STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2435

)

DENEFIELD FERGUSON, JR., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on March 8, 1979, in Miami, Florida.

APPEARANCES

For Petitioner: Michael P. Maguire, Esquire

44 West Flagler Street, Penthouse Miami, Florida 33130

For Respondent: Elizabeth J. du Fresne, Esquire

1782 One Biscayne Tower

2 South Biscayne Boulevard Miami, Florida 33131

The School Board of Dade County, Florida ("Petitioner") filed its Notice of Charges against Respondent, Denefield Ferguson, Jr. ("Respondent") charging that Respondent, an instructional employee of Petitioner, had on numerous occasions left his class unsupervised; made no lesson plans for his class; conducted disorganized and unsupervised classes; physically and verbally abused children in his classes; cursed, hit, pushed and knocked children in his classes to the ground; was insubordinate; was unable to conduct programs suitable for elementary children; was unable to work with other members of the staff and/or administration; continually disregarded directives of the principal for whom he worked; threatened to do physical violence to members of the administration on several occasions; and was guilty of immorality, misconduct in office, incompetency, gross insubordination and willful neglect of duty.

On or about December 11, 1978, Respondent requested a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes. Thereafter, by letter dated December 11, 1978, Petitioner requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing in this cause. Final hearing in this proceeding was scheduled for March 8, 1979, by Notice of Hearing dated January 15, 1979.

At the final hearing, counsel for the respective parties stipulated to the introduction into the record, in lieu of live testimony, of the depositions of

Andel W. Mickens, Donald Joseph Shannon, Donald Andrew Hoecherl, Jr., Nicholas

1. Borota, Roy S. Williams, Jr., Arthur Conner, Marion Seidman, Roy E. Scott, Jr., Solomon Stinson, Carl Hanna, and Jeff West. These depositions were received into evidence as Petitioner's Exhibits Nos. 1 through 11, inclusive. In addition, Petitioner offered Petitioner's Exhibit No. 12, which was received into evidence, and Petitioner's Exhibits Nos. 13, 14 and 15, which were not received into evidence, but were proffered for inclusion in the record.

   
   

   Respondent testified in his own behalf, and, in addition, called W. Franklin Cannon, Jr., W. Franklin Cannon, III, and Oliver Ashley. Respondent offered Respondent's Exhibits Nos. 1 through 7, inclusive, each of which was received into evidence.

   
   

   At the final hearing, Petitioner announced that it was voluntarily dismissing that portion of the Notice of Charges contained in Paragraph Two of that document.

   
   

   FINDINGS OF FACT

   
   

   1. At all times material hereto, Respondent was an instructional employee of the School Board of Dade County. In that capacity, Respondent was employed on an annual contract basis at Rainbow Park Elementary School from the beginning of the 1974-1975 school year through the end of the 1976-1977 school year. During this period, Respondent was placed on continuing contract on the recommendation of Andel W. Mickens, Principal of Rainbow Park Elementary School.

      
      

   2. During the 1976-1977 school year, after he had been placed on continuing contract, Respondent, while employed as a physical education instructor at Rainbow Park Elementary School, was involved in an altercation with students from another school in which Respondent suffered some injury, the nature of which is unclear from the record. It is, however, clear that after this altercation, Respondent's effectiveness as an instructor at Rainbow Park Elementary School, suffered dramatically. After the incident, Respondent was unable to control or discipline students in his classes, and was, therefore, unable to adequately organize students for instructional work. In fact, the school principal or another member of the administrative staff was required to be present in Respondent's classes to insure that some instructional progress could occur. As a result, the principal of Rainbow Park Elementary School recommended at the conclusion of the 1976-1977 school year that Respondent be transferred to another school. Respondent was transferred to Crestview Elementary School for the 1977-1978 school year. However, problems which had initially surfaced while he was still at Rainbow Park Elementary School continued at the new location. Respondent was instructed by the principal of the Crestview Elementary School that uniforms were not to be utilized as part of that school's "after-school programs", and that "all-star" games against other schools in the area were not to take place. Respondent, in direct disregard of these instructions, collected monies from students at Crestview Elementary School for the purchase of uniforms, and scheduled "all-star" games between Crestview Elementary School and other area schools. In the scheduling of these games, Respondent did not obtain the prior permission of, nor in fact did he consult, the principal of Crestview Elementary School. One of the "all-star" games was cancelled by the principal when he learned, the day before the game was to be played, that it had been scheduled by Respondent. When it was discovered that Respondent had collected monies for the purchase of uniforms for use in the after-school program, he was directed to return these monies to the individual students. In addition, Respondent on several occasions left classes unsupervised during his tenure at Crestview Elementary School. One of these

      occasions occurred when Respondent was contacting students scheduled to participate in the aforementioned "all-star" game. Another of Respondent's problem areas while at Crestview Elementary School dealt with his inability to organize his classes. Students were observed climbing trees during times when they should have been participating in Respondent's physical education class. A representative from the Area Office of the Dade County School Board specializing in physical education was called in specifically to consult with Respondent concerning the organization of his classes. Few, if any, of the consultant's suggestions were implemented by Respondent, whose classes remained disorganized. Finally, notwithstanding direct instructions to the contrary, Respondent allowed one of his physical education classes to participate in "tackle" football.

      There was no equipment at Crestview Elementary School to insure that participation in this type of activity would not result in injury to elementary school children. In fact, one child was injured in the course of one of these games, and reported this fact to the principal, who then prevented Respondent from continuing these activities. Although Respondent started the 1977-1978 school year at Crestview Elementary School, he was returned at the request of the Crestview principal to Rainbow Park Elementary School on November 9, 1977.

      
      

   3. The principal of Rainbow Park Elementary School, who had earlier suggested that Respondent be given a continuing contract, testified that Respondent appeared to be a "totally different person" upon his return to Rainbow Park Elementary School. She testified that Respondent evidenced irrational and bizarre behavior, and, on one occasion after a teacher-principal conference, Respondent snatched written suggestions concerning conduct of his classes from her hand, ripped them up before her and stalked from the room. Respondent could not control discipline in his classes and would, on occasion, scream and curse at his students. On one occasion, Respondent used excessive physical force in removing a student from one of his classes to the principal's office. Respondent would often not be in place to receive his classes when they were brought to him by the classroom instructor, and, on occasion would bring his classes back from the physical education fields before their class time was completed. Respondent's classes were disorganized to the point that activities occurring in his classes bore no resemblance to lesson plans. The principal of Rainbow Park Elementary School attempted to assist Respondent in organizing his classes by making suggestions and calling in consultants from the Area Office, but Respondent refused to accept constructive criticism. As a result, the principal of Rainbow Park Elementary School again requested that Respondent be transferred, which, in fact, occurred on December 12, 1977, when Respondent was reassigned to Carol City Senior High School.

      
      

   4. Respondent was employed at Carol City Senior High School from December 12, 1977 through the end of the 1977-1978 school year. At this new location, Respondent again encountered problems with school administrative and instructional personnel. According to the principal of Carol City Senior High School, Respondent repeatedly arrived late for classes, and submitted only "sketchy" lesson plans for his classes. In addition, the principal of Carol City Senior High School requested that Respondent be transferred to another school when it came to his attention that Respondent had attempted to "recruit" athletes from another area high school in order for them to participate in athletic programs at Carol City Senior High School. Respondent continued to experience problems with controlling his classes, and with using profanity toward students and members of the school administration. On one occasion, Respondent, a physical education teacher, called the chairman of the Physical Education Department at Carol City Senior High School a "mother fucker" in the presence of other teachers and students, and told him "to sit [his] ass down." Respondent continued to react negatively to evaluations or critiques, and, on

      one occasion snatched an evaluation from the hands of an assistant principal at Carol City Senior High School, and used profanity in response to that negative evaluation.

      
      

   5. At the beginning of the 1978-1979 school year, Respondent was assigned to Carol City Elementary School. Although there is no reason clearly reflected in the record, Respondent was transferred from Carol City Elementary School to Parkway Junior High School on October 27, 1978. The principal at Parkway Junior High School was the assistant principal at Carol City Senior High School with whom Respondent had had earlier difficulties. Respondent continued to experience these same difficulties at Parkway Junior High School. The school's principal received a complaint shortly after Respondent's conduct of his classes. Specifically, the complaints concerned Respondent's lack of control of students in the classes, and his failure to remain in the area where his classes were meeting. The school principal contacted Respondent to attempt to arrange a conference with other instructional personnel to resolve these problems. However, when the principal spoke with Respondent, Respondent began to use abusive language toward him. The school principal advised Respondent not to report back to Parkway Junior High School, but instead to report directly to the Area Office. Respondent indicated that he would not report to the Area Office, whereupon the principal advised him that if he returned to Parkway Junior High School, he would be arrested. Respondent then advised the school principal that if he had him arrested " . . . I will kill your mother fucking ass." Thereafter, Respondent was suspended as an instructional employee, and these proceedings ensued.

      
      

   6. Both Petitioner and Respondent have submitted Proposed Findings of Fact in this proceeding. To the extent that proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

      
      

   8. Section 231.36(6), Florida Statutes, provides in part, that:

      
      

      Any member ... of the instructional staff may be suspended or dismissed at any

      time during the school year ... provided ... that the charges must be based on ... mis- conduct in office, incompetency, gross insubordination [or] willful neglect of duty ...

      
      

   9. Rule 6B-4.09, Florida Administrative Code, provides that:

      
      

      The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36,

      Florida Statutes. The basis for each of such charges is hereby defined:

      1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity.

         Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by

         members of a panel of expert witnesses appropri- ately appointed from the teaching profession by the Professional Practices Council. Such judgment shall be based on a preponderance of evidence showing the existence of one or more

         of the following:

         1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated fail- ure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his supervision to such an extent that the educational program for which he is responsible is seriously impaired.

         2. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability;

            1. lack of general educational background; or (4) lack of adequate command of his area of specialization.

               1. Misconduct in office is defined as a violation of the Code of Ethics of the Edu- cation Profession so serious as to impair the individual's effectiveness in the school system.

               2. Gross insubordination or willful neglect of duties is defined as a constant or con- tinuing refusal to obey a direct order, reasonable in nature, and given by and with proper authority. [Emphasis added]

            
            

   10. Section 231.09(2) and (3), Florida Statutes, provides that members of the instructional staff of public schools shall perform the following functions:

       
       

       1. EXAMPLE FOR PUPILS--Labor faithfully and earnestly for the advancement of the

          pupils in their studies, deportment and morals, and embrace every opportunity to inculcate,

          by precept and example, the principles of truth, honesty and patriotism . . .

          
          

       2. 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 board . . .

       
       

   11. Respondent's conduct as described in the Findings of Fact hereinabove set forth, constitutes violations of Sections 231.36 and 231.09, Florida Statutes, and Rule 6B-4.08, Florida Administrative Code, in that such conduct

constitutes incompetency, inefficiency, incapacity, misconduct in office, and gross insubordination or willful neglect of duty.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED:

That a Final Order be entered by the School Board of Dade County, Florida, cancelling the continuing contract of Respondent, Denefield Ferguson, Jr., and dismissing him as an instructional employee of the School Board of Dade County, Florida.

RECOMMENDED this 3rd day of May, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Michael P. Maguire, Esquire

44 West Flagler Street Penthouse

Miami, Florida 33130

Elizabeth J. du Fresne, Esquire 1782 One Biscayne Tower

2 South Biscayne Boulevard Miami, Florida 33131

Docket for Case No: 78-002435

Orders for Case No: 78-002435