STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-263

)

LARRY TURNQUIST, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on May 5, 1981, at Miami, Florida.

APPEARANCES

For Petitioner: Michael Neimann, Esquire

3050 Biscayne Boulevard, Suite 300

Miami, Florida 33137

For Respondent: William duFresne, Esquire

One Biscayne Tower

2 South Biscayne Boulevard, Suite 1782 Miami, Florida 33131

The Petitioner, the School Board of Dade County, on February 15, 1981, filed a Notice of Charges against the Respondent, Larry Turnquist, and suspended and dismissed the Respondent from employment without pay. In its Notice of Charges the Petitioner alleges that the Respondent, an employee of the School Board of Dade County, on September 22, 1980, struck a student, Jose Velez, in the eye with his fist. The Petitioner further alleges that Respondent's striking of the student violated school board policy and constituted misconduct in office in violation of Section 231.36(6), Florida Statutes, and was a criminal act in that it allegedly violated Section 784.03, Florida Statutes.

The Petitioner therefore seeks that the dismissal of the Respondent as an employee of the Petitioner be affirmed and that the be denied any back pay from the date of his suspension and dismissal through and including the date of the final order in this cause.

The Petitioner presented two witnesses and the Respondent presented three witnesses.

FINDINGS OF FACT

1. The Respondent was a noninstructional employee of the School Board of Date County, Florida at all times material hereto, and was assigned to Thomas Jefferson Junior High School as a teacher's aide. The Respondent has six years' experience as a teacher's aide with the Dade County School System. He has a

   high school education and thirteen months of college, as well as twelve months of technical training, including studies in psychology. The Respondent has never, in all the time he has been employed in the Dade County School System, had any complaints lodged against him for aggressive or violent conduct and has never been previously involved in an incident in which he struck a student, although on one occasion he had to defend himself when a student attacked him.

   
   

2. On September 22, 1980, the Respondent escorted some students to a physical education class on the school athletic field. While he was attempting to get the complaining student, Jose Velez, to return to the classroom, that student threatened him with violence and ultimately physically attacked the Respondent. Mr. Turnquist had to restrain the student and escort him to the school office for imposition of disciplinary measures regarding his behavior.

   
   

3. The Petitioner's first witness, Gloria Randolph, is the Assistant Principal for Curriculum and Teacher Morale. She supervises the Exceptional Student Department, as well as the teachers' aides, and is acquainted with the protagonists in the subject incident. She observed the Respondent enter the school office with the student, Jose Velez, conversing in loud voices, both the Respondent and Velez appearing quite agitated. The Respondent told her that he "brought this boy up here and want something done about it." The Respondent and the subject student, at that time, were standing about five feet apart. She stepped between them, but the student kept advancing and she had to shove him back repeatedly. The student, Velez, acting in an aggressive, mocking manner, urged the Respondent to hit him, and threatened him with bodily harm. The tension between the two kept increasing, with the ultimate result that the Respondent struck the student with a light blow to the cheek. According to both Petitioner's witnesses, the student seemed relieved at that point and immediately calmed down. Witness Randolph acknowledged that the Respondent exercised good judgment, up until the point of striking the student, because he followed appropriate procedures in bringing the student to the office for disciplinary measures to be taken, and did not indulge in an argument with the student, although she did feel it was poor judgment for him to strike the student. The student, Jose Velez, is at least six feet in height and is considerably taller than the Respondent. Petitioner's witness, Marilyn Mattran, a teacher at Jefferson Junior High School, who was in the office and observed the subject altercation, established that Velez repeatedly threatened the Respondent with physical harm and that the student engaged in most of the yelling and in the aggressive behavior she observed. She corroborated the fact that when the Respondent actually struck Velez, that he immediately calmed down. She also corroborated the testimony of witness Randolph, as well as the Respondent's witness, Leah Alopari, that Jose Velez is an emotionally disturbed student who has an extensive history of aggressive, violent behavior and has made a practice of threatening students and teachers with physical violence and harm, even to the extent of threatening the use of a deadly weapon. He has, on occasion, done physical violence to other children. These three witnesses all acknowledged that the Respondent has never in the past, in their experience, demonstrated poor judgment in his conduct toward and transactions with students or teachers.

   
   

4. Leah Aloari is the Respondent's supervising teacher. Jose Velez was one of her students, and she corroborated the fact, demonstrated by the other witnesses, that this particular student was aggressive, difficult to control and prone to engage in violent behavior. The Respondent assisted her in helping discipline her students, with the academic program and in escorting children to and from lunch, classes and the athletic field. She has never observed the Respondent engage in violent behavior in his relations with teachers or

   students, nor commit an act which exhibited poor judgment or misconduct in the course of his duties.

   
   

5. As indicated above, the Respondent has had an exemplary record in his six years with the Dade County School System. Jose Velez, on the other hand, has been a constant disciplinary problem as acknowledged by the Petitioner's and Respondent's witnesses. The Respondent has a chronic neck injury involving a pinched nerve in the neck, and genuinely believed himself to be in danger of physical assault and harm by Velez when the incident occurred in the office. He believed it unwise to retreat in the fact of Velez's threats and aggressive advance upon him because he felt Velez was about to physically attack him. The Respondent did not feel that the other teacher and the Assistant Principal, who were the only other persons in the office at the time, could have restrained or adequately controlled Velez alone if he had retreated. There is no question, especially in view of the fact that the Respondent had already been assaulted by the student on the athletic field, that he genuinely believed that the situation called for him taking steps to defend himself. His act of self-defense in striking the student was itself marked by some restraint in the sense that he withheld striking the student with as much force as he was capable of. There is no evidence that he caused any permanent harm to the student. Indeed, even the Petitioner's witnesses established that it had the beneficial effect of calming the student down and preventing any further violent conduct on his part or possible injury to the students, the Respondent, others present, or possible damage to the Petitioner's property in the immediate vicinity. The undersigned considers it significant also that the student, although initially complaining of the Respondent's action, did not appear and testify at the hearing in furtherance of his complaint against the Respondent and that there was no significant physical injury inflicted upon Velez.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

7. Section 231.36(6) provides in pertinent part as follows:

   
   

   Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may be suspended or dismissed at any time during the school year; pro- vided that the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordina-

   tion, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such

   a person without pay, but if charges are not sustained he shall be immediately reinstated, and his back salary shall be paid. In cases of suspension by the school board or by the superintendent, the school board shall determine upon the evi- dence submitted whether the charges have

   been sustained and, if such charges are sustained, either to dismiss said employee or fix the terms under which said employee may be reinstated. . . .

8. Section 231.141 provides as follows: Teacher aides--

   * * *

   A teacher aide, while rendering services under the supervision of a certificated teacher, shall be accorded the same pro- tection of laws as that accorded the certified teacher. Paid teacher aides employed by school boards shall be entitled to the same rights accorded noninstructional employees of the board.

   
   

9. There is no question that the Respondent was working under the supervision of a certified teacher and, therefore, no question that he is entitled to the same protection accorded certified teachers embodied in the above authority; to wit, notice of the charges against him and the right to an evidentiary hearing regarding the validity of those charges, his suspension, dismissal and the withholding of his pay.

   
   

10. There is no dispute that the Respondent actually struck the student, Jose Velez. There is also no dispute that he did not actually hit the student in the eye as charged in the Petitioner's Notice of Charges. Witnesses Randolph and Mattran described the blow as a rather light blow to the cheek and not with the Respondent's full power. It is also noteworthy that witnesses Randolph, in describing the details of the altercation between Randolph, in describing the details of the altercation between Respondent and the subject student, stated that she repeatedly shoved the student back and away from the Respondent and then finally had to step out of the way when the student persisted in advancing on the Respondent at the time the blow was delivered. The undersigned was also impressed with the testimony of Petitioner's witness, Marilyn Mattran, which established that the subject student, who was over six feet in height, was threatening the Respondent with physical harm at the time the blow was delivered. Both the Petitioner's witnesses described the complaining student as a constant discipline problem and troublemaker who was prone to violence. Thus, the totality of the Petitioner's testimony establishes that the blow was actually delivered by the Respondent on the subject student, but while the student was aggressively advancing upon and threatening harm to the Respondent, with a previously demonstrated propensity to carry out such threats. That testimony also demonstrated that the Respondent exercised good judgment up to a point in this altercation in that he was not seeking to engage in an argument with the student, but attempting to calm him down and subject him to normal disciplinary procedures. The Respondent's witness, Leah Alopari, corroborated the showing of Petitioner's own witnesses that the Respondent had never been engaged in any violent conduct in the course of his duties, had never sought to strike a student, and had always exercised good judgment in his dealings with students, as well as teachers.

11. There is ample unrefuted evidence in the record adduced by the Respondent and corroborated by the testimony of the Petitioner's witnesses to establish that the Respondent genuinely acted in his own defense. Unrefuted evidence in the record establishes that the complaining student, Jose Velez, had already physically attached the Respondent on the athletic field and a few minutes prior to the subject altercation in the school office, and that he had repeatedly threatened the Respondent with physical harm, including the threatened use of a deadly weapon. At the moment the Respondent struck the student, the student was advancing in a menacing manner upon the Respondent.

    The Respondent having already experienced physical assault and being fearful of his own injury, principally because of a chronic pinched nerve condition in his neck, genuinely felt that he had to defend himself. The entire circumstances surrounding this altercation as described in the above Findings of Fact, and particularly the existence of but a fleeting moment in which the Respondent had to make a decision about the need to defend himself renders the conclusion inescapable that the belief by the Respondent that he had to act in his own defense was a reasonable one.

    
    

12. Thus, the above-described circumstances which are supported by unrefuted evidence in the record must lead to the conclusion that there is insufficient evidence in the record upon which to base a conclusion that the Respondent violated the above authority by committing an act constituting misconduct in his office or in the course of his duties. The lack of culpability to be ascribed to the Respondent because of his genuine belief that he acted in his own defense, struck the student with some restraint, coupled with his previously unblemished record of excellent service to the students in his charge and to his employer, the School Board renders it impossible to conclude that he violated the above statutory authority under which he was charged. Accordingly, the Notice of Charges against the Respondent should be dismissed, and he should be reinstated in the employ of the School Board of Dade County as a teacher's aide with full back pay.

RECOMMENDED ORDER

In consideration of the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the pleadings and arguments of counsel, and the candor and demeanor of the witnesses, it is

RECOMMENDED:

That a final order be entered by the School Board of Date County, Florida, dismissing the Notice of Charges against the Respondent, Larry Turnquist, and reinstating him as a teacher's aide in the employ of the School Board of Dade County, Florid with full back pay.

RECOMMENDED this 13th day of July, 1981, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of July, 1981.

COPIES FURNISHED:

Michael Neimann, Esquire 3050 Biscayne Boulevard

Suite 300

Miami, Florida 33137

William du Fresne, Esquire One Biscayne Tower

Two South Biscayne Boulevard Suite 1782

Miami, Florida 33131

Phyllis O. Douglas, Esquire Assistant School Board Attorney Dade County Public Schools Administrative Office

1410 N.E. Second Avenue Miami, Florida 33132

Docket for Case No: 81-000263

Orders for Case No: 81-000263