STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 83-351

)

ROGER JEAN-PAUL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M.Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on June 1, 1983, in Miami, Florida.

Petitioner School Board of Dade County, Florida, was represented by Jesse

1. McCrary, Jr., Esquire, Miami, Florida, and Respondent Roger Jean-Paul was represented by Ellen L. Leesfield, Esquire, Miami, Florida.

   
   

   At its January 5, 1983, meeting, Petitioner approved the recommendation of its Superintendent of Schools suspending from employment and initiating dismissal proceedings against Respondent for incompetency and misconduct in office. Respondent timely requested a formal hearing, and a formal Notice of Charges was thereafter filed. Accordingly, the issues for determination are whether Respondent is guilty of the allegations contained in the Notice of Charges and, if so, what disciplinary action should be taken, if any.

   
   

   Both parties requested and were granted leave to file post hearing proposed findings of fact in the form of a proposed recommended order; however, both parties failed to do so.

   
   

   Petitioner presented the testimony of John Cohn, Ronald Golembieski, Gloria Cunningham and Victoria Bell. The Respondent testified on his own behalf and presented the testimony of Marvin Ellis. Additionally, Respondent's Exhibits numbered i and 2 were admitted in evidence, with Exhibit numbered 1 being admitted post hearing pursuant to stipulation of the parties.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent was an employee of the School Board of Dade County, Florida, more particularly a Title One teacher at Miami Carol City Senior High School during the 1981-1982 school year.

      
      

   2. On May 6, 1982, John Cohn was a student in Respondent's fourth period class. Arnold Coats was a substitute teacher working with Respondent in Respondent's classroom on that day.

   3. After Respondent had given the students an assignment, Cohn requested and received permission to leave the classroom to go to the bathroom.

      
      

   4. While absent from the classroom, Cohn decided he wished to speak with Ronald Golemhieski, another teacher at Miami Carol City Senior High School.

      Cohn returned to Respondent's classroom to request permission. Coats came to the door and gave Cohn permission to go talk to Golembieski, but Cohn decided he should get permission from Respondent since Respondent was the teacher of the class.

      
      

   5. Cohn waited in the doorway of Respondent's classroom. When he finally got Respondent's attention, he beckoned with his finger, requesting Respondent to come to the doorway.

      
      

   6. Respondent went to the doorway, and Cohn requested Respondent's permission to go talk to Golembieski. Respondent grabbed Cohn, pulling him forcefully into the classroom.

      
      

   7. Commotion broke out in the classroom, and someone yelled for assistance. Golembieski heard the commotion, as did Victoria Bell, the hall monitor. When they arrived at Respondent's classroom, Respondent and Cohn were struggling with each other. They were face to face, and Respondent had his arm around Cohn's neck with his hand on Cohn's throat in a choking manner.

      
      

   8. Golembieski grabbed Cohn away from Respondent and, after separating them, took Cohn to his classroom to calm him down. Bell and Coats pushed the rest of the students back into their seats and restored order in Respondent's classroom.

      
      

   9. When the altercation ended, Cohn's shirt was torn and he had scratches on his chest.

      
      

   10. Just prior to Respondent's outburst, Cohn did nothing to provoke Respondent in any way and was not disrespectful to Respondent. When Cohn got Respondent's attention, Respondent both looked at Cohn and walked to the doorway in a normal manner, thereby giving no warning that he intended to touch Cohn in any way.

       
       

   11. Respondent interpreted Cohn's beckoning with his finger as an invitation to fight, although Respondent admits that Cohn said nothing to him indicating that he wished to fight.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties here to. Section 120.57(1), Florida Statutes (1981).

       
       

   13. Section 231.36(6), Florida Statutes (1981), provides in pertinent part as follows:

       
       

       (6) Any member . . . of the instructional staff . . . may be suspended or dismissed at any time during the school year; pro- vided that the charges against him must

       be based on immorality, misconduct in office, incompetency, gross insubordina-

       tion, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. . . .

       
       

       The Notice of Charges filed by Petitioner alleges that Respondent is guilty of misconduct in office and incompetency in violation of Section 231.36(6), Florida Statutes.

       
       

   14. Petitioner has proven by competent and substantial evidence that Respondent is guilty of the allegations contained in the Notice of Charges. In an attempt to justify his actions, Respondent presents a two-fold defense: (1) that there have been problems between black American students and Haitian students at a different school within the Dade County school system, and (2) that on prior occasions Cohn mocked, taunted and teased Respondent for being Haitian. Neither defense has logical or legal merit. Tensions among students at one school are simply not relevant to the relationship between a teacher and a student at a different school. Likewise, even if there were prior antagonism between Respondent and his students generally or between Respondent and John Cohn specifically, both Respondent and Cohn testified that Cohn said nothing to Respondent about fighting on the day in question. Respondent's attack on Cohn was unprovoked, and no reasonable person would have interpreted Cohn's beckoning with his finger as an act of aggression.

       
       

   15. It is axiomatic that a teacher physically and forcefully attacking a student is guilty of misconduct in office, and, accordingly, Petitioner has proven that violation of Section 231.36(6), Florida Statutes. Likewise, Petitioner has proven that Respondent's overreaction to a neutral situation evidences his lack of emotional stability of sufficient degree to indicate his incompetency to occupy the role of a classroom teacher. Section 231.36 (6), Florida Statutes; Section 6B-4.09(1), Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the

allegations contained in the Notice of Charges, approving Respondent's suspension and dismissing him as an employee of the School Board of Dade County, and denying any claim for back pay.

DONE and RECOMMENDED this 31st day of August, 1983, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT, 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 August, 1983.

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire 3000 Executive Plaza, Suite 800

3050 Biscayne Boulevard

Miami, Florida 33137

Ellen L. Leesfield, Esquire 2929 SW Third Avenue,

Fifth Floor

Miami, Florida 33129

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 NE Second Avenue Miami, Florida 33132

Docket for Case No: 83-000351

Orders for Case No: 83-000351