STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6345

)

GARY TEMPLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 23, 1990, in Miami, Florida.

APPEARANCES

For Petitioner: Jaime C. Bovell, Esquire

1401 Ponce de Leon Boulevard Coral Gables, FL 33134

For Respondent: William DuFresne, Esquire

DuFresne and Bradley

2929 Southwest Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUE

Whether Respondent's employment with Petitioner should be terminated based upon incompetency, gross insubordination, willful neglect of duty, and misconduct in office?

PRELIMINARY STATEMENT

On November 15, 1989, Petitioner suspended Respondent from his employment and initiated dismissal proceedings. Respondent timely requested a formal hearing regarding Petitioner's allegations, and this cause was transferred to the Division of Administrative Hearings on November 21, 1989, for the conduct of a formal proceeding. Petitioner's Notice of Specific Charges was filed on January 16, 1990.

Petitioner presented the testimony of Danielle Fisher, Kimberly Greco, Steve Bruno, Lawrence Gilliard, Harold Blitman, Sara Nelson, and Dr. James Monroe. Respondent testified in his own behalf and presented the testimony of Edward Nessi. Additionally, Petitioner's Exhibit numbered 1 was admitted in evidence, and Respondent's request for official recognition of Sections 232.27 and 232.275, Florida Statutes was granted.

Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract for approximately 15 years. He has a bachelor's degree and a master's degree in the area of education.

   
   

2. During the 1988-89 school year Respondent was assigned as a teacher to Highland Oaks Middle School.

   
   

3. Danielle Fisher was a student in Respondent's fifth period math class.

   
   

4. On May 8, 1989, during math class, Dantelle Fisher became involved in a loud argument with one of her friends over which of the two girls was the owner of a "fucking lipstick." Fisher, who was also eating candy, kept proclaiming to the other girl, "Fuck you. It's mine." Fisher's argument disrupted Respondent's math class and the class next door.

   
   

5. Respondent directed Fisher to be quiet, and Fisher refused. Respondent directed her again to be quiet, and again she refused. Respondent directed her to leave the room, and she refused. Respondent again directed her to leave the room, and she yelled at him "Fuck you. Screw you, asshole."

   
   

6. Fisher continued yelling profanities, and Respondent went over to where she was sitting. He took her left arm to guide her out of her seat, and she resisted, refusing to move. He then exerted a small amount of force, pulling her up from her seat.

   
   

7. Respondent gave her her books and her purse and led her by her left arm to the open classroom door, instructing her to report to the office.

   
   

8. Respondent then closed the classroom boor.

   
   

9. Fisher then opened the classroom door and screamed at Respondent, "Fuck you. I'm going to get you fired." She then yelled to her classmates, "Everybody, remember this." She then showed them her left arm which at that moment showed finger prints, i.e., the impression of where Respondent's fingers had been on her arm. She then left.

   
   

10. By the time that Fisher reached the principal's office, she had red welts and scratches on her right arm. Respondent had not touched Fisher on her right arm.

    
    

11. Fisher was not humiliated or embarrassed by the incident. She had been removed from Respondent's classroom on previous occasions for disruptive conduct and had been removed from her social studies class on a previous occasion for banging on the wall.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

13. Section 23l.36(4)(c), Florida Statutes, provides that a member of the instructional staff who is under continuing contract may be suspended or dismissed as long as the charges st him are based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. The Notice of Specific Charges filed in this cause alleges that Respondent has committed misconduct in office, gross insubordination, -incompetency due to inefficiency and incapacity, and neglect of duty as those terms are defined in Rule 6B-4.009, Florida Administrative Code.

    
    

14. Rule 6B-4.009, Florida Administrative Code, provides, in part, as follows:

    
    

    1. Incompetency is defined as 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 witesses 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:

       1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); . .

          * * *

          1. 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.

          2. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

          
          

          In its proposed recommended order, Petitioner appears to have abandoned its allegation that Respondent is guilty off incompetency due to incapacity and further appears to have abandoned any allegation that Respondent's incompetency is due to any of the alternative definitions of inefficiency other than the first, which is quoted above.

15. Rule 6B-1.001, Florida Administrative Code, contains the Code of Ethics of the Education Profession in Florida and provides, in part, as follows:

    
    

    (3) 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.

    
    

16. Rule 6B-1.006, Florida Administrative Code, provides, in part, as follows:

    
    

    1. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.

    * * *

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

    
    

    The Notice of Specific Charges includes allegations that Respondent engaged in violent physical encounters with students prior to May 8, 1989. The only evidence offered by Petitioner in support of such allegation involves one former charge wherein Respondent was found not guilty following a formal hearing before the Division of Administrative Hearings and several alleged "incidents" which were referred to vaguely during the final hearing in this cause. The evidence in support of those "incidents" was primarily hearsay and primarily based on rumors and innuendos. Accordingly, Petitioner has failed to prove its allegations of incidents prior to May 8, 1989, and no findings of fact are made as to whether any of those alleged prior incidents occurred.

    
    

17. The Notice of Specific Charges is focused on the May 8, 1989, encounter between Respondent and Danielle Fisher. The foundation for the charges against Respondent is the alleged violation of School Board policies and rules. Although the Notice of Specific Charges talks in terms of long standing policies and rules regarding physical contact with students no such policy or rule was offered in evidence, no evidence was offered as to whether those alleged policies and rules are verbal or written, and Petitioner's witness was unable to locate any reference to those policies and rules reportedly contained in the faculty handbook. What those rules and policies prohibit, if they exist, cannot be determined because they were not offered in evidence. Rather, three of Petitioner's administrative personnel testified as to their understanding of the rules and policies regarding physical contact. Yet, their testimony is unclear since the following terms were used interchangeably in their testimony: corporal punishment, use of excessive force, use of physical force, unauthorized physical contact, use of physical contact, and unauthorized use of force. Since Petitioner has not proven what conduct is prohibited by the School Board's rules and policies, Respondent cannot be found to have violated those rules and policies in his handling of the Danielle Fisher situation.

    
    

18. Petitioner argues that Respondent is guilty of misconduct in office in that by violating Petitioner's rules and policies regarding the use of "force or physical contact" he has failed to comply with the Code of Ethics of the Education Profession in Florida as to his obligation to maintain the respect and confidence of other persons and to strive to achieve and sustain the highest

    degree of ethical conduct and that he has further failed to comply with the Principles of Professional Conduct for the Education Profession in Florida by failing to make a reasonable effort to protect students from conditions harmful to learning and by intentionally exposing a student to unnecessary embarrassment or disparagement. Petitioner argues that these repeated breaches of the Code of Ethics of the Education Profession and the Principles of Professional Conduct for the Education Profession in Florida are so serious as to have impaired Respondent's effectiveness in the school system.

    
    

19. Since Petitioner has failed to prove the school Board's rules and policies regulating this situation, then Petitioner has failed to prove that Respondent violated those rules and policies and in doing so violated both the Code of Ethics and the Principles of Professional Conduct. No evidence was offered that Respondent lacks the respect and confidence of his colleagues, students, their parents, and of other members of the community as a result of his handling of the May 8 situation or that Respondent does not strive to achieve and sustain the highest degree of ethical conduct. Respondent's principal's testimony regarding phone calls from parents was non-specific as to when they were received and their content.

    
    

20. It is clear that in attempting to step Fisher's continuing profanity in the classroom and to gain her cooperation in ceasing her disruption of his class, Respondent gas in fact making reasonable efforts to protect students from conditions harmful to learning. Further, there is no evidence that Fisher was embarrassed or disparaged by Respondent's treatment of her. Rather, her demeanor at the final hearing, together with her descriptions of the incident and of her usual conduct in Respondent's class, would indicate that she has enjoyed the attention that she has been able to focus on herself through her misbehavior in class and in following through on her announced intention to have Respondent fired for not permitting her to behave as she pleased. She proudly admitted at the final hearing that she was the most popular because she was one of the loudest people in the class, that her conduct in math class was "terrible," that she was the only one using profanity, and that she was a discipline problem. Since Petitioner has failed to 0 that Respondent violated the Code of Ethics or the Principles of Professional Conduct, then Petitioner a fortiori has failed to prove that Respondent's violations are so serious as to' impair his effectiveness in the school system. Accordingly, Respondent's conduct does not meet the definition of misconduct in office.

    
    

21. Petitioner also charges Respondent with gross insubordination and neglect of duty. The definition of gross insubordination is the same as the definition of willful neglect of duties. The Specific Notice of Charges alleges that on numerous occasions prior to May 8, 1989, Respondent had received direct orders, reasonable in nature and given by and with proper authority, to refrain from engaging in violent physical contact with students and from otherwise administering unauthorized corporal punishment. In its proposed recommended order, Petitioner argues that Respondent's alleged gross insubordination is bottomed both on his failure to comply with School Board rules and policies and on his failure to obey direct orders. Since Petitioner has not proven the contents of its rules and policies, Respondent cannot be found guilty of gross insubordination on that basis. However, the principal at Highland Oaks Middle School testified, and Respondent admits, that he instructed Respondent prior to May 8, 1989, to not put his hands on the students. Respondent, therefore, knowingly violated that directive on May 8, 1989. That May 8 violation, however, does not raise Respondent's conduct to the level of gross insubordination which, by definition, requires a constant or continuing intentional refusal to obey a direct order. Although Respondent did touch

    Danielle Fisher on May 8 1989, that is the only physical contact proven by Petitioner by competent evidence. That singular incident is not "constant or continuing."

    
    

22. Lastly, the Specific Notice of Changes alleges that Respondent is guilty of incompetency due to inefficiency in that he repeatedly failed to perform duties prescribed by law by failing to use prescribed methods in disciplining students and by instead repeatedly using unauthorized methods. No evidence was offered that Respondent fails to use prescribed methods in disciplining students. Further, no competent evidence was offered that Respondent persistently engages in prohibited acts. the charge of incompetency by inefficiency is in the nature of a course of conduct charge. Petitioner having failed to prove by competent evidence the occurrence of "incidents" other than the May 8, 1989, encounter with Danielle Fisher, then Petitioner also failed to prove a pattern or course of conduct on the part of Respondent.

    
    

23. Petitioner argues that Respondent is deficient in the area of classroom management techniques and, therefore, should be terminated from his employment. The Specific Notice of Charges in this case, however, is based upon the incident with Danielle Fisher. If Respondent's performance as a teacher is unacceptable in the area of classroom management techniques, Petitioner has recourse although not in this proceeding where such charges have not been included in the Specific Notice of Charges.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that a Final Order be entered dismissing the Specific Notice of Charges filed against Respondent and reinstating Respondent to his position as a classroom teacher with full back pay from the date of his suspension to the date of hid reinstatement.

DONE and ENTERED this 30th day of April, 1990, at Tallahassee, Florida.

LINDA M. RIGOT

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 30th day of April, 1990.

APPENDIX TO RECOMMENDED ORDER D0AH CASE NO. 89-6345

1. Petitioner's proposed findings of fact numbered 1 and 6 have been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact lumbered 2 and 3 have been rejected as being irrelevant to the issues under consideration in this proceeding.

3. Petitioner's proposed finding of fact numbered 4 has been rejected as being unnecessary for determination of the issues herein.

4. Petitioner's proposed findings of fact numbered 5 and 7-12 have been rejected as not being supported by the weight of the credible evidence in this proceeding.

5. Petitioner's proposed findings of fact numbered 13 and 14 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel.

6. Respondent's proposed findings of fact numbered 5 and 6 have been adopted either verbatim or in substance in this Recommended Order.

7. Respondent's proposed findings of fact: numbered 1-4 and both numbers 7 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, argument of counsel, or conclusions of law.

COPIES FURNISHED:

William DuFresne, Esquire DuFresne and Bradley

2929 Southwest Third Avenue Suite One

Miami, Florida 33129

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

Dr. Paul W. Bell, Superintendent Dade County Public Schools

1450 Northeast Second Avenue Miami, Florida 33132

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

Docket for Case No: 89-006345

Orders for Case No: 89-006345