STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA )

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

v. ) CASE NO. 79-849

)

ROLAND C. FOOTE, )

)

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 case on 5, 6 and 7 September 1979 at Bushnell, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

For Respondent: George S. Reynolds, III, Esquire

103 North Gadsden Street Tallahassee, Florida 32302

By Petition for Revocation of Teachers Certificate Upon Remand dated 27 April 1979, the Professional Practices Council (PPC), Petitioner, seeks to revoke the teaching certificate of Roland C. Foote, Respondent, who at all times material to the charges was serving a Principal at Webster Elementary School.

As grounds therefor it is alleged that on three occasion between 1972 and 1978, Respondent wrongfully failed to provide or allow others to provide proper medical treatment to students who had been injured; that he paddled several students without an adult witness present; that during the course of his paddling of some black pupils he made derogatory racial slurs to the pupils; that his punishment was at times unduly severe and improperly administered; and that in 1973 he slapped a black female student with his open hand.

During the hearing 48 witnesses were called by Petitioner with 5 of them in rebuttal, 48 witnesses were called by Respondent, including the Respondent, who testified in his own defense, and 48 exhibits were offered into evidence.

Objections to Exhibits Nos. 6, 15, 22, 23 and 34 were sustained at the hearing. Ruling on Exhibits 37, 38 and 39 were reserved at the hearing. Exhibit 39 is now admitted; however, the objects to Exhibits 37 and 38 are hereby sustained. Exhibit 37 is the tapes of a five-hour radio talk show on WKIS of Orlando, and Exhibit 38 contains a record of phone calls and other communications received relevant to this talk show. Those participating on the talk show who related information adverse to Respondent Foote on that show were present and testified at this hearing. Respondent offered these exhibits in support of his affirmative defense of conspiracy on the part of the approximately eight

teachers who instigated these proceedings. This affirmative defense had been stricken upon motion of the Petitioner at the commencement of the hearing, and Exhibits 37 and 38 are not otherwise relevant. Motions to strike testimony of rebuttal witnesses, on which ruling was reserved at the hearing, is now denied.

FINDINGS OF FACT

Roland C. Foote, Respondent, holds Florida teaching certificate number 107445, Graduate, Rank II. He served as Principal of Webster Elementary School (formerly Webster Junior High), hereinafter called Webster, from 1968 until he was replaced in late 1978. He has been employed in the Florida school system for more than twenty-five years.

On May 8, 1978, Respondent sent a letter (Exhibit 10) to the Sumter County School Superintendent recommending the suspension of James Constable, one of the teachers at Webster. This was referred to the PPC for investigation by the Superintendent.

By letter dated May 16, 1978 (Exhibit 12) some 11 teachers at Webster signed a letter to Ms. Angela J. Peterson, an investigator for the PPC, requesting an audience to discuss several urgent matters relating to Webster. Constable was one of the signers of this letter. Some of those who signed were aware the purposes was to complain of the manner in which Respondent ran Webster; others thought the purpose was to assist Constable.

The first meeting with the PPC representative was held on June 6, 1978.

Some eight teachers attended this meeting, discussed with Ms. Peterson several situations of which they were aware involving possible improper conduct by Respondent, and agreed to provide PPC with testimony and facts necessary to prepare charges against Respondent.

Numerous additional meetings were held by this group, some with PPC representatives and others without PPC representation, for the purpose of reconstructing the dates of the incidents complained of and to ascertain who had knowledge of the incidents.

Prior to discussing the specific charges preferred against Respondent and the evidence relating thereto, additional background information gleaned from the testimony and the exhibits admitted into evidence is first presented.

Sumter County is predominantly a small-farm agricultural area as opposed to an urban society, with the socioeconomic level below that of most of the larger counties in Florida. In addition to those permanent residents who live and work on farms, there are migrant workers who appear at harvest time. The population mix is about 1/3 black and that is also the school population mix. Several of these students are classified as educationally mentally retarded and qualify for supplemental education programs.

About 7 of the 25 teacher faculty at Webster are black and no evidence of any faculty racial tensions or frictions was presented.

Friction has existed at Webster between some faculty members and Respondent for a long time. In school year 1974-75 a special workshop was conducted at Webster to improve the communications between the faculty and the administration. The workshop met with mixed success. Some of the teachers at Webster mad minor complaints to various supervisors over the years but none was ever willing to reduced a complaint to writing and present it to the

Superintendent. As a result, the Superintendent on one occasion told the faculty at Webster that he was tired of hearing complaints about Webster and for them to work out their problems at the school.

The principal at smaller schools, where assistant principals or deans are not provided, is the primary as well as final, authority in the discipline of students and in particular in the administering of corporal punishment.

In addition to a wooden paddle or two, Respondent had provided himself with a leather strap which he also used to administer corporal punishment. The strap used by Respondent was admitted into evidence as Exhibit 20. At the time it was used, a metal slat was inserted between the two pieces of leather comprising the strap to provide additional stiffness. The addition of this metal slat did not make the strap a more sinister punishment tool.

Straps similar to Exhibit 20 are sold in tack shops and are called bats.

They are approximately 18 inches long and are comprised of two pieces of leather one-eight inch thick, sewed together. The bat is about one inch wide through the first foot of its length and then flares out to two inches wide at the end. The two pieces of leather at the flared end are not sewn and they clap together making a louder noise when something is struck with the bat than would occur with only a single piece of leather. It is this flared part of the bat that contacts the backside of a pupil who is administered corporal punishment.

This strap or bat will cause less injury to a student than a wooden paddle if each is used with the same degree of force. While the immediate sting from the bat may be as great as the sting from a paddle, the former is much less likely to bruise a child than is the paddle. Some of the implications of the material allegations, as well as the opinions of some witnesses, are that the use of a leather strap for administering corporal punishment is itself cruel and unusual. So long as corporal punishment is authorized, these implications and opinions are without foundation.

The material allegations preferred against Respondent will be discussed in chronological order. It is to be noted that the two earliest incidents were familiar to many people at the time they occurred, but no action was taken until 1978.

Material Allegation 3 alleges that on or about March 1, 1972 at 8:30 a.m.

Larry James, a ten-year old black student at Webster, received an eye injury resulting in the loss of sight in the injured eye when a nail he was attempting to drive was deflected by the hammer and became impaled in his right eye. James was attempting to repair a loose leg on a chair which his teacher had told him to get the custodian to fix. While the teacher was out of the room, James attempted to repair the chair and the accident ensued. James pulled the nail from his eye and ran to the bathroom. His teacher, Mrs. Batten, took him to the office. Respondent was not at school on March 1, 1972 and did not see James until after James returned to school several days later.

Petitioner presented five witnesses, including James, the doctor who treated him, his mother, and Mr. and Mrs. Donahue, who were teachers at Webster to whom James was taken by the teacher, Mrs. Batte. None of these witnesses saw Respondent on the day of the accident. James was not sent to a doctor and spent most of the day in Mrs. Donahue's class until the school bus took him home, presumably after 2:45 p.m. His mother testified she had James taken to a doctor that day, which she identified as 2 March, two days after her youngest child was born on 28 February 1972. 1972 was a leap year and February that year contained

29 days. James was referred to the hospital in Ocala by his family doctor, Dr. Wiley. The medical records show James was admitted at 3:56 p.m. on March 2, 1972. It is doubtful James could have reached home on the bus before 3:15 p.m. or reached Dr. Wiley's office before 4:00 p.m. The only time and date certain was the date and time admission to the hospital. The parties stipulated that school records would show Larry James was absent from school on March 2, 3 and 4, 1972. Accordingly, the accident obviously occurred March 1, 1972.

The evidence was undisputed that on March 1, 1972, Respondent Foote was in Leesburg attending the closing on the residence he was purchasing. Respondent's testimony to this effect was corroborated by the bank closing officer and documents executed at closing (Exhibit 43). Respondent testified that he first learned of James' injury the following day when he returned to school.

Material Allegation 11 alleges that in school year 1971-72 or 1972-73 Respondent struck Louise Weddell, a student, in the face knocking her to the ground. The date of the incident was not established with any degree of certainty. Louise Weddell, now 20 years old, testified that she was 15 and in the seventh grade when the incident occurred. According to Louise, she was fighting with another girl outside the building when Respondent came out with a paddle in his hand to break up the fight. Louise testified that Respondent slapped her with his left hand, knocking her to the ground; that she got up, called him a black mother fucker and ran away. She denied spitting in Respondent's face. For running away she was suspended for 10 days.

Several witnesses observed the incident. All except Respondent testified to the slapping and one saw Foote wipe his face with his handkerchief after Louise ran away. Respondent's testimony was that while he was stopping the fight Louise called him the name and spit in his face. He admitted only "pushing" her in the face with his left hand.

Material Allegation 10 alleges that during the 1974-75 school year Respondent paddled Gralyn Dorsy numerous times on the buttocks, legs, sides and hips while calling him "a sorry nigger on food stamps and welfare." The evidence is undisputed that Respondent paddled Dorsey several times during that school year (Exhibit 45). The incident leading to the allegation occurred on March 3 1975 when Dorsey was brought to Foote by Mrs. Jones for a discipline problem she did not know how to handle. It appears that the previous day while Foote was away from school Dorsey had committed some vulgar act, the nature of which was not disclosed at the hearing, with another boy in the bathroom. Mrs. Jones expected Respondent to counsel Dorsey. Instead, Dorsey was given a paddling. Mrs. Jones does not remember if James Constable was also present.

She testified that she counted 13 licks. Exhibit 45, the paddle list, shows 5 licks given to Dorsey. James Constable testified he also observed the paddling of Dorsey and that after Dorsey had been given 2 or 3 hard licks he started to get up. Respondent pushed him back over the chair saying "I'm not through with you, boy", appeared to lose control and began flailing away while calling Dorsey a sorry nigger on food stamps and welfare.

According to Constable, Dorsey received 12 or 13 licks and, while squirming around, some of the blow landed on the side of Dorsey's hip and one landed on his hand. Mrs. Jones was upset over the severity of the paddling. Neither she nor Constable made a complaint until after May, 1978.

The school secretary, Doris Brank, whose desk was just outside Foote's office, recalls two paddlings of Dorsey, one at which he was given 3 licks. She never heard Respondent make racial slurs to children while disciplining them.

Material Allegation 2 alleges that in the spring of 1976 Herbert Brown, a student, injured his ankle on the playground before school and Respondent wouldn't allow Mrs. Miriam Jones, his teacher, to take him home or to the doctor but required he remain in school.

On 2 February 1976 Herbert Brown, a twelve-year old black student, injured his ankle while playing before school. Mrs. Jones took roll call in Herbert's room and learned his ankle was hurting him. She took him to Respondent and asked permission to take him home. Respondent examined the ankle, saw it was slightly swollen and had his secretary, Mrs. Branch, call the phone number on Herbert's records. No answer was received. Respondent refused Mrs. Jones' request to take Herbert home. The ankle continued to swell. Mrs. Branch also called the doctor, whose office was closed. When school was out, Mrs. Jones drove Herbert home. His mother took him to Dr. Lehrer, who examined Herbert's ankle in the emergency room at the hospital and diagnosed the injury as a sprain. No medication was prescribed, as the pain did not appear sufficient to warrant treatment. The doctor has no independent recollection of the incident but, because he prescribed no medication, would assume the sprain was not severe.

Material Allegation 9 alleges that on or about January 6, 1977 Respondent paddled Greg Christian while stating that people in the "subs" did not tell "this white man" what to do.

When taken to Respondent for disciplining by his teacher, Molly Jo Teters, Greg told Respondent his brothers said Foote was not to paddle him any more and to run home if he did. Mrs. Teters testified that Respondent, while paddling Greg, told him "people in the subs don't tell this white man what to do." Greg's testimony was that following his remarks about Foote not paddling him,

Foote held up a clenched fist saying, "This is black power", covered it with his right hand and said, "This is white supremacy." Daniel Lee Christian, Greg's father, recalled Greg telling him of the paddling and of Foote's gestures and remarks about white power over black power.

Foote denied all allegations of using racial slurs to students while disciplining them or otherwise.

Material allegation 7 alleges that on May 13, 1977 Respondent paddled Joanne Williams with a leather strap, hitting her on her bottom and later on the front of her body as she turned; and that, during the paddling called her a nigger and made comments about welfare, free lunches and food stamps. Mrs.

Simpson, Joanne's teacher, took Joanne to Foote for discipline because she had stolen money from another student, spent it and failed to repay the money as directed by Mrs. Simpson.

Foote had her bend over a chair and paddled her with the leather strap.

After the first blow, Mrs. Simpson testified Joanne turned over and Foote continued to strike her on the front portion of her body while appearing to lose control. During this time, Mrs. Simpson testified, he said Joanne's family was on food stamps, free lunches and had everything given to them and when not given, they stole. Exhibit 45 shows 4 licks awarded to Joanne by Foote. Foote denies making the remarks and Mrs. Branch, who was immediately outside the office, heard no such remarks made.

Mrs. Simpson was upset following the incident and vowed never to take another child to Foote for discipline. However, on April 25, 1978, she sent one

of her students, James Jackson, to Foote for discipline after Jackson had been paddled by her and continued his misconduct.

Material Allegation 8 alleges that in the fall of 1977 Respondent paddled Bobby Clemons with a leather strap and, while so doing, called him a "no-good nigger". Nancy Gridley took Bobby Clemons to Foote for authority to discipline him for being a "smart-mouth". While talking to Bobby, a ten-year old black student whose mother is a teacher at Webster, Mrs. Gridley testified Foote became angry, picked up his strap and gave Bobby three licks while yelling that Bobby was a nigger who would end up in prison if he kept getting into trouble. Bobby confirmed that he was called a nigger by Foote and told he would end up in jail if his conduct didn't improve. Mrs. Clemons was told of the incident by Mrs. Gridley and when she asked Bobby about it, he confirmed the incident. All witnesses agreed that Bobby was a discipline problem. Respondent acknowledged the paddling, denied the racial slur and testified he told Bobby he needn't expect to get away with misbehavior because his mother was a teacher. Mrs.

Branch confirmed Foote's testimony.

Material Allegation 6 alleges that Respondent on February 22, 1978 paddled Jeannie Barnes, a fifth grade student, with a leather strap in the library in front of students. James Constable witnessed the paddling, which consisted of three blows with the leather strap. The paddling took place in the library which was serving as the temporary office while the old offices were being renovated. Constable's testimony that a class was being held in the library at the time constituted the only testimony that classes were held in the library. Respondent recalled no other student being present when this punishment was administered.

Material Allegation 5 was that during February or March, 1978, Respondent paddled one of the Roper twins in the workroom of the library without an adult witness present, striking the student on the sides, back and legs.

Mrs. Newell testified she came into the room while Respondent was paddling Landis Roper with a paddle. Landis was lying on the floor, Foote had hold of his wrist and blows were landing on back, legs and arm. She also testified that Roper was screaming his head off and threatening to kill himself if Foote didn't stop. As Mrs. Newell walked in, Mrs. Stevens and Mrs. Hodges were exiting the room. Mrs. Newell is the only witness to testify the other Roper twin was also present. Mrs. Newell took Landis outside after the paddling.

Mrs. Stevens was in the library when Foote came in, got his paddle and paddled Roper. She was in the room while the paddling was going on but didn't watch. She was upset because so many licks (about 10) were given to a special education child. Mrs. Hodges did not testify that she was in the library at any time during the Roper incident.

Both Respondent and Mrs. Branch recalled the paddling of Roper and that three licks were given. Landis had been reported for fighting in the cafeteria that morning by Mrs. Carter, whose glasses he had accidentally knocked off while swinging at his opponent. Mrs. Carter inquired later if Mr. Foote had seen Landis and was advised no. After lunch Foote sent for Landis, and after talking to him a short while started to paddle Roper. When several children appeared in the hall, Foote then took Roper into the workroom, leaving the door open while the paddling took place. Mrs. Branch testified no other child was present.

Foote's testimony was that he gave Roper three licks with the paddle just inside the workroom door and that no other child was present.

Material Allegation 4 alleges that on May 16, 1978 Respondent administered corporal punishment to Kenny Robertson with a leather strap without an adult witness present.

Kenny Robertson testified that he was paddled with a leather strap by Foote for fighting, that nobody else was in the room, and that Mrs. Branch was at her desk just outside the door. Molly Jo Teters testified she was in outer office, did not see Mrs. Branch, but heard Foote yell at Kenny that he was not to pull girls off bars and to keep his shirt tucked in. Shortly after the last blow she walked by the door, saw Foote returning the strap to his desk and saw only Foote and Robertson.

Mrs. Sellers had bus duty May 16, 1978 and saw a boy whose name she didn't know push a girl off the monkey bars. She took him to Foote and observed the paddling. Mrs. Branch testified that Mrs. Sellers brought Kenny Robertson to Foote because of some problem on the playground and that both she and Mrs.

Sellers witnessed the paddling given Robertson. Mrs. Branch didn't see Mrs. Teters in the office at that time.

Material Allegation 12 alleges that in May 1978 Respondent paddled Ronald Hise, using excessive force, in the lunchroom in front of second and third grade classes.

Frances Simpson witnessed Foote paddle Ronnie Hise in the lunch room in May 1978 after a teacher had told Foote Ronnie was misbehaving in the lunch line.

Foote picked up his paddle, pulled Ronnie out of the line and gave him three "hard" licks. Theresa Lee, another teacher, also witnessed the Hise paddling. Her version was that another teacher brought Ronald to Foote for discipline because he misbehaved in the lunch line and Foote paddled him there. She thought the blows "too severe" for the "very thin, pale child."

Foote acknowledged that from time to time he has paddled children in the lunchroom because he found that this procedure often had a therapeutic effect in calming down a noisy lunchroom.

Material Allegation 1 alleges that in May 1978 Herschell Bellamy seriously injured his eye during physical education in the afternoon, that his mother was notified and was coming to pick him up, but Respondent instructed he be put on the school bus to go home at the end of the day.

Herschell Bellamy fell on the monkey bars near the end of his physical ed period and cut his eyelid. His P.E. teacher, James Constable, took him to his office, cleaned and bandaged the eye using a large eye patch. Constable then went to the office with Herschell, who remained there, got Herschell's folder and called the phone number there listed for emergencies, which phone belonged to the next-door neighbor. The neighbor advised that she would tell Herschell's mother to come for him. The neighbor later called back to the school office to advise that Herschell's mother was enroute to pick him up. James Constable, Patricia Newell, and Dorothy Stevens all testified that shortly before time for the buses to leave they were in the office with Herschell Bellamy and Foote, from his inner office, asked what the commotion was about. Someone advised him that Bellamy had hurt his eye. Foote then asked if he was white or black and when told Herschell was black, said "Put him on the bus".

Foote's testimony, corroborated by Mrs. Branch, was that he returned to school from a meeting in the county office just at the bell was ringing to end the school day. As he entered the building he passed a lady taking a small boy

with a bandage over his eye out of the building. He denied making any comment regarding Herschell's race.

Herschell and his mother both testified. When Herschell fell on the monkey bar and hurt his eye, Coach Constable put a bandage on it and took him to the office where he waited a long time before his mother came to pick him up. He didn't hear Mr. Foote say anything but testified Foote was in the office when his mother came to pick him up.

Herschell's mother testified she came to school in response to the message that her son had been hurt and that she arrived just as the children were about ready to get on the bus to go home. She saw Foote, but he said nothing to her or look at Herschell. She took Herschell to Dr. Wiley, who treated Herschell for a lacerated upper eyelid, a minor injury.

Wayne Ham, a supervisor in the Sumter County school system, acknowledged that he had received complaints from Mrs. Simpson, Mrs. Jones and Mrs. Teter regarding Foote's use of the leather strap to discipline children. They considered use of the strap constituted too severe punishment. Ham doesn't recall if he passed these complaints to his superior. He denied telling Mrs. Teter not to show to anyone a written complaint she had prepared.

Bernard Shelnutt, the other Sumter County supervisor, who functions similar to Ham, had never heard a complaint against Foote of brutality, failure to get medical attention for children, or use of racial slurs.

In addition to denying the allegations preferred against him, Respondent presented numerous witnesses who testified to Foote's good reputation in the community, to their satisfaction with the job Foote was doing as principal, to Foote's administrative capabilities, and to lack of knowledge of any irregularities at Webster until the charges here considered were published in the newspaper.

Two principals of Orange County schools, for whom Respondent had worked before coming to Webster, attested to his capability and competence as well as to their conclusion that the job of principal is the most difficult in the field of education. The principal is the one primarily responsible for the discipline in the school and the manner in which punishment is administered. Corporal punishment policy is usually left to the sound judgment of the principal at each school, subject however to statutory restrictions, and prescribed school board policies.

None of the four elected Sumter County school board members who testified on behalf of Respondent had ever received any complaints against Respondent, prior to the investigation by the PPC, involving medical neglect, severe punishment or racial slurs, nor had complaints been received from the black community. They considered Respondent a good administrator with a good reputation. The only complaints they had received involved minor administrative matters such as school bus schedules, and teacher complaints that Respondent worked them too hard.

Several witnesses for Petitioner admitted that they were not happy with Respondent's requirement that all teachers attend PTA meetings unless they had a good excuse for being unable to do so.

Eighteen teachers, former teachers, substitute teachers, and speech clinician called by Respondent had never seen or heard Respondent medically

neglect, abuse, or use racial slurs to students at Webster. Most, if not all of these witnesses, had never hear of the complaints against Respondent before reading them in the newspapers shortly before the fir trial.

The chiefs of police of Webster and Center Hill attested to Respondent's good reputation in their communities and that they had never received a complaint that Respondent had abused a student.

Five parents whose children now attend or had attended Webster testified that Respondent had provided proper treatment to their children, their children had never complained of medical or physical mistreatment or abuse by Respondent, and that when children had been neglected by other teachers a call to Respondent corrected the situation.

Two employees, other than Mrs. Branch, who had worked at Webster for many years had never seen or heard Respondent medically neglect, physically abuse, or direct racial slurs towards children at Webster. They first became aware of complaints when they read in the news that charges had been preferred against Respondent.

No direct testimony was presented that the misconduct here alleged to have been committed by Respondent seriously reduced his effectiveness in the school system.

It is perhaps significant that approximately one week in May 1978 (May 8-

16) provided one-third of the twelve material allegations preferred against Respondent. Coincidentally, Respondent's letter recommending James Constable for dismissal was dated 8 May 1978 and the letter to the PPC signed by eleven teachers was dated May 15, 1978. It is further noted that two of the material allegations involve incidents occurring 6 or 7 years ago.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

Section 231.28, Florida Statutes, establishes the ground upon which the Department of Education shall have authority to suspend or revoke a teaching certificate. This section provides in pertinent part:

The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to exceed 3 years . . . to revoke the teaching certificate of any person, thereby denying him the right to teach for a period of time not to exceed 10 years . . . or to revoke permanently the teaching certificate of any person, provided:

It can be shown that such person . . . has proved to be incompetent to teach or to perform his duties as an employee of the public school system . . . or has been guilty of gross immorality or an act involving moral turpitude . . . or upon investigation has been found guilty of personal conduct which

seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the provision of law, the penalty for which is the revocation of the teaching certificate, or has refused to comply with the regulations of the State

Board of Education or the school board in the district in which he is employed.

Regulations of the Sumter County School Board pertaining to discipline and illness of students are contained in Chapter 6-Gx-60-5 which provides in pertinent part:

Corporal punishment shall not be used by the teacher except as a last resort, and

then only after consulting with the principal.

The teacher should be free from anger and excitement and there should be no doubt in the mind of the child as to the seriousness

of the offense for which he is being punished. The teacher or principal should, when administering corporal punishment, use such an instrument as will produce no physical injury to the child, and it must not be applied to any part of the body above the waist or below the knees. When corporal punishment is administered by the teacher or principal, it must be witnessed by another adult member of the staff. [Exhibit 1]

* * *

In case of serious illness of a pupil while at school, the parent should be contacted at once and asked to come for the pupil. If the parent is unable to come, the principal should see that the child is taken home and left only if there is a responsible adult present.

P.S. 230.33(8).

In case of accident or injury to a student,

the parents should be notified immediately. If the parent cannot be contacted, the child's family physician should be called. In case

the family or physician cannot be reached, it may be necessary to take the child to the nearest licensed practicing physician or to the hospital emergency department, by the principal or his designated representative. [Exhibit 4].

The most serious charge here presented involved the eye injury suffered by Larry James on March 1, 1972. The evidence is clear that Respondent was not present at the school when this injury occurred. He therefore cannot be found guilty of refusing to render appropriate medical treatment to Larry James.

The other two accidents following which Respondent is charged with failure to take proper action, involved minor injuries. Although a sprained ankle is

painful, especially when walked on, the testimony was unrebutted that Mrs. Branch called the phone number provided the school by Herbert Brown and received no answer. Taking him home to an empty house, or one at which no responsible adult was present, would violate school board rules above quoted. It is also noted that Respondent, during his 25-plus years as a teacher, was coach at Tavares High School and perhaps has had more experience with sprained ankles than has Mrs. Jones.

With respect to Herschell Bellamy's eyelid injury, this too was minor and appropriate action was taken by school personnel in giving Bellamy first aid and calling his mother, who came to the school to take him home.

The evidence clearly supports a finding that in school year 1972-1973 Respondent slapped Louise Weddell. While it is evident there was provocation for the slapping, a principal should not allow himself to be provoked by a student into taking such action. This incident occurred some 5 or 6 years ago, and Respondent continued to serve as principal for about five years after the incident to the apparent satisfaction of the Superintendent, school board and parents. Under these circumstances it can hardly be said that the evidence presented supports the conclusion that Respondent was guilty of conduct which seriously reduced his effectiveness as an employee of the school board. cf.

Boyette v PPC, 346 So.2d 598 (Fla. 1 DCA 1977).

As noted above the strap used by Respondent is less likely to produce physical injury to a child than would a paddle swung with equal force. This is not to say that the strap could not be used in such a manner that it would produce physical injury, as almost any instrument used to administer corporal punishment could be used with excessive force or severity. However, the evidence here presented was not clear and convincing that Respondent violated the regulations of Sumter County in administering corporal punishment while serving as principal of Webster.

Although several teachers testified that they saw Respondent administer corporal punishment without an adult witness present, Mrs. Branch testified that she was present when each of the alleged unwitnessed paddlings occurred. She is certainly an adult witness and was on the staff at Webster at the time the punishment was administered. That the adult witness does not need be a teacher is evident from Exhibit 1 wherein the phrase "each teacher or other member of the staff" is used. Furthermore, it appears that some of those attesting to the absence of an adult witness were in fact observers to the paddling although not designated as such by the Respondent.

The evidence regarding Respondent's use of racial slurs towards black students while administering corporal punishment was contradictory. Numerous witnesses testified they had never heard Respondent make racial slurs towards students. This testimony does not rebut the testimony of witnesses attesting to specific instances where they heard such comments from Respondent. Only if both witnesses are present does the testimony of one that he did not hear certain remarks rebut the testimony of the other that he heard the remarks. Here Respondent's denial that he ever made racial slurs is outweighed by the testimony of numerous witnesses who heard the uncalled-for remarks. These witnesses certainly had less motivation to conceal the truth than did the Respondent. Accordingly, I find that Respondent did, while administering corporal punishment to black students, make racial comments which are uncalled for, inappropriate, and totally unacceptable for use by a principal or any teacher in the Florida school system.

Although no specific charge was made, the evidence presented would support a finding that Respondent had a tendency to lose his self-control while disciplining students. While part of this apparent lack of control could be attributed to Respondent's asthma, this does not explain the extra and excess blows which several witnesses testified Respondent applied to the student while administering corporal punishment.

Sumter County School Board regulations above quoted which require the teacher be free from anger and excitement contemplates this freedom throughout the administration of corporal punishment.

Revocation of the certificate of a teacher is drastic action which can result in loss of livelihood. Accordingly the legislature in section 231.28, Florida Statutes, above quoted, requires proof of incompetency, gross immorality, moral turpitude or personal conduct which seriously reduces the effectiveness of the certificate holder before a certificate may be revoked.

None of the material allegations prepared against Respondent involve incompetency, gross immorality, or moral turpitude. Standards of Professional Competency are contained in Chapter 6B-5, Florida Administrative Code, and will not be repeated here. It is sufficient to say that the evidence presented did not reach the type of conduct or ineffectiveness contemplated by Chapter 6B-5.

Gross immorality is similar to moral turpitude. The latter was described in State ex rel. Tullidge v. Hollingsworth, 146 So.660 (Fla. 1933) as follows:

Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owed by man to man to society. It may also be defined as anything done contrary to justice, honesty, principle or good morals, though it often involves a question of intent.

Acts involving moral turpitude are crimes and generally reach the status of felonies, although a few misdemeanors involve moral turpitude. The allegations made against Respondent, even if proved, do not constitute crimes and none reaches the status of an offense involving moral turpitude.

This leaves remaining only whether the acts committed by Respondent seriously reduced his effectiveness as an employee of the school system. To reduce the effectiveness of teacher in a specific notoriety to impair the future effectiveness of the teacher. Not one scintilla of evidence was presented that because of the commission by Respondent of the acts alleged, his effectiveness in the school system was diminished, let alone seriously reduced. The Superintendent and the members of the Sumter County School Board consider Respondent to be an effective administrator and principal.

While it is obvious that a principal who slaps a student or who makes racial slurs to a student is guilty of misconduct, the misconduct is not of the type which would authorize revocation or suspension of a certificate.

Likewise a teacher who may lose his self-control while administering corporal punishment should not administer corporal punishment and, if the position he occupies requires the administration of corporal punishment, he should be assigned to another position.

Losing control while dealing with students would certainly reduce the effectiveness of a principal and may be grounds for removing a principal with this frailty. However, the evidence submitted will not support a finding that Respondent's effectiveness was so seriously reduced as to warrant the revocation or suspension of his certificate.

In this regard it is significant that the cuffing of Louise Weddell occurred some six years ago. While there is no statute of limitations in administrative proceedings, nevertheless charges should be brought within a reasonable time after the commission of the offense becomes known. From the testimony presented it is obvious that most of those in attendance at Webster when this act occurred became aware of it within a day or two of the incident. Withholding preferring such charges for six years reduces the seriousness of the charge, at least for the purpose of recommending an appropriate punishment.

From the foregoing it is concluded that Respondent in the 1972-73 school year slapped Louise Weddell when she yelled a dirty name at him from such close range that saliva from her mouth struck his face and that on several occasions Respondent directed racial slurs towards black students at Webster. The evidence will not support a finding of guilty of the other charges. The allegations here considered are the first ever preferred against Respondent in his more than 25 years as a teacher and administrator. While not condoning these acts of which Respondent has been found guilty, they still do not reach the degree of misconduct that warrants such drastic punishment on a first offender as revocation or suspension of his certificate. It is therefore

RECOMMENDED that Respondent be issued a letter of censure for slapping Louise Weddell in 1973 and for directing racial slurs towards black students at Webster Elementary School while serving as principal.

Entered this 9th day of October, 1979.

K. N. Ayers Hearing Officer

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

904/488-9675

COPIES FURNISHED:

J. David Holder, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

George S. Reynolds, III, Esquire

103 North Gadsden Street Tallahassee, Florida 32302

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

AGENCY FINAL ORDER

================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA

IN RE: ROLAND C. FOOTE DOAH Case No. 79-849

/

ORDER

THIS CAUSE was heard before the State Board of Education, duly assembled, upon the Petition of Lynnl Guettler as Chairman of the Professional Practices Council for the revocation of the teacher's certificate of the Respondent, ROLAND C. FOOTE, Department of Education Number 107485.

This Board having reviewed the findings and recommendation of the Hearing Officer of the Division of Administrative Hearings and further having reviewed the entire record, and the Board having had due deliberation thereon; and

It appearing that the Respondent has been granted all procedural and other constitutional rights in the premises, the Board makes the following findings of fact and conclusions of law:

ROLAND C. FOOTE presently holds Florida Teacher's Certificate Number 107485, valid until June 30, 1992. The Board adopts as its own the Findings of Fact contained in the Recommended Order of the Hearing Officer for the Division of Administrative Hearings, which are supported by competent substantial evidence and which are by reference made a part hereof. The conclusions of the Hearing Officer are modified and we find the following:

1. Loss of effectiveness must be proven by direct testimony only if misconduct occurred outside school employ. Racially degrading comments to young black elementary school children have absolutely no place in the public school system of Florida and will not be lightly treated by the State Board of Education. Racial slurs and loss of control while disciplining students in and of themselves seriously reduce Mr. Foote's effectiveness as an employee of the school board.

   
   

2. Hearing Officer stated that this kind of misconduct is not the type to authorize suspension or revocation of a certificate. We strongly disagree and having carefully reviewed the entire record of this case, find it to be exactly that type of misconduct which seriously jeopardized one's license to teach the children of this State.

   
   

3. Section 231.28(1), Florida Statutes, provides as additional grounds for suspension or revocation refusal of the certificate holder to comply with the rules of the State Board of Education and of the School Board in the district in which he is employed. Mr. FOOTE violated:

1. Rule 6B-1.02(c) and (d), F.A.C., which requires educators to make reasonable efforts to protect students from conditions harmful to learning or to health and safety and not to expose students to unnecessary embarrassment or disparagement.

2. Rule 6B-5.11(3), F.A.C., which requires educators to control their emotions.

   
   

3. Rule 6GX-60-5, Rules of Sumter County School Board, which states that in administering corporal punishment, the teacher should be free from anger.

   
   

4. Rule 6B-5.07, F.A.C., which provides that each educator shall resolve discipline problems in accordance with law, State Board regulations and accepted school policies.

   
   

5. Rule 6B-5.10, F.A.C., which provides each educator shall not show disrespect for or lack of acceptance of others.

All exceptions to the Recommended Order, except Professional Practices Council, Petitioner, numbers 3, 4, 5, and 9, which relate to the modified conclusions are denied.

The recommendation of the Hearing Officer for the Division of Administrative Hearings is rejected and it is

ORDERED AND ADJUDGED that the Hearing Officer's Findings of Fact are adopted and that the Florida teacher's certificate of ROLAND C. FOOTE, certificate number 107485, be revoked for a period of three years, as provided in 231.28, Florida Statutes. Further, it is provided that prior to receiving certification in administration for which he may be otherwise eligible ROLAND C. FOOTE shall receive the affirmative approval of the State Board of Education.

DONE at the State Board of Education meeting in open session at Tallahassee, Florida, on the 8th day of January, 1980.

EXECUTED AND RENDERED on this 6th day of February, 1980.

Bob Graham, Governor; Chairman

George Firestone, Secretary of State

Jim Smith, Attorney General

Gerald A. Lewis, Comptroller

Ralph D. Turlington, Commissioner of Education Secretary--Executive Officer

As and constituting the State Board of Education of Florida as assembled for the purposes herein.

Duly recorded in the official records of the State Board of Education of Florida. I HEREBY CERTIFY that copies of the foregoing Order in the matter of Roland C. Foote were mailed to J. David Holder, Esquire George S. Reynolds, III, Esquire, Mr. Roland C. Foote, Mr. K. N. Ayers and Mr. Joe Strickland by U.S. Mail on this 6th day of February, 1980.

Hugh Ingram, Administrator Professional Practices Council

================================================================= AGENCY ORDER GRANTING RESPONDENT'S MOTION FOR STAY PENDING REVIEW

================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA

IN RE: ROLAND C. FOOTE DOAH Case No. 79-849

/

ORDER

THIS CAUSE was heard before the State Board of Education, duly assembled, upon the Notion of the Respondent, Roland C. Foote, for stay of this Board's Final Order dated February 6, 1980, pending the appeal of this matter to the Fifth District Court of Appeal, the Board having reviewed the Respondent's Motion for Stay Pending Review and the Response of the Petitioner, Professional Practices Council, to said Motion, and the Board further having reviewed the Joint Stipulation entered into between the parties and having heard argument of counsel, it is

ORDERED AND ADJUDGED:

1. The Respondent's Motion for Stay Pending Review is granted. The Board's Final Order dated February 6, 1980 revoking Respondent's Florida teaching certificate is stayed until such time as the Respondent's appeal to the Fifth District Court of Appeal has been heard and determined.

   
   

2. During the pendency of Respondent's appeal, the Respondent shall not be employed in any position which requires responsibility for the control, supervision or discipline of minor students.

DONE at the State Board of Education meeting in open, session at Tallahassee, Florida, on the 20th day of May, 1980.

EXECUTED AND RENDERED on this 18th day of June, 1980.

Bob Graham, Governor; Chairman

George Firestone, Secretary of State

Jim Smith, Attorney General

Gerald A. Lewis, Comptroller

Ralph D. Turlington, Commissioner of Education Secretary--Executive Officer

As and constituting the State Board of Education of Florida as assembled for the purposes herein.

Duly recorded in the official records of the State Board of Education of Florida. I HEREBY CERTIFY that copies of the foregoing Order in the matter of Roland C. Foote were mailed to J. David Holder, Esquire George S. Reynolds, III, Esquire, Mr. Roland C. Foote, Mr. K. N. Ayers and Mr. Joe Strickland by U.S. Mail on this 18th day of June, 1980.

Hugh Ingram, Administrator Professional Practices Council

Docket for Case No: 79-000849

Orders for Case No: 79-000849