STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2984

)

PHILLIP JAMES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on January 25, 1983, in Clearwater, Florida. The issue for determination at the hearing was whether respondent should be suspended or dismissed from his teaching position for the reasons set forth in Superintendent Rose's letter dated October 12, 1982.

APPEARANCES

For Petitioner: Usher L. Brown

Associate General Counsel Post Office Box 4688 Clearwater, Florida 33518

For Respondent: Lawrence D. Black

152 Eighth Avenue Southwest Largo, Florida 33540

INTRODUCTION

By letter dated October 12, 1982, Scott N. Rose, Superintendent of Schools for Pinellas County, notified respondent Phillip James that he was suspending respondent, with pay, from his duties as a member of the instructional staff, and that he would recommend to the School Board that respondent be suspended without pay beginning October 28, 1982. This suspension was based upon the factual allegations that respondent committed the following acts with regard to four separate students: pulling hair, striking in the face, knocking an arm so as to cause the student to poke her finger into her eye, and sticking masking tape to leg hair and pulling it off so as to cause discomfort to the student.

It is alleged that these acts constitute misconduct in office, gross insubordination and provide grounds for respondent's dismissal as a tenured school teacher.

In support of the charges, the petitioner, School Board of Pinellas County, presented the following witnesses, all of whom are employed at the Paul B. Stevens Exceptional Student Center: Christine Stich, a teacher's aide; LuAnn Kusserow, an art specialist; Christine Kampman, a teacher's aide; Wrex R. Diem, the Principal, who was accepted as an expert witness in the area of exceptional

education and policies at his school; and Rene' Torrey, a Behavioral Specialist, who was accepted as an expert witness in the area of appropriate methods of managing student behavior at the Paul B. Stevens School. Carol Stephanick, an assistant secretary to the School Board, also testified. Petitioner's Exhibits 1A and 1 were received into evidence. The respondent testified in his own behalf.

Subsequent to the hearing, counsel for the parties were given the opportunity to file proposed findings of fact and proposed conclusions of law. The petitioner's counsel filed such a proposal. To the extent that petitioner's proposed findings of fact are not incorporated in this Recommended Order, they are rejected as being either not supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

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

1. Respondent Phillip James is certified by the Florida Department of Education to teach in the area of mental retardation, and is employed under continuing contract with the petitioner Pinellas County School Board. He has been teaching for approximately nine years.

   
   

2. The Paul B. Stevens Exceptional Student Center has various grade levels for educably mentally handicapped students (those with an IQ level ranging between 55 and 68), trainable mentally handicapped students (IQ range between 25 and 55), and profoundly mentally handicapped students (IQ range between O and 25). During the 1981-82 school year, respondent taught in the grade level for students classified as educably mentally handicapped. For the 1982-83 school year, he was assigned to a class containing seven profoundly mentally handicapped students.

   
   

3. Howie, one of the students in respondent's class, cannot speak intelligibly, read, write or go to the bathroom by himself. While it is difficult to get Howie to show any response to outside stimuli, he is not difficult to control and is not considered dangerous. On one occasion, respondent was working with Howie attempting to get him to put pegs in the holes of a pegboard. When Howie did not perform the task, respondent took ahold of Howie's hair on his head and yanked his head back by the hair. Howie responded by whimpering, or crying. On another occasion, respondent performed this same "technique" in front of another teacher to illustrate that he was able to get a response from Howie by pulling his hair. Respondent admitted that he did, in fact, pull Howie's hair on several occasions as an aversive therapy technique to elicit response from him. Respondent did not attempt to obtain approval from school authorities prior to initiating such a technique.

   
   

4. Student Pam wears a diaper and is often difficult to change. On one occasion, the respondent's teacher's aides were having trouble holding Pam on the changing table, and asked respondent to help them. Respondent came over to the table and tapped Pam lightly on the mouth. Pam's mouth began to bleed. One teacher's aide testified that the tap to the mouth which she observed was not hard enough to cause bleeding, but that respondent told her that he had hit Pam in the mouth earlier. Respondent explained that while he was holding Pam's hands, she was trying to get away from him and pulled his hands toward her mouth in a forceful manner.

5. Student Andrea is in a wheelchair, wears diapers and cannot speak, read or write. She has a self-abusive habit of placing her little finger into her eye socket behind her eyeball, causing her eyeball to bulge out. In order to discourage this behavior, respondent struck Andrea's arm while she was poking her eye so as to drive her finger deeper into her eye socket. It was anticipated by the respondent that this procedure would cause Andrea pain and that she would then voluntarily withdraw her finger from her eye. Respondent had not attempted to obtain prior permission from school officials to modify Andrea's behavior by this method.

   
   

6. Student Della is confined to a wheelchair, cannot read, write or speak and wears diapers. She exhibits extreme sensitivity to tactile stimulation. On one occasion, when changing Della's diapers, respondent took the masking tape with which the diapers are secured and pressed it down on Della's leg, which was covered with long, fine hair. Respondent then ripped the tape off Della's leg, causing her to flinch. Respondent admitted that he did stick tape on Della's leg and then pulled it off, but explained that he did this to "desensitize" her. No prior authorization was requested or obtained for this procedure.

   
   

7. Appropriate methods of managing student behavior at the Paul B. Stevens Exceptional Education Center were explained to teachers in staff meetings.

   While aversive therapy is permitted, the appropriate manner of implementation is to begin with the least restrictive method of placing the student in a "time out" room to reduce inappropriate behavior. This is the maximum amount of restraint authorized, absent a written behavior plan for the individual student. Such an individual behavior management plan must receive prior approval from either the school's Principal or Behavioral Specialist after observation of the student and input from various sources other than the teacher seeking to initiate the plan. Respondent was aware of this school policy.

   
   

   CONCLUSIONS OF LAW

   
   

8. A school board may suspend or dismiss a member of the instructional staff under continuing contract if charges of misconduct in office or gross insubordination are sustained by the evidence. Section 231.36(4)(c), Florida Statutes (1982 Supp.).

   
   

9. Misconduct in office is defined as a violation of the Code of Ethics of the Education profess ion so serious as to impair the individual's effectiveness in the school system. Rule 6B-4.09(3), Florida Administrative Code. The Code of Ethics includes the directive that the educator "make reasonable effort to protect the student from conditions harmful to learning or to health and safety" and that the educator "not expose the student to unnecessary embarrassment or disparagement." Rule 6B-1.02(2)(c) and (d), Florida Administrative Code.

   
   

10. Gross insubordination is defined as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." Rule 6B-4.09(4), Florida Administrative Code.

    
    

11. The facts adduced at this hearing did not adequately demonstrate that respondent struck student Pam in the face. The one witness who observed respondent lightly tap Pam on the mouth stated that the "tap" was not of sufficient strength to cause bleeding. Respondent's version of the incident-- that Pam caused the impact by her struggling--is therefore unrebutted.

12. With regard to the remaining allegations concerning students Howie, Andrea and Della, the petitioner has demonstrated by competent substantial evidence that respondent pulled Howie's hair, caused Andrea's finger to be placed deeper into her eye socketand caused discomfort to Della by pulling tape placed on her leg. Such acts constitute "misconduct in office" and "gross insubordination" within the meaning of Rule 6B-4.09, Florida Administrative Code, and provide grounds for discipline pursuant to Section 231.36, Florida Statutes.

    
    

13. These students were profoundly mentally handicapped to the point of helplessness. Pulling hair and otherwise causing physical pain to a handicapped child borders, at least, on being abusive. While such methods employed by the respondent may have been motivated by desires on his part to promote more appropriate behavior by the students, such acts cannot be said to protect the students from conditions harmful to their health or safety and did expose these students to unnecessary disparagement.

    
    

14. The most restrictive method of bringing about more appropriate behavior authorized at the Paul B. Stevens school was to place the student in supervised isolation. Any more restrictive method or behavioral management technique was prohibited unless preauthorized in accordance with an individual behavior plan for that particular student. Such a procedure, reasonable in nature, was mandated at the Paul B. Stevens school and all instructors, including respondent, were made aware of that policy. The evidence is uncontradicted that respondent failed to obtain prior approval from the Principal or the Behavioral Specialist before implementing his behavior management plan or techniques with regard to students Howie, Andrea or Della. Violation of this policy by respondent with regard to these three students constituted gross insubordination.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent Phi1lip James be found guilty of misconduct in office and gross insubordination and that he be dismissed, effective October 28, 1982, as a member of the instructional staff of the School Board of Pinellas County.

Respectfully submitted and entered this 31st day of March, 1983, 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 31st day of March, 1983.

COPIES FURNISHED:

Usher L. Brown, Esquire Associate General counsel

P. O. Box 4688

Clearwater, Florida 33518

Lawrence D. Black, Esquire

152 Eighth Avenue SW Largo, Florida 33540

Mr. Scott N. Rose Superintendent

School Board of Pinellas County, Florida

1960 East Druid Road

P. O. Box 4688 Clearwater, Florida 33518

Docket for Case No: 82-002984

Orders for Case No: 82-002984