STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5285

)

JOHN BULLARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on December 18, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Margaret O'Sullivan, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley, P.A. 2929 SW Third Avenue

Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUE

Whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Respondent is a teacher who was, at the times pertinent hereto, employed by the School Board of Dade County as an alternative education teacher at North County Elementary School in the Dade County School District. On July 24, 1991, Betty Castor, as Commissioner of Education, filed an Administrative Complaint against Respondent alleging that Respondent engaged in certain inappropriate conduct towards students in his class. This misconduct allegedly included striking two students during separate altercations, pulling certain students by their arms to force them to return to their seats, and using profanity towards students. As a result of that alleged inappropriate conduct, it is alleged that Respondent committed the following violations:

Count I: Section 231.28(1)(c), Florida Statutes (commission of acts of gross immorality or of an act

involving moral turpitude).

Count II: Section 231.28(1)(f), Florida Statues (personal conduct that seriously reduces a teacher's effectiveness as an employee of the school board).

Count III: 231.28(1)(h), Florida Statutes (misconduct in violation of rules of the State Board of Education). Count IV: Rule 6B-1.006(3)(a), Florida Administrative Code (failure to make reasonable effort to protect students from conditions harmful to learning or to health or safety).

Count V: Rule 6B-1.006(3)(e), Florida Administrative Code (intentionally exposing students to unnecessary embarrassment or disparagement).

Respondent denied the allegations of the Administrative Complaint and requested a formal hearing. This proceeding followed. At the formal hearing, Petitioner presented the testimony of Wanda McMillon, a paraprofessional who was assigned to assist in Respondent's classroom and of three of Respondent's students, Vincent Bennett, Arthur Brown, and Travis Crawford. Petitioner presented three exhibits, each of which was accepted into evidence. Respondent testified on his own behalf, but called no other witnesses and offered no exhibits. At Respondent's request, official recognition was taken of the Final Order and of the Recommended Order in DOAH Case No. 91-2237C, styled: Department of Health and Rehabilitative Services v. J.B.

A transcript of the proceedings has been filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent holds Florida teaching certificate number 600100 which certifies Respondent in the area of elementary education. This certificate is valid through June 30, 1996.

   
   

2. During the 1990-91 school year, Respondent was employed as a teacher at North County Elementary School (NCES), one of the schools in the Dade County School District. At the time of the formal hearing, respondent was employed as a classroom teacher at Liberty City Elementary, another of the schools in the Dade County School District. Respondent is an experienced school teacher who was, at the times pertinent to this proceeding, assigned to teach a sixth grade alternative education class at NCES. Wanda McMillon is a Paraprofessional I and was assigned to assist in Respondent's classroom on a full-time basis during the 1990-91 school year.

   
   

3. There were approximately 15 students assigned to Respondent's class at NCES. Alternate education deals with children who are behavior problems, have attendance problems, or who are recommended by their counselors to attend alternate education for other reasons. Many of these students come from broken families. Students in Respondent's class frequently engaged in inappropriate and unruly behavior. Examples of this misbehavior included students throwing objects, hitting the Respondent, taking the Respondent's property, and running out of the classroom. As the teacher, Respondent is responsible for maintaining discipline in the classroom. The record is clear that discipline was a serious problem in Respondent's classroom.

4. On November 2, 1990, an incident occurred in Respondent's classroom at NCES involving Respondent and Arthur Brown, a student who had been assigned to Respondent's alternative education class because he was a behavioral problem. Arthur was out of his seat without permission. Arthur did not obey the Respondent's instructions to sit down. Respondent thereafter touched Arthur Brown's shoulder in an attempt to get him to take his seat. Arthur pulled away from Respondent and picked up a plastic chair with metal legs. Arthur held this chair above his head and attempted to hit Respondent with the chair. Respondent grabbed the legs of the chair and a brief struggle for the chair ensued. Respondent took the chair away from Arthur Brown. During the struggle for the chair, Arthur was struck in the forehead by the plastic portion of the chair, but he suffered no meaningful injury. Respondent did not use excessive force in dealing with Arthur. Respondent's defensive reaction to this situation was reasonable and necessary to protect himself and possibly others from this student. 1/

   
   

5. On a date during the 1990-91 school year prior to November 2, 1990 2/, an incident occurred in Respondent's classroom involving Respondent and Vincent Bennett, a disruptive student who had been assigned to Respondent's alternative education class. Vincent was playing near the classroom door when Respondent told him to sit down. When Vincent failed to sit down, Respondent seized Vincent's arm and tried to redirect the student. Vincent began to struggle with Respondent and broke free of his grasp. Vincent began to run around Respondent flailing his arms and hitting Respondent. Respondent reacted by striking Vincent in the upper chest with the back of his hand. Vincent fell to the ground and began to cry. Although Vincent became mad as a result of that incident, there was no evidence that Vincent was injured by Respondent. It is concluded that Respondent's reaction to the attack by Vincent was reasonable and that Respondent did not use excessive force in responding to that situation. 3/

   
   

6. There was testimony that Respondent grabbed Vincent and Arthur by the arm on other occasions. There was, however, no showing that Respondent used excessive force in dealing with Vincent or Arthur on these other occasions or that he engaged in unacceptable conduct.

   
   

7. There was testimony that Respondent grabbed or pushed other students in the class, including Lasavo Darkins, Marcus Hollis, Elijah Wadley, and Latraveus Dardy. The evidence established that Respondent's contact with these students occurred while the students were misbehaving and was an attempt to redirect the students. The testimony pertaining to these incidents otherwise lacks factual detail and does not establish that excessive force was used by Respondent. This vague testimony is insufficient to base a finding of wrongdoing on the part of Respondent. There was no evidence that Respondent's method of dealing with these students constituted professional misconduct.

   
   

8. There was conflicting testimony as to whether Respondent improperly used profanity in front of the students in his classroom. Based on the greater weight of the evidence, it is found that Respondent did not address his students in profane terms and that he did not otherwise improperly use profanity in front of the students in his classroom.

   
   

9. On February 20, 1991, Respondent received a written reprimand from Ruthann Marleaux, the principal of NCES, which provided, in part, as follows:

   
   

   You are hereby officially reprimanded for the following violations of your professional contract responsibilities:

   Failure to:

   "Maintain a safe and orderly learning environment...that disruptive behavior be dealt with safely, fairly, consistently and in a manner which incorporates progressive disciplinary measures specified in the Code of Student Conduct.

   
   

10. Respondent received an annual evaluation of "unacceptable" from his principal for the 1990-91 school year. Respondent testified that this evaluation was subsequently changed to acceptable. Although the subsequent evaluation was not introduced into evidence, the testimony of Respondent is accepted since his testimony is consistent with his continued employment as a teacher in the public schools of Dade County, Florida.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

12. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows: [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v.

    Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

13. Petitioner has failed to establish by clear and convincing evidence the factual allegations that underpin the violations alleged in the Administrative Complaint.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which dismisses the Administrative Complaint.

RECOMMENDED this 10th day of February, 1992, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 10th day of February, 1992.

ENDNOTES

1/ On January 22, 1991, Respondent received a written reprimand from Ruthann Marleaux, the principal of NCES, pertaining to the incident involving Arthur Brown. This reprimand, which is based on an internal investigation report that was not introduced into evidence, reflects a more serious version of the incident than occurred and provides, in part, as follows:

Student allegation of battery was substantiated by an

S.I.U. investigation - Mr. Bullard struck a student in the head with a student chair.

2/ The date of this incident was not otherwise identified.

3/ Ms. McMillon, who was in the classroom during this incident, was of the opinion that Respondent acted inappropriately in dealing with Vincent. Ms. McMillon did not believe that Respondent was physically threatened by Vincent. While considerable weight has been given her testimony, the greater weight of the evidence is that Respondent acted in a defensive manner only. Respondent was not trying to hurt or to punish Vincent. Instead, it is concluded that Respondent was only trying to restore order and that he did not use more force than was necessary to accomplish that end.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5285

The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 8, 10, 12, 13, 14, 15, 19, 21, 23, 25, 29, 30, 31, and 32 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 7, 9, 11, 20, 27, and 28 are rejected as being subordinate to the findings made.

3. The proposed findings of fact in paragraph 16 are adopted in part by the Recommended Order, but are rejected to the extent that the proposed findings are contrary to the findings made.

4. The proposed findings of fact in paragraph 17 are rejected as being unnecessary to the conclusions reached and as being the recitation of testimony.

5. The proposed findings of fact in paragraph 18 are rejected as being unnecessary to the conclusions reached. Ms. McMillon's testimony was that she heard "... the student (sic) saying, don't hit him, don't slap him ..." [See transcript, page 55 beginning at line 2.] The student to whom Ms. McMillon referred was not identified. That Ms. McMillon saw Arthur grabbing the chair is subordinate to the findings made.

6. The proposed findings of fact in paragraphs 22 and 26 are rejected as being unnecessary to the conclusions reached.

7. The proposed findings of fact in paragraph 24 are rejected as being contrary to the findings made.

The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 5, 6, and 7 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 3 and 4 are rejected as being subordinate to the findings made.

COPIES FURNISHED:

Margaret O'Sullivan, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

William Du Fresne, Esquire

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

Karen B. Wilde 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

Sydney H. McKenzie, General Counsel Department of Education

The Capitol, PL-08

Tallahassee, Florida 32399-0400

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 10 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: 91-005285

Orders for Case No: 91-005285