STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITRUS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-970

)

ALLEN P. HENRY, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Michael R.N. McDonnell, Hearing Officer for the Division of Administrative Hearings, at 10:00 a.m., on July 21, 1977, in the Board Room of the Citrus County School Board Administration Building, Inverness, Florida.

APPEARANCES

For Petitioner: Jeffrey I. Pattinson, Esquire For Respondent: Ronald G. Meyer, Esquire

Petitioner, Citrus County School Board (hereafter School Board), seeks to suspend Respondent, Allen P. Henry, Jr. (hereafter Henry), without pay for a reasonable length of time from his duties as Sixth Grade Mathematics Teacher at Inverness Middle School. These proceedings arise by virtue of allegations that Henry used improper force in breaking up a fist fight between two students under his supervision.

Petitioner contends that Henry's use of force constitutes (1) infliction of corporal punishment without the accompanying safeguards required by law, or (2) unreasonable physical force in the restoration of a tranquil situation.

Respondent submits that the force used was authorized, necessary and reasonable.

FINDINGS OF FACT

1. Respondent, Henry, was employed as a sixth grade mathematics teacher at Inverness Middle School, Citrus County, Florida, on May 3, 1977. Henry has had some 23 years service as a teacher in Citrus County. On that day Henry was on lunch duty, which required him to maintain control of the students on the play ground after the midday meal.

   
   

2. At approximately Noon, Barry Allen Remley and Robert Lee Thomas, both twelve years old and students in grade six at the Inverness Middle School, were fighting on the play ground. A large group of children surrounded the boys, cheering on their particular favorite in the affray.

   
   

3. Henry proceeded to the altercation and instructed the boys to stop the fight. Henry's instructions were heard by at least one of the participants in

   the fight but they were disregarded. Henry pulled off the belt he was wearing, doubled it up and held the buckle in his hand. Henry attempted to pull the boys apart, without success, and at that time began striking the boys with the belt for the purpose of stopping the fight and separating them. The fighting stopped almost immediately at which time Henry ceased using the belt. However, one of the participants, Robert Lee Thomas, turned around and struck Henry. The children were taken by Henry to the principal's office but because none of the school administrative personnel were in the office, discipline was deferred to another time.

   
   

4. It is proposed by Petitioner's counsel that it be found as a matter of fact that Robert Lee Thomas received injuries and suffered an acute anxiety reaction because Henry struck him with the belt. However, such a conclusion is unsupported by the evidence and, indeed, is contradicted by the witnesses who testified that the blows were "easy hits", "a tap" or "like your parents will give you a paddling." Another witness, Chris Atkins, testified that, in his judgment, the taps received by the boys with the belt were less than what he got at home. Robert's physician was unable to testify that the anxiety reaction was related to the incident and the very minor injuries sustained by Robert may just as easily have been caused by the fight as the belt. Accordingly, no finding is made that an unreasonable amount of force was used by Henry.

   
   

   CONCLUSIONS OF LAW

   
   

5. The School Board has charged Henry with eight separate violations of statutes, regulations or guidelines. Two of these, s232.27, Florida Statutes, and Citrus County School Board Regulations 6GX9-5.20, deal with the issue of corporal punishment which is defined both in s228.041(2)(a) Florida Statutes, and in the cited School Board regulation as:

   
   

   the moderate use of physical force

   or physical contact by a teacher of principal as may be necessary to maintain discipline

   or to enforce school rules.

   
   

6. Corporal punishment does not contemplate all use of physical force but rather only that administered in retribution for a breach of discipline or school rules. The use of force to break up a fight is not punishment.

   
   

7. The First District Court of Appeal in Williams v. Cotton, 346 So.2d 1039 (Fla. 1st DCA 1977), observes that s232.27, Florida Statutes, requiring a teacher to keep good order in school areas implies the power to the teacher to use reasonable physical force not amounting to corporal punishment. That is to say, physical force which has a purpose other than punishment. Accordingly, the charges under these two provisions of law regarding corporal punishment are not sustained because the evidence shows no corporal punishment was administered.

   
   

8. The issue then becomes whether the force used was reasonable and, if not, whether the use of unreasonable force to break up a fight between students violates the provisions of the remaining statutes under which Henry is charged. Although it is found as a matter of fact that the amount of force used was light, it is concluded that the kind of force used was unreasonable as a method to separate brawling youngsters. The use of an instrument such as a belt to strike a student who is rolling or moving violently about, subjects the student to potential injury of the eyes or other sensitive areas. Reasonable physical force would constitute the physical separation of the students but not the infliction of further pain, however slight, or the exposing of the student to

   potential injury. Should the teacher involved fear for his personal safety, then it would be appropriate to obtain the assistance of other adults.

   
   

9. Henry is not guilty of a violation of s231.36(6), Florida Statutes, since what he did does not constitute misconduct in office, incompetency or willful neglect of duty. He is not guilty of failing to keep good order as required by s323.27, Florida Statutes, since that is what Henry in fact did.

   
   

10. Henry is charged as well under five subsections of s231.09, Florida Statutes. To conclude that Henry's conduct violates subsections (2), (4), (6) or (8) of that statute would require at best a very strained interpretation of those laws.

    
    

11. Subsection (3) of s321.09, Florida Statutes, provides:

    
    

    TREATMENT OF PUPILS.--Treat pupils under their care kindly, considerately and humanely administering discipline in accordance with regulations of the state board and the school boards; provided, that in no case shall cruel or inhumane punishment be administered to any child attending the public schools.

    
    

12. It is concluded that Henry's injudicious use of force constitutes inconsiderate treatment of the pupils under his care. It is not concluded that Henry intended to be inconsiderate, however, the result is the same.

    
    

13. Respondent has moved to dismiss those charges that are predicated upon s231.09, Florida Statutes, because portions of that statute run afoul of the establishment clause of the First Amendment to the Constitution of the United States. However, that portion of the statute is not used as a basis for the findings herein and, accordingly, the motion is denied. Respondent's contention that the petition should be dismissed on the ground that the School Board has no power to suspend the Respondent indefinitely is denied in light of the following Recommendation. It is concluded that for the conduct of which Henry has been found guilty, suspension is too harsh a penalty. It is more appropriate that only formal advice of the inappropriate use of force be issued.

    
    

14. Based upon these findings of fact and conclusions of law, it is recommended that Henry be reinstated to his teaching position, with full back benefits and that, further, Henry be formally advised by the School Board that the methods he employed were improper and are not to be repeated.

DONE and ENTERED this 8th day of September, 1977, in Tallahassee, Florida.

MICHAEL R. N. MCDONNELL

Hearing Officer

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

(904) 488-9675

APPENDIX TO RECOMMENDED ORDER

In accordance with the requirements of the decision in Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), the rulings on proposed findings of fact submitted by Petitioner along with the grounds for rejection are set forth below. Respondent submitted no proposed findings of fact.

1. Adopted in substance.

2. Adopted in substance.

3. Adopted in substance.

4. Rejected. unsupported by competent evidence.

5. Rejected insofar as Henry is alleged to have said nothing or not to have tried physically to separate the children. Otherwise adopted in substance.

6. Rejected. Irrelevant since it is found that no punishment was meted out to the students.

7. Rejected because the evidence fails to establish a causal connection between the use of the belt and injuries sustained by Robert Lee Thomas.

8. Adopted in substance.

9. Rejected as no causal connection was established by the evidence between the conduct of Henry and the acute anxiety reaction of Robert Lee Thomas.

10. Rejected as irrelevant.

11. Adopted in substance.

COPIES FURNISHED:

Ronald G. Meyer, Esquire 5401 West Kennedy Boulevard Suite 990

Tampa, Florida 33609

Jeffrey I. Pattinson Post Office Box 1506

Crystal River, Florida 32629

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AGENCY FINAL ORDER

=================================================================

CITRUS COUNTY SCHOOL BOARD CITRUS COUNTY SCHOOL BOARD,

Petitioner,

vs. CASE NO. 77-970

ALLEN P. HENRY, JR.,

Respondent.

/

R E S O L U T I O N

At a Special Meeting of the Citrus County School Board held in Inverness, Florida, on June 13, 1978, Board member David Langer made the following motion:

RESOLUTION

WHEREAS, in compliance with Florida law, it is necessary for the Citrus County School Board to take final agency action in the form of entry of a final order in regard to a recommended order entered by Hearing Officer Michael R. N. McDonnell on April 18, 1978, in the case of Citrus County School Board, Petitioner, v. Allen P. Henry, Jr., Respondent, State of Florida, Division of Administrative Hearings, Case No. 77-2201, a copy of which is attached and incorporated herein by reference; and

WHEREAS, all of the members of the Citrus County School Board are present at this Special Meeting and have reviewed the complete record of the case for which this recommended order has been entered;

NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:

1. The Exceptions To Recommended Order filed by attorney for Mr. Henry are denied.

   
   

2. The Recommended Order attached hereto and above referred to is adopted and accepted as the final order of the Citrus County School Board except that the recommended penalty is increased and Allen P. Henry, Jr. is discharged as employee and his contract of employment with Citrus County School Board is thereby cancelled.

   
   

3. This Resolution shall constitute a Final Order in accordance with Florida Statutes ss120.57 and 120.59."

Motion seconded by Board member John Hodgkins and unanimously carried.

CITRUS COUNTY SCHOOL BOARD

By Wayne Rolph, Chairman

Attest Roger Weaver, Superintendent

CERTIFICATE OF TRUE COPY AND SERVICE

The undersigned certifies that the foregoing is a true and correct original or copy of Resolution of Citrus County School Board on June 13, 1978, and that a copy was mailed to J. Pattinson, Post Office Box 1506, Crystal River, Florida 32629, Attorney for Citrus County School Board, and Mr. Ronald G. Meyer, 325 John Knox Road, Suite L-500, Tallahassee, Florida 32303, Attorney for Allen P. Henry, Jr., this 16th day of June, 1978.

Roger Weaver, Superintendent

Docket for Case No: 77-000970

Orders for Case No: 77-000970