Robertson, Esquire, Miami, Florida; and Respondent Robert L. Collins was represented by Michael D. Ray, Esquire, Miami, Florida.
On January 11, 1984, Petitioner suspended Respondent from his employment, and Respondent timely requested a formal hearing on the charges forming the basis or that suspension. In March, 1984, Petitioner issued its Specific Notice of Charges. Accordingly, the issues for determination herein are whether Respondent is guilty of the charges contained in the Specific Notice of Charges and if so, what disciplinary action should be taken against him, if any.
Petitioner presented the testimony of Donna Spohn, Jonathan Wright, Gerald Krotenberg, Richard Artmeir, and the Respondent. Additionally, Petitioner's Exhibit numbered 1 was admitted in evidence.
Respondent's Exhibit numbered 1 was admitted in evidence, and Robert Wyant testified on behalf of Respondent.
Proposed recommended orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order.
When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.
Respondent Robert L. Collins has been employed by the School Board of Dade County, Florida as a teacher for the last twenty-four years and is on continuing contract. For approximately the last seven of those years, Respondent has been teaching Industrial Arts at Miami Killian Senior High School.
Between late September 1983, and November 23, 1983, Jonathan Wright was a student in Respondent's Plastics class.
On November 23, 1983, Wright came into Respondent's Plastics class wearing a hat, which is against school rules. Respondent directed Wright to remove his hat which he did. Later in that same class Respondent saw Wright sitting by the engraver again wearing that hat. Respondent removed the hat from Wright's head and advised Wright that if he put the hat on another time Respondent would send him to the principal's office.
At approximately 5 minutes before the end of the class period, Respondent instructed the students that it was time to clean up the shop area. Wright and some of the other students began gathering at the door. Respondent motioned to those students to come back into the classroom and away from the door, which some of them did. Wright, however, did not. Respondent then specifically directed Wright to get away from the door. Instead of obeying, Wright put up a hand and a foot in a karate type posture but clearly in a playful manner. As a normal reaction in the context of the situation, Respondent did likewise. Respondent then turned back toward the class at which time Wright grabbed him by the legs and pulled him down to the floor.
Respondent and Wright were rolling around on the floor in a small alcove area, and Respondent was unable to get loose from Wright's grip. Respondent was afraid that he, Wright, or the other students might be severely injured in the small alcove by the door or on some of the machinery located in the Plastics shop classroom. Unable to free himself, Respondent bit Wright on the back. Wright released Respondent and got up off the floor. After the bell rang, Wright left the classroom.
Wright was transferred to the Plastics class of teacher Gerald Krotenberg where he remained for the rest of the school year. On several occasions Krotenberg was required to admonish Wright because Wright often resorted to "horse play" with other students. On occasion Wright would come into the classroom and would "bear hug" the girls, "jostle" the boys, and be disruptive so that Krotenberg could not take attendance or conduct the class. Although Krotenberg followed his normal technique of chastising the student in public, and then chastising the student in private, those techniques did not work and Krotenberg was required to exclude Wright from class on probably two occasions, for two days each, due to Wright's inappropriate behavior with other students.
During the two months that Wright was in Respondent's class, Wright had come up behind Respondent on one or two occasions and lightly put his arms around Respondent in the nature of a bear hug. Respondent counseled Wright that that was not appropriate behavior.
The only touching of Wright that was initiated by Respondent himself occurred in the form of Respondent placing his hand on Wright's shoulder while discussing a project being worked on at the moment or perhaps a light slap on the back in the nature of encouragement or praise for a job well done. Not all teachers, however, agree that it is appropriate to occasionally give a student an encouraging pat on the back.
Although Wright had on one or two occasions given Respondent a playful hug and although Respondent had on several occasions given Wright an encouraging pat on the back or touch on his shoulder, no physical combat ever occurred between them.
Although Wright often engaged in "horse play" with other students, no "horse play" occurred between Wright and Respondent.
None of Respondent's annual evaluations during the years he has been teaching in the Dade County public School, including the annual evaluation for the the 1983-1984 school year, indicates that Respondent has had any problems with either maintaining good discipline in his classes or that Respondent is anything other than acceptable in the area of classroom management.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.
The Specific Notice of Charges alleges that Respondent violated Section 231.365 which does not exist and Section 231.36(1)(a), Florida Statutes, which does not apply to teachers on continuing contract. Rather, Section 231.36(4)(c), Florida Statutes, provides that a teacher holding a continuing contract may be dismissed from employment only for just cause, which includes misconduct in office and gross insubordination. In definition of those terms, Petitioner relies upon the definitions contained in 6B-4.09, Florida Administrative Code, which provides, in pertinent part, as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.01, F. A. C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.06, F. A. C., which is so serious as to impair the individual's effectiveness in the school system.
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
Finally, Petitioner relies on Section 6B-1.06(3)(a), Florida Administrative Code, as a basis for suspending Respondent. That section of the Principles of Professional Conduct for the Education Profession in Florida provides that a teacher's certificate may be revoked or suspended, and not that his contract of employment can be affected, based upon the following:
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions
harmful to learning or to health or safety.
Petitioner has failed in its burden of proving Respondent guilty of violating any of the statutes or rules set forth in the Specific Notice of Charges. First, Petitioner argues that since Respondent knew of the existence of the rule requiring him to make reasonable effort to protect students from harmful conditions, he intentionally violated that rule, and that intentional violation constitutes gross insubordination. That argument is simply contrary to the facts. There is no evidence that Respondent could have foreseen the student's attack on Respondent since foreseeability implies foresight and not hindsight. The only arguable harmful condition that existed occurred during the time that Respondent and Wright were rolling around on the floor, and Respondent terminated that condition as quickly as he could although in a manner somewhat unusual. Accordingly, Respondent did make every reasonable effort to protect the students from harmful conditions since continuing to roll around on the floor would most likely have caused injury not only to Wright but potentially to other students. Since there is no evidence of insubordination in this cause, there is obviously no evidence of gross insubordination. During the final hearing in this cause, Petitioner also attempted to justify the charge of gross insubordination by arguing that the Respondent was administering corporal punishment, something that can only be done by a principal. Even if Petitioner had introduced such a rule in order that the alleged violation thereof could be determined, that argument lacks logical and factual support.
Likewise, Petitioner's allegation that Respondent is guilty of misconduct in office by virtue of his violation of the above-quoted Principle of Professional Conduct for the Education Profession in Florida because his violation is so serious as to impair his effectiveness in the school system is simply not supported by the facts in this cause. First, Petitioner has failed to prove a violation, let alone a serious violation. Second, Petitioner made no attempt to present evidence that Respondent's effectiveness has been impaired other than the opinion of an administrative employee who listened to the evidence at the final hearing and then gave his "expert" opinion, although he does recognize that there is a difference between self defense and corporal punishment. Petitioner presented no evidence of loss of effectiveness through the testimony of any students, parents of students, or other teachers within the school system. The bare allegation does not justify disciplinary action. Further, it must be remembered that in his annual evaluation at the close of the 1983-1984 school year, Respondent was evaluated as acceptable in the area of Classroom Management which is described on that form as follows: "The teacher administers classroom procedures effectively and maintains control."
The record in this cause is unclear as to the precise disciplinary action taken by Petitioner against Respondent. The only information of record is that he was suspended from his employment. Although Petitioner's proposed recommended order indicates that the suspension may have been for ten days, that document is, of course, not of evidentiary value. Be that as it may, there is no period of suspension appropriate under the circumstances of this case. Further, since Respondent's proposed recommended order requests that Respondent be reimbursed for lost pay, although there is no evidence of record that the undefined suspension was without pay, it is reasonable to conclude that there is some basis for Respondent's request.
