STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE No. 91-6993

)

DAVID L. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on March 20, 1992, in Clearwater, Florida.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 2942 Largo, Florida 34649 2942

For Respondent: Lawrence D. Black, Esquire

650 Seminole Boulevard

Largo, Florida 34640 3625 STATEMENT OF THE ISSUES

Whether or not Respondent engaged in inappropriate conduct warranting his dismissal, to wit, gross insubordination and misconduct in office, in violation of Subsection 231.36(6)(a), Florida Statutes.

PRELIMINARY STATEMENT

By letter dated October 23, 1991, Petitioner, Pinellas County School Board, advised Respondent, David L. Smith, that at the regularly scheduled Board meeting for November 13, 1991, Petitioner's superintendent, J. Howard Hinesley, would recommend his dismissal effective November 14, 1991. Petitioner's recommendation was based on allegations that: 1) Respondent grabbed the neck of a student and pushed her backward; 2) Respondent used profanity and vulgarity in the presence of students; and 3) Respondent referred to the race of two students in a derogatory manner in the presence of other students. Petitioner concluded that such conduct constituted gross insubordination and misconduct in office and amounted to just cause for Respondent's dismissal pursuant to Section 231.36(6)(c), Florida Statutes. Respondent denies that these allegations amount to conduct warranting his dismissal. On November 4, 1991, the matter was transferred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing.

On December 11, 1991, the matter was initially scheduled for hearing for February 18, 1992, and was continued. The matter was rescheduled on January 7, 1992 and was heard as scheduled on March 20, 1992.

At the final hearing, Petitioner presented the testimony of student witnesses Pamela Jones, Kelly Slusser, James Gatti, Gregory Mills, Bihn Vo, Marlene Moore and Robia Brown (by deposition) and former student Christopher Brehoney, Principal Alex Liem, Superintendent J. Howard Hinesley (by deposition) and Ernest Williams. Respondent testified on his own behalf and offered the depositions of his psychologist and medical doctor Anita Vlismas, Ph.D. and David R. Newsome, M.D.

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant factual findings:

FINDINGS OF FACT

1. Respondent, David L. Smith, is a teaching veteran of twenty years and holds a teacher certificate by Florida. He is employed by Petitioner, the School Board of Pinellas County, as a teacher by means of a continuing contract. During times material, Respondent was assigned as a teacher at Pinellas Park High School.

   
   

2. At the beginning of the 1991-92 school year, Respondent's father passed away and Respondent was allowed bereavement leave for a period of approximately eight days.

   
   

3. The incidents alleged in Petitioner's charging letter and which is at issue herein occurred over a 5-day period from September 9-13, 1991, after Respondent returned from the burial of his father in the Midwest.

   
   

4. During early September 1991, Respondent found a black student, Gregory Mills, sitting in his chair whereupon he replied to the class, "How far to you think I can throw this negro?"

   
   

5. The term "negro" is offensive to some black students and Petitioner discourages the use of racial slurs in the school setting. The student to whom the remark was made, Gregory Mills, did not view the remark as offensive and considered that Respondent was making a joke of the incident. Mills view Respondent as a good teacher who gets along well with all students and was particularly concerned about the welfare of minorities, exemplifying such by assisting them in achieving their career objectives.

   
   

6. At least one student, Robia Brown, who was in Respondent's class when Respondent made the "negro" remark to Mills thought that Respondent used the term "nigger" instead of "negro." However, the facts failed to support Robia Brown's recollection and it was not borne out by the testimony of Respondent and the student to whom it was directed, Gregory Mills.

   
   

7. During times material, Bihn Vo was an oriental student at Pinellas Park and was an office assistant whose duties included taking messages and information from the office to individual classrooms. On one occasion following September 9, 1991, Vo was delivering information to Respondent's classroom.

   When Vo entered the wrong door, Respondent replied, "What do you want, you oriental son of a bitch?"

8. On a separate occasion during early September 1991, information was delivered to Respondent's classroom for Kelly Slusser, a student. When the file which contained the information was given to Respondent, he threw the open file across the room and remarked, "[I] do not like her anymore." Also, during the same time period, Respondent grabbed Slusser by the neck and pushed her backwards leaving marks on her neck which were later visible by the assistant principal, Pamela Jones.

   
   

9. As a result of those incidents, Slusser and another student, Robia Brown, withdrew from Respondent's class.

   
   

10. During this period of time in early September 1991, Respondent openly used profanity in the presence of students.

    
    

11. On September 9, 1991, Respondent experienced restlessness and an inability to sleep because of the mental state that he was experiencing following his father's burial and the internal strife that was brought upon him by his family members and some chicanery that was ongoing between Respondent and other family members about estate property which his father left.

    
    

12. Respondent and his father enjoyed a very close relationship. His father's death was untimely occurring during a period when he (Respondent's father) appeared to have been enjoying good health. Respondent's father would spend most summers with him and they would vacation in and around Central Florida.

    
    

13. As a result of the depression that Respondent appeared to suffer following his father's death, he visited his physician, David R. Newsome, M.D., for medication which would allow him to sleep at night.

    
    

14. All of the incidents which are at issue occurred over a 5-day period from September 9-13, 1991. Following those incidents, Respondent took an 8-day leave from September 16-27, 1991, and received psychotherapy.

    
    

15. On September 27, 1991, Respondent returned to his teaching duties and continued his employment with Petitioner until October 19, 1991, without further incident, at which time he was suspended by Petitioner.

    
    

16. It is undisputed that Respondent was a popular teacher who often kidded with students. He appeared sleepy and drowsy during early September 1991 and at least one of Petitioner's supervisory employees questioned him about his well-being and suggested that he request administrative leave, which he did.

    
    

17. Respondent's actions during the period September 9-13, 1991, came about as a result of his despondency over his father's death and he received medical treatment which appeared to have alleviated the problem. Respondent enjoys teaching and it does not appear that his effectiveness has been reduced to the point whereby he would be an ineffective teacher if he is afforded an opportunity to return to a classroom.

    
    

    CONCLUSIONS OF LAW

    
    

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

19. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

20. The authority of the Petitioner is derived from Chapter 231, Florida Statutes and Chapter 6B, Florida Administrative Code.

    
    

21. The Petitioner has the burden of establishing, by a preponderance of the evidence, that the actions of Respondent during the period September 9-13, 1991, constitute misconduct in office and gross insubordination so as to warrant dismissal from his employment pursuant to Section 231.36(6)(c), Florida Statutes.

    
    

22. Misconduct is defined in Rule 6B-4.009(3), Florida Administrative Code, as a violation of the code of ethics and the principals of professional conduct as adopted in Rule 6B-1.001-.006, Florida Administrative Code which is so serious as to impair the individual teacher's effectiveness in the school system.

    
    

23. Gross insubordination is defined in 6B-4.009(4), Florida Administrative Code, as a "constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority."

    
    

24. Petitioner has failed to present sufficient evidence of conduct and actions by Respondent during times material, of a nature so serious as to impair Respondent's effectiveness in the school system or that he has constantly or continually intentionally refused to obey a direct order given by Petitioner's management personnel. Although Respondent's conduct during the period September 9-13, 1991 was serious conduct which any conscientious teacher would not engage in an instructional setting, the acts complained of appeared to be isolated and occurred at a point in Respondent's life when he was undergoing a great deal of emotional trauma following the death of his father. This conduct albeit serious and not the type which should be countenanced by Petitioner, did not recur upon Respondent's return to duty following his granted leave. Noteworthy was the fact that other students as well as the student (Mills) to whom the derogatory racial remark was made did not view the remark as offensive and simply thought that Respondent was joking both in the tone and the mannerisms that he exhibited. Based on all of the other evidence which indicates that Respondent is otherwise a conscientious instructor who is concerned about the career objectives and the achievement of all students and particularly minority students, Respondent's professed desire to continue in the teaching profession and his apparent devotion to the field, all indicate that the severe penalty of a dismissal from employment is not warranted under the circumstances.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

1. Petitioner enter a Final Order (1) reversing its recommendation that Respondent be dismissed from his position of employment with Petitioner as an instructional employee, (2) that Respondent be placed on probation for a period of one (1) year under terms and conditions designed to assure that no further similar acts/occurrences that were displayed by him in September 1991 are manifested, and (3) that Respondent be reinstated with all other rights and benefits of a tenured instructor employed by continuing contract with the Pinellas County School Board.

DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

BRUCE P TAYLOR ESQ SCHOOL BOARD ATTORNEY PINELLAS COUNTY SCHOOLS PO BOX 2942

LARGO FL 34649 2942

LAWRENCE D BLACK ESQ 650 SEMINOLE BLVD

LARGO FL 34640 3625

J HOWARD HINESLEY SUPERINTENDENT OF SCHOOLS PINELLAS COUNTY SCHOOLS PO BOX 2942

LARGO FL 34649 2942

BETTY CASTOR

COMMISSIONER OF EDUCATION THE CAPITOL

TALLAHASSEE FL 32399

JAMES E. BRADWELL

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 29th day of May, 1992.

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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

Pinellas County School,

Petitioner,

vs. DOAH Case No. 91-6993

David Smith,

Respondent.

/

FINAL ORDER

WHEREAS, by letter dated October 23, 1991, the Superintendent of Schools recommended to the School Board of Pinellas County that David Smith, teacher, be dismissed from his employment and that his continuing contract of employment be terminated, which letter contained the reasons therefore, and

WHEREAS, said David Smith timely requested an administrative hearing on the issues set forth in the Superintendent's notification letter, and

WHEREAS, an administrative hearing was conducted on March 20, 1992, before James E. Bradwell, Hearing Officer of the Division of Administrative Hearings, and

WHEREAS, said James E. Bradwell has issued a Recommended Order which, together with the Petitioner's Exceptions to said Recommended Order have been read and carefully reviewed, it is:

ORDERED AND ADJUDGED that Petitioner's Exceptions to the Hearing Officer's Recommended Order numbered 1 through 3 are hereby accepted, adopted, and incorporated herein by reference, and Petitioner'S Exception to the Hearing Officer's Recommended Order number 4 is accepted as modified herein, and it is

FURTHER ORDERED AND ADJUDGED that in all other respects, the Hearing Officer's Recommended Order is hereby accepted, adopted, and incorporated herein by reference, and it is

FURTHER ORDERED AND ADJUDGED that David Smith is hereby suspended without pay for thirty (30) working days, and shall be compensated for any difference between said thirty (30) working days suspension without pay and the actual period of suspension without pay that he has served in the above-styled cause, and it is

FURTHER ORDERED AND ADJUDGED that David Smith's suspension without pay is hereby terminated and he shall resume his duties as pursuant to his continuing contract of employment.

Any party adversely effected by this Order has the right to appeal to the Second District Court of Appeals in Lakeland, Florida, by filing notice of intent to do so with the Clerk of said Court within thirty (30) days of the date of this Order.

DONE AND ORDERED on this the 8th day of July, 1992 in Clearwater, Pinellas County, Florida.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By: Corinne Freeman Attest:

Ex-offico Secretary

cc: Lawrence D. Black, Esquire Bruce P. Taylor, Esquire

Docket for Case No: 91-006993

Orders for Case No: 91-006993