STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF SARASOTA ) COUNTY, FLORIDA, )

)

Petitioner, )

vs. ) CASE NO. 75-1703

)

THOMAS W. BENNETT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on November 17, 1975 at Sarasota, Florida.

APPEARANCES

For Petitioner: Richard W. Cooney, Esquire Box 6167

Sarasota, Florida 33578 and

Louis Jackson, Esquire

11 West 42nd Street

New York, New York 10036

For Respondent Sidney L. Matthew, Esquire

208 West Pensacola Street Tallahassee, Florida 32304

RECOMMENDED ORDER

Following his dismissal from the employ of the Sarasota County School Board (Board) in August, 1975, Thomas W. Bennett, Respondent herein, petitioned the Board for a hearing before a hearing officer from the Division of Administrative Hearings. By letter dated September 11, 1975 the Board requested a hearing officer be assigned to hear Mr. Bennett's appeal from his dismissal.

Respondent's dismissal was predicated, and the cause was noticed for hearing.

The Board charged that Respondent was guilty of misconduct in office and incompetency at the Venice Junior High School in 1973 and 1975, in using acceptable language toward students and over the school public address system, assaulting students, and permitting students to violate school board policies.

By Motion filed November 6, 1975, Respondent moved to dismiss all charges on the grounds that Section 231.36(6), Florida Statutes is unconstitutional that the Board is precluded from basing its actions on charges more than two years old, and that Respondent has been denied a speedy hearing on those charges more than two years old. This Motion was renewed at the hearing and, following argument of counsel, the Motion to Dismiss was denied. Thereafter the Board

presented eight witnesses and Respondent presented five witnesses and testified in his own behalf.

FINDINGS OF FACT

1. Thomas W. Bennett was employed by the Sarasota County School Board in the 1967-68 school year, and assigned Shop and Drafting at the Venice Junior High School. In 1968 he was assigned a satisfactory evaluation by his principal, Mr. Guy Rose, for this school year. Respondent continued to receive satisfactory evaluations from Mr. Rose, and acquired continuing contract status or tenure. By 1971 the principal, Mr. Rose, was becoming concerned about Respondent's behavior patterns involving both students and faculty. Specifically, he was cornered about Respondent allowing students on one occasion to ride on a flat bed trailer without guard rails, and about erratic behavior evidenced by notes to other faculty members left on light cords and other odd places which in tone and content sometimes irritated the recipients.

   
   

2. On one occasion Mr. Rose was notified that some students were at the shopping center a few blocks from the school during school hours, and upon investigation he learned they were assigned to Respondent's class and had been sent out of the class because they did not have materials with which to work. On another occasion Mr. Rose found the shop area unlocked and Respondent not in attendance. This latter he considered a safety hazard both from the standpoint of potential injury to students due to unattended power tools, as well as a potential loss of small hand tools due to pilferage.

   
   

3. At a meeting held on March 4, 1971 to consider Respondent's request for additional lumber for his classes, these concerns were discussed and Mr. Bennett was advised by Mr. Rose that his performance needed to improve. Exhibit 2 documenting the meeting held March 4, 1971 was admitted into evidence.

   
   

4. In 1971 and 1972 two incidents came to light regarding Respondent striking or otherwise committing a battery on students. On one occasion he struck Douglas Letson on the back of the head with a small piece of plywood approximately 1/4" thick. While working in his shop class Letson carelessly drilled through the piece of plywood into the table. When he observed this incident Respondent said "God dammit, don't drill through my table", (or words to that effect), picked up the piece of plywood on which Letson had been drilling and hit Letson on the back of the head with sufficient force to cause contusions and a subsequent swelling. The skin was not broken.

   
   

5. On another occasion a student with a bleeding scalp wound reported to the Assistant Principal (Mr. Guy Bennett) that Respondent Bennett had struck him. Respondent denies ever having touched this student and the evidence was insufficient to support a finding that a battery was in fact committed.

   
   

6. In 1973, after Mr. Guy Bennett had succeeded to the position of principal at Venice Junior High School, he received a report of Respondent Bennett striking a student and had the Acting Assistant Principal investigate. Exhibit 18, the Affidavit of Brett Gordon Derby attesting to being battered by Respondent, was admitted into evidence.

   
   

7. Shortly after Guy Bennett succeeded to the position of principal he prepared a Performance Agreement, Exhibit 13, for Respondent Bennett. Therein he listed those areas wherein he considered Respondent's performance below acceptable levels. Following the concept of positive thinking these deficiencies were phrased as Operational Objectives. One operational objective

   was "Teacher will demonstrate self control - VJA goal #12 (no striking of students)". Another was "Teacher will maintain mutual respect in classroom - VJH goal #22 (no profanity directed at students)". Those schoolwide goals are contained in Exhibit 15, extraction from the FIO Manual presented at the hearing.

   
   

8. Mr. Guy Bennett was also concerned regarding Respondent's grading practices. On one occasion after the principal suspended a student on Respondent's recommendation the parents of the suspended student appeared with their son's report card showing Respondent had marked their son "A" in merit and "E" (for excellent) in citizenship. At times Respondent assigned grades recommended by the class. Principal Bennett considered the drop-out rate in Respondent's class to be much higher than it should have been, and that many more of his disciplinary problems should have been resolved in the classroom. Once Principal Guy Bennett had Respondent apologize to two visiting parents who heard Respondent, after being advised over the high school public address system that he had a telephone call, respond over the public address system "aw shit".

   
   

9. In February, 1975, while assigned to bus duty, Respondent saw Annette Lanning, a 13-year-old 8th grade student, enter the line getting on a bus at a point near the beginning of the line. Annette Lanning and the bus driver both testified that she had been pushed out of the line and was returning to her rightful place when Respondent told her to go to the end of the line. She went near the end of the line where her older sister told her to get in the line along side her. Upon Annette's arrival at the bus door, Respondent pushed her out of the line with his hand on her throat some 6 to 10 feet to a fence. He pushed her against the fence several times and made threatening gestures with a clenched fist. The bus driver who observed the entire episode from inside the bus, rushed off the bus to pull Respondent back from Annette. When released Annette ran toward the bus. The bus driver, Mrs. Walsh, submitted a report of the incident immediately afterwards. This report was admitted into evidence as Exhibit 12, and the witness testified that the report accurately reflected what she observed and did. As a result of this incident Annette's parents filed criminal charges against Respondent Bennett. When Principal Bennett returned to Venice the evening of February 7, 1975 he was advised of the incident, and contacted the Lannings to request that they withdrew their complaint before a warrant was issued. After Principal Bennett convinced them that he could better handle the problem at the school level, the Lannings withdrew the complaint. A copy of the complaint report was admitted into evidence as Exhibit 11.

   
   

10. In May 1975, a local businessman, Mr. Robert Anderson, gave Respondent permission to conduct his students on a field trip through Mr. Anderson's plant. During the visit and after ascertaining that smoking was not prohibited in the plant, Respondent advised the students they could light up. Mr. Anderson was sufficiently concerned about Respondent's permitting the smoking, which was in violation of school policy, that he wrote letters complaining about the incident, and testified at the hearing.

    
    

11. Witnesses testifying on behalf of Respondent considered Respondent to be a good teacher who appeared well liked by his students. They never saw Respondent lose his temper, hit any students, or swear in their presence. They would not condone striking a student over the head with a board, or choking a student.

    
    

12. Respondent acknowledged that he had hit Douglas Letson with the board through which Letson had drilled into the desk below. He further admitted that he sent students to the library when they did not have materials to perform shop

    projects, and he did not follow up to ascertain if they went to the library as he directed. With respect to the Annette Lanning incident, Respondent acknowledged pushing her from the line with his hand against her throat, but he denied choking her or threatening her with a clenched fist. He acknowledged signing the letter dated February 10, 1975, Exhibit 16, which was prepared by Principal Bennett but he has not sought professional help respecting his temper. In Exhibit 16 Respondent acknowledged that he overreacted in this situation.

    
    

    CONCLUSIONS OF LAW

    
    

13. The facts in this case are largely undisputed, and the only real issue is whether several exhibitions of what appears to be an uncontrollable temper is sufficient to justify dismissal of a junior high school teacher whose initial performance of duty was adequate to qualify for tenure. If undisciplined temper is not sufficient, does the addition of failure to maintain discipline, failure to adhere to Board regulations and policies, somewhat strange behavior in communicating with other faculty members, and improper evaluation of students justify the dismissal of Respondent, Thomas W. Bennett?

    
    

14. Section 231.36(6), Florida Statutes provides that a member of the school instructional staff may be dismissed providing, inter alia, the charges are "based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness or conviction of any crime involving moral turpitude".

    
    

15. Striking a student over the head with a board and grabbing a student by the throat in anger constitutes both misconduct in office and incompetency. Accordingly, the evidence of temper and pushing a girl from the bus line with a hand on her throat is more than adequate to justify, if not demand, that Respondent Bennett be removed from his position as a junior high school teacher.

    
    

16. Furthermore the Sarasota County School Board has been put on notice that Thomas W. Bennett has demonstrated dangerous propensities. Any child subsequently injured by Respondent would appear to have a cause of action against the Board for such injuries. However, legal liability pales to insignificance when compared to the potential physical or emotional injury to which children under Respondent's jurisdiction might be subjected.

    
    

17. Here it can hardly be said that Respondent was not afforded ample opportunity to correct those faults regarding which he was counselled. As early as March 4, 1971 his principal advised Respondent that his performance left something to be desired. A subsequent principal, in August 1972, prepared and communicated to Respondent a long evaluation of areas in which Respondent needed to improve. It is somewhat ironic that Respondent's Motion to Dismiss the charges was based upon the contention that charges more than two years old should be barred from consideration. If such were the law, borderline competency teachers would be virtually impossible to remove.

    
    

18. Despite the counselling sessions above noted, Respondent committed two serious breaches in 1975 and when these and Respondent's prior record came to the attention of the superintendent, the action that precipitated this hearing was taken.

From the foregoing it is concluded that Respondent, Thomas W. Bennett, is guilty of misconduct in office and incompetency. It is therefore,

RECOMMENDATION

RECOMMENDED that he be dismissed as a teacher from the Sarasota County School System.

DONE and ENTERED this 8th day of December, 1975, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Richard W. Conney, Esq. Box 6167

Sarasota, Florida 33578

Louis Jackson, Esq.

c/o Richard W. Cooney, Esq. Box 6167

Sarasota, Florida 33578

Sidney L. Matthew, Esq.

208 W. Pensacola Street Tallahassee, Florida 32301

Docket for Case No: 75-001703

Orders for Case No: 75-001703