STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM T. McFATTER, )

Superintendent of Schools, )

)

Petitioner, )

)

vs. ) CASE NO. 82-250

)

FRANCIS J. SORTINO, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Fort Lauderdale, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton II, on April 1, 1982. The Division of Administrative Hearings received the transcript of proceedings on April 28, 1982. The parties are represented by counsel:

For Petitioner: James A. Brown, Esquire

Courthouse Square Building

200 Southeast Sixth Street, Suite 600A Fort Lauderdale, Florida 33301

For Respondent: Richard H. Frank, Esquire

341 Plant Avenue Tampa, Florida 33606

By petition for dismissal from Broward County School System dated January 13, 1982, the Superintendent of Schools of Broward County alleged that respondent, while a teacher under continuing contract at Deerfield Beach High School, was guilty of "misconduct in office in that on or about October 28, 1981, [respondent] grabbed a chair type desk, threw the chair toward the back of the room and threw Joe Sawyer into the chair and hit said student in the back of the neck . . . in the presence of [other] students which conduct violates Florida Statutes 231.36(6), 231.09(2), 232.27 [Florida Statutes, 1981] . . . [and] Rules 6B-1.02(c), 6B-4.09, 6B-5.07(4), and 6B-5.10(4) [Florida

Administrative Code] and School Board Policy 5301."

FINDINGS OF FACT

1. Respondent Francis J. Sortino has been employed by the School Board of Broward County at Deerfield Beach High School in Deerfield Beach, Florida, since 1970 when the school opened. For ten years, he served as the school's planetarium director. In 1979 or 1980, he returned to teaching science in the classroom.

   
   

2. In the fall of 1981, he taught a third-hour science class in which Thomas Bates, Debbie Landoskey, Lonnie McKever, Ricky Huntley, Steve Santiago, and Joe Sawyer, among others, were enrolled. On October 28, 1981, Joe Sawyer

   took the seat near the back of the class to which he had been assigned at the beginning of the school year, even though he had been subsequently reassigned to a seat in the front of the class. When Joe Sawyer and Steven Santiago began talking to each other, Mr. Sortino directed Joe Sawyer to take the seat at the front of the class. Joe Sawyer, who stood five feet one inch, weighed 97 or 98 pounds, and was 15 years old at the time of the hearing, complied with this request, but soon struck up a conversation with Thomas Bates.

   
   

3. Thereupon Mr. Sortino told Joe Sawyer to move again, over near Debbie Peck. Joe Sawyer stood up, began moving in the direction Mr. Sortino had indicated (T. 293), and asked, "Where do you want me to move?" at least once. Mr. Sortino then picked up an empty desk, threw it so that it slid some ten feet across the floor and stopped against the wall, grabbed Joe Sawyer by the nape of the neck, forcibly set him down in the desk, and struck him with his open hand, using first his palm and then the back of his hand. These cuffs, no more than four in all, were not administered with Mr. Sortino's full strength; they fell on Joe Sawyer's shoulder or on the back of his neck.

   
   

4. All this occurred in the presence of some 30 classmates, a few of whom called out urging Joe Sawyer to go to the school office to report the incident. Joe Sawyer did not cry, call out or resist. His face reddened and he laid his head down on his desk, but he was not seriously hurt. He did not require medical assistance or sustain any permanent injury. Aside from Mr. Sortino, no adult was present when respondent struck Sawyer. Mr. Sortino made no effort during third-hour science class on October 28, 1981, to secure the presence of another adult. The school principal, Rosa J. Lawson, had not delegated to respondent or any other teacher the authority to administer corporal punishment.

   
   

5. On October 28, 1981, the School Board of Broward County had in force the following policy, No. 5301:

   
   

   Discipline - Corporal Punishment

   
   

   The principal, or in his/her absence, the person in charge of the school, shall have the responsibility for maintaining overall disci- pline within the school setting. The principal shall share with the teacher the responsibility for maintaining proper school conduct and morale. Further, he/she may delegate to the teachers such responsibility for control and direction of the students as he/she considers desirable. When and where such responsibility has been delegated the teachers shall be sup- ported in any reasonable action they may take.

   
   

   Each pupil enrolled in a school shall, during the time he/she is being transported to or from school at public expense, during the time he/ she is attending school, and during the time he/she is on the school premises, be under the authority of the principal or teacher in charge of the school, and under the immediate control and direction of the teacher or other member of the instructional staff or of the bus driver to whom such responsibility may be assigned by the principal.

   The board shall do everything within its legal power to protect and support the principal and teachers in their disciplinary role. This shall include legal support in accordance with

   Florida Statutes, Section 230.234. In addition, the board shall assist the principal, teacher, bus driver and/or other school staff members in bringing about penalties for the disruption of school functions or assault upon the instruc- tional staff as set forth under Florida Statutes, Section[s] 231.06 and 231.07.

   
   

   Corporal punishment may be administered at the discretion of the principal or his/her designated representative. Normally this should be done only after other corrective measures have been tried without success.

   A teacher shall not inflict corporal punish- ment except upon approval of the principal and only then in the presence of another adult who is informed beforehand, and in

   the student's presence, of the reason for the punishment. Such punishment may not be degrading or unduly severe in its nature. (For clarification, see Florida Statutes, Section 232.27)

   
   

   All suspensions or expulsions shall be made in accordance with Florida Statutes and board policy 5006.

   
   

   Rules

   
   

   When corporal punishment is administered, the following rules shall be observed:

   1. The punishment shall be administered by the principal or by some other member of the professional staff designated by him/ her.

   2. Under no circumstances shall a stu- dent be struck about the head or shoulders. The punishment shall be administered poste- riorly by striking the student below the waist and above the knees.

   3. The administration of corporal pun- ishment shall be witnessed by at least one

      (1) other member of the staff. Corporal punishment shall not be administered in the presence of other students.

   4. When disciplinary action is taken

      by the principal and/or his/her designee the teacher referring the disciplinary case will be advised in writing of the action taken.

   5. A teacher may not suspend a child from school or class. However, in cases where an emergency situation develops, the

      teacher shall take such steps as are rea- sonably necessary to protect the students. The use of reasonable force necessary to isolate the disruptive student from the classroom shall not constitute corporal punishment as defined in accordance with Section 232.27, Florida Statute[s] , and shall not be used as a basis for the sus- pension of any member of the school staff nor for holding anyone liable for such an act unless the force used is degrading or unduly severe as to its nature.

   6. The designated member of the pro- fessional staff or principal who has admin- istered punishment shall provide the pupil's parent or guardian with a written explana- tion of the reason for the punishment and the name of the other adult who was present. Petitioner's Exhibit No. 11.

      
      

      The substance of this policy was fully explicated in the Deerfield Beach High School Teachers' Handbook at pp. 16, et seq., Petitioner's Exhibit No. 9. The policy of the School Board of Broward County with respect to corporal punishment has not changed, in substance, for a decade or more. Respondent was furnished a copy of Petitioner's Exhibit No. 9 at the beginning of the 1981-1982 school year. The Deerfield Beach High School Teachers' Guidebook also contained the following:

      
      

      Referrals to the Administrative Assistants

      
      

      The control of students is not something that can be achieved by so many rules or by the work of a few individuals, but rather by

      sincere and cooperative effort on the part of the entire faculty and staff to understand pupils and their problems. Teachers are encouraged to handle their own disciplinary problems whenever possible. Adequate lesson planning and consistancy [sic] of discipline are probably the best means of avoiding disciplinary difficulties. However, when a student becomes persistently unmanageable in the classroom to the detriment of the learn- ing situation or when his offense is of such a nature that he should be referred to some- one else, the teacher should write to the Administrative Assistant. This should be done only after the teacher has exhausted every means at his disposal to corre[c]t

      that student's conduct. In cases of EMERGENCY nature, the teacher should use the BUZZER to summon an Administrative Assistant to accompany the student to the office.

      
      

      When a referral becomes necessary,

      please use the three-part referral provided by the Administrative Assistant's office.

      Give as much information as possible about the reason for the referral in order to help the Administrative Assistant determine the measures to be taken. If the referral form is not adequate, please feel free to use an attachment. Petitioner's Exhibit No. 9.

      
      

      Respondent Sortino's own personal approach to discipline problems in the classroom is, he testified, fully consistent with the foregoing:

      
      

      If I have a child that's, you know, a minor infraction, the first thing I do is ask him to write a composition, have him take it home and get it signed by his parents. Then they bring the composition back to me. This way I ask the child to

      do something on why--let's say, for instance, he's just talking in class, or chewing gum, whatever it is.

      
      

      Whatever the infraction, I ask the

      student to write me a one page composition as to why they shouldn't do that in school, to take it home and have it signed by the parents, and bring it back to me. If they do it again, they write another composition. Generally, I ask them to write three compo-

      sitions. Generally, after three compositions, what I do is call home.

      
      

      That is not always successful, but I

      have made phone calls to parents at home. In many cases they tell me, I can't control him at home, can't you. At that point, then I would give detentions, which is school policy to give a student detentions. If he fails

      to serve detentions, I would write a referral on that student and send him to an adminis- trative assistant, and then they're supposed to take care of it from there.

      
      

      And that's the policy I've been follow- ing, as far as administering discipline in the classroom. (T. 302-303.)

      
      

      Even though he could not remember ever asking Joe Sawyer to write a composition, and never telephoned his parents, Mr. Sortino thought, at the time of the hearing, that his striking Joe Sawyer on October 28, 1981, "was proper." (T.

      282.) This episode "was a second occurrence of this type incident." (T. 221.)

      
      

6. Mr. Sortino did not refer Joe Sawyer to the school administration for discipline on October 28, 1981, or at any other time, although he did make several other such referrals of students in the fall of 1981. On October 28, 1981, he referred a student named Donald Evans to Rubin C. Ransaw, Jr., an administrative assistant at Deerfield Beach High School, for disciplinary action after Evans, in the presence of Mr. Sortino and other students, said, "Sortino sucks," twice.

7. Petitioner's closing argument was made in written form and filed on May 11, 1982, Respondent's proposed findings of fact, conclusions of law and recommended order were filed on May 13, 1982. These submissions were considered in preparation of the recommended order. Respondent's proposed findings of fact have been adopted, in substance, for the most part. To the extent they have not been adopted they have been deemed unsupported by the weight of the evidence or immaterial to this cause.

   
   

   CONCLUSIONS OF LAW

   
   

8. Florida statutory law addresses the question of corporal punishment in this language:

   
   

   Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such author- ity for the control and discipline of students as may be assigned to him by the principal or his designated representative and shall keep good order in the classroom and in other

   places in which he is assigned to be in charge of students. If a teacher feels that corporal punishment is necessary, at least the following procedures shall be followed:

   1. The use of corporal punishment shall be approved in principle by the principal before it is used, but approval is not neces-

      sary for each specific instance in which it is used. The principal shall prepare guidelines for administering such punishment which iden- tify the types of punishable offenses, the conditions under which the punishment shall be administered, and the specific personnel on the school staff authorized to administer the punishment.

   2. A teacher or principal may administer corporal punishment only in the presence of another adult who is informed beforehand, and in the student's presence, of the reason for the punishment.

   3. A teacher or principal who has administered punishment shall, upon request, provide the pupil's parent or guardian with a written explanation of the reason for the punishment and the name of the other adult who was present. Section 232.27, Florida Statutes (1981).

      
      

      Excluded from the statutory definition of "corporal punishment" is "the use of such reasonable force by a teacher. . . as may be necessary to protect himself or other students from disruptive students." Section 228.041(27), Florida Statutes (1981). When Mr. Sortino struck Joe Sawyer on October 28, 1981, however, he administered corporal punishment within the meaning of Section 232.27, Florida Statutes (1981). Respondent's slapping Joe Sawyer was not the "use of reasonable force necessary to isolate [Joe Sawyer] from the classroom," within the meaning of the School Board's Policy No. 5301.

9. Respondent "may be suspended or dismissed at any time during the school year; provided that the charges against him must be based on . . . misconduct in office, . . . gross insubordination . . . [or] willful neglect of duty "

   Section 231.36(6), Florida Statutes (1981). Petitioner has the burden to show by a preponderance of the evidence that respondent committed the acts alleged in the petition for dismissal. Although respondent's teacher's certificate is not at stake in these proceedings, his public employment is; and petitioners burden of proof is commensurate with the gravity of the matter. See Bowling v. Dept. of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

   
   

10. "Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession so serious as to impair the individual's effectiveness in the school system." Rule 6B-4.09(3), Florida Administrative Code. The only section of the Code of Ethics of the Education Profession pleaded in the present case is Rule 6B-1.02(c), Florida Administrative Code, which provides that an educator shall "make reasonable effort to protect the student from conditions harmful to learning or to health and safety." The evidence established a violation of Rule 6B-1.02(2)(c), Florida Administrative Code, but petitioner did not adduce evidence sufficient to prove that the violation was "so serious as to impair [respondent's] effectiveness in the school system." Impaired effectiveness is not lightly to be inferred. Boyette

    v. State Professional Practices Council, 346 So.2d 598, 601 (Fla. 1st DCA 1977) (testimony of reduced effectiveness held insufficient).

    
    

11. Although "gross insubordination" and "willful neglect of duty" were not pleaded in the petition for dismissal, counsel for petitioner invoked these statutory grounds in his opening statement. These criteria are set forth in Section 231.36, Florida Statutes (1981), and are also amplified by Rule 6B- 4.09(4), Florida Administrative Code, which defines gross insubordination "or willful neglect of duties" as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." There was no proof here of any "continuing intentional refusal to obey a direct order." Among a teacher's duties are to labor

faithfully and earnestly for the advancement of the pupils in their studies, deportment a and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and patriotism and the prac- tice of every Christian virtue. Section 231.09(2), Florida Statutes (1981)

The unfortunate encounter in third-hour science class had little, if anything, to do with truth, honesty or patriotism; and no particular "Christian virtue" was pleaded or proven.

Rules 6B-5.01 and 6B-5.10, Florida Administrative Code, set forth standards of competent professional performance for teachers. At the final hearing counsel for petitioner expressly declined to proceed against respondent on grounds of incompetence. It is accordingly,

RECOMMENDED:

That the School Board of Broward County dismiss the petition filed against respondent.

DONE and ENTERED this 24th day of May, 1982, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 24th day of May, 1982.

COPIES FURNISHED:

James A. Brown, Esquire Suite 600A

Courthouse Square Building

200 Southeast Sixth Street

Fort Lauderdale, Florida 33301

Richard H. Frank, Esquire

341 Plant Avenue Tampa, Florida 33606

Docket for Case No: 82-000250

Orders for Case No: 82-000250