STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-670

)

PONSELL P. HOWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 6, 1982, in Clearwater, Florida. The issue for determination at the hearing was whether respondent should be suspended without pay for a five-day period for the alleged reason that he assaulted and or committed a battery upon a student, and was thereby guilty of misconduct in office in violation of Section 231.36(6), Florida Statutes.

APPEARANCES

For Petitioner: William Borja, Esquire

501 South Fort Harrison, Suite 204 Clearwater, Florida 33516

For Respondent: Lawrence D. Black, Esquire

152 Eighth Avenue South West Largo, Florida 33540

INTRODUCTION

By letter dated February 16, 1982, Superintendent of Schools, Scott N. Rose, notified respondent Ponsell P. Howell that he would recommend to the School Board of Pinellas County that respondent be suspended without pay for five days for misconduct in office. The charge was based on allegations that respondent had assaulted and/or committed a battery upon a student at Lakewood Senior High School. By letter dated February 25, 1982, respondent, through counsel, requested a hearing on the charges alleged. On March 8, 1982, the Division of Administrative Hearings received a request for the appointment of a Hearing Officer. By Order dated March 10, 1982, the attorneys for the parties were directed to inform the undersigned in writing within ten days as to mutually acceptable dates for the scheduling of the final hearing. No written response was made by either party. In the latter part of April, 1982, Mr.

Borja, attorney for the petitioner, telephonically contacted the undersigned with a desire to set an early hearing date. By Notice of Hearing dated April 23, 1982, the hearing was originally scheduled for May 7, 1982. Based upon a conflict with the schedule of Mr. Black, the attorney for the respondent, the hearing date was changed, by Notice of Hearing dated April 30, 1982, to May 6, 1982 at 4:00 p.m. Because of a continuance of another unrelated hearing to be

conducted by the undersigned the morning of May 6th, it was orally agreed between the undersigned and both counsel that the instant hearing would commence at 9:30 a.m. on May 6, 1982. Witnesses for the petitioner did not arrive at the hearing site until 11:00 a.m. The respondent's motion to dismiss the proceeding on the ground that petitioner was not ready to proceed until 11:00 a.m. was denied.

At the hearing, petitioner presented the testimony of nine students who witnessed at least a portion of the incident in dispute and the testimony of Rose Mary Branch, the Dean of Students at Lakewood Senior High School.

Petitioner's Exhibit 1 was received into evidence. Respondent testified on his own behalf, and Juhan, Mixon, petitioner's Director of Personnel Services, testified on rebuttal.

At the conclusion of the hearing, the parties were afforded the opportunity to submit proposed findings of fact and proposed conclusions of law. Mr. Borja declined the opportunity on the basis that an expedited Recommended Order was necessary because the School Board's meeting date was near. Mr. Black desired the opportunity to submit a proposed order and stated that he needed a transcript of the testimony to do this in a proper manner. Recognizing that there were some conflicts in the students' testimony regarding the incident in dispute, and under the impression that it would take only a short period of time to prepare a transcript of the less than two-hour hearing, the undersigned informed Mr. Black that he would be permitted five days from the receipt of the transcript within which to mail his proposed order. No such proposed order has been received to date. A sufficient period of time having elapsed, it is hereby ruled that counsel for respondent has waived the opportunity to present proposed findings of fact and proposed conclusions of law.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. On February 5, 1982, respondent was preparing to administer to his students a math test which had begun the day before. While passing out the tests, respondent announced to the class that there was to be no more talking and that anyone who did talk would be sent to the Dean's office. In a voice described as "loud" and "smart-alecky," student John Lindsay said "What?" Respondent told student Lindsay to leave the room. Lindsay replied that he would not leave the room without a referral slip. Respondent told Lindsay he would not give him a referral slip because he could not be trusted with one. On other occasions, respondent had sent Lindsay to the Dean's office with a referral slip and neither Lindsay nor the referral slip reached the office. Lindsay did not leave the room at that time.

   
   

2. Respondent was seated at his desk attempting to watch his students who were taking the test and also write passes for other students who were going to another room to study. Lindsay came up to respondent's desk and demanded a pass or a referral slip. Respondent told Lindsay to "get out of my face," meaning to convey that Lindsay was obstructing his vision of the students who were taking the test. Lindsay replied that he did not want to be in respondent's "ugly face anyway." At this point, some students in the class began to laugh.

   
   

3. Lindsay apparently returned to a desk located in front of the respondent's desk, and respondent continued to write passes and watch the students who were taking the test.

4. As respondent was writing referrals or passes, student Lindsay came up quickly to respondent's desk with his arm extended to pick up the referral slip. Respondent rolled back in his chair, rose and quickly grabbed for the referral slip on his desk at the same time Lindsay was reaching for it. As respondent did this, his chair slid backward and his desk moved forward. Lindsay moved his head backward and respondent's hand lightly brushed Lindsay's left shoulder with no damage resulting to the student. Lindsay thereafter turned toward the class and laughingly said "did everybody see that now." Respondent reached for a button which calls the Dean's office and Lindsay left the room with another student.

   
   

5. The students who witnessed the incident from various positions in the room observed a swinging action with a fisted hand directed toward Lindsay by the respondent, who appeared to be angry at the time. This testimony is not inconsistent with the testimony that respondent was rising from his chair and grabbing for a piece of paper at the same time that student Lindsay was standing in front of his desk and reaching for the same piece of paper.

   
   

6. It is the policy at Lakewood Senior High School that when a student is sent to the Dean's office, the teacher is to send a disciplinary referral slip with the student. On occasions, a student is sent first and the referral slip follows. Corporal punishment is to be administered only by the school principal or his designee and only in the presence of another adult.

   
   

7. Respondent Ponsell P. Howell is 62 years old and has been a mathematics teacher for over 19 years. He has never been charged with or accused of striking a student. He plans to retire from teaching at the end of this school year.

   
   

   CONCLUSIONS OF LAW

   
   

8. Respondent has been charged with misconduct in office in violation of Section 231.36(6), Florida Statutes, on the grounds that he allegedly assaulted and/or committed a battery upon a student. Basically an assault is an intentional, unlawful attempt to do, or cause a present well-founded fear of, immediate harm. A battery is a willful and unlawful use of force or violence upon the person of another.

   
   

9. The facts adduced at the hearing simply do not demonstrate that respondent committed either an assault and/or a battery against student John Lindsay. Instead, the evidence illustrates that the student was attempting to grab a referral slip from the respondent's desk after respondent had informed the student that he was to leave the room without a referral slip, and was to stay out of the respondent's line of vision of the students who were taking the test. Respondent rose from his chair, and as he was rising, grabbed for or swooped up the paper lying on his desk at the same time the student was reaching for it. The accidental brushing of the student's shoulder during this sweeping action by the respondent can in no sense of the word be called an "assault and/or battery."

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the charges against respondent of misconduct in office be DISMISSED.

Respectfully submitted this 24th day of May, 1982, in Tallahassee, Florida.

DIANE D. TREMOR, 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:

William Borja, Esquire Suite 204

501 South Fort Harrison Clearwater, Florida 33516

Lawrence D. Black, Esquire

152 Eighth Avenue South West Largo, Florida 33540

B. Edwin Johnson, Esquire 1960 East Druid Road

Post Office Box 4688 Clearwater, Florida 33518

Docket for Case No: 82-000670

Orders for Case No: 82-000670