STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION and )

BETTY CASTOR, as Commissioner, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4936

)

LAWRENCE P. BRENNAN, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 14 and 15, 1987, the formal hearing in the above style cause was held pursuant to notice in Jacksonville, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon allegations that the Respondent violated Sections 231.28(1)(f) and (h), Florida Statutes, by his conduct with students at Paxon Junior High School during school year 1985-86.

APPEARANCES

For Petitioner: Lane Burnett, Esquire

331 East Union Street Jacksonville, Florida 32202

For Respondent: David A. Hertz, Esquire

1601 Atlantic Boulevard

Jacksonville, Florida 32207 ISSUES

Whether the Respondent violated Section 231.28(1)(f) and (h), Florida Statutes, as alleged.

The Petitioner dropped the allegations of paragraph 3; however, evidence on prior actions by the Respondent was introduced to show that he was aware and on notice of the impropriety of his conduct.

FINDINGS OF FACT

1. The Respondent, Lawrence Brennan, holds Florida teaching certificate number 250648, issued by the State Department of Education. The Respondent is certified in the area of English and his certificate is valid through June 30, 1988.

   
   

2. The Respondent is a tenured teacher in the Duval County School System in which he has taught since September 8, 1969. The Respondent has taught at Paxon Junior High School since 1984-84, and has taught compensatory education in Paxon Junior High School during school years 1984-85 and 1985-86. Compensatory

   education is a special program for children with low test scores. Many of the students also have disciplinary problems. The Respondent received satisfactory evaluations for the last three full years of his employment, to include his years at Paxon.

   
   

3. The Respondent was removed from the classroom and Paxon Junior High School following the altercation with a student on February 27, 1986, which gave rise to these charges. The Respondent is currently assigned to one of the media centers of the Department of Education in Duval County.

   
   

4. The Respondent was informed in writing of the various requirements and responsibilities of teachers in the Duval County School System.

   
   

5. Bresha Woods was a student of the Respondent's in November 1985. Ms. Woods had received six to eight referrals to the Principal's office through November 1985 for disrupting class and for not performing assigned duties. Subsequent to the incident described here, Woods was suspended and transferred to the Darnell Cookman Alternative School in March of the 1985-86 school year.

   
   

6. On November 7, 1985, the Respondent told Woods to take her things and to go to the Principal's office for not doing her work and disrupting class. Woods delayed, slowly gathering her books, purse and other belongings.

   
   

7. The Respondent approached Woods from the rear as she was at her desk, grasped her by the shoulders, pulled her to her feet alongside the desk, turned her toward the door of the classroom and told her to go to the school office.

   
   

8. Woods' statement that she was "marked up" is not credible and the fact that she visited a physician on March 29, 1987, is not relevant because of the passage of time. No report of the physician's findings was offered.

   
   

9. Woods' report to Atkinson that Respondent had choked her was contrary to Woods' sworn testimony. Atkinson accepted Woods' version of events as opposed to the explanation of Respondent. See T 179, 180.

   
   

10. In January 1986, Delilah Elliott, a new student at Paxon, was late for class and cut across a grassy area between the wings of the classroom building which was closed to walking students. Between classes the Respondent was performing monitoring duties outside the classroom as do many of the teachers and staff and observed Ms. Elliott crossing the prohibited area.

    
    

11. The Respondent called for Elliott to stop. Although Elliott heard the Respondent call for her to stop, she ignored him, attempting to go to her next class. The Respondent approached her, grabbed her by the shoulders to restrain her, and pushed her toward the sidewalk. She attempted to walk around him and continue on to her class. Elliott refused to tell the Respondent her name.

    
    

12. The Respondent herded Elliott to the Principal's office, sometimes pushing her in the back when she stopped walking. Ms. Atkinson, the Assistant Principal in charge of disciplining girls, having seen the incident, followed the Respondent to the office.

    
    

13. Atkinson told the Respondent not to be so physical with the children. The Respondent advised Atkinson that he knew what the rules were. Atkinson advised the Respondent that she would take care of the problem, and that he should return to class. Atkinson took no action against Elliott because, according to Atkinson, walking on the grass was not a referral offense.

14. As the Respondent exited the office, Atkinson heard the Respondent say to Elliott, "You little tramp."

    
    

15. The Respondent was frequently in physical contact with students in his class. Craig Monasco and Frank Lane were students in the Respondent's class. The Respondent grabbed their buttocks on several occasions when they were leaning over getting books. This practice, called "scooping" by the students, was a form of horse play engaged in by the students. The students were embarrassed by this. On other occasions, the Respondent pulled students out of their seats in the process of disciplining them within the classroom.

    
    

16. Leopolean Spikes was a 13 year old black student in the Respondent's 7th grade comp. ed. English class. Spikes had a history of disruptive behavior in class and had been sent to the Principal's office several times during the school year.

    
    

17. On February 26, 1986, Spikes was disruptive in class and the Respondent escorted him to the Principal's office. On this occasion, Spikes had refused to accept the referral, and Spikes said he was going to have his father come out and talk with the Respondent. The Respondent added Spikes' additional comments to the referral regarding Spikes' behavior and escorted Spikes to the Principal's office.

    
    

18. Upon re-entering the class, the Respondent stated to the class that had Spikes hit him, the Respondent would have knocked him through the wall.

    
    

19. The Principal gave Spikes an in-school suspension for his conduct of February 26, 1986. However, based upon the general school policy, a child with the number of referrals that Spikes had had would have been subject to general suspension.

    
    

20. On February 27, 1986, Spikes reported to the Respondent's first period comp. ed. class. Spikes exhibited additional disruptive behavior during the class period of approximately 50 minutes in length. During this time, the Respondent warned Spikes on several occasions that he was going to refer him again if his behavior did not change. Shortly before the class was over, Spikes' continued disruptive conduct caused the Respondent to write a referral of Spikes to the Principal.

    
    

21. The Respondent told Spikes to go to the Principal's office. Spikes delayed in getting his personal effects together to go to the Principal's office, and the Respondent went over to Spikes and told him to hurry up and leave the class. Spikes told the Respondent that he would not go to the Principal's office.

    
    

22. At this point, a conflict exists in testimony regarding what occurred next. The one non-involved adult observer, Ms. Morkin, the co-teacher, stated that she observed six "acts" to the incident: (1) Spikes stood around reading the referral and not doing anything; (2) Respondent guided Spikes to the door by the shoulder; (3) Spikes ran around her desk to his own desk by the windows and wall; (4) Books were thrown in the direction of her desk from the vicinity of Spikes' desk; and (5) A struggle ensued between Spikes and Respondent, which came to an end with the Respondent kneeling next to Spikes and restraining Spikes on the floor. The various student witnesses had more dramatic versions of the incident, but one can trace the activity by its location. Their versions began with: (1) Spikes refused to go and told Respondent that he was not going

    to the office at or around Spikes' desk; (2) Spikes or Respondent threw books;

    (3) Spikes and Respondent fought in the area of the desk; (4) Spikes threatened Respondent with a desk; (5) Spikes and Respondent fought in the area of the wall and Spikes' head hit against the wall; and (6) The fight ended with Respondent pinning Spikes to the floor. The following findings are based upon a most credible evidence and testimony presented:

    
    

23. The Respondent was standing in the aisle alongside Spikes' desk and between Spikes' desk and the front of the room where Ms. Morkin's desk was located. Spikes, when confronted by the Respondent and told to hurry, told Respondent he refused to go, and threw his books at Respondent, who was standing between Spikes and Morkin.

    
    

24. Spikes adopted a combative stance and the Respondent grabbed Spikes' arms, fearing that Spikes was going to strike him. Spikes began to struggle and both Spikes and the Respondent fell to the floor.

    
    

25. Respondent let go of Spikes and regained his feet and Spikes pulled himself to his feet using the back of a school desk which he raised in front of him and advanced toward the Respondent saying, "I'm going to hit you with this desk. See T-70.

    
    

26. The Respondent pushed the desk out of the way, grabbed the writing portion of the desk, then grabbed Spikes and a second struggle ensued, during which Spikes hit the Respondent, who grabbed Spikes in a bear hug.

    
    

27. Spikes and the Respondent were by the windowed wall of the classroom, and the Respondent attempted to pin Spikes against the windowed wall to stop his struggling and prevent Spikes from hitting him. In doing so, Spikes' head was banged against the window once. Spikes continued to hit the Respondent all this time.

    
    

28. The Respondent and Spikes again fell to the floor where Spikes ceased fighting after Respondent pinned him down.

    
    

29. After the struggle ceased, Ms. Morkin left to seek assistance as the Respondent requested.

    
    

30. After he was at the office, a knot came up on Spikes' head. Spikes parents were called and they took Spikes to the emergency room where he underwent a complete examination, to include X-rays of his head. This examination revealed no abnormal findings except tenderness and swelling in the left occipital area of the head. Subsequent medical problems which Spikes has suffered were related to an injury to the right occipital area. No evidence of such an injury was revealed in the examination or reported by Spikes. See Petitioner's Exhibit

    
    

31. The Respondent is approximately 6' tall and weighs approximately 200 pounds. Spikes is approximately 4'6" tall and weighs 72 pounds.

    
    

32. Mr. Randolph and Ms. Atkinson, the persons in charge of disciplining children at the school, gave their opinions concerning the appropriateness of the Respondent's actions. In their opinion, the Respondent's actions were inappropriate.

    
    

33. The record reflects that both Atkinson and Randolph had failed to apply the requisite disciplinary standards to students by taking action to

    remove them from the school system permanently, based upon continued disciplinary problems. Atkinson, who observed the Elliott incident, described the Respondent as "striking the student" and was of the opinion that a person who touches another person with their hand is striking the person.

    
    

34. Mr. Larry Paulk, Assistant Superintendent for Administrative Affairs for the Duval County Schools, interviewed the Respondent after the altercation. To Paulk, the Respondent appeared hostile and was sarcastic in his dealings and approach to students. Paulk offered his opinion that the Respondent's conduct regarding discipline and leadership was inappropriate.

    
    

35. The Respondent has attended psychiatric counseling for the past year to deal with his hostility and to improve his effectiveness as a teacher.

    
    

36. There is no evidence of the Respondent receiving progressive discipline for prior acts involving physical contact with students, although he received several written reprimands for inappropriate conduct towards students to include physical conduct, language, and attitude.

    
    

37. Mr. Randolph, the principal in charge of boys, advised that the school's solution for the removal of an unwilling child from class was to call the Principal. The Principal would come to the room and ask the student to come out of the classroom and, if the student refused, the Principal would then call a uniformed policeman who would arrest the child for trespassing. In Randolph's experience they had never had to take the final step of calling for a uniformed policeman.

    
    

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

39. Petitioner seeks to revoke the teaching certificate of the Respondent on two charges. The first charge is that the Respondent is guilty of violation of Section 231.28(1)(f), Florida Statutes, which provides that the Educational Practices Commission shall have the authority to take various disciplinary actions against a teacher provided it is shown that the teacher, upon investigation, has been found guilty of personal conduct which seriously reduces the teacher's effectiveness as an employee of the School Board.

    
    

40. The burden of going forward and the burden of proof lies with the Petitioner in this cause. The Petitioner must prove the allegations of the Administrative Complaint by preponderance of the evidence. The primary incident upon which this charge is based involves the Respondent's classroom altercation with Leopolean Spikes. The issue is whether this incident has seriously impaired the Respondent's ability to be an effective teacher.

    
    

41. It is basic to the educational process that teaching and learning occur within an ordered, structured, and disciplined environment. The first duty of a teacher is to ensure that the conditions conducive to teaching and learning are maintained in the classroom. This is true 50 minutes of every class hour. Although a teacher should not have to be a policeman within a classroom, the teacher must take such actions as are necessary to limit

    disruptive behavior on the part of students. In achieving this, it is imperative that teachers have the support of administrative personnel and that the rules regarding the implementation of progressive discipline of students be readily and impartially applied.

    
    

42. The Petitioner's allegations are dependent upon the testimony of witnesses to the altercation, most of whom were students in the Respondent's class. In this regard, the normal questions of credibility of the witnesses are compounded by the fact that the children in the Respondent's compensatory education English class were poor students and disciplinary problems. The testimony of Ms. Morkin, Respondent's co-teacher, is given the greatest weight.

    
    

43. Unfortunately, the evidence presented in this case indicates that regular, consistent, and forceful discipline was not applied by the administrators of the junior high school. As a result the students had learned that there were no substantial penalties for carrying on disruptive behavior in the classroom to the detriment of their fellow students and the teaching- learning process.

    
    

44. The second charge against the Respondent is that he violated Section 231.28(1)(h), Florida Statutes, which prohibits violation of a rule. Rule 6B- 1.06(3)(a), (e) and (f), Florida Administrative Code, provides that teachers will make reasonable efforts to protect the students from conditions harmful to learning, health, or safety; will not intentionally expose a student to unnecessary embarrassment or disparagement; and will not intentionally violate or deny a student's legal rights.

    
    

45. Exposing a student to discipline may be embarrassing and even disparaging, but it is an affirmative obligation of teachers and staff to maintain discipline as a part of an environment conducive to teaching and learning. It is not a violation of the students' legal rights to impose discipline.

    
    

46. Students have no special right not to be touched. Like other members of society, certain touchings are not actionable. Similarly, there are no special privileges granted teachers to touch students. To the extent that the law recognizes differences in the limits on teachers vis a vis students, society recognizes that teachers have a special responsibility and relationship with students. In this capacity they may be called upon to reassure, comfort, direct, or discipline children in their classes. In doing these things which are part of being a teacher, if not teaching, they would be severely limited if they were precluded from touching children.

    
    

47. The Respondent did not violate or deny any of Spikes' legal rights. The Respondent's battery of Spikes was to protect himself and the other students by subduing Spikes who had acted out by dangerously throwing his books in the classroom.

    
    

48. Clearly the Respondent's referral to the principal of students who disrupted the teaching-learning experience was intended to maintain the health and safety of the students in the class and enhance the educational environment. Respondent's minimal contact with Woods and Elliott in directing them to the door of the class and to the office did not violate the rules. The characterization by the assistant principal in charge of girls of the Respondent's actions in pushing Elliott in the back in order to take her to the principal's office as a striking is contrary to the facts; however, her opinion that any touching of a student by a teacher is a striking is baseless. It does

    reflect an attitude which adversely inhibits her ability to effectively discipline girls at the school. The record reflects that she was more concerned about calming girls down who were referred to her office than modifying their behavior.

    
    

49. The facts do not support a finding that the Respondent used undue physical force in handling Spikes, Woods, or Elliott. His handling of Spikes, Woods, and Elliott was also consistent with his responsibilities to maintain safety, health, and a proper learning environment. His conduct was not of such a degree as to violate Section 231.28(1)(f), Florida Statutes.

    
    

50. The Respondent's indulging in student-like conduct such as "scooping" does not come within the permissible latitude which teachers have in initiating physical contact with their students. Although this was a practice among the students themselves, this conduct on the part of an adult in a position of authority embarrassed the students. It was also very unprofessional.

    
    

51. The Respondent's sarcastic and abusive language did disparage and embarrass the students. Respondent's sarcasm and abusive language is contrary to the rules and invites inappropriate behavior from the students. This specific age group is combative and "mouthy" which requires special care and special temperament on the part of the teacher to avoid conflicts. The Respondent had received multiple warnings throughout his teaching career about his inappropriate language and comments to students.

    
    

52. The Respondent violated Rule 6B-1.06(3)(e), Florida Administrative Code, which provides that teachers will not intentionally expose a student to unnecessary embarrassment or disparagement, and thereby, Respondent violated Section 231.28(1)(h), Florida Statues, which prohibits violation of a rule.

    
    

53. Clearly the Respondent needed personal counseling and professional counseling with regard to his conduct. He has apparently received the personal counseling as a result of his own action during the period he has been removed from the classroom. This action by the Respondent is considered in mitigation of his conduct.

It is RECOMMENDED that Petitioner suspend the teaching certificate of the Respondent for three months and no more.

DONE and ORDERED this 5th day of June, 1987, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399 904/488-9675

FILED with the Clerk of the Division of Administrative Hearings this 5th day of June, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4936

Both Petitioner and Respondent filed proposed findings in the form of Proposed Recommended Orders in this case. The Petitioner's proposed findings were presented in long, unnumbered paragraphs which generally recited the testimony of the witnesses. Because of this presentation, it is difficult if not impossible to separate what was adopted from what was rejected in a meaningful fashion; however, paragraph 2 is rejected as a statement of the case, paragraphs 1, 3, 4, 5, 6, 7, 8, 9 and 10 were substantially adopted. Paragraphs

11 through 22 were generally rejected because of the lack of credibility of the student witnesses upon which the proposals were based. Paragraphs 23 , 24 and 25 reflect "expert opinion" which is considered and adopted as it relates to portions of the Respondent's conduct and rejected as it relates to portions of the Respondent's conduct. Paragraphs 26 and 27 are rejected as irrelevant and immaterial in the majority. The portion regarding the Respondent throwing the book bag is specifically rejected. In rejecting the testimony contained in paragraphs 23 through 27, the professional relationship of the individuals with the Duval County School System and their direct interest in the outcome of the case is considered. Paragraph 28 is rejected in part and accepted in part. Paragraph 29 is adopted. Paragraph 30 is rejected as irrelevant and immaterial.

The Respondent presented his proposed findings in the form of a Proposed Recommended Order which contained numbered paragraphs which were frequently long and recited conflicting testimony presented at the hearing; however, paragraphs 1, 2, 3, 4, 5 and 6 were adopted. Paragraph 7 was adopted in part and a portion placed in the statement of issues. Paragraphs 8 and 9 were adopted. The remaining paragraphs frequently presented recitations of the testimony, some of which was contradictory. Paragraph 10 was rejected. Those portions of paragraphs 11, 12, 13 and 14 were adopted which were deemed credible. Those portions which were rejected were rejected because they lacked credibility.

Paragraphs 15 and 16 were adopted. Paragraph 17 was rejected as not being a proposed finding. Paragraph 18 was rejected as not being credible. Paragraph

19 was adopted in part and rejected in part because the Doctor's recommendation to the School Board is beyond his expertise and competency. Paragraph 20 was rejected because the record reflects that the Respondent had received numerous letters of reprimand about his conduct.

COPIES FURNISHED:

Lane Burnett, Esquire

331 East Union Street Jacksonville, Florida 32202

David A. Hertz, Esquire 1601 Atlantic Boulevard

Jacksonville, Florida 32207

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Sydney McKenzie, Esquire General Counsel Department of Education Knott Building

Tallahassee, Florida 32399

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as

Commissioner of Education,

Petitioner, EPC CASE NO. 86-114RT DOAH CASE NO. 86-4936

vs.

LAWRENCE P. BRENNAN,

Respondent.

/

FINAL ORDER

Respondent, LAWRENCE P. BRENNAN, holds Florida teaching certificate no.

250648. Petitioner filed an Administrative Complaint seeking suspension, revocation, or other disciplinary action against the certificate.

Respondent requested a formal hearing and one was held before the Division of Administrative Hearings. A Recommended Order has been forwarded to the Commission pursuant to Section 120.57(1), F.S.; it is attached to and made a part of this Order.

A panel of the Education Practices Commission met on October 22, 1987, in Tampa, Florida, to take final agency action. The Petitioner was represented by Lane Burnett, Esquire. The Respondent was represented by David A. Hertz, Esquire. The panel has reviewed the entire record in the case.

The panel adopts the Findings of Fact of the Recommended Order. The panel specifically rejects paragraphs 1, 5, 6, 8, 9, 10, 11 and 12 of Petitioner's Exceptions to the Findings of Fact. Petitioner's Exceptions 2, 3, 4, and 7 to the Findings of Fact were withdrawn by Petitioner during the final hearing.

The panel adopts the conclusions of law of the Recommended Order with the exception of paragraphs 2 and 3 on page 8 of the Recommended Order and paragraph

1 on page 9 which are specifically rejected by the panel. The panel specifically concludes that Respondent has been guilty of personal conduct which

seriously reduces his effectiveness and substitutes the paragraphs contained in paragraph 15 of FINAL petitioner's Exceptions for the hearing officer's Conclusions of Law. The panel specifically rejects paragraph 16 of the Petitioner's Exceptions.

With regard to the penalty, the panel specifically rejects that recommended by the hearing officer as too lenient, in light of the record; therefore, the panel increases the penalty to a three year term of suspension followed by a three year period of probation, upon reentry into the teaching profession, during which time quarterly reports concerning Respondent's teaching shall be furnished by Respondent's supervisor to the Education Practices Commission. The panel's stated reasons for increasing the penalty are: its conclusion that Respondent is guilty of personal conduct reducing his effectiveness, the multiple warnings previously received by Respondent, and Respondent's medical history. This Order takes effect upon filing.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate-Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED, this 10th day of December, 1987.

LORETTA VACANTI, Presiding Officer

I HEREBY CERTIFY that a copy of the foregoing Order in the matter of

BC vs. Lawrence P. Brennan was mailed to David Hertz, Esquire 1601 Atlantic Blvd., Jacksonville, FL 32307, this 15th day of December, 1987, by U.S. Mail.

KAREN B. WILDE, Clerk

COPIES FURNISHED TO:

Professional Practices Services

Susan Tully Proctor, Esquire Attorney General's Office

Sydney McKenzie, III General Counsel

Florida Admin. Law Reports

Herb A. Sang, Superintendent Duval County Schools

1701 Prudential Drive

Jacksonville, Florida 32207

Dr. James Ragans, Asst. Supt. Personnel

Duval County Schools

Stephen F. Dean, Esquire Hearing Officer

Division of Administrative Hearings

Lane Burnett, Esquire

331 Union Street Jacksonville, Florida 32202

Docket for Case No: 86-004936

Orders for Case No: 86-004936