STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 86-0704
)
GEORGE L. JOHNSON, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a public hearing in the above-styled case on September 18 and 30, 1986, in Miami, Florida.
APPEARANCES
For Petitioner: Frank A. Harder, Esquire
Twin Oaks Building, Suite 100 2780 Galloway Road
Miami, Florida 33165
For Respondent: Elizabeth DuFresne, Esquire
DuFresne and Bradley, P.A.
2950 Southwest 27th Avenue, Suite 310 Coconut Grove, Florida 33133
PRELIMINARY STATEMENT
By formal notice of charges, Petitioner, School Board of Dade County, alleged that Respondent, George L. Johnson, was guilty of incompetency, gross insubordination, and misconduct in office, and therefore subject to dismissal pursuant to Section 231.36(4)(c), Florida Statutes. The gravamen of Petitioner's charge is that Respondent's performance was deficient in the areas of preparation and planning, classroom management, techniques of instruction, assessment techniques, and subject matter knowledge; that contrary to a lawful order Respondent committed battery upon students in his charge; and, that Respondent called students in his charge by derogatory names.
At final hearing Petitioner called as witnesses: Walter Oden, Peter Rossi, Robert Diaz, Regina Diaz, Estan Carballo, Estaneslao R. Carballo, Noah Verner, Hector Flores, Mary Rey, Adam T. Rivak, Howard Revak, James Worthington, Aramis Hernandez, Martha Hernandez, Gustavo Valdez, Gustavo Valdez, Sr., Roberto Sanchez, Gemevena Sanchez, Catherine Day, James E. Monroe, Margarita Alemany, Debbie Cole (by disposition testimony), Derrick Corner (by deposition testimony), Bobby Felps, and D. Patrick Gray, Jr. Petitioner's exhibits 1-2, and 4-13 were received into evidence. Respondent testified on his own behalf, and his exhibits 1-5 were received into evidence. The parties' joint exhibit 1, Respondent's personnel file, was also received into evidence.
The final volume of the transcript of hearing was filed October 31, 1986, and the parties were granted leave through December 8, 1986, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this Recommended Order.
FINDINGS OF FACT
Respondent, George L. Johnson (Johnson), has been continuously employed as a teacher by Petitioner, School Board of Dade County (School Board), since 1982. 1/
The 1982-83 School Year
In August 1982, Johnson was employed by the School Board as an occupational specialist, and assigned to Jan Mann Opportunity School. During the course of that employment, two events transpired which foreshadowed Johnson's conduct during the 1985-86 school year, and which precipitated this disciplinary proceeding.
The first event occurred on March 9, 1983, when Johnson struck Pierre Sylla, an 8th grade student. On that date, Pierre had been disruptive in class, and had referred to Johnson by the nickname of "Flash". Pierre's conduct apparently offended Johnson's sense of decorum since he excused the class, called Pierre into a smaller room and, upon stating "this is why they call me Flash", punched Pierre in the left eye.
The second event occurred on April 27, 1983, when Johnson struck Derrick Corner, a 14 year old student. On that date, Johnson was on leave, but reported to the school to pass out lunch cards. When Derrick approached Johnson to retrieve his card, he smelled alcohol on Johnson's breath and announced "I smell some Bacardi" rum. At that time, Johnson backhanded Derrick across the face, knocking him over a chair to the floor.
On July 13, 1983, a conference was held between the School Board and Johnson to discuss the battery committed upon Pierre Sylla and Derrick Corner, as well as any disciplinary action to be taken against Johnson. The School Board concluded that Johnson would be referred to the employee assistance program, transferred to a regular school setting, and that no further disciplinary action would be taken. Johnson was, however, directed to comply with School Board rules for handling disruptive student behavior, and to discontinue the use of his hand in disciplining students. 2/
Notwithstanding Johnson's battery upon Pierre Sylla and Derrick Corner, Johnson's annual evaluation for the 1982-83 school year rated his performance acceptable in all categories, and recommended him for continued employment. The annual evaluation did note, however, that:
Mr. Johnson's techniques for handling disciplinary problems need to
be improved. Otherwise, he has potential for becoming a good teacher.
The 1983-84 and 1984-85 School Years
During the 1983-84 school year, Johnson was employed by the School Board as a physical education teacher at McMillan Junior High School. Johnson's
annual evaluation for the 1983-84 school year rated his performance acceptable in all categories, and recommended his continued employment. The only negative remark contained on his evaluation was:
Although your overall performance during the past year has been acceptable, I would recommend that you carefully self-evaluate your performance with regard to your professional responsibilities, i.e., punctuality.
During the 1984-55 school year, Johnson was employed by the School Board as a physical education teacher at Riverside Elementary School and Douglas Elementary School. Johnson's annual evaluation for the 1984-85 school year rated his performance acceptable in all categories, and recommended his continued employment. The only negative remark on his evaluation was:
You need to be on time every day and the same applies to lesson plans and reports. Adherence to school board policies is of the utmost importance -- also getting along with your peers.
The 1985-86 School Year
For the 1985-86 school year, Johnson was employed under a continuing contract with the School Board, and assigned to Silver Bluff Elementary School as a physical education teacher. The proof establishes that during the course of that school year Johnson reacted violently toward students for minor breaches of discipline, and that he failed to comply with lawful orders to refrain from the use of physical force to discipline students.
That Johnson was fully cognizant of Silver Bluff's policy against the use of physical force is not disputed. At the school's first faculty meeting of August 28, 1985, Johnson was specifically advised that teachers were not to hit or paddle a child, and that they were not authorized to inflict corporal punishment. On September 16, 1985, following a complaint from a mother that Johnson had grabbed and shaken her son, the principal, Margarita Alemany, again cautioned Johnson that she did not approve of physical discipline, and that he was not to touch his students in any way.
Notwithstanding the lawful directives of his principal, the evidence establishes that Johnson routinely relied upon physical and verbal abuse to discipline students for minor transgressions. From late September 1985 to December 1985, the proof establishes that Johnson committed the following abuses toward fourth grade students in his charge:
Estany Carballo, who should have been standing in line, was playing in a mud puddle with a toy car. Johnson approached Estany from behind, grabbed his neck, and forced his head downward toward the water. Johnson pulled Estany up by the neck, admonished him "not to do that again", and returned Estany to his place in line. The force exerted by Johnson upon Estany was sufficient to traumatize his neck, inflict pain and limitation of movement, and require the treatment of a physician.
Noah Verner and Aramis Hernandez were standing out of line and talking. Johnson grabbed each by the hair with a clenched fist, banged their heads together, and ordered them back into line.
Robert Diaz, while standing in line, was talking to a girl behind him. Johnson approached Robert from behind, grabbed him by the hair and, exerting enough force to almost lift him from the ground, stated "who do you think you are asshole?"
James Worthington was leaning against a fence, an apparent violation of a Johnson directive. Johnson grabbed his head between his hands and, shaking the child violently enough to induce pain, admonished James not to lean on the fence.
Roberto Sanchez was attempting to perform an exercise with the rest of the class, but was unsuccessful. Johnson noted Roberto's failing to the class and opined vocally that if a boy couldn't do an exercise when he was in school, the whole class would beat the boy up. Johnson also embarrassed Roberto by referring to him as "fatso" in the presence of the class.
While not exhaustive of the litany of incidents established at the final hearing in this case, the events related in paragraph 11, supra, establish Johnson's failure to abide by lawful directives of his superior, as well as a penchant toward a violent behavior which was harmful to the health and safety of his students. Due to the notoriety of his conduct, Johnson's service in the community, as well as his effectiveness in the school system, was severely impaired.
In addition to its claims of insubordination and misconduct in office, the School Board also seeks to discipline Johnson under a claim of incompetence. The predicate for the School Board's charge are the results of three formal observations of Johnson's performance at Silver Bluff Elementary School between October 17, 1985 and January 10, 1986.
On October 17, 1985, Ms. Catherine Day, assistant principal of Silver Bluff Elementary School, conducted a formal observation of Johnson's 1:30 p.m. - 2:00 p.m., second grade physical education class. It is worthy of note that the impetus for the October 17, 1985, observation was Johnson's request that the 1:30 - 2:00 p.m. class be observed. That class was a double class, over 60 students, and unwieldy.
Ms. Day found that the session taught by Johnson did not comport with the mandatory objectives or activities contained in his lesson plan, that he did not explain to the students the objectives or activities for that day, that he provided no feedback to the students regarding their performance that day, that he allowed students to stand idle for 10 minutes and dismissed them 10 minutes early, and that his class record book contained no grades. Accordingly, Ms. Day rated Johnson's performance as unacceptable in the categories of (1) preparation and planning, (2) knowledge of subject matter, (3) classroom management, (4) techniques of instruction and (5) assessment techniques. Ms. Day reviewed the results of her observation with Johnson, provided Johnson with a prescription for improvement, agreed to provide Johnson with an assistant for the 1:30 - 2:00
p.m. class, and established a deadline of November 1, 1985, to correct the deficiencies.
On November 20, 1985, the principal, Ms. Alemany, conducted a formal observation of Johnson's 10:15 a.m. second grade class and 10:45 a.m. sixth
grade class. Ms. Alemany found, inter alia, that the lesson plan for Johnson's sixth grade class contained no objectives, that he failed to provide feedback or suggestions to improve performance, and that after 9 weeks his grade book for the sixth grade class failed to indicate the activity graded and for the second grade class failed to show any grades -- the grade book should have reflected one grade per week for a designated activity. Accordingly, Ms. Alemany, as did Ms. Day, rated Johnson's performance as unacceptable in categories (1) preparation and planning, (4) techniques of instruction, and (5) assessment techniques.
On January 10, 1986, Ms. Alemany conducted the final observation of Johnson's performance. While Johnson's overall performance had improved, he was still rated unacceptable in categories (1) preparation and planning, since he failed to have lesson plans available, (4) techniques of instruction, since he failed to provide feedback or suggestions to improve performance, and (5) assessment techniques, since he failed to have any grades for the second, third, fifth or sixth grade classes. Ms. Alemany reviewed the results of her observation with Johnson, provided a prescription for improvement, and established a deadline of January 16, 1986, to correct the deficiencies.
On January 17, 1986, a conference-for-the-record was held between Ms. Alemany and Johnson. At that time, Johnson's performance assessments were reviewed and he was advised:
It should be noted for the record that you were advised that noted deficiencies must be remedied by your next observation which (sic) approximate date is 1-24-86.
Failure to do so ... will have an adverse impact upon your employment.
We will continue assisting you as we have in the past.
Johnson was not, however, to be accorded any further observations. As events transpired, January 17, 1986, was his last day of employment at Silver Bluff Elementary School; thereafter, he was assigned to the South Central Area office pending School Board action. On February 19, 1986, the School Board suspended Johnson and initiated these dismissal proceedings.
Johnson resists the School Board's suspension and proposed dismissal for incompetency on several grounds. First, he avers that Ms. Alemany harbored some animosity toward him because of his service as a United Teachers of Dade union representative. The proof fails to support such a finding. Second, Johnson avers that his request for an independent observation following Ms. Alemany's observation of November 20, 1985, should have been granted. While it may have been better practice to grant such a request, the School Board was bound to no such requirement. Finally, Johnson avers that the School Board's failure to accord him an independent observation following two unacceptable "summative observations" requires that his suspension and proposed dismissal for incompetence not be sustained. 3/ Johnson's final assertion is also without merit. While the proof established that the School Board routinely employed an independent observation following two unacceptable summatives before it recommended dismissal for incompetence, Johnson's removal from the classroom prevented further observation. Where, as here, the School Board removes a teacher from the classroom for cause, i.e.: battery upon a student, it is not
thereby barred from seeking the suspension and dismissal of a teacher for incompetence even though an independent observation was not performed.
While the School Board is not precluded from maintaining its charge of incompetence, it has failed to demonstrate that Johnson's unsatisfactory performance, observed on three occasions, deprived the students in his charge of a minimal educational experience, or that such performance failed to comply with the rules of the School Board or the terms of the parties' contract. Johnson's deficiencies, absent such proof do not demonstrate incompetence by reason of inefficiency. Further, the physical and verbal abuses Johnson was shown to have visited upon students, while improper, do not establish a lack of emotional stability. Therefore, the School Board also failed to demonstrate that Johnson was incompetent by reason of incapacity.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 231.36(4)(c), Florida Statutes, provides:
Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insub- ordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.
The allegations of this case are that Johnson violated Section 231.36(4)(c), through misconduct in office, incompetency, and gross insubordination or willful neglect of duty, as a consequence of his actions during the 1982-83 and 1985-86 school years.
The 1982-83 School Year
The School Board avers that Johnson's battery upon Pierre Sylla and Derrick Corner during the 1982-83 school year, as well as his failure to obey a direct order to discontinue the use of physical force to discipline students following the Sylla battery, support Johnson's suspension and discharge for misconduct in office, gross insubordination or willful neglect of duty. The School Board's assertions are not warranted.
On July 13, 1983, the School Board held a conference with Johnson to discuss the battery committed upon Sylla and Corner, as well as any disciplinary action to be taken against Johnson. The School Board elected to refer Johnson to the employee assistance program, to transfer him to a regular school setting, and to take no further disciplinary action. Two years later, after Johnson had completed three years of employment with the School Board, he was placed on a continuing contract. Since the School Board already disciplined Johnson for the Sylla and Corner batteries, and since it placed Johnson under continuing
contract with full knowledge of the events charged for the 1982-83 school year, the School Board is barred from suspending or seeking Johnson's dismissal from his continuing contract based on the events of the 1982-83 school year.
The 1985-86 School Year
For the 1985-86 school year, the School Board charges that Johnson violated Section 231.36(4)(c), Florida Statutes, (misconduct in office, gross insubordination, and willful neglect of duty) through the commission of a battery or the excessive use of force upon students; through his constant and intentional failure to obey a direct order, reasonable in nature, given by and with proper authority to discontinue the use of physical force to discipline students; and, through his disparagement of students. The proof establishes that Johnson is guilty as charged. Section 231.36(4)(c), Florida Statutes; Rule 6B-4.09(3) and (4), Florida Administrative Code; and, Rule 65-1.06(3)(a), (e) and (f), Florida Administrative Code.
The School Board's charge that Johnson is guilty of incompetence, based on his performance during the 1985-86 school year cannot, however, be sustained. Incompetency is defined by Rule 68-4.09(1), Florida Administrative Code, as an:
inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience
. . . .
Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.
Pertinent to the provisions of Rule 6B-4.09(1)(a), supra, Section 231.09, Florida Statutes, provides:
Members of the institutional staff of the public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; recordkeeping; and fulfilling the terms of any contract, unless released from the contract by the school board.
The proof offered by the School Board is insufficient to support a finding that Johnson was incompetent, as defined by Rule 6B-4.09(1), Florida Administrative Code. The School Board failed to offer in evidence any of its rules or the contract existent between the parties. Accordingly, the School Board failed to establish that Johnson repeatedly failed "to perform duties prescribed by law (Section 231.09, Florida Statutes)". Rule 6B-4.09(1)(a)(1), Florida Administrative Code. The proof further fails to support the conclusion that Johnson failed "to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience." While Johnson's performance was found unacceptable during the course of three observations, such failing does not demonstrate that his students were deprived of a minimum educational experience as required by Rule 6B-4.09(1)(a)(2), Florida Administrative Code. Consequently, the School Board failed to establish that Johnson was incompetent as a result of inefficiency.
The School Board further failed to establish that Johnson was incompetent as a result of incapacity. Rule 6B- 4.09(1)(b), Florida Administrative Code. The mere fact that Johnson used physical force and verbal abuse to discipline students does not support the conclusion that he was unable or unfit to discharge his duties because of a lack of emotional stability. Further, there was no suggestion or proof that Johnson lacked the physical ability, general educational background, or command of his area of specialization to discharge his duties.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That the School Board enter a Final Order sustaining the suspension of Respondent, George L. Johnson, from his employment, and dismissing Respondent, George L. Johnson, from his employment with the School Board.
DONE AND ENTERED this 30th day of December, 1986, in Tallahassee, Florida.
WILLIAM J. KENDRICK
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 30th day of December, 1986.
ENDNOTES
1/ The School Board of Dade County is a duly constituted school board established by Article IX, Constitution of the State of Florida, and charged with the duty to operate, control and supervise all free public schools within the School District of Dade County, Florida.
2/ In March 1983, following the battery on Pierre Sylla, Dr. Walter Oden, principal at Jan Mann, had also directed Johnson to refrain from violent behavior directed toward students. Following the Derrick Corner battery, Dr. Oden again counseled Johnson to keep his hands off the students.
3/ A "summative observation" is the averaging of two successive observations. In this case the first summative was the average of the October 17, 1985 and November 20, 1985 observations, and the second summative was the average of the November 20, 1985 and January 10, 1986 observations.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0704
The School Board's proposed findings of fact are addressed as follows: 1-4. Not a finding of fact.
5. Addressed in paragraph 1.
6-9. Addressed in paragraph 2, 3 and 5.
10-13. Addressed in paragraph 4 and 5.
14. Addressed in paragraph 9 and 10. 15-24. Addressed in paragraphs 11 and 12. 25-27. Addressed in paragraphs 14 and 15. 28-30. Addressed in paragraph 16.
31. Addressed in paragraph 17.
32-33. Addressed in paragraphs 12 and 22.
Johnson's proposed findings of fact are addressed as follows:
Addressed in paragraph 1.
Addressed in paragraphs 2, 9 and 20.
Not relevant.
Addressed in paragraphs 2-4.
Addressed in paragraph 5.
Addressed in paragraphs 6-8.
Addressed in paragraph 9. 8-11. Addressed in paragraph 21.
Addressed in paragraphs 14 and 15 to the extent relevant. There was no showing that Johnson had more than two students in any class with education and learning disabilities, and no showing that such students required the use of any physical force or adversely impacted his ability to teach or manage the the class.
Addressed in paragraphs 14 and 15.
Addressed in paragraphs 16-17.
Addressed in paragraph 16 to the extent relevant.
Addressed in paragraphs 17 & 21.
Addressed in paragraph 21.
Not relevant or addressed in paragraph 21.
Not relevant or addressed in paragraph 21.
Addressed in paragraphs 14-17 and 21.
Not relevant or not a findings of fact.
Addressed in paragraph 21.
Addressed in paragraphs 20 and 21.
Addressed in paragraphs 6-8 and 14-17.
Addressed in paragraphs 2-4.
Addressed in paragraphs 9-12.
Addressed in paragraphs 14-17.
Addressed in paragraph 21.
COPIES FURNISHED:
Frank A. Harder, Esquire
Twin Oaks Building, Suite 100 2780 Galloway Road
Miami, Florida 33165
Elizabeth DuFresne, Esquire DuFresne and Bradley, P.A. Suite 310
2950 S.W. 27th Avenue Coconut Grove, Florida 33133
Leonard Britton, Superintendent Dade County Public Schools Board Administration Building 1410 N.E. Second Avenue
Miami, Florida 33132
Honorable Ralph D. Turlington Commissioner of Education The Capitol
Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Dec. 30, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 21, 1987 | Agency Final Order | |
| Dec. 30, 1986 | Recommended Order | Teacher guilty of misconduct in office or gross insubordination for failure to obey lawful order not to use physical force to discipline students |
