22 . The following day, o n November 21, 2013, Ms. Hurley

removed S.A. from his fir st - p eriod classroom .

23 . Neither Principal Hope nor Vice Principal Campbell

authorized Ms. Hurley to remove S.A. from his fir st - period

classroom on November 21, 2013.

24 . On November 21, 2013, Ms. Hurley contacted S.A.Ós

mother on the telephone on her own initiative and without the

authority of Principal Hope or Vice Principal Campbell.

25 . Ms. Hurley called Ms. A. on the telephone with S.A.

presen t. Ms. Hurley and Ms. A. talked about the incident

involving S.A. and the damaged globe from Mr. PriceÓs classroom.

The telephone conversation had ba r ely begun when Mr. Hope, upon

learning that Ms. Hurley had gone to S. A. Ós classroom and

removed him from class , came into Ms. HurleyÓs room and took

S.A. back to Mr. HopeÓs office. While the School Board alleged

that Ms. Hurley and Ms. A. discussed the in cident that happened

in Ms. BlackÓs classroom the day before, this was not shown by

the evidence . The allegation that Ms. Hurley was misusing her

institutional privileges by engaging in the phone call may be

correct, for Ms. Hurley was not authorized to d iscuss the

substance of parent/teacher conferences, but was instead limited

to scheduling responsibilities. The evidence did not show that

the phone conversation was conducted for personal gain or

advantage to Ms. Hurley, however.

26 . The School BoardÓs further argument that Ms. HurleyÓs

actions on November 21, 2013, reduced the ability of Principal

Hope to efficiently perform his duties is also rejected.

Assuming that Principal Hope could even be considered a

ÐcolleagueÑ of Ms. HurleyÓs, t he evidence s howed that he was

able to efficiently Ðtrack downÑ S.A. with minimal effort. To

the extent that Ms. HurleyÓs actions on November 21, 201 3 ,

exceeded her Ðjob description,Ñ they could be corrected with a

simple directive or memorandum, and in the absence of evidence

that her actions were taken for her personal gain , they are not

a just cause for discipline.

27 . Statements were taken from several students in

Ms. BlackÓs math class regarding the incident on November 20th,

which vary in detail, but taken as a whole corroborate the

findings of fact above regarding the incident on November 20,

2013. No statement was taken from B.C., and neither party

called B.C. as a witness at hearing.

28 . On December 2, 2013, Ms. Hurley met with Walton Middle

School administ ration to discuss the events of November 20 and

November 21, 2013.

2 9. On December 17, 2013, Principal Tripp Hope issued a

letter of reprimand advising Respondent that he would be

recommending a 10 - day suspension without pay to the

Superintendent.

30 . On December 18, 2013 , the Superintendent notified

Respondent of her intention to recommend a 10 - day suspension

without pay.

31 . A Notice of Charge of Misconduct in Office, dated

December 18, 2013, notified Respondent of the PetitionerÓs

intent to suspend her employment for 10 days without pay. ( A s

s tipulated by the parties.)

32. Although the Notice of Charge of Misconduct in Office

did not explicitly identify all rules that Ms. Hurley was

charged with violating, t he allegations of more specific rule

violations were included in the Letter of Reprimand which was

attached to the charge . Ms. Hurley was not prejudiced or

hindered in the preparation of her defense by any lack of

specificity in the charging documents.

3 3 . Ms. Hurley is substantially affe cted by the intended

action of the School Board to suspend her employment without pay

for ten days .

3 4 . The evidence did not show that Ms. Hurley failed to

Ð value Ñ the worth and dignity of every person, the pursuit of

truth, devotion to excellence, acqui sition of knowledge, or the

nurture of democratic citizenship. The evidence did not show

that Ms. Hurley did not strive for professional growth or did

not Ð seek Ñ to exercise the best professional judgment or

integrity. The evidence did not show that Ms. Hurley did not

ÐstriveÑ to achieve or sustain the highest degree of ethical

conduct.

3 5 . The evidence showed that by entering S.A.Ós classroom

and raising her voice in anger towards him in the presence of

other students, Ms. Hurley failed to make reasonable effort to

protect S.A. f rom conditions harmful to his learning or to his

mental health.

3 6 . The evidence showed that any required discipline of

S.A. should not have been administered by Ms. Hurley and so her

actions were unnecessary. Her act ions, which reduced S.A. to

tears, exposed him to unnecessary embarrassment and

disparagement.

3 7 . The evidence showed that in entering another teacherÓs

classroom to assist her granddaughter by disciplining S.A. when

he was not even one of her students, Ms. Hurley used

institutional privileges for personal gain or advantage.

3 8 . The evidence did not show that Ms. Hurley lacked

integrity, high ideals, or human understanding or that she

failed to Ðmaintain or promoteÑ those qualities.

3 9 . The evidence did not show tha t in entering Ms. BlackÓs

classroom during the final minutes of the class, when the

students were already packing up their things and preparing to

go to lunch , Ms. Hurley engaged in behavior that disrupted the

studentsÓ learning environment .

40 . The evidence did not show that Ms. Hurley engaged in

behavior that reduced her ability or her colleagueÓs ability to

effectively perform duties. One might speculate as to whether

Ms. BlackÓs ability to maintain control over her class in the

future was undermined by Ms. HurleyÓs a ggressive intrusion, but

Ms. Black did not testify that her ability to effectively

perform was reduced and this was not otherwise shown. There was

similarly no evidence offered to indicate that Ms. HurleyÓs own

effectivene ss was reduced. Her actions were not taken in her

own classroom , there was no evidence that she had any of

Ms. BlackÓs students in her classes, or that her own students or

the student body generally was even aware of her actions.

4 1 . The actions of Ms. Hurley on November 20, 2013,

constitute misconduct in office . Her actions are just cause for

suspension of her employment without pay.

4 2 . The School Board witnesses conceded that Ms. Hurley

has never received ÐformalÑ counseling, and presented no

documentary evidence that she had been counseled even

informally. The School Board did present credible testimony

from Principal Hope and Assistant Principal Campbell that

Ms. Hurley had been infor mally counseled regarding raising her

voice with students and for communication with her peers.

4 3 . The actions of Ms. Hurley on November 20, 2013, were

not so serious as to justify a ten - day suspension, but do

warrant suspension without pay for three calendar days.

CONCLUSIONS OF LAW

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

jurisdiction over the subject matter and parties in this case ,

pursuant to s ection 1012.33, and sections 120.569 and 120.57(1),

Florida Statutes (201 3 ). 1/ P ursuant to section 120.65(11),

Petitioner has contracted with DOAH to conduct these hearings .

4 5 . Petitioner is a duly - constituted School Board charged

with the duty to operate, control, and supervise all free public

schools within the school district of Walton County , Florida ,

under section 1001.32.

4 6 . Petitioner has the authority to discipline employees

pursuant to sections 1012.22(1)(f) and 10 12 .33(6)(a).

4 7 . RespondentÓs substantial interests are affected by

suspension of her employment and she has standing to contest

PetitionerÓs action. McIntyre v. Seminole Cnty. Sch. Bd. , 779

So. 2d 639, 641 (Fla. 5th DCA 2001).

4 8 . Petitioner has the burden of proving the allegations

set forth in its Notice of Charge of Misconduct in Office by a

pre ponderance of the evidence, as opposed to the more stringent

standard of clear and convincing evidence applicable to loss of

a license or certification . Cropsey v. Sch. Bd. of Manatee

Cnty . , 19 So. 3d 351 (Fla. 2d DCA 2009) ; rev. denied , 29 So. 3d

1118 (Fla. 2010); Cisneros v. Sch. Bd. of Miami - Dade Cnty . , 990

So. 2d 1179 (Fla. 3d DCA 2008) .

4 9 . Whether Res pondent committed the charged offenses is a

question of ultimate fact to be decided by the trier of fact in

the context of each all eged violation. McKinney v. Castor , 667

So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653

So. 2d 489, 491 (Fla. 1st DCA 1995).

50 . The parties stipulated that RespondentÓs employment is

subject to section 1012.33. Under that statute, member s of the

instructional staff are subject to suspension for just cause.

Just cause includes, but is not limited to, immorality,

misconduct in office, incompetency, gross insubordination,

willful neglect of duty, or being convicted or found guilty of,

or en tering a plea of guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude, as these terms are

defined by rule of the State Board of Education.

§§ 1012.33(4)(c) , 1012.33(6)(b) , Fla. Stat .

5 1 . Section 1001.02(1), Florida Statutes, grants the State

Board of Education a uthority to a dopt rules pursuant to sections

120.536(1) and 120.54 to implement provisions of law conferring

duties upon it.

5 2 . Consistent with this rulemaking authority, the State

Board of E ducation has def in ed Ðmisconduct in officeÑ in Florida

Administrative Code R ule 6A - 5.056 (2), which provides:

(2) ÐMisconduct in OfficeÑ means one or

more of the following:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in Rule 6 B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

5 3 . A Notice of Charges should "specify the rule the

agency alleges has been violated , Ñ as well as the offending

conduct . Jacker v. Sch. Bd. of Dade Cnty. , 426 So. 2d

1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring).

While the Notice of Charge o f Misc onduct in Office alleged

the offending conduct of Respondent in some detail, it was

less clear in alleging the rules that had been violated.

Although t he Notice did cite to rule 6A - 5.056(2) , defining

misconduct in office, it failed to identif y which

provi sions of rules 6B - 1.001 or 6B - 1.006 , which are

incorporated within the misconduct rule , had been violated .

5 4 . However, a deficient Administrative Complaint is

not fatal so long as there is sufficient specificity to

allow a fair chance to prepare a defense. Davis v. DepÓt

of ProfÓl Reg . , 457 So. 2d 1074 (Fla. 1st DCA 1984) . Here,

t he more specific rule violations were included in

attach ments to the charge, referencing 6B - 1.001(2), 6B -

1.006(3)(a), (3)( e), and (4)(c), a s well as p olic y 6.25 of

the Policies and Procedures Manual of the Walton County

School Board. N o contention was raised at hearing that

Respondent was in any way hindered in her preparations by

any lack of specificity in the charging docu ments. No

prejudice is found.

5 5 . Rule 6A - 5.056(2)( a ) incorporates by reference rule 6B -

1.001 , which has been renumbered without change as 6A - 10.080,

and is entitled Code of Ethics of the Education Profession in

Florida . It provides:

(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 wil l 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 an d sustain the highest

degree of ethical conduct.

5 6 . While rule 6A - 5.056( 2 ) (a) provides that violat ion of

the Code of Ethics constitutes Ðmisconduct , Ñ it has been

frequently noted that the precepts set forth in that Code are

"so general and so obviously aspirational as to be of little

practical use in defining normative behavior." See , e.g. U Miami -

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

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

event, there was insufficient evidence of RespondentÓs Ðvalues,Ñ

Ðconcerns, Ñ or ÐstrivingsÑ to find a violation of these ideals.

5 7 . Rule 6A - 5.056(2)( b ) incorporates by reference rule 6B -

1.006 , which has been r enumbered without change as 6A - 10.081 .

It is entitled Principles of Professional Conduct for the

Education Profession in Florida . Rule 6A - 10.081 (3)(a) provides:

(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 studentÓs mental

and/or physical health and/or safety.

5 8 . I t is clear that the duty of a teacher to protect

students from conditions harmful to learnin g or their mental

health is breached when the actions involved are those of the

"protecting" teacher . RespondentÓs intrusion into another

teacherÓs classroom to loudly berate and discipline S.A. in

front of other students, upsetting him and causing him to cry ,

failed to reasonably protect him from conditions harmful to

learning.

5 9 . Rule 6A - 10.081 (3)(e) provides:

(3) Obligation to the student requires that

the individual:

* * *

( e ) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement .

60 . RespondentÓs intentional action of going to another

teacherÓs class and confront ing S.A. in a loud voice in the

presence of the other children exposed S.A. to embarrassment and

disparagement , and w as unn ecessary.

6 1 . Rule 6A - 10.08 1 (4)(c) provides:

( 4 ) Obligation to the public requires that

the individual:

* * *

( c ) Shall not use institutional privileges

for personal gain or advantage.

6 2 . Personal Ðgain or advantage Ñ is not limited to

financial gain. Cf. Bollone v. Dep't of Mgmt. Servs. , 100 So.

3d 1276, 1281 - 1282 (Fla. 1st DCA 2012)( section 112.3173(2)(e)6.

of retirement forfeiture statute does not limit Ðpersonal gainÑ

to only economic gain). Respondent used her institutional

privileges as a teacher to gain access to Ms. BlackÓs classroom

on November 20, 201 3 , in order to assist her granddaughter.

6 3 . Rule 6A - 5.056(2)( c ) defines misconduct to include a

violation of adopted school board rules .

6 4 . Section 1001.41 (2), Florida Statutes, grants the

Walton County School Board the authority to adopt rules pursuant

to sections 1 20.536 (1) and 120.54 to implement its statutory

duties and to supplement rules prescribed by the State Board of

Education.

6 5 . Policy 6.25 of the Policies and Procedures Manual of

the Walton County School Board was adopted pursuant to the

Administrative Procedure Act and is a ÐruleÑ within the meaning

of rule 6A - 5.056(2)(c). It provides:

An effective educational p rogram requires

the services of personnel of integrity, high

ideals, and human understanding. All

employees shall be expected to maintain and

promote these qualities. The Board shall

also expect all administrative and

instructional staff members to adher e to the

Code of Ethics and the Principles of

Professional Conduct of the Education

Profession in Florida.

6 6 . Petitioner did not show that Respondent lacked

integrity, high ideals, or human understanding . Petitioner did

not show that Respondent failed to Ðmaintain or promoteÑ those

qualities. Any allegation that Respondent was guilty of

misconduct because she violated Policy 6.25 through failure to

adhere to the Code of Ethics or the Principles of Professional

Conduct of the Education Profession in Fl orida would not

constitute a distinct offense, given the identical charges

already discussed above.

6 7 . Rule 6A - 5.056(2) (d) defines misconduct in office to

include behavior that disrupts a studentÓs learning environment.

Given that RespondentÓs intrusi on into Ms. BlackÓs classroom

took place in the last minutes of class when students were

already preparing to go to lunch and Ms. Black was engaged in a

verbal confrontation with student S.A., Petitioner did not prove

a disruption of studentsÓ learning env ironment.

6 8 . Rule 6A - 5.056(2) (e) defines misconduct in office to

include behavior that reduces the teacherÓs ability or his or

her colleaguesÓ ability to effectively perform duties. There

was little , if any , testimony on this issue. Even assuming,

without deciding, that certain conduct might be deemed so severe

that impairment of effectiveness might be presumed in the

absence of evidence as to that impairment, 2 / the conduct proven

here does not rise to that level. Petitioner failed to prove by

a pr eponderance of the evidence that RespondentÓs b ehavior

reduced her ability or her colleaguesÓ ability to effectively

perform duties .

6 9 . Petitioner proved by a preponderance of evidence that

Respondent failed to make reasonable effort to protect a stude nt

from conditions harmful to learning, intentionally expose d a

student to unnecessary embarrassment or disparagement , and used

institutional privileges for personal gain or advantage.

Respondent therefore violated the Principles of Professional

Conduct a nd is guilty of misconduct in office as defined by rule

6A - 5.056(2)(b).

Penalty

70 . Instructional personnel who have engaged in misconduct

in office may be suspended without pay. §§ 1012.33(4)(c),

1012.33(6)(a) , Fla. Stat .

7 1 . Section 120.57(1)(k) provides that a Recommended Order

shall include a Ðrecommended disposition, or penalty, if

applicableÑ based upon the entire record.

7 2 . The facts show that Respondent Ð went into grandmother

mode Ñ in reaction to information that the action s of another

student threatened her gran ddaughterÓs Ðstraight AÑ grade

average. She intruded upon another teacherÓs classroom and

loudly berated the accused student in front of other students,

though she had not witnessed him commit any action which neede d

immediate discipline , and though he was not even one of her

students. RespondentÓs many years of teaching experience should

have led her to a more indirect and dispassionate response.

While the evidence did not show the Ðcover upÑ alleged by

Petitioner , Respondent did little to acknowledge her actions or

show remorse. Considering the seriousness of the offense and

the lack of any prior formal discipline, suspension without pay

for a period of three days is appropriate.

U RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board of Walton County ,

Florida, enter a final order finding Ms. Harriet Hurley guilty

of misconduct in office and suspend ing her employment , without

pay , for a period of three days .

DONE AND ENTERED this 1 4 th day of May , 2014 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tall ahassee, 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 1 4 th day of May , 2014 .

U ENDNOTES

1 / References to statutes and rules throughout this Recommended

Order are to versions in effect in November 2013, except as

otherwise indicated.

2 / Under the previous State Board of Education rule, violation

of a Principle of Professional Conduct for the E ducation

Profession in Florida d id not constitute misconduct in office

unless it was " so serious as to impair the individual ' s

effectiveness in the school system. " Fla. Admin. Code R. 6A -

5.056(3) (2011) ; U Ma cMillan v. Nassau Cnty. Sch. Bd. U , 629 So. 2d

226, 2 30 (Fla. 1 st DCA 1993). However, under that rule certain

conduct was deemed so egregious so as not to require separate

evidence as to impaired effectiveness. See, e.g. U Purvis v.

Marion Cnty. Sch. Bd. U , 766 So. 2d 492 (Fla. 5 th DCA 2000)(lying

unde r oath and resisting arrest was misconduct that supported

inference that effectiveness was impaired); U Walker v. Highlands

Cnty. Sch. Bd. U , 752 So. 2d 127 (Fla. 2d DCA 2000)( commotion in

class, including intoxicated student, showed class was out of

control such that no evidence of impaired effectiveness was

necessary , misconduct " spoke for itself " ) ; U Summers v. Sch. Bd.

of Marion Cnty. U , 666 So. 2d 175 , 175 (Fla. 5th DCA 1995)( though

no specific evidence presented, it was clear that conduct must

have impair ed effectiveness as a teacher). Und er the new rule ,

conduct that Ð reduces the teacherÓs ability or his or her

colleaguesÓ ability to effectively perform duties Ñ is a distinct

offence, not merely an element necessary to show that violation

of a Principle o f Professional Conduct rises to the level of

misconduct, but it appears otherwise quite similar.

COPIES FURNISHED:

Holly A. Dincman, Esquire

Coppins, Monroe, Adkins,

and Dincman, P.A.

1319 Thomaswood Drive

Tallahassee, Florida 32308

Clay B. Adkinson, Esquire

Adkinson Law Firm, LLC

41 South 6th Street

Defuniak Springs, Florida 32435

Melissa Sale Leonard, Esquire

Coppins, Monroe, Adkins,

and Dincman, P.A.

1319 Thomaswood Drive

P.O. Box 14447

Tallahassee, Florida 32317

Carlene H. Anderson

Superintendent

Walton County School Board

145 Park Street

Defuniak Springs, Florida 32435

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

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.