STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF ORANGE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 81-346

)

LESLEY BAKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Sharyn L. Smith, Hearing Officer with the Division of Administrative Hearings, on June 9th, 10th and 30th, 1981, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: John W. Bowen, Esquire

25 South Magnolia Avenue Post Office Box 3462 Orlando, Florida 32802

For Respondent: Julius L. Williams, Esquire

Pilacek, Egan, Cohen & Williams 918 Lucerne Terrace

Orlando, Florida 32802

The issue for determination in this case is whether the Respondent's employment with the Orange County School Board should be terminated for misconduct in office and/or gross insubordination for allegedly administering corporal punishment in violation of state law and local rules and policies.

PRELIMINARY STATEMENT

On February 9, 1981, the Superintendent of the Orange County School Board, James L. Schott, charged Respondent with misconduct in office and gross insubordination for administering corporal punishment on February 4, 1981, in violation of Florida Statutes, school board policies, local school policies and the specific instructions of his principal. It was recommended by the Superintendent that the Orange County School Board suspend the Respondent Baker without pay pending a hearing on the charges, if requested. On May 29, 1981, Superintendent Schott informed Respondent Baker that a subsequent investigation had disclosed additional incidents involving the unauthorized use of corporal punishment occurring in the fall of 1980 which would be used as added grounds for the original charges as set forth in the letter of February 9, 1981.

Based on the February 9, 1981 and May 29, 1981, letters, the Respondent is charged with the following specific acts:

1. On February 4, 1981, administering corporal punishment to several students at Blankner Elementary School with a leather belt, without adult witnesses and without approval of the principal;

   
   

2. On or about October 24, 1980, administering corporal punishment during a field trip to the John Young Museum and Planetarium;

   
   

3. During the fall of 1980, administering corporal punishment on several occasions to students by using a stick or pointer.

On February 11, 1981, the Respondent requested a hearing on the charges.

The request was forwarded to the Division of Administrative Hearings and a hearing was set for March 31, 1981. On March 22, 1981, the Petitioner filed a Motion for Protective Order which requested the Hearing Officer to enter an order invalidating or restricting Respondent's attempted discovery. The Respondent filed Motions for Continuance and To Shorten Time to Produce Documents. On March 26, 1981, argument was heard on the pending Motions and, subsequently, orders were entered denying the Motion for Protective Order and granting the Motion for Continuance. 1/

At the final hearing, the Petitioner presented the testimony of Edd W. Taylor, principal of Blankner Elementary, Lola T. Brady, Orange County School Board Area Administrator, Chris Yavanovich, Troy Mills, Joseph Jackson, Keith Stevenson, Lester Welson, Thomas Joseph Green, Dana Jason Barber, Wilson Lampkin and Richard Lee Hamilton, Jr., students at Blankner Elementary, Superintendent Schott and the Respondent. Petitioner's Exhibits 1-5 were received into evidence. Ruth D. Price, fifth grade teacher at Blankner, Hartman C. Stewart, pastor at Mount Olive Church, James L. Scaggs, Assistant to the Superintendent for Employee Relations and the Respondent were called to testify by Respondent. Respondent's Exhibits 1 and 2 were admitted and ruling was reserved on Respondent's Exhibits 3-10 and Petitioner's Exhibits 6 and 7, which consist of records of disciplinary actions taken by the Orange County School Board against other teachers charged with violating statutes, rules and/or policies concerning the administration of corporal punishment.

Counsel for the Petitioner and the Respondent filed proposed findings of fact, conclusions of law and proposed recommendations. Post hearing briefs were also filed by counsel. To the extent that the parties' proposed findings of fact are not incorporated in this Recommended Order, they are rejected as being irrelevant or immaterial to the issues for determination or not supported by competent substantial evidence contained in the record.

FINDINGS OF FACT

1. The Respondent, Lesley A. Baker, was suspended from his employment as a teacher on continuing contract with the Orange County School Board on February 5, 1981.

   
   

2. The Respondent was charged with misconduct in office and gross insubordination for administering corporal punishment without following the guidelines established by state law, school board policy, local school policies and the specific instructions of his principal.

3. At the time of his suspension, Respondent Baker was a fifth grade teacher at Blankner Elementary School.

   
   

4. Edd W. Taylor, is principal of Blankner Elementary School and has been in that position since the Respondent came to Blankner three years ago.

   
   

5. Mr. Taylor has been a principal for over twenty years and a teacher for twenty eight, all of which occurred at the elementary school level.

   
   

6. As principal of Blankner Elementary, Mr. Taylor maintains a copy of all school board policies and rules, including those relating to the administration of corporal punishment. The rules and policies consist of three bound volumes which are kept in the principal's office where they are available to teachers or any other persons who need to refer to them.

   
   

7. Additionally in his capacity as principal Mr. Taylor adopted guidelines for the use of corporal punishment at Blankner Elementary which were included in a faculty handbook provided to each teacher prior to the school year. The handbook was reviewed with the teachers at the beginning of the 1980-81 school year and special emphasis was given to the policies found in the handbook concerning corporal punishment.

   
   

8. Respondent Baker was provided with a copy of the faculty handbook which he read including that portion relating to corporal punishment.

   
   

9. The Blankner Elementary policies established by Mr. Taylor provide that only the principal or the principal's representative may administer corporal punishment. The only representative designated to administer corporal punishment in the principal's absence is the sixth grade representative.

   
   

10. The Respondent Baker is not the sixth grade representative and was never authorized by the principal to administer corporal punishment.

    
    

11. On November 21, 1980, Mr. Taylor delivered a written note to the Respondent which stated:

    
    

    "As you know, for other than CP [corporal punishment] or suspension offenses, you handle most of room discipline since this is your responsibility. See me on this note. EWT" (Petitioner's Exhibit 5) 2/

    
    

12. The Respondent has been employed as a teacher in the Orange County School District since 1964.

    
    

13. Despite being employed by the school system for a substantial length of time, the Respondent was not aware of the Orange County School Board's policies and requirements concerning corporal punishment at the time of the incidents in question.

    
    

14. Although the Respondent read the Blankner Elementary faculty handbook, he was unaware of any policies or requirements in the handbook concerning the administration of corporal punishment.

    
    

15. Similarly, the Respondent was unfamiliar with the Florida Statutes relating to corporal punishment.

16. In response to inquiries from the Board attorney, Respondent's understanding of corporal punishment policies and requirements were stated as follows:

    
    

    MR. BOWEN: Were you aware of any require- ments with respect to the administration

    of corporal punishment? RESPONDENT: Yes.

    MR. BOWEN: What requirements were you aware of?

    
    

    RESPONDENT: Mutilation.

    
    

    MR. BOWEN: Mutilation? What do you mean by that?

    
    

    RESPONDENT: Where you just beat up on a kid.

    
    

    MR. BOWEN: What about that? RESPONDENT: That's not right.

    MR. BOWEN: That's not right? Are there any other requirements that you're aware of other than that?

    
    

    RESPONDENT: There are none that I know of.

    
    

    MR. BOWEN: As far as you know, the only requirements of you with respect to the administration of corporal punishment is that you can't mutilate the kids?

    
    

    RESPONDENT: As far as I know. (Petitioner's Exhibit 5 at 5-6)

17. In October, 1980, the Respondent supervised a student field trip to the John Young Planetarium.

    
    

18. During the bus ride to the Planetarium, the students were advised by the Respondent to be quiet. Two fifth grade students, Chris Yavanovich and Richard Hamilton, attracted the Respondent's attention by talking and pointing to a passing car.

    
    

19. The Respondent approached the two boys and struck Richard Hamilton on the arm two or three times with his fist for disobeying his instructions. 3/

    
    

20. In his classroom the Respondent kept a wooden dowel approximately one yard long and one-half inch in diameter which was used primarily as a pointer. On at least two occasions, however, the Respondent used the dowel to discipline students in his class. When the dowel was used for this purpose, no other adult was present to act as a witness and the discipline was administered without authorization from the principal.

21. On February 4, 1981, the Respondent Baker was standing outside the boys' restroom. A group of boys had gathered in the restroom prior to going to lunch. The students in the restroom were shouting, screaming and being generally disruptive which prompted the Respondent to enter the restroom to restore order.

    
    

22. Once inside the restroom, the Respondent observed a group of boys yelling, pushing, swinging on bars and playing with lights.

    
    

23. When the students did not respond to his commands to settle down, the Respondent removed his belt and attempted to strike each of the students as they exited from the restroom.

    
    

24. At least nine students were struck by the Respondent between one and three times. Three of the boys were struck with sufficient force to leave marks on their legs which were visible the following day. None of the bruises or marks were serious enough to require any of the students to miss school or consult a physician. 4/

    
    

25. Once outside the restroom one of the students who had been struck, Chris Yavanovich, called the Respondent a "bitch". The comment was overheard by another teacher who reported it to the Respondent as he left the restroom. The Respondent grabbed the student by the upper right arm and took him to the principal. The students' upper right arm was grabbed with sufficient force to leave bruises or finger marks which were visible the afternoon of the incident.

    
    

26. The Respondent denied grabbing Chris Yavanovich by the upper arm. The Respondent asserted that he grabbed the boy by the wrist and any injury to the upper arm occurred either in the restroom or at some other time.

    
    

27. While the incident in the restroom was occurring, the principal was standing in a corridor approximately 50 feet from the restroom.

    
    

28. After discussing the incident with Chris Yavanovich, the principal went to see the Respondent in his classroom. Outside the classroom the principal overheard the Respondent tell his class that ". . . next time, it may be three or four licks from him." (Vol. I - TR-21). The Respondent denied making this comment to his class and could not recall the principal coming to his room at that time.

    
    

29. The principal of Blankner Elementary, Mr. Taylor, stated that based upon his training and experience in the elementary schools, there was no justification for the Respondent's actions. Mr. Taylor does not want the Respondent to return to Blankner Elementary or any other school in the Orange County School District and concurs with the Superintendent's recommendation regarding termination. 5/

    
    

30. The principal's views are also shared by the area administrator, Lola Brady, an individual with forty years experience in the school system.

    
    

31. Superintendent Schott testified that in his twenty years in education, he had never encountered a situation in which a teacher administered corporal punishment randomly with a belt and without authorization from a principal or other person in charge. The Superintendent regards the restroom incident as an inexcusable and unjustified assault upon the involved students which is too serious to justify any penalty less than termination. In the Superintendent's

    opinion, the correct approach to the problem would have been to order the group of boys to be quiet and refer those who continued to misbehave to the principal who was nearby.

    
    

32. The Respondent proffered copies of reports and records relative to a number of employees of the Orange County School Board (Respondent's Exhibits 3- 10). 6/

    
    

33. The proffered exhibits consist of all of the files maintained in the Office of the Superintendent concerning complaints of alleged misuse of corporal punishment by teachers and the disposition of the same.

    
    

34. The proffered exhibits reflect situations in which employees were given written reprimands or allowed to resign following investigations by administrators concerning the alleged misuse of corporal punishment.

    
    

35. None of the factual situations outlined in the proffered exhibits is substantially similar to the instant case. In the two cases in which teachers resigned, the students who were struck suffered injuries serious enough to consult physicians.

    
    

36. The School Board of Orange County does not have a policy, written or verbal, that specifies when a person will be reprimanded or terminated for failing to follow procedures concerning corporal punishment.

    
    

37. The Respondent Baker has been employed as a teacher for approximately twenty years and is certified to teach elementary education, the educably mentally retarded and driver's education. He has a good reputation in the community and is active in Little League, Cub and Boy Scouts and church activities. During his tenure at Blankner Elementary, the Respondent received satisfactory evaluations.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

39. The Respondent Baker has been charged with repeatedly administering corporal punishment in a manner contrary to the Florida Statutes, school board policies and the specific instructions of his principal. It is alleged that such conduct constitutes misconduct in office and gross insubordination. See Section 231.36(6), Florida Statutes.

    
    

40. Misconduct in office is defined at Rule 6B-4.09(3), Florida Administrative Code, as

    
    

    ". . . a violation of the Code of Ethics of the Education Profession so serious

    as to impair the individual's effective- ness in the school system."

41. The Code of Ethics of the Education Profession further provides that in fulfilling his obligations to students, an educator

    
    

    ". . . shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety." Rule 6B-1.02(2), Florida Administrative Code.

    
    

    The testimony of the Blankner principal, Edd Taylor, demonstrates that the incidents in question have significantly impaired the Respondent's effectiveness as a teacher. See Boyette v. Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977) and Smith v. School Board of Leon County, 6 FALW 1904 (Fla. 1st DCA, August 26, 1981). Principal Taylor does not want the Respondent returning to Blankner or teaching at any other school in the Orange County School District. Similarly, Superintendent Schott has characterized the incidents as "inexcusable" and . . . too serious to do anything else except have that teacher out of the classroom . . ." (Vol. I - TR-105).

    
    

42. Considered together, the Respondent's use of corporal punishment in the boys' restroom, in the classroom and on the bus ride to the Planetarium constitutes a failure to take reasonable efforts to protect students from conditions harmful to learning or to their health and safety. Respondent's argument that the indiscriminate use of corporal punishment in the restroom was justified in order to protect the students and restore order must be rejected. The evidence indicates that at least three students were struck with sufficient force to leave marks which were visible the following day. As stated by Superintendent Schott, "you don't protect kids from themselves by hurting them." (Vol. I - TR-188). While a teacher is required by law to "keep good order" in places in which he is assigned to be in charge of students, such power does not include physical force amounting to corporal punishment. Williams v. Cotton,

    346 So.2d 1039 (Fla. 1st DCA 1977). The laws and policies concerning corporal punishment were formulated to ensure that such punishment be administered in a reasonable and fair manner. The evidence establishes that the Respondent's use of corporal punishment in this case was neither reasonable nor fair and was done in violation of state law, school board rules and local school policies.

    
    

43. Rule 6B-4.09(4), Florida Administrative Code defines "gross insubordination" as

    
    

    ". . . a constant or continuing intentional refusal to obey a direct order

    reasonable in nature, and given by and with proper authority."

    
    

44. In Jenkins v. State Board of Education, 399 So.2d 103 (Fla. 1st DCA 1981), the court construed Rule 6B-1.02(2) (c), Florida Administrative Code, which authorizes the Department of Education to suspend a teaching certificate for a period not to exceed three years when it could be shown that a person ".

    . . refused to comply with the regulations of the State Board of Education or the school board in the district in which he is employed," (e.s), to require a showing that ". . . a teacher knew of an explicit requirement and [made] a conscious decision not to comply." In the instant case, no evidence was presented to show that the Respondent had specific knowledge of the corporal punishment policies of the school board and intentionally refused to follow them. To the contrary, the evidence indicates that the Respondent was unfamiliar with laws and policies concerning corporal punishment, was never

    individually informed of the policies and never intentionally refused to follow any specific directions concerning implementation of the policies. Accordingly, the record does not support a finding that the Respondent's actions in this case constitute "gross insubordination" pursuant to Section 231.36(6), Florida Statutes.

    
    

45. The remaining issue for determination is whether the Superintendent's recommendation of termination of Respondent's employment is the appropriate penalty in this case. As noted by the Petitioner, termination of employment is within the range of appropriate penalties since the Respondent's actions have been found to constitute misconduct in office. Section 231.36(6), Florida Statutes.

    
    

46. The Respondent has been employed within the public school system for a substantial period of time. He is active in a number of organizations and enjoys a good reputation in the community. Contrasted with these factors is the lack of judgment demonstrated by the Respondent in his classroom, the boys' restroom and on the bus ride when attempting to discipline young students. In attempting to explain his actions at the final hearing, a disturbing lack of contrition on Respondent's part was evident. This is demonstrated by the following exchange between the Respondent and his counsel:

    
    

    MR. WILLIAMS: Mr. Baker, if the bathroom incident would have come up again, if the kids were making noise and wrestling and throwing water and things like that in the bathroom, would your reaction be the same as it was?

    
    

    RESPONDENT: I couldn't answer that. If

    it was based directly on the circumstances, then I could see this, but I couldn't say now how you're going to act tomorrow.

    
    

    MR. WILLIAMS: Would you make an effort to comply with the school/policy at your school?

    
    

    RESPONDENT: By all means. I'd be reluctant about, you know--I would certainly make an effort to find out specific rules about

    how you could best solve a problem without creating a lot of adverse publicity.

    (Vol. II - TR-253).

    
    

    Additionally, the Respondent's testimony concerning the amount of force used in the boys' restroom, the origin of the marks and bruises on Chris Yavanovich's arm and his authorization to use corporal punishment was simply not credible and reflected adversely in other areas in which his testimony was in direct conflict with Petitioner's witnesses.

    
    

47. Under these circumstances, the penalty recommended by the Superintendent is supported by the serious nature of the charges and the record established at the final hearing and is, therefore, appropriate. This recommendation is consistent with the information contained in Respondent's Exhibits 3-10 and Petitioner's Exhibits 6 and 7, 7/ which have been examined by the Hearing Officer and consist of the disciplinary files in the

Superintendent's office concerning the alleged misuse of corporal punishment by teachers in the Orange County School district.

RECOMMENDATION

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

That the Respondent be found to have committed misconduct in office as alleged in the notice of charges dated February 9, 1981 and May 29, 1981 and that as a consequence of such a finding, his employment with the Orange County School Board be terminated.

DONE and ORDERED this 16th day of September 1981, in Tallahassee, Florida.

SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1981.

ENDNOTES

1/ A determination as to which party should be charged with the continuance was postponed until after the final hearing. If this Recommended Order is adopted, the issue would be moot. However, in the event that it is not adopted or the Respondent is reinstated in the future with back pay, the continuance should be charged against the Petitioner.

2/ The Respondent initially asserted in his deposition taken June 5, 1981 that the November 21, 1980, note authorized him to administer corporal punishment.

However, at the final hearing, the Respondent did not assert this position.

3/ At the final hearing, the Respondent denied saying anything to Richard Hamilton or striking him on the arm for talking during the bus ride.

4/ The Respondent denied striking the students hard enough to leave any bruises and characterized each lick as a "slight tap" on the leg. (Vol. I - TR-75).

5/ Mrs. Ruth Price, a fifth grade teacher at Blankner and longtime friend of the Respondent testified that the Respondent could return to the classroom.

However, she was unaware of any incidents other than the one in the boys' restroom and also testified that a teacher who abuses a child should not be returned to the classroom. (Vol. II - TR-212)

6/ Ruling was reserved on Respondent's Exhibits 3-10 and Petitioner's Exhibits

6 and 7 which the School Board offered subject to the admissibility of Respondent's proffered exhibits.

7/ Petitioner's Exhibits 6 and 7 and Respondent's Exhibits 3-10 are admissible and hereby made a part of the record.

COPIES FURNISHED:

John W. Bowen, Esquire

25 South Magnolia Avenue Post Office Box 3462 Orlando, Florida 32802

Julius L. Williams, Esquire Pilacek, Egan, Cohen & Williams 918 Lucerne Terrace

Orlando, Florida 32802

Docket for Case No: 81-000346

Orders for Case No: 81-000346