STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIKE HOLLOWAY, SUPERINTENDENT ) ESCAMBIA COUNTY SCHOOLS, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0290

)

ROOSEVELT MOSES HARVEY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings on March 13, 1986. Petitioner filed a proposed order suspending instructional employee on March 21, 1986. Respondent's proposed order was filed April 1, 1986. Both submissions contain proposed findings of fact, which an appendix to the recommended order addresses. The parties are represented by counsel:

For Petitioner: G. James Roark, III, Esquire

HAMMONS, ROARK & WHITTAKER, P.A.

17 West Cervantes Street Pensacola, Florida 32501

For Respondent: John O. Stapleton, Esquire

514 North Baylen Street Pensacola, Florida 32501

The petition for suspension executed February 6, 1986, alleges that respondent, "an instructional employee...employed pursuant to a continuing contract for the 1985-86 school year... [o]n or about November 4, 1985,...was involved in an altercation with a student during which Respondent struck the student at least two times in the head with either a folder or his fist...in violation of Section 231.36, Florida Statutes, in that Respondent is guilty of misconduct in office...so serious as to impair his effectiveness in the School System... [and] in violation of Rule 6B-1.01(3) and 6B-1.06(3A, 3E, and 3F)," Florida Administrative Code. On account of this alleged offense, petitioner has recommended that the Escambia County School Board suspend respondent without pay for three days.

By his answer to the petition for suspension, respondent raises the issue of self defense; alleges that the superintendent is proceeding against him as "an act of retaliation...for his outspoken attitude and statements opposing racial discrimination within the School District"; and alleges that "the recommended suspension is an act of racial discrimination," because 1) "Acts of the nature allegedly committed by Respondent" are not similarly punished when the perpetrator is white and 2) "acts of the nature alleged here" are, not similarly punished if perpetrated against black students.

ISSUE

Whether the School Board of Escambia County should suspend Roosevelt M. Harvey for three days, without pay, for striking a student unlawfully?

FINDINGS OF FACT

1. A teacher for 27 years, Roosevelt Moses Harvey has taught in the public schools of Escambia County for 18 years. Since his involuntary transfer from Escambia High in 1983, he has taught middle schoolers math at Beggs, a school truants and other disruptive or disinterested students eligible for "alternative education" attend.

   
   

2. On November 4, 1985, two of the twelve students enrolled in Mr. Harvey's third period class were absent. The class was more unruly than usual that morning. Students taunted Mr. Harvey with comments about his car ("a pitter-patter for a motor") and his clothes ("from a rummage sale.") The student Dustin Cottle was not responsible for these particular impertinences. Testimony of Vivian Swing.

   
   

3. In the past, Dust in had refused to do school work. When asked on November 4, "Are you going to work today?" he said, "No." Testimony of Dustin Cottle. If he wasn't going to work, he should leave, Mr. Harvey said, to which Dustin replied, "If you give me some work I will do it," or words to that effect and stayed in his seat, with one foot out in the aisle. Testimony of Dustin Cottle. On his way down the aisle to another student, Mr. Harvey accidentally tripped over Dustin's foot. "Why'd you step on my foot?" Dustin asked. At this, Mr. Harvey swatted him on the back of the head with the manila file he had in his hand.

   
   

4. Dustin struck Mr. Harvey's hand in retaliation. Testimony of Dustin Cottle. When Dustin got to his feet and began walking away, Mr. Harvey followed him and hit him a second time as he neared a table in the front of the room. This blow threw Dustin off balance so that he struck his head on the table. When Dustin picked up a chair and lifted it overhead, as if to hit Mr. Harvey with it, Vivian Swing left the room to get help. Before she returned with another teacher, Dustin dropped the chair and left the classroom in search of Ms. Williamson, his counselor.

   
   

5. Before the events of November 4, 1985, Roland Charles Lovely, Beggs' principal, had counselled Mr. Harvey not to argue with students. If students are verbally disruptive, the teacher should write a referral. Striking a student under the circumstances Mr. Harvey struck Dustin Cottle is against policy. A teacher can summon help with a buzzer on the classroom wall, if need be.

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner is authorized to suspend Mr. Harvey for "misconduct in office," Section 231.36(4)(c), Florida Statutes (1985), notwithstanding his continuing contract status, a status which may be inferred from the time he has spent in petitioner's employ. In pertinent part, the provision of the Code of

   Ethics of the Education Profession in Florida pleaded in the petition for suspension recites, "Aware of the importance of maintaining the respect and confidence...of students...the educator strives to achieve and sustain the highest degree of ethical conduct." Rule 6B-1.01(3), Florida Administrative Code. More specifically, Rule 6B-1.06(3), Florida Administrative Code, requires that a teacher:

   
   

   1. Shall make reasonable effort

      to protect the student from conditions harmful to learning or to health and safety.

      1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

      2. Shall not intentionally violate or deny a student's legal rights. Rule 6B-1.06(3, Florida Administrative Code.

      
      

7. The evidence established clearly and convincingly that Mr. Harvey was guilty of misconduct in office in violation of Section 231.36, Florida Statutes (1985) and Rule 6B-1.06(3), Florida Administrative Code.

   
   

8. Mr. Harvey's testimony that he acted in self defense or from "reflex" was unconvincing, although his testimony that he did not intend to touch Dustin Cottle's foot when he tripped has been credited. The witnesses' testimony as to subsequent events was not consistent in every detail but the clear "eight of the evidence showed Mr. Harvey pursued Dustin and struck him hard enough to make him strike his head on the table.

There was no evidence whatsoever to support the claims of racial discrimination or retaliation for protected speech raised in respondent's answer to the petition for suspension. It is, accordingly,

RECOMMENDED:

That petitioner suspend respondent for three days without pay.

DONE and ENTERED this 25th day of April, 1986, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of April, 1986.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-290

Paragraphs one and three of petitioner's proposed findings of fact have been adopted in substance.

Paragraph two of petitioner's proposed findings of fact was established by the evidence for the most part. That respondent has a continuing contract is a fair inference from the time he had spent in petitioner's employ. According to his sworn and uncontradicted testimony, his middle name is Moses, not Edward.

Paragraph four of petitioner's findings of fact has been adopted in substance except that there was provocation.

Paragraph one of respondent's proposed findings of fact describes the petition for suspension accurately.

Paragraph two of respondent's proposed findings of fact describes the respondent's testimony, which is rejected in this regard.

Paragraph three of respondent's proposed findings of fact accurately recites who testified.

Paragraph four of respondent's proposed findings of fact is misleading, although it is true that Dustin Cottle did not specify just what part of his body hit the table or exactly where Mr. Harvey's blows fell.

Paragraph five of respondent's proposed findings of fact omits that there was substantial agreement that Mr. Harvey followed Dustin Cottle, then hit him.

Paragraph six of respondent's proposed findings of fact has not been adopted. The diversity of the detail lent additional credibility to the testimony about the substance of events.

Paragraph seven of respondent's proposed findings of fact has not been adopted because respondent's testimony has not been credited in important respects.

Paragraphs eight and nine of respondent's proposed findings of fact have been rejected as unsupported by the weight of the evidence.

COPIES FURNISHED:

Ralph D. Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

Mike Holloway, Superintendent Escambia County School Board

215 West Garden Street Pensacola, Florida 32501

Judith Brechner, Esquire General Counsel Department of Education Knott Building

Tallahassee, Florida 32301

John O. Stapleton, Esquire

514 North Baylen Street Pensacola, Florida 32501

G. James Roark, III, Esquire HAMMONS, ROARK & WHITTAKER, P.A.

17 West Cervantes Street Pensacola, Florida 32501

George E. Loomis, Esquire RAY & KIEVIT

15 West Main Street Pensacola, Florida 32501

Docket for Case No: 86-000290

Orders for Case No: 86-000290