STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES )

COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 77-730

)

CHARLES ROBERT MCGARRY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Sarasota, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on July 7, 1977. The parties were represented by counsel:

APPEARANCES

For Petitioner: Robert J. Vossler, Esquire

110 North Magnolia Drive Tallahassee, Florida 32304

For Respondent: John M. Strickland, Esquire

2828 South Tamiami Trail Sarasota, Florida 33579

By petition for the revocation/suspension of teacher's certificate, filed April 22, 1977, petitioner alleged that respondent, on March 9, 1976, "did tie five eight and nine year old students together with a length of rope and then pull the students behind a motorcycle in an attempt to make the students run laps for discipline resulting in physical injury to the students and damage to their clothing," for which respondent was arrested; that he pleaded nolo contendere to the "offense of [b]attery;" and that he was placed on probation for six months, after adjudication of guilt was withheld. The petition stated the conclusion that, on account of the foregoing, respondent has been "guilty of acts for which the penalty is revocation or suspension of his teacher's certificate within the meaning of Section 231.28, Florida Statutes."

The response to petition, filed April 22, 1977, included a motion to dismiss the petition on the grounds, inter alia, that the petition was vague and ambiguous. Before the taking of evidence at the final hearing, petitioner's counsel moved ore tenus for leave to amend the petition. The motion was granted and the petition was modified to allege that respondent's effectiveness as a teacher had been reduced within the meaning of Section 231.28, Florida Statutes (1975), but that Section 231.28, Florida Statutes (1975), was otherwise inapplicable. The motion to dismiss was then denied.

FINDINGS OF FACT

1. Respondent Charles Robert McGarry moved to Sarasota, Florida, after graduating from college in December of 19793, and worked as a substitute teacher in the Sarasota County school system. At college he had trained to be a physical education teacher, and, in August of 1974, he began as a full-time physical education instructor at Bay Haven Elementary School. Respondent was working in this capacity on March 9, 1976, teaching his pupils tumbling. In the course of that day, five children (who were not all in the same physical education class), LeShay Smith, Jamie Farmer, James White, Edward Robinson, and Tracy Williams, were particularly exuberant, and interfered with the instructions. After milder measures proved unavailing, respondent told them that they would have to stay after school and run laps as punishment for their disruptive behavior.

   
   

2. Respondent asked Pat Walker, who taught some of the offending children other subjects, to keep them after school until he came for them. When the school day ended, respondent went to Pat Walker's classroom for the children detained there, and the other children who were to run laps appeared of their own accord. As respondent and the five children descended the stairs on their way outside, some of the children announced that they were going to run away instead of running the laps; when children actually started running in different directions, respondent caught them and threaded a jump rope he happened to have in his hand through the belt loops in the boys' pants. Holding an end of the jump rope in his hand, respondent led a jocular procession single file in the direction of the playing field, but got no further than his motorcycle, a two cylinder, 450 cc. model.

   
   

3. Respondent's effectiveness as a teacher was not impaired by the motorcycle incident. Jamie Farmer, the only one of the five children involved in the incident who testified, indicated that he still "get[s] along all right" (R31-32) with respondent. None of the children respondent has taught since the incident has mentioned it to respondent.

   
   

   CONCLUSIONS OF LAW

   
   

4. The issue in this case has been narrowed by the pleadings, as amended, to whether the facts proven support the legal conclusion that respondent has been "guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board." Section 231.28(1), Florida Statutes (1975). Conceding that "there must be some nexus shown between conduct outside of . . . [the school setting and a teacher's] performance of his official tasks," (R40- 41), petitioner maintain that conduct occurring on the school grounds of the kind proven here gives rise to a logical presumption of reduced effectiveness, which need not be proven as a factual matter.

   
   

5. Relying on Boyette v. State Professional Practices Council, 346 So.2d

   598 (Fla. 1st DCA 1977), respondent maintains that petitioner must establish by proof that his effectiveness was impaired. Arguing that petitioner has failed to carry its burden in this respect, respondent points to the uncontroverted opinion testimony of some four witnesses that his effectiveness as a teacher has not been impaired.

   
   

6. The only presumption logically flowing from the proof adduced at the hearing is that respondent was guilty of a single instance of abysmally poor judgment. The evidence was insufficient to show any reduction in respondent's effectiveness as a teacher. Indeed, the evidence was all the other way.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the petition be dismissed.

DONE and ENTERED this 12th day of August, 1977, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

Robert J. Vossler, Esq.

110 North Magnolia Drive Tallahassee, Florida 32304

John M. Strickland, Esq. 2828 South Tamiami Trail Sarasota, Florida 33579

Docket for Case No: 77-000730

Orders for Case No: 77-000730