96-000322 Broward County School Board vs. Ernest Sellars Status: Closed Recommended Order on Thursday, April 10, 1997.

Summary: Superintendent failed to prove by a preponderance of the evidence that teacher physically abused second-grade students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANK R. PETRUZIELO, )

Superintendent of Broward )

County Schools, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0322

)

ERNEST SELLARS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

case on October 9, 10, and 21, 1996, in Fort Lauderdale,

Florida, before Patricia Hart Malono, a duly-designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Gerald A. Williams, Esquire

Mack, Williams, Haygood and McLean

980 North Federal Highway, Suite 305

Boca Raton, Florida 33432

For Respondent: Willie Jones, Esquire

Law Office of Willie Jones

305 South Andrews Avenue, Suite 721

Fort Lauderdale, Florida 33409

STATEMENT OF THE ISSUES

Whether the respondent committed the acts alleged in the

Administrative Complaint dated December 8, 1995, and, if so,

the penalty which should be imposed.

PRELIMINARY STATEMENT

In an Administrative Complaint dated December 8, 1995,

Frank Petruzielo, Superintendent of Schools for Broward

County, (“Superintendent”), recommended to the School Board of

Broward County (“School Board”) that it immediately suspend

Ernest Sellars from employment with the School Board without

pay and that it terminate his employment as an instructional

employee for violating various statutes, rules, and principles

of professional conduct applicable to teachers. Mr. Sellars

was charged in the Administrative Complaint with inflicting on

the students in his second grade class improper disciplinary

measures and punishment, both routinely and with regard to

several students specified in the complaint, as follows:

D. During his employment at Park Ridge

Elementary School, Respondent placed

students under a wooden podium, having

measurements of 26" high and 18.75" deep,

as a means of punishment or discipline.

Students were left under said podium,

having little to no ventilation, without

adult supervision, for an inordinate

amount of time, thereby causing the

children to configure their bodies in

uncomfortable, indeed, even painful

positions.

E. During his employment at Park Ridge

Elementary School, Respondent routinely

placed students in a dark, unlit cabinet

next to a sink, having measurements of

22" high and 21.5" deep, as a means of

punishment. Students were placed in said

cabinet, having little to no ventilation,

without adult supervision, for an

inordinate amount of time, thereby

causing the children to configure their

bodies in uncomfortable, indeed, even

painful positions.

F. During his employment at Park Ridge

Elementary School, Respondent routinely

placed students in a dark, unlit closet

as a means of punishment or discipline.

Students were left in said closet, having

little to no ventilation, without adult

supervision, for an inordinate amount of

time.

G. During his employment at Park Ridge

Elementary School, Respondent routinely

placed students underneath classroom

desks, as a means of punishment or

discipline. Students were left

underneath these desks, without adult

supervision, for an inordinate amount of

time, thereby causing the children to

configure their bodies in uncomfortable,

indeed, even painful

H. During his employment at Park Ridge

Elementary School, Respondent routinely

poked and struck children in the chest

with two (2) fingers, as a means of

punishment or discipline.

I. During his employment at Park Ridge

Elementary School, Respondent routinely

battered children by hitting them on the

head with his closed fist, as a means of

punishment or discipline.

J. During his employment at Park Ridge

Elementary School, Respondent routinely

forced children to lie flat on a bare

floor, underneath a table, facing a wall,

as a means of punishment or discipline.

K. During his employment at Park Ridge

Elementary School, Respondent grabbed an

eight-year-old student, (hereinafter

referred to as “J.D.”) around the front

of his neck and hurled said student

against a blackboard, causing him to hit

his head against the wall, as a means of

punishment or discipline.

L. During his employment at Park Ridge

Elementary School, Respondent left J.D.

and at least two other eight-year-old

students (hereinafter referred to as

“S.B.” and “B.W.”) in a dark, unlit

closet, forcing them to miss going home

at their assigned time for the day, as a

means of punishment or discipline.

M. During his employment at Park Ridge

Elementary School, Respondent left S.B.,

and at least three other eight-year-old

students (hereinafter referred to as

“T.S.,” “B.M.,” and “B.W.”) in a dark,

unlit cabinet, as a means of punishment

or discipline.

N. During his employment at Park Ridge

Elementary School, Respondent engaged in

acts which constitute physical abuse of

children.

O. On or about March 28, 1995,

Respondent grabbed an eight-year-old

second grade student (hereinafter

referred to as “K.B.” [sic]) by the neck

and forced her into a dark, unlit closet.

Respondent, left S.B. in the closet for

at least two hours without adult

supervision.

P. On or about March 28, 1995, in

response to K.B.’s [sic] request for

permission to visit the restroom,

Respondent violently pushed K.B. [sic],

causing her to fall to the ground and

injure her knee.

The School Board met on December 19, 1995, and voted to

suspend Mr. Sellars without pay, pending termination of his

employment. Mr. Sellars timely requested a formal

administrative hearing on the charges alleged in the

complaint, and the request was forwarded to the Division of

Administrative Hearings for assignment of an Administrative

Law Judge.

At the hearing, the Superintendent presented the

testimony of the following witnesses: Nina Hansen, a social

worker with the Broward County public school system; Walter

Cooper, principal of Park Ridge Elementary School; Ronald

Wright, director of professional standards for the Broward

County public school system; and L. W., J. D., and J. J.,

students in Mr. Sellars’s 1994-1995 second grade class.

Petitioner’s exhibits 1 through 4 were offered and received

into evidence. Mr. Sellars testified in his own behalf and

presented the testimony of J. A., a student in his 1994-1995

second grade class, and of Elizabeth Anderson, J. A.’s mother.

Respondent’s exhibit 1 was marked for identification though

not offered into evidence; Respondent’s exhibit 2 was offered

and received into evidence.

Prior to the final hearing, the Superintendent requested

that official recognition be taken of rules 6B-1.001 and 6B-

1.006, Florida Administrative Code, which set out the Code of

Ethics of the Education Profession and the Principles of

Professional Conduct for the Education Profession,

respectively; of rule chapter 6B-5, Florida Administrative

Code, which sets out the Standards of Competent Professional

Performance; of rule 5301 of the Broward County School Board,

Behavior Management of Students; Park Ridge Elementary School

Staff Handbook for 1994-1995; and the Code of Student Conduct

for 1994-1995. Official recognition was granted in an order

entered May 14, 1996.

At the hearing, the Superintendent moved to strike Mr.

Sellars’s Unilateral Prehearing Statement which was served the

day before the hearing. The motion to strike the prehearing

statement was denied. The Superintendent also moved to strike

the Request for Production of Documents which Mr. Sellars

served via facsimile the day before the hearing, after the

close of business. An order was entered on October 14, 1996,

granting the motion to strike the Request For Production of

Documents as untimely. Finally, at the close of his case, the

Superintendent requested that the Administrative Complaint be

amended to conform with the evidence. Counsel for the

petitioner did not specify the particulars of the requested

amendment and could cite no authority which permits such an

amendment in an administrative proceeding; the undersigned

indicated her inclination to deny the motion but gave counsel

leave to brief the point in their proposed recommended orders.

The Superintendent did not do so, and the motion is DENIED .

The four children called to testify as witnesses in this

administrative proceeding were each examined regarding their

ability to observe, recollect, and communicate facts

correctly, their moral sense of the duty to tell the truth,

and their intention to tell the truth at the hearing. Each

child was found competent to testify pursuant to the criteria

set out in Griffin v. State , 526 So. 2d 752, 753-56 (Fla. 1st

DCA 1988), and nothing occurring during their testimony

required reconsideration of this determination. Even so, it

is the responsibility of the Administrative Law Judge to

assess the credibility of witnesses, to weigh the evidence

presented, and to resolve conflicts in the evidence. All of

the admissible evidence presented at the final hearing in this

case has been carefully considered in light of this

responsibility.

The transcript of the hearing was filed with the

Division on November 4, 1996. The Superintendent timely

submitted proposed findings of fact and conclusions of law,

and Mr. Sellars filed proposed findings of fact and

conclusions of law on December 31, 1996, after having been

granted an extension of time. The proposals of the parties

have been duly considered.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at

the final hearing and on the entire record of this proceeding,

the following findings of fact are made:

1. During the 1994-1995 school year, Ernest L. Sellars

was employed as a teacher by the Broward County School Board.

During that year, he taught second grade at Park Ridge

Elementary School, where he had worked since the 1992-1993

school year. Prior to the 1994-1995 school year, Mr. Sellars

taught a fifth-grade class at Park Ridge Elementary School.

2. Walter L. Cooper was the principal of Park Ridge

Elementary School during the 1994-1995 school year. On March

16, 1995, Mr. Cooper submitted a Personnel Investigation

Request to the School Board’s Professional Standards Office

regarding an allegation by Faith Williams that, at 8:15 a.m.

on March 15, 1995, Mr. Sellars had physically abused her

daughter, S. B., a student in his second grade class. The

specific allegation stated in the request was that Mr. Sellars

“grabbed her around her neck, threw her to the floor causing

scratches on her knee.”

3. Ronald S. Wright, the Professional Standards

Director for the School Board, considered the request and

recommended to the Superintendent that a special investigation

be conducted into the allegations. The investigation was

approved and assigned to the School Board’s Special

Investigative Unit, a state-certified law enforcement agency.

4. Rodney Green, an officer with the Special

Investigative Unit, was assigned to conduct the investigation.

He took the statements of eight students in Mr. Sellars

second-grade class, S. B., J. D., L. W., J. J., B. W., C. B.,

C. A., and M. B., and of S. B.’s mother, Faith Williams.

These statements were taken on April 3, 5, and 6, 1995.

Either Mr. Cooper, Jacquelyn Haywood, the assistant principal,

or a Ms. Bean were present while the students’ statements were

taken.

5. Mr. Sellars was notified of the investigation on

April 7, 1995, and Officer Green took his statement on May 2,

1995.

6. At some point before Officer Green took the

students’ statements, each student was interviewed by either

Mr. Cooper or Ms. Haywood. Immediately prior to taping the

students’ statements, Officer Green interviewed each of the

students.

7. Photographs were taken o f the classroom assigned to

Mr. Sellars’s second-grade class. These photographs were of

the classroom’s closet, the arrangement of the students’

desks, the rear of Mr. Sellars’s desk and the podium standing

beside the desk, and the cabinet adjacent to the classroom’s

sink. These photographs, which appear to be the same as those

received into evidence as Petitioner's exhibit 2, were shown

to the students during the April, 1995, interviews and were

attached to the investigative report.

8. Four of the stud ents in Mr. Sellars’s 1994-1995

second-grade class testified during the hearing, J. D., J. J.,

L. W., and J. A.. They were the only witnesses, with the

exception of Mr. Sellars, to testify who had personal

knowledge of Mr. Sellars’s conduct in the classroom. The

investigative report containing the statements taped by

Officer Green was received into evidence without objection. 1

9. J. D. and L. W. testified at the hearing regarding

their recollection of the incident in which Mr. Sellars

allegedly physically abused S. B. 2 Their testimony was not

only conflicting, it was not consistent with the statements

they gave to Officer Green. In addition, far from explaining

or supplementing the evidence given by J. D. and L. W. at the

hearing, the descriptions of the incident included in the

statements given to Officer Green varied widely both in the

generalities and in the details, and it is difficult to

conclude that the statements even dealt with the incident

which allegedly took place on March 15, 1995.

10. J. D., J. J., L. W., and J. A. testified at the

hearing regarding their recollection of the ways in which Mr.

Sellars disciplined or punished children who were “bad" in

class. Although the testimony of J. D., J. J., and L. W. was

consistent in that each testified that Mr. Sellars would put

“bad” students in the closet, in the cabinet, and under the

desk/podium, the testimony was conclusory and inconsistent

with regard to the details of the alleged confinement. 3

12. For example, it cannot be concluded from the

testimony whether students were actually put in the closet as

punishment or whether they were sent to the closet for time-

out. The closet was set up as a media center. Books, games,

and supplies were stored on the closet shelves, and a large

television on a stand was located just outside the closet.

The television was in front of the closet door and held it

open, and, given the position of the television, it is

unlikely that the door to the closet was ever closed.

13. J. D. testified that Mr. Sella rs would poke

students in the chest with his middle finger, which was

essentially consistent with information he gave in his

statement to Officer Green. However, none of the students

testifying at the hearing corroborated this testimony, and the

statements given by the other students to Officer Green,

likewise, did not corroborate this testimony.

14. J. J. gave a graphic description in his testimony

at the hearing of how Mr. Sellars put J. A. in the cabinet

near the sink: “He would like, grab JA by the back of the neck

and he had opened the thing and told JA get in there and JA

got in there.” (Transcript at 177)

15. J. A. testified that Mr. Sellars had never put him

in the cabinet or the closet or under the podium and that he

had never seen Mr. Sellars punish students by putting them in

the closet or the cabinet, under the podium, or on the floor

under tables or desks. He further testified that he had never

seen Mr. Sellars poke students in the chest, hit them over the

head with his fist, or slam them against the chalkboard or the

wall and that Mr. Sellars had never done those things to him.

16. There was no evidence presented that Mr. Sellars

had been the subject of any complaint alleging improper

discipline or child abuse other than the one filed by Faith

Williams in March, 1995. Mr. Cooper testified that, had there

been an allegation of child abuse, a report would have been

filed. 4

17. Elizabeth Anderson, J. A.’s mother, testified that

her son had never told her about any instances in which Mr.

Sellars had mistreated any of the students in the class.

18. Mr. Sellars categorically denied ever having

committed any of the acts alleged in the Administrative

Complaint.

19. The Superintendent has failed to present any

evidence which can be used as the basis of findings of fact

that Mr. Sellars committed the acts alleged in paragraphs F,

G, I, J, K, L, or M of the Administrative Complaint. 5 The

Superintendent has failed to prove by the greater weight of

the credible evidence presented at the hearing that Mr.

Sellars committed the acts alleged in paragraphs D, E, H, N,

O, or P of the Administrative Complaint.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to section 120.57(1), Florida

Statutes (Supp. 1996).

21. “The School Board bears the burden of proving, by a

preponderance of the evidence, each element of the charged

offense which may warrant dismissal.” McNeill v. Pinellas

County School Board , 678 So. 2d 476, 477 (Fla. 2d DCA 1996);

see also Dileo v. School Board of Dade County , 569 So. 2d 883

(Fla. 3d DCA 1990)(when a School Board seeks to terminate a

teacher who is employed under a continuing contract, the

allegations against him or her must be proven by a

preponderance of the evidence).

22. Except for Mr. Sellars himself, the four students

who testified at the hearing were the only witnesses with

personal knowledge of the conditions in Mr. Sellars’s

classroom and of the way in which he treated the students in

the class. Their testimony, including that of the student who

testified on Mr. Sellars's behalf, was vague and

contradictory, and it does not provide a basis for reaching a

conclusion with any degree of confidence that Mr. Sellars

committed the acts alleged in the Administrative Complaint. 6

23. Based on the findings of fact herein, it is

concluded that the Superintendent did not carry his burden of

proving by a preponderance of the credible evidence that Mr.

Sellars committed the acts alleged in the Administrative

Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

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

enter a final order dismissing the Administrative Complaint

against Ernest L. Sellars and reinstating Mr. Sellars without

back pay or benefits lost during his suspension.

DONE AND ENTERED this 10th day of April, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 10th day of April, 1997.

ENDNOTES

1 authenticity and completeness of the statements The

included in the investigative report were not challenged at

the hearing. Although all of the statements are hearsay

within hearsay, they were considered both in assessing the

credibility of the four students testifying at the hearing and

in determining whether the hearsay statements explained or

corroborated evidence presented at the hearing.

2 J. J. was not asked any que stions regarding the alleged

incident involving S. B.; J. A. testified that he did not

recall any such incident, which was consistent with the

observation of Officer Green in the summary of his

investigative report that J. A. "had no recollection of the

incident.”

3 fact, these three students were very quick with their In

answers that Mr. Sellars put students in the closet, the

cabinet, and the podium and gave the impression that the

responses were rehearsed. Similar assertions were made by

other students in the statements given to Officer Green; in

several instances, as with the testimony at trial, the context

in which the responses were given casts doubt on whether they

were spontaneous and based on the children’s own observations

or whether they were based on discussions the children might

have had prior to giving their testimony or statements.

Indeed, in some of the statements, Officer Green led the

children through their responses, sometimes telling them to

limit their answers to "yes or no."

4 Mr. Cooper testified that one of the reasons he requested

an investigation of the allegations made by Faith Williams was

that “we also had other concerns from parents regarding the

same type of incidents.” (Transcript at 189) He did not

provide any more precise information regarding the nature of

these concerns or of the incidents to which he is referring.

5 The only evidence supporting these charges is contained in

the statements given by S. B., B. W., C. B., C. A., and M. B.

to Officer Green. This evidence is hearsay and does not

explain or supplement other evidence nor would it be

admissible over objection in a civil action. This evidence

may not, therefore, form the basis for a finding of fact. See

Section 120.57(4), Fla. Stat. (“Hearsay evidence may be used

for the purpose of supplementing or explaining other evidence,

but it shall not be sufficient in itself to support a finding

unless it would be admissible over objection in civil

actions.”)

6 It is the responsibility of the administrative law jud ge to

weigh the evidence, resolve conflicts in the evidence, and

judge the credibility of the witnesses. Department of

Business and Professional Regulation v. McCarthy , 638 So. 2d

574, 575 (Fla. 1st DCA 1994)( citing Heifetz v. Department of

Business Regulation , 475 So. 2d 1277, 1281 (Fla. 1st DCA

1985)); Martuccio v. Department of Professional Regulation ,

622 So. 2d 607, 109 (Fla. 1st DCA 1993)(“It is for the hearing

officer to consider all the evidence presented, resolve

conflicts, judge credibility of witnesses, draw permissible

inferences from the evidence, and reach ultimate findings of

fact based on competent substantial evidence.”)

All of the admissible evidence has been considered in this

case, and the testimony and credibility of the four students

who testified at the hearing has been carefully evaluated.

The testimony given by these students at the hearing has been

compared with the out-of-court statements given to Officer

Green to determine the extent to which those out-of-court

statements explain or supplement or lend credibility to the

testimony given by the witnesses at the hearing. See section

120.57(4).

COPIES FURNISHED:

Willie J. Jones, Esquire

305 South Andrews Avenue

One River Plaza, Suite 721

Fort Lauderdale, Florida 33301

Gerald A. Williams, Esquire

Mack, Williams, Haygood and McLean

980 North Federal Highway, Suite 305

Boca Raton, Florida 33432-2704

Frank R. Petruzielo, Superintendent

Broward County Schools rd

600 Southeast 3 Avenue

Fort Lauderdale, Florida 33301-3125

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.