STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4587

)

ROOSEVELT HARVEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on May 6, 1991, in Pensacola, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: Pamela L. Cooper, Esquire

FTP-NEA General Counsel

325 John Knox Road Building L, Suite 101 Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

Whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

On February 28, 1990, Petitioner Betty Castor, as Commissioner of Education, filed an Administrative Complaint against the Respondent. Respondent denied the allegations and requested formal administrative hearing. The case was filed with the Division of Administrative Hearings on July 12, 1990, and was scheduled to be heard on November 30, 1990. The hearing was subsequently rescheduled for May 6, 1991. On May 3, 1991, the case was transferred to the undersigned.

Petitioner presented the testimony of student D. S., student J. C., and Marc Brown. Respondent testified on his own behalf. A copy of the Administrative Complaint was admitted as a Hearing Officer's exhibit.

A transcript of the hearing was filed on June 3, 1991. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this proceeding, Roosevelt Harvey (Respondent) held Florida teaching certificate numbered 134571, valid through June 30, 1997. He is certified in the areas of mathematics, junior college, and administrative supervision. He has been employed by the Escambia County School Board for approximately 25 years, and scheduled to retire on August 1, 1991.

   
   

2. During the 1987-88 and 1988-89 school years, Respondent was assigned to the Judy Andrews Middle School Center. 1/ In May 1989, Respondent was specifically assigned to assist Marc Brown, a classroom teacher, with maintaining discipline in Brown's classroom. The class was comprised of students with learning difficulties related to behavioral problems and lack of self control. The students had difficulty focusing on and completing tasks, and were often disruptive.

   
   

3. On May 18, 1989, Brown's class was particularly disruptive. Respondent was first required to escort one sixth grade student, D. S., to the school dean's office to resolve a disciplinary referral submitted to the dean by Brown on the day before. The student was suspended. However, because there was no transportation available, the suspension was effective the following day and D.

   S. was returned to Brown's classroom.

   
   

4. On May 18, 1989, other students in Brown's classroom were involved in altercations and leaving the classroom without approval. Respondent was subsequently directed to remain outside Brown's classroom and prevent students from leaving the area.

   
   

5. Respondent was in the habit of using a double edged shaving razor blade to scrape errant marks off of duplicated copies of various written materials. The blade was not attached to any type of handle. On May 18, 1989, he was using the razor blade to remove stray marks from duplicated "National Geographic" articles which were to be used as part of a school project, while he monitored the hallway outside Brown's classroom.

   
   

6. As Respondent stood outside Brown's classroom, the already suspended D.

   S. approached. Upon Respondent's inquiry, D. S.'s stated that he was on his way to the restroom. D. S. had no written restroom pass and Respondent instructed

   D. S. to return to the classroom. D. S. approached a second time and inquired about Respondent's razor blade. Respondent held the blade so that D. S. could see it, moved his hand holding the blade up and down vertically and stated, "Do you know what blood is? I'll show you blood." Respondent did not attempt any physical contact with D. S. and did not move towards the student. D. S. reentered the classroom.

   
   

7. Some time thereafter, Respondent entered Brown's classroom to ascertain the whereabouts of another student. Upon Respondent's entry into the room, student J. C. approached and inquired about the razor blade. Respondent, otherwise occupied, ignored J. C., who persisted in his efforts to see the blade. Respondent eventually held the blade toward J. C. and stated, "I'm want to see some blood. Do you want to show me some of yours?" J. C. walked away from Respondent.

8. Brown's classroom was in such a disorderly state, that Brown was distracted during the razor blade incidents. He did see student J. C. near the Respondent, and partially overheard Respondent's comment to J. C., but saw nothing that would suggest that the students were threatened by Respondent's behavior.

   
   

9. Respondent believed that the students were "playing games" with him during the razor blade incidents. The razor blade was visible while he worked on the articles. He did not intend to harm or embarrass the students. Other than to encourage D. S. to return to the classroom, there is no behavior which directly involved an attempt to discipline a student. Although D. S. testified that he was "starting to get scared", neither D. S. nor J. C. yelled or attempted to run from Respondent. However, Respondent acknowledges that the actions were inappropriate and ill-advised.

   
   

10. In 1986, Respondent received a three day suspension without pay from the Escambia County School Board for striking a student.

    
    

11. In 1988, Respondent received A ten day suspension without pay from the Escambia County School Board for absences without authorization.

    
    

12. Prior to the May, 1989 incident, the Respondent had sought transfer into a regular teaching position. Following the incident, he was suspended with pay from the Judy Andrews Center and then transferred to Pine Forest High School where he returned to classroom teaching. Other than the timing of the transfer, there is no evidence that the reassignment as directly related to the razor blade incident.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. The issue presented in this case is whether the Respondent's actions on May 18, 1989 support imposition of a disciplinary penalty, potentially including revocation or suspension of his teaching certification. The burden of proof is on Petitioner to establish by clear and convincing evidence that the allegations of the administrative complaint are correct. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

15. The Education Practices Commission has the authority to suspend or revoke a teaching certificate, or otherwise penalize the person holding a teaching certificate. Section 231.28(1), Florida Statutes.

    
    

16. In relevant part, section 231.28(1), Florida Statutes, provides that such penalties may be imposed where it can be shown that the teacher:

    
    

    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;

    (h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

    
    

17. The evidence fails to clearly and convincingly establish that Respondent has engaged in personal concoct which seriously reduces his effectiveness as an employee of the school board. The evidence clearly and convincingly establishes that Respondent violated the rules of the State Board of Education.

    
    

18. Rule 6B-1.006, Florida Administrative Code, "The Principles of Professional Conduct for the Education Profession in Florida," in relevant part states:

    
    

    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.

          
          

19. In this case, Respondent, specifically assigned to assist in maintaining control over disruptive students, displayed a razor blade and made threatening remarks students. Beyond D. S.'s claim that he was "starting to get scared", there is no evidence that the students were alarmed by is behavior. Respondent admits his conduct was inappropriate and ill-advised, but asserts that he had no intent to harm the students. However, it requires little more than common sense to understand that in displaying a razor blade and making threatening remarks and gestures to middle school students with serious behavioral problems, Respondent clearly failed to make a reasonable effort to protect the students from conditions harmful to learning or to health or safety.

    
    

20. The evidence fails to clearly and convincingly establish that the Respondent intentionally exposed a student to unnecessary embarrassment or disparagement.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Education Practices Commission enter a Final Order suspending the teaching certificate of Roosevelt Harvey for a period of one year during which time Mr. Harvey shall be required to complete college-level course work on the subjects of assertive discipline and classroom management, followed by a one year probationary period. It is further recommended that, prior to employment in a classroom situation, Respondent submit to a psychological evaluation, to be supervised by the Education Practices Commission, in order to determine that the Respondent poses no threat of harm to students.

DONE and RECOMMENDED this 28th day of August, 1991, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1991.

ENDNOTES

1/ Now called the "Sidney Nelson Center".

APPENDIX CASE NO. 90-4587

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows:

13. Rejected, immaterial.

20. Rejected, irrelevant.

Respondent

The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows:

4. Rejected as to the date, "May 18, 1991". The year was 1989.

6. Rejected as to the assertion that Respondent had not been told not to use the razor blade to clean duplicated copies, immaterial. The administrative complaint alleges that Respondent's use of the blade in his interactions with the two students was inappropriate.

COPIES FURNISHED:

George A. Bowen, Acting Executive Director Education Practices Commission

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Robert J. Boyd, Esq.

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Pamela L. Cooper, Esq. FTP-NEA General Counsel

325 John Knox Road Building L, Suite 101 Tallahassee, Florida 32303

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004587

Orders for Case No: 90-004587