STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT BLUBAUGH, SUPERINTENDENT, ) SCHOOL BOARD OF BREVARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-982

)

HENRY L. SCOTT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was conducted in the above matter on May 26 and 27, 1981, in Cocoa, Florida. The following appearances were entered: Leon Stromire and Joyous D. Parrish, Cocoa, Florida, on behalf of the Petitioner, Robert Blubaugh; and C. Anthony Cleveland, Tallahassee, Florida, on behalf of the Respondent, Henry L. Scott.

On or about March 24, 1981, the Petitioner requested the School Board of Brevard County to approve the involuntary termination of the Respondent, Henry

1. Scott, from his position as a teacher in the Brevard County School System. The School Board approved the recommendation, and the Respondent requested a formal administrative hearing. The School Board forwarded the matter to the office of the Division of Administrative Hearings on April 2, 1981, requesting that a Hearing Officer be assigned to conduct further proceedings. The final hearing was scheduled to be conducted as set out above by notice dated April 21, 1981. The Respondent filed a Motion for More Definite Statement which was granted by Order entered May 5, 1981. The Petitioner filed a More Definite Statement charging the Respondent with incompetence, misconduct in office, and insubordination.

   
   

   Petitioner called the following witnesses at the final hearing: Rebecca Ann Atwood, a physical education teacher employed at University Park Elementary School within the Brevard County School System; Pamela Stanford, a physical education teacher employed within the Brevard County School System; Julia Stevens, formerly a physical education aide at University Park Elementary School; Art Marlan, a physical education teacher who has been employed at University Park Elementary School since April 13, 1981; Ho Luong, the parent of a student at University Park Elementary School; Roberta Bower, the parent of a student at University Park Elementary School; Libby White, the parent of two children at University Park Elementary School, and President of the University Park Parent Teacher Organization; Kathy Woods, the parent of two students at University Park Elementary School; Dana Boyd, the parent of a student at University Park Elementary School; Kimberly Patisaul, the parent of a student at University Park Elementary School; Arlene McMenamy, a fourth grade teacher at University Park Elementary School; Ellen Marshall, a first grade teacher at University Park Elementary School; Missy Waschka, formerly a library clerk at University Park Elementary School; Shirley Bradley, a kindergarten teacher at University Park Elementary School; Joseph Stapleton, a fourth grade teacher at

   University Park Elementary School; Cathy Ruckman, a first grade teacher at University Park Elementary School; Cindy VonEdwins, a first grade teacher at University Park Elementary School; James Paul Miller, a music teacher at University Park Elementary School; Francis Lee, the Curriculum Coordinator at University Park Elementary School; Norma Murphy, the Principal at University Park Elementary School; and Lloyd Soughers, the Area Superintendent for the South Area of the Brevard County School System.

   
   

   Respondent testified on his own behalf and called the following additional witnesses: Jennifer Ailene Childers, formerly a substitute teacher at University Park Elementary School; Larry Pegram, a third grade teacher at University Park Elementary School; Leo Earl Lewis, a fifth grade teacher at University Park Elementary School; Martin Schaap, president of the Brevard Federation of Teachers; Clara Smith, a classroom teacher at University Park Elementary School; Janet Nichols, a tutorial aide at University Park Elementary School; Sylvia McLearn, a tutorial aide at University Park Elementary School; Robert Dale Taylor, a sixth grade teacher at University Park Elementary School; Merilyn K. Williams, a Title I teacher at University Park Elementary School; Thelma L. Beasley, a tutor at University Park Elementary School; Betty A. McDowell, a fifth grade teacher at University Park Elementary School; Queen W. Evens, a sixth grade teacher a University Park Elementary School; Corena Bailey, a classroom teacher employed by the Brevard County School System; Stacey Long, Samuel F. Session, Randy Paul Vernon, and Dennis Philpot, all former students of the Respondent; and Robert Lee Hardy, the parent of three students at University Park Elementary School.

   
   

   Petitioner's Exhibits 1 through 5, and Respondent's Exhibits 1 and 2 were received into evidence. The parties have submitted post-hearing legal memoranda including proposed findings of fact and conclusions of law. Proposed findings and conclusions have been adopted only to the extent that they are set out in the Findings of Fact and Conclusions of Law which follow. They have been otherwise rejected as either contrary to the evidence or irrelevant to the issues.

   
   

   The issues in this proceeding are whether the Respondent is guilty of the allegations set out in the More Definite Statement filed by the Petitioner, and, if so, what disciplinary action should be taken.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent has been employed as a teacher within the Brevard County School System since 1969. He was employed on the instructional staff at Creel Elementary School during the 1969-70 school year. In 1970, he was transferred to Melbourne High School where he served as a physical education teacher through the 1977-78 school year. At the end of that year, he was involuntarily transferred to University Park Elementary School. He was employed as a physical education instructor at University Park from September, 1978, until March 25, 1981. Respondent's employment with the Brevard County School System was based on a continuing contract. On March 24, 1981, the School Board approved a recommendation of its Superintendent, the Petitioner, that the Respondent's employment be terminated. Respondent requested a formal hearing, and he has been under suspension without pay pending the resolution of this proceeding.

   2. From 1969 through the 1978-79 school year, the Respondent received consistently satisfactory evaluations of his job performance. This includes the first year of his employment as a physical education teacher at University Park Elementary School. It was not until the 1979-80 school year, under a new principal at University Park, that the Respondent's performance was evaluated as unsatisfactory. The Respondent's job performance for the 1979-80 school year and for the 1980-81 school year up to the date of his suspension was evaluated as unsatisfactory. Unsatisfactory evaluations of the Respondent's performance for these past two school years accurately reflect the quality of his work. His general job performance was poor, and he was guilty of several specific instances of misconduct.

      
      

   3. The Respondent was responsible for conducting several one-half hour physical education classes during the course of the school day at University Park. His classes typically had fifty students. The Respondent did not adequately supervise his students. Rather than teaching fundamental skills, and skills which would lead into group activities, the Respondent typically had his classes run a lap, perform exercises, then engage in "free play." The Respondent would only infrequently organize his classes into group sports activities, and he did not properly teach his students skills which would provide a proper background for group sports activities. In administering physical fitness tests, the Respondent did not keep adequate records of his students' performance. This resulted in his students not being able to participate in awards programs, and, for the 1980-81 school year, resulted in his students having to be retested. While other physical education classes would have "free play" for only a portion of one class weekly, the Respondent had a pattern of allowing more "free play" activity than organized activity. This is contrary to the purposes of the physical education program and resulted in a lack of uniformity among the skill level achievement of students at University Park Elementary School.

      
      

   4. The Respondent did not prepare adequate plans for his classes. Despite constant criticism of the regular weekly plans that he prepared, his plans improved only in isolated instances. Generally, they reflected no effort to plan class activities. Respondent's inadequate plans made it difficult for other physical education teachers to coordinate their schedules with the Respondent's, made evaluation of the Respondent's performance difficult, made it difficult for substitute teachers to take over the Respondent's classes, and contributed to the Respondent's classes being disorganized.

      
      

   5. The Respondent did not adequately cooperate with other physical education teachers at University Park. On occasion, the disorganization of his classes would impede the orderly conduct of other classes. The Respondent did not adequately supervise his students' use of equipment, and he improperly allowed students access to the equipment room.

      
      

   6. In several specific instances, the Respondent engaged in conduct that constitutes misconduct. The Respondent struck one of his students, Tuan Luong, in such a manner that the student was hurt and humiliated. The incident was not an intentional effort on the Respondent's part to injure or punish the student. Instead, the Respondent and the student had had a relationship which included feigned roughhousing. Late in April, 1980, after the Respondent and the student had engaged in such activity, the Respondent struck the student in the stomach. It does not appear that the Respondent's intention was other than playful; however, he clearly injured the student more than he intended. The incident caused the student to transfer out of the Respondent's class.

   7. On another occasion, the Respondent struck a student, Randy Vernon, with a whistle strap. The striking was severe enough to raise welts on the student's wrist and to cause the student to be sent to the infirmary. It appears that this also developed as the result of playful roughhousing; however, the severity of the injury establishes that it was inappropriate.

      
      

   8. On the last day of classes at the conclusion of the 1979-80 school year, the Respondent washed his car on school property using school facilities. While the Respondent did not have any specific assignments to perform while he was washing his car, there were record keeping and inventory activities that he could have performed. Furthermore, he was on duty, not free to engage in activities for his own benefit, and the use of school facilities for his private purposes was inappropriate.

      
      

   9. On one occasion, the Respondent used two sixth grade students to assist him in straightening out the physical education office. At his request, and with the permission of their teacher, the students stayed beyond their recess class to assist him. It was contrary to school policy to use students in this manner without first obtaining permission from the administration. The Respondent failed to obtain such permission.

      
      

   10. During December, 1980, there was a new student in one of the Respondent's first grade physical education classes. The student had not had physical education classes before, and he became upset during the class for reasons that do not reflect upon the Respondent. The student ran away from the class. Rather than taking immediate steps to find the student and return him to the class, Respondent sent other students to the administrative offices to advise them that the child had run away from the class. The student was later found by a parent off of the school grounds, and he was returned to the school. The Respondent was in a position, if he had taken immediate action, to have intercepted the student and prevented him from leaving the school grounds. The Respondent testified that he was concerned for the continued smooth operation of his classes. This latter concern is commendable; however, under the circumstances that confronted him, the Respondent was in a position of having to act immediately to prevent potential harm to the student. He failed to act as circumstances required.

       
       

   11. The Respondent would typically have students run laps, or do push-ups as punishment for misbehavior. Such measures are inappropriate, especially in elementary schools, because one of the purposes of the physical education program is to encourage students to engage in physical activities. Using physical activities as punishment runs counter to this goal. The Respondent ceased utilizing laps as punishment when he was so instructed, but continued to utilize push-ups. When advised to stop using push-ups as punishment, he ceased that. Respondent's use of running laps and push-ups as punishment reflects a lack of understanding of the proper role of a physical education program in an elementary school.

       
       

   12. The Respondent's supervisors, including the Principal and Curriculum Coordinator, made efforts to work with the Respondent in order to improve his job performance. There were periods of time when his performance improved, but generally the quality of his work was inadequate during the entire 1979-80 and 1980-81 school years.

   13. The Respondent has been charged with insubordination. It does not appear, however, that the Respondent intentionally disobeyed any instructions. Rather, his performance simply did not measure up to instructions given him. It does appear that when specifically instructed to cease activities such as using laps and push-ups as punishment, the Respondent complied.

       
       

   14. There was considerable testimony offered with respect to other specific instances of misconduct on the Respondent's part. This testimony has been rejected, and the only instances of misconduct found to have occurred are those set out herein. Much of the testimony as to these other instances was of a hearsay nature, and cannot serve as the basis for a finding of fact. For example, there was testimony that the Respondent struck a first grade student. This testimony came from the student's mother, who heard it from the student. The alleged incident was not observed by any witness who testified, and the Respondent was utterly without an opportunity to cross-examine with respect to it.

       
       

   15. The Respondent was not totally unpopular as a teacher at University Park Elementary School. He is well liked by many fellow faculty members and students. Students would frequently request the Respondent to join them at class parties, and many of his students missed him and were resentful of his suspension.

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   17. Instructional employees who have earned continuing contract status can be suspended or dismissed from employment only if it is established that they have been guilty of immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. Section 231.36(6), Florida Statutes; Rule 6B- 4.09, Florida Administrative Code. The Respondent's general teaching performance during the 1979-80 and 1980-81 school years constitutes incompetence within the meaning of the statute and rule. The specific acts of misconduct set out in the findings of fact constitute misconduct in office within the meaning of the statute and rule. The Respondent's failure to improve his job performance, however, does not constitute "gross insubordination" within the meaning of the statute and rule.

       
       

   18. Section 231.36(6) provides that upon a finding of misconduct in office or incompetency, a member of the instructional staff may be dismissed from employment. Alternatively, terms for continued employment can be fixed by the School Board. In view of the facts that the Respondent has been generally incompetent in office over a period of two school years and has engaged in numerous incidents of misconduct, stringent action is justified. It would not appear, however, that the Respondent's value as a teacher to students within the Brevard County School System has necessarily been permanently impaired. For ten years, Respondent was considered by the School System to be a satisfactory employee. He is popular with many fellow teachers and students. The Respondent should be allowed an opportunity to reestablish himself as a satisfactory employee. At the same time, the School Board should not accord Respondent full rights as a continuing contract employee.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

RECOMMENDED:

That a final order be entered finding the Respondent, Henry L. Scott, guilty of incompetence and misconduct in office, and suspending him without pay from his employment within the Brevard County School System from March 25, 1981, through the remainder of the 1980-81 school year. It is further recommended that the Respondent be demoted from continuing contract status with the School Board, and that he be placed on annual contract basis, eligible to reattain continuing contract status within the discretion of the School Board only after completing three years of service in annual contract status.

RECOMMENDED this 10 day of July, 1981, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

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 10 day of July, 1981.

COPIES FURNISHED:

Joyous D. Parrish, Esquire Leon Stromire, Esquire

1970 Michigan Avenue, Bldg. C Post Office Box 1888

Cocoa, Florida 32922

C. Anthony Cleveland, Esquire General Counsel, FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

Mr. Robert L. Blubaugh Superintendent

School Board of Brevard County 1260 Florida Avenue

Rockledge, Florida 32955

Docket for Case No: 81-000982

Orders for Case No: 81-000982