STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4159

)

JOHN W. JACKSON, )

)

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 January 26-27, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

For Respondent: W. George Allen, Esquire

Post Office Box 14738

Fort Lauderdale, Florida 33302 PRELIMINARY STATEMENT

By amended notice of specific charges, Petitioner, School Board of Dade County, alleged that Respondent, John W. Jackson, was guilty of immorality, gross insubordination, misconduct in office, and incompetency, and therefore subject to dismissal pursuant to Section 231.36(4)(c), Florida Statutes. The gravamen of Petitioner's charge is that during the 1986-87 school year Respondent handled, fondled or assaulted female students in a lewd, lascivious or indecent manner; that contrary to a lawful order Respondent kissed and hugged students; and, that contrary to a lawful order Respondent administered corporal punishment to students by striking them with a pointer or yardstick.

At final hearing Petitioner called as witnesses: Lateeba Goodman, Dwight Goodman, Lakisha Collins, Cheri Reese, Patrice Wade, Lew Leon, and Patrick Gray. Petitioner's exhibits 1, 2, and 4-6 were received into evidence. Respondent testified on his own behalf, and called as witnesses: Shenegua Victrum, Phyllis Collins, Gerald Glassman, F. O. White, Freddie Kitchen, Tommie Ann Roberts, Rev. Billy Baskin, Strickland Brown, Willie Daniels, Louise Lewis, and Edna Gomez.

Respondent's exhibits 1 and 2 were received into evidence.

The transcript of hearing was filed March 7, 1988, and the parties were granted leave until March 30, 1988, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Respondent, John W. Jackson (Jackson), is a continuing contract teacher, and has been employed by Petitioner, School Board of Dade County (School Board), since 1967. During the past seven years, Jackson has been assigned to Miami Gardens Elementary School, where for the 1986-87 school year he taught fifth grade.

   
   

2. On April 3, 1987, Lakisha Collins, a 9 year old third grade student at Miami Gardens Elementary School, reported to the principal that Jackson had picked her up, placed her on his lap, lifted her dress, and kissed her. As a consequence of these charges, Jackson was immediately removed from his position as a classroom teacher, and reassigned to the area office.

   
   

3. On September 9, 1987, the School Board suspended Jackson without pay, and initiated this proceeding to terminate his employment. Jackson filed a timely request for a formal hearing, and the matter was referred to the Division of Administrative Hearings for resolution.

   
   

   The incident of April 3, 1987

   
   

4. In addition to his duties as a classroom teacher, Jackson also filled the position of supervisor for free play time on the physical education (P.E.) field during the preschool hours of 7:30 a.m. and 8:20 a.m. During free play, Jackson distributed P.E. equipment to the students and supervised their activities until their teachers arrived to collect them at the beginning of the school day.

   
   

5. On April 3, 1987, Jackson opened the P.E. shed as usual to distribute

   P.E. equipment, and seated himself on a stool in front of the shed from which he could supervise the students' activities. Proximate to the shed was a hard court area where a number of students, including Lakisha Collins (Lakisha), were playing.

   
   

6. At approximately 8:00 a.m. that morning, Jackson motioned for Lakisha to come to him. Why Jackson summoned Lakisha is a matter of serious dispute. Jackson avers that he summoned her to admonish her for having called him an "old black mother" after he had interceded in dispute she had with her playmates. Lakisha denies having called Jackson any name, and professes to have no idea why he summoned her. On this point, Lakisha's testimony is not credible.

   
   

7. The proof demonstrated that on a prior occasion Jackson had to admonish Lakisha. Some months previous to April 3, 1986, Lakisha had given Jackson "the finger" after he had stopped a fight between her and another girl. Jackson telephoned Lakisha's mother and reported her conduct. As a consequence, Lakisha was punished by her mother for fighting, but not the vulgar gesture she made toward Jackson.

   
   

8. Regarding the incident of April 3, 1986, Lakisha conceded on cross examination that, after she had been summoned by Jackson, he told her he was going to call her mother, and that she knew then she was going to get punished again. While under subsequent examination she denied having so testified, or claimed to have misunderstood the line of questioning, the record demonstrates that she did so testify and that the line of questioning was not subject to any misunderstanding.

9. Based on the totality of the evidence I therefore find that Jackson summoned Lakisha because she uttered, or he thought she uttered, a profanity. I further find that, upon being confronted by Jackson, Lakisha was concerned that he would report the incident to her mother, and that she would be again punished by her mother.

   
   

10. What occurred after Jackson summoned Lakisha is also a matter of serious dispute. Under the circumstances, however, I credit Jackson's testimony as the more credible and persuasive.

    
    

11. While Jackson, seated on his stool, was trying to find out why Lakisha had uttered a profanity, she turned her back to him and was resting against his knee or knees, as he was holding her by both arms at her sides. While Jackson may have leaned around Lakisha to address her, he did not kiss or attempt to kiss her. Nor did he, as contended by the School Board, place her on his lap, lift her dress, touch her vagina, or otherwise commit any impropriety to her person.

    
    

    Jackson's prior conduct

    
    

12. In July 1980, a parent complained that Jackson had struck her son on the buttock hard enough to leave a mark. As a consequence, a conference for the record was held and Jackson was admonished not to slap, hit or touch any child as a disciplinary measure.

    
    

13. In October, 1983, Jackson was accused of having touched a female student on the hip and ear. Though the charges proved unsubstantiated, Jackson was again admonished not to touch any student in an improper manner.

    
    

14. During the 1986-87 school year, the proof demonstrates that Jackson routinely used a pointer, yardstick, or his hand to tap students on the head, arm, or leg to get their attention when they were misbehaving. The taps were, however, light and not of sufficient force to harm the students. 1/

    
    

15. During the same time period, Jackson frequently kissed students, male and female, on the forehead or cheek when they had mastered a new skill or done well in a subject area. Occasionally, Jackson would also place a female student on his knee and kiss her cheek or hug her for the same reasons.

    
    

16. While not done in a vulgar or personal way, Jackson's affectionate manner of complimenting students was not always well received. Not infrequently, the female students who were placed on his knee and hugged or kissed reacted negatively to his efforts and struggled to be freed.

    
    

17. In January 1987, Jackson's actions, as discussed in paragraphs 14-16, supra, came to the attention of the principal of Miami Gardens Elementary School. As a consequence of his inquiry into the matter, Jackson was issued a letter of reprimand and was again admonished to never put his hands on any of the children to discipline them or touch them in an improper manner.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

19. Pertinent to this case, Section 231.36(4)(c), Florida Statutes, provides:

    ... 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 bust be based on immorality, misconduct in office, incompetency, gross insubordination...

    
    

    Prior Conduct

    
    

20. The School Board asserts that Jackson's "disciplining" of students by tapping them on the head, arm or leg with his hand, pointer or yardstick during the 1986-87 school year, and his kissing and hugging students during the 1986-87 school year, provide an independent basis apart from the Lakisha incident to support his suspension and dismissal. The School Board's assertion is not persuasive.

    
    

21. While Jackson's conduct prior to the Lakisha incident was improper, the School Board has already elected to discipline him for such activities by issuing a letter of reprimand and admonishing him to never again touch a child in an inappropriate manner. Accordingly, such past conduct cannot now be raised as an independent basis to suspend or discharge Jackson for immorality, misconduct in office, incompetency, or gross insubordination. Rather, such charges must rest on the Lakisha incident and, to the extent any impropriety was demonstrated regarding that event, evidence of Jackson's past conduct would be germane only to the charge of gross insubordination.

The Lakisha incident

1. Rule 6B-4.009(2), Florida Administrative Code, defines immorality as follows:

   
   

   Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education professions into public disgrace or disrespect and impair the individuals's service in the community.

   
   

2. The proof failed to demonstrate that Jackson committed any act toward Lakisha that was inconsistent with the standards of public conscience and good morals. Under the circumstances, the proof fails to demonstrate that Jackson's conduct rises to a level that could be described as immoral.

   
   

3. Rule 6B-4.000(3), Florida Administrative Code, defines misconduct in office as follows:

   
   

   Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule

   6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

   
   

4. Pertinent to this case, rule 6B-1.001(3), Florida Administrative Code, provides:

   
   

   Aware of the importance of

   maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

   
   

   And, rule 6B-1.006, Florida Administrative Code, provides:

   
   

   1. Violation of any of these principals shall subject the individual to revocation or suspension of the individual teacher's certificate, or the other penalties as provided by law.

      
      

   2. Obligation to the student requires that the individual:

      * * *

      (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

      
      

5. The proof in this case failed to demonstrate that Jackson intentionally exposed Lakisha to any unnecessary embarrassment or disparagement. Under the circumstances, he is not guilty of misconduct in office.

   
   

6. Rule 6B-4.009(1), defines incompetency as follows:

   
   

   Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity...

   1. 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; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

   2. Incapacity: (1) lack of emotional stability; (2) lack of

   adequate physical ability; (3) lack of general education background; or (4) lack of adequate command of his or her area of specialization.

   
   

7. Section 231.09, Florida Statutes, provides:

   
   

   Members of the instructional 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.

   
   

8. In the instant case, the proof failed to demonstrate that Jackson was incompetent as that term is defined in rule 6B-4.009(1), Florida Administrative Code.

   
   

9. Rule 6B-4.009(4) defines gross insubordination as follows:

   
   

   Gross insubordination ... is defined

   as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

   
   

10. The proof in this case demonstrated that Jackson, prior to the Lakisha incident, received numerous directives from his principal not to use any physical force to discipline students or to touch any student in an improper way. Had Jackson committed an impropriety toward Lakisha on April 3, 1986, he would have committed an act of gross insubordination. However, since his conduct was not improper, Jackson is not guilty of gross insubordination.

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board enter a final order dismissing the

charges against Respondent, John W. Jackson, and that he be immediately reinstated with all back salary and benefits.

DONE AND ENTERED this 27th day of April, 1988, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

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 27th day of April, 1988.

ENDNOTE

1/ The School Board also offered proof which, if credited, would have demonstrated that Jackson also paddled students with a table tennis paddle. I conclude, however, that such proof was not credible, and that such charge is not substantiated.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4159

The School Board's proposed findings of fact are addressed as follows:

1. Addressed in paragraph 1.

2. Subordinate

3-11. To the extent pertinent, addressed in paragraphs 12-17. Otherwise rejected as subordinate or not necessary to result reached.

12-17. To the extent pertinent, addressed in paragraphs 4-11. Otherwise rejected as subordinate or not necessary to result reached.

1. Rejected as not relevant or not supported by the proof.

2. Rejected as not a finding of fact.

3. Addressed in paragraphs 2-14, Conclusions of Law, and paragraphs 4-11, Findings of Fact. Otherwise rejected as not relevant or contrary to the proof.

Jackson's proposed findings of fact are addressed in paragraphs 1, and 4-

11. Otherwise rejected as subordinate.

COPIES FURNISHED:

Jaime Claudio Bovell, Esquire W. George Allen, Esquire

370 Minorca Avenue Post Office Box 14738

Coral Gables, Florida 33134 Ft. Lauderdale, Florida 33302

Dr. Joseph A. Fernandez Hon. Betty Castor Superintendent of Schools Commissioner of Education School Board Administration The Capitol

Building Tallahassee, Florida 32399 1450 Northeast Second Avenue

Miami, Florida 33132

Sydney H. McKenzie General Counsel

State Board of Education The Knott Building Tallahassee, Florida 32399

Docket for Case No: 87-004159

Orders for Case No: 87-004159