STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3358

)

JOHN N. ACKLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing in this case was held on October 24, 1989 in Miami, Florida, before J. Stephen Menton, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jaime Claudio Bovell, Esquire

1401 Ponce de Leon Boulevard Coral Gables, Florida 33134

For Respondent: John Ackley, pro se

935 N. Northlake Drive Hollywood, Florida 33019

STATEMENT OF THE ISSUES

The issue for determination in this case is whether the Respondent should be suspended and/or discharged from employment as a teacher with the School Board of Dade County for the reasons set forth in the Notice of Specific Charges filed on August 11, 1989. That Notice alleges that Respondent is guilty of misconduct in office as defined by Florida Administrative Code Rule 6B-4.009(3), violations of the Code of Ethics of the Education Profession (specifically, Rules 6B-1.001(3) and 6B-1.005(3)(a) and (e),) conduct unbecoming a School Board employee in violation of School Board Rules 6Gx13-4A-1.21 and 6Gx13-4C- 1.01 and/or violation of the School Board's ccrporal punishment policy set forth in School Board Rules 6Gx13-5D-1.07.

PRELIMINARY STATEMENT

By letter dated June 8, 1989, from Patrick Gray, Assistant Superintendent for the Dade County Public Schools, Respondent John Ackley was notified that the School Board had suspended him and initiated proceedings to dismiss him from employment effective at the close of the work day June 7, 1989. Mr. Ackley timely requested a hearing on the matter and the School Board referred the case to the Division of Administrative Hearings for hearing.

At the hearing, Petitioner called seven witnesses: R.S., Anthony White, and Shemia Brown, who were students at Broadmoor Elementary School at the time of th

alleged incident; Kathleen Kendrew, Assistant Principal at Broadmoor Elementary School, Maxine Sconiers, Principal of Broadmoor and Dr. Joyce Annunziata, Supervisor, Office of Personnel Standards for the School Board. Petitioner offered three exhibits into evidence, all of which were accepted.

Respondent represented himself at the formal hearing and testified on his own behalf and also presented the testimony of Mr. Lewis K. Steiner. Respondent offered three ekhibits into evidence. Respondent's Exhibit 1 was a composite documenting actions taken by other agencies regarding the facts alleged in this case. Those documents were rejected as irrelevant to the issues involved in this proceeding. Respondent's remaining two exhibits were accepted into evidence.

A transcript of the proceedings was filed on November 22, 1989. Both parties have submitted Proposed Recommended Orders. The proposed findings of fact included in those proposals are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACTS

1. Respondent holds a teaching certificate from the State of Florida and has been employed pursuant to a continuing professional contract with the School Board of Dade County ("School Board") since September, 1986. During the 1988/1989 school year, Respondent was assigned as an elementary school teacher at Broadmoor Elementary School.

   
   

2. As part of his duties as a teacher at Broadmoor, Respondent supervised the children on the physical education field at the school prior to the commencement of classes. The number of students playing in this area each morning often exceeded two hundred and, at the time in question, Respondent was the only teacher assigned to supervise the children.

   
   

3. On April 3, 1989, while carrying out his duties as supervisor of the physical education field prior to the commencement of classes, Respondent was involved in an incident involving a student, R.S. who was eight years old and in the third grade at the time. The initial encounter between Respondent and R.S. on that date occurred when Respondent was distributing balls to the students to play with. The student struck Respondent in the back and ran off to the playing field.

   
   

4. A few minutes later, the student struck the Respondent a second time by punching him in the stomach when he attempted to break up an altercation between

   1. and another student. After punching Respondent in the stomach, R.S. again ran off.

      
      

5. Shortly thereafter, a dispute arose between R.S. and several other students who were playing box ball. The other students contended that R.S. was "out". However, R.S. refused to leave the game. The other students called Respondent over to intervene. Respondent instructed the students to replay the point. On the replayed point, R.S. was again "out", but she refused to leave the game and Respondent approached her and directed her to give him the ball. After turning the ball over to Respondent, R.S. began yelling and kicking at Respondent to get the ball back. In grabbing for the ball, R.S. tore the sleeve of Respondent's shirt and ripped some buttons off it.

6. Respondent grabbed R.S. by the arm and told her that they "needed to talk." Respondent attempted to physically remove R.S. from the playing area by grabbing her arm and leg. R.S. resisted the efforts.

   
   

7. In trying to restrain and control the student, the Respondent applied a "PIT" hold which Respondent had learned while teaching emotionally disturbed children at the Montenari School.

   
   

8. The acronym PIT refers to prevention intevention training. While there is some indication that PIT methods include procedures for incapacitating an individual and placing them on the ground, the Respondent in this case did not attempt to place the student on the ground. Instead, Respondent attempted to hold the student in a position where she could no longer effectively strike or kick at him.

   
   

9. R.S. is not emotionally disturbed and does not have a history of discipline probless. While PIT methods are apparently used to restrain violent or aggressive emotionally disturbed students, they are not authorized by the Dade County Public School System for use in restraining students in a regular school.

   
   

10. At the time of this incident, the student, R.S., was in third grade and weighed approximately 60 pounds. The Respondent weighed approximately 250 pounds.

    
    

11. While Respondent was holding the student and attempting to remove her from the area as described above, the student and the Respondent fell to the ground. While the student contended that the Respondent deliberatley "slammed" her to the ground, the more persuasive evidence indicates that both Respondent and the student accidentally fell while Respondent was attempting to remove her from the playing area. Thus, it is found that Respondent did not deliberately throw the child to the ground.

    
    

12. While on the ground, the student continued to struggle and attempted to get up. Respondent pushed her back to the ground and held her down.

    
    

13. As a result of the struggle, the student suffered scrapes on the side of her face and a swollen lip. It is unclear whether the injuries occurred as a result of the fall or Respondent's subsequent actions in pushing the student back to the ground.

    
    

14. After the student calmed down, the Respondent took R.S. to his room rather than to the Administrative Office or the clinic as required by school policy. Petitioner contends that no administrative staff was in the office at the time and that he attempted unsucessfully to contact the student's parents. However, he did not alert any other school personnel or administrative staff of this incident and the student was left unattended in the Petitioner's office for a short period of time. Other students alerted R.S.'s homeroom teacher of the incident and that teacher located the student and brought her to the clinic where she was treated and her parents were contacted.

    
    

15. R.S. had punched Respondent on prior occasions. However, Respondent never reported those incidents to school administrators or to the student's parents. Instead, he attempted to work with the child utilizing nonviolent techniques.

16. Several parents of students at the school have voiced concern over the incident and Respondent's handling of the matter. As a result, Respondent's effectiveness as a teacher at the school has been impaired.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

    
    

18. Petitioner bears the burden of showing by a preponderance of the evidence that Respondent committed the actions for which he faces suspension and termination from his employment. Section 231.36(4)(c), Florida Statutes (1987), permits discipline of a teacher on continuing contract provided such discipline is imposed for misconduct in office or certain other offenses specified in the Statute.

    
    

19. Petitioner has charged Respondent with misconduct in office and violation of the School Board's corporal punishment policy. 1/

    
    

20. Misconduct in office is defined in Rule 6B-4.009(3), Florida Administrative Code, as a violation of the Code of Ethics of the Education Profession as adopted in Rules 6B-1.001 (the "Code of Ethics") and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, (the "Principles of Conduct") which is so serious as to impair the individual's effectiveness in the school system.

    
    

21. The Code of Ethics states that an educator's primary professional concern is always for the student and the development of the student's potential. Therefore, an educator must seek to exercise the best professional judgment and integrity, and strive to maintain the respect and confidence of students and parents. Rule 6B-1.001(2) and (3), Florida Administrative Code. The Principles of Conduct set forth the teacher's obligations to students, including a requirement to make reasonable effort to protect students from conditions harmful to health or safety and to refrain from intentionally exposing a student to unnecessary embarrassment. Rule 6B- 1.006(3)(a) and (e), Florida Administrative Cede.

    
    

22. Because there is no evidence that Respondent intentionally exposed the student to unnecessary embarrassment or disparagement, Respondent has not violated Rule 6B- 1.006(1)(3)(e). However, the more troublesome question is whether Respondent's actions demonstrated reasonable concern for the health and safety of his students. The evidence established that Respondent failed to make reasonable efforts to protect the student from conditions harmful to learning or to health or safety as required in Rule 6B-1.006(1)(3)(a).

    
    

23. While accidents are sometimes unavoidable, especially when dealing with an unruly child, the Respondent in this case could have and should have demonstrated more concern for the student's well-being and safety. His failure to do so violates the Code of Ethics (Rule 6B-1.001) and the principles of Conduct (Rule 6B-1.006). Respondent's physical handling of the child on April 3, 1989, placed his student in danger and caused her minor physical injury. A two hundred fifty pound man must demonstrate more caution and restraint in handling a third grade student. Especially disturbing was Respondent's conduct in pushing the child back to the ground after she fell. In addition, Respondent's conduct subsequent to the incident does not demonstrate the degree

    of concern for the safety and well-being of the student that is expected of an educator. His actions reflect a lapse in professional judgment. The resulting impact of this incident on students and parents reduced Respondent's effectiveness as a teacher, and has caused him to lose the confidence and respect of students and parents. As such, the evidence in this case establishes that Respondent's actions involving this student during the 1988-1989 school year, constitute misconduct in office, a proper basis for Petitioner to impose some disciplinary action.

    
    

24. While Respondent's excessively physical restraint of student R.S. is certainly not an action that can be condoned by school administrative officials, the minor injuries sustained by the student in this case were not intentionally inflicted. Instead, they were the result of an accident. Such one time occurrences do not constitute the type of serious violations of the standards of professional conduct sufficient to warrant termination from employment. Furthermore, there are several mitigating factors involved. There is no evidence of prior misconduct by the Respondent and the student was clearly unruly and disrespectful. In addition, Respondent had the responsibility for overseeing a large number of children without any assistance. This responsibility limited his options in dealing with the situation. For these reasons, the undersigned has concluded that the Respondent should not be terminated from his employment.

    
    

25. With regard to Petitioner's allegation that Respondent violated the School Board's corporal punishment policy, the evidence established that Respondent was not attempting to inflict punishment on the student R.S., but was attempting to restrain and control her in part to prevent harm to himself. The rule permits the "moderate use of physical force or physical conduct as may be necessary to maintain discipline or to enforce school rules." School Board Rule 6Gx13-50-1.07.

    
    

26. Corporal punishment is defined in Section 228.041(27), Florida Statutes (1987), as follows:

    
    

    (27) CORPORAL PUNISHMENT--corporal punishment is the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or to enforce school rule. However, the term "corporal punishment" does not include the use of such reasonable force by a teacher or principle as may be necessary to protect himself or other students from disruptive students.

    
    

27. Respondent's moderate use of force in this case in an effort to control an unruly student did not violate the corporal punishment policy.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner enter a Final Order finding Respondent guilty of misconduct in office and imposing a ten day suspension without pay upon Respondent.

DONE and ORDERED this 21st day of February, 1990, in Tallahassee, Florida.

J. STEPHEN MENTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 1990.

ENDNOTES

1/ The Notice of Specific Charges also alleges that Respondent violated School Board Rules 6Gx13-4A-1.21 and 6G13-4C-1.01 by engaging in conduct unbecoming a School Board employee. However, those rules were not produced at the hearing nor was any evidence offered regarding those charges. Therefore, Petitioner has failed to carry its burden of proof as to those counts and they should be dismissed.

APPENDIX

Case Number 89-3358

Both the Petitioner and the Respondent submitted Proposed Recommended Orders which include proposed findings of fact and conclusions of law. The following rulings are directed towards the findings of fact contained in those proposals.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted

or Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

   
   

2. Included in the prelimary statement.

   
   

3. Rejected as subordinate to the definition of the term corporal punishment contained in the statute as set forth in conclusions of law 10.

   
   

4. Rejected as irrelevant.

   
   

5. Adopted in substance in Findings of Fact 15.

6. Adopted in substance in Findings of Fact 5.

   
   

7. Adopted in substance in Findings of Fact 3, 5, 6, 7, 10 and 11. However, it is specifically found that Respondent did not deliberately throw, push or otherwise physically force the student to the ground.

   
   

8. Adopted in substance in Findings of Fact 7, 8 and 9. However, it is specifically found the PIT method was not used to force the student to the grcund.

   
   

9. Adopted in substance in Findings of Fact 9.

   
   

10. Subordinate to Findings of Fact 15.

    
    

11. Subordinate to Findings of Fact 16.

    
    

12. Subordinate to Findings of Fact 16.

    
    

13. Rejected as constituting a summary of testimony rather than a finding of fact.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order were Accepted

or Reason for Rejection.

1. Adopted in substance in Findings of Fact 1.

   
   

2. Covered in the Conclusions of Law, paragraph 10.

   
   

3. Adopted in substance in Findings of Fact 3, 4, 5, 6, 7, 10, 11 and 13.

COPIES FURNISHED:

Jaime Claudio Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134

John Ackley

935 N. Northlake Drive Hollywood, Florida 33019

Mrs. Madelyn P. Schere Assistant School Board Attorney The School Board of Dade County Board Administration Building Suite 301

1450 Northeast 2nd Avenue Miami, Florida 33132

Dr. Joyce C. Annunziata, Supervisor Office of Professional Standards 1444 Biscayne Boulevard, Suite 215

Miami, Florida 33132

Dr. Joseph Fernandez Superintendent of Schools Dade County Public Schools 1444 Biscayne Boulevard

Suite 215

Miami, Florida 33132

Docket for Case No: 89-003358

Orders for Case No: 89-003358