STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF FRANKLIN )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 91-7575

)

WEBSTER BOZEMAN, deceased, and ) personal representative for the ) estate of Webster Bozeman, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this matter before the Division of Administrative Hearings, by its duly

Diane Cleavinger, on April 9, 1992, in Apalachicola, Florida.

APPEARANCES

For Petitioner: Barbara Sanders, Esquire

53 Avenue C

Post Office Box 157 Apalachicola, Florida 32329

For Respondent: David Brooks Kundin, Esquire

Post Office Box 430 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether Respondent's suspension and termination from employment as a teacher by the Franklin County School Board was justified and, if not, whether backpay and attorney's fees should be awarded.

PRELIMINARY STATEMENT

The charge which is the subject of this case occurred on September 17, 1991. Specifically, the charge against Respondent was misconduct in office by use of excessive force against a student in violation of Section 231.36, Florida Statutes. The principal of Carrabelle High School, Dr. B. J. Krawchuk, conducted an investigation that resulted in his recommendation that the Respondent be suspended without pay pending termination proceedings. On November 1, 1991, the Superintendent of Schools recommended suspension without pay at the pre-termination hearing. At the close of the pretermination hearing, the Franklin County School Board voted unanimously to suspend Respondent without pay pending termination proceedings. Respondent requested a formal hearing pursuant to Chapter 120, Florida Statutes, and the case was referred to the Division of Administrative Hearings for purposes of conducting a formal hearing.

At the hearing, the Petitioner presented the testimony of Maxine Taylor, a school bus driver; Lance Bockelman, the student involved in the incident; students Billy Dalton, Jonathan Tindell, and Jan Shiver; Principal B. J. Krawchuk, Respondent's immediate supervisor; and Charles T. Ponder, Superintendent of Schools for Franklin County. Additionally, the Petitioner offered eight (8) exhibits into evidence. Respondent testified in his own behalf and offered the testimony of teachers John Humble and Chris Crozier.

Respondent also, through stipulation of the parties, offered the deposition testimony of Dr. Leslie D. Wilson, Respondent's treating physician.

Additionally, Respondent submitted two exhibits into evidence.

After the hearing, Repondent committed suicide on May 26, 1992. On May 28, 1992, a Suggestion of Death was filed by the Petitioner. In response, the Hearing Officer filed an Order Dismissing and Closing File on June 5, 1992. On June 11, 1992, Attorney for Respondent filed a Motion to Set Aside the Order Dismissing and Closing File. After a telephonic hearing, the Hearing Officer issued an Order Reopening File on July 29, 1992. A Motion to Substitute Parties was filed by the Attorney for Respondent and that Motion was granted subject to Respondent's attorney obtaining appointment of an administrator for the estate of Webster Bozeman. On December 31, 1992, an Order of Abeyance was entered by the Hearing Officer, placing the matter in abeyance for 60 days in order to allow Respondent's attorney to substitute a party for the deceased. That period was extended by another DOAH Hearing Officer until March 19, 1993.

On March 15, 1993, Attorney for Respondent filed Notice that an Administrator for the Estate of Webster Bozeman had been appointed, as prerequisite to Substituting Parties for purposes of continuing to seek back pay for the Estate of Webster Bozeman in the event that the Hearing Officer ruled that there was a wrongful termination of Mr. Bozeman.

On March 16, 1993, Petitioner filed a Motion to Strike the Notice of Appointment as untimely. On April 7, 1994, an Order was entered by the original Hearing Officer denying Petitioner's Motion to Strike, and ordering the parties to file Proposed Recommended Orders. The schedule for Proposed Recommended Orders was extended upon stipulated motion to May 31, 1994, at which time both parties filed Proposed Recommended Orders.

The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order, except where such findings were not shown by the evidence, or were immaterial, irrelevant, cumulative or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the appendix to this Recommended Order.

FINDINGS OF FACT

1. At the time of the incident that gave rise to this proceeding, Respondent, Webster Bozeman, was a teacher employed under a continuing contract at Carrabelle High School, Franklin County, Florida. Respondent had been employed by the Franklin County School Board from August 1985, until he was suspended on November 1, 1991.

   
   

2. The Respondent was assigned to teach Physical Education (PE) classes for the 1991-1992 school year at Carrabelle High School, by the principal, Dr.

   1. J. Krawchuk.

3. The Respondent had previously taught Social Studies from 1985 until 1989, and taught special education classes for two years, during 1989-90, and 1990-91. His teaching certification with the Florida Department of Education was in Social Science, with a designation for middle school. Mr. Bozeman was assigned to teach the Physical Education classes for the 1991-1992 school year because those classes were very free

   maintain control and discipline in more standard regular and special education classes.

   
   

4. On September 6, 1991, Respondent's doctor had changed his medication from Triavil, a combined antipsychotic and antidepressant. The Triavil contained Trilafon, or perphenazine which is an antipsychotic used to modify psychotic abnormal behavior. The medication was changed because there was no indication that Respondent was overtly psychotic. Respondent remained on an antidepressant.

   
   

5. However, the withdrawal of such an anti

   cause uncharacteristic aggressive behavior and the recurrence of any psychosis which the medication had been controlling.

   
   

6. Approximately a week and one half later, on September 17, 1991, during Respondent's sixth period physical education class in the gym at Carrabelle High School, a group of eighth graders were sitting on the bleacher throwing wadded up paper.

   
   

7. Lance Bockelman, a student in the class, was seated on the bleacher behind Respondent. Bockelman threw a piece of paper that struck Respondent on the left side of the head in the area of his ear.

   
   

8. Although the evidence at the hearing demonstrated that Respondent was only struck by a wadded up piece of paper, either because his medication had been changed or because Respondent's eardrum already was traumatized, Respondent believed that he had been struck with something hard like metal. Respondent became angry and upset over being struck.

   
   

9. Respondent ordered Bockelman to follow him to the locker room and Bockelman complied. The door between the gym and the corridor leading to the locker room closed behind them. Respondent told Bockelman to go over to the wall on one side of the corridor. Bockelman did not threaten Respondent but thought the incident a joke and exhibited laughter. Bockelman was also moving around although he wasn't trying to get away.

   
   

10. In an attempt to discover what had hit him and to focus Bockelman's attention, Respondent grabbed Bockelman around the neck and pushed him up against the wall by putting his hands around Bockelman's collarbone area. Respondent began to inquire as to what Bockelman had thrown and was shaking his index finger at Bockelman, occasionally poking him in the chest. At some point, Respondent drew his fist back in a threatening, angry manner, saying, "I'll knock the shit out of you."

    
    

11. Billy Dalton, a tenth-grade student, came from the locker room area into the corridor and observed Respondent holding Bockelman in a firm grip. Respondent appeared to be mad. Bockelman by then had realized the seriousness of the situation and was on the verge of tears. Dalton intervened by placing himself between Respondent and Bockelman, grabbing or tapping Respondent's raised arm and telling Respondent to cool off. Respondent let go of Bockelman and returned to the gym. At the point of Dalton's intervention, Respondent's

    physical contact with Bockelman had been minor and Respondent only threatened to use corporal punishment on Bockelman; Respondent never in fact used any corporal punishment against Bockelman, primarily because Dalton intervened.

    
    

12. A group of students had followed Respondent and Bockelman and had gathered around the gym door, which was then open, and witnessed Respondent's actions.

    
    

13. After Dalton interevened, Bockelman left the area and ran to where the buses pick up students. Maxine Taylor, a bus driver, saw Bockelman crying and walked him to the office where he spoke with the principal.

    
    

14. Later, Principal Krawchuk conducted a conference with Bockelman's mother and Respondent. At the time of the conference, Mr. Krawchuk did not observe any outward signs of injury to Respondent, though Respondent began to complain that his head was ringing. Respondent also complained of ear pain caused by the object Bockelman had thrown. At the conference Bozeman denied any wrongdoing. However, at the hearing, Respondent admitted that pushing Bockelman up against the wall was not necessary. Respondent also admitted that his reaction to Bockelman's misbehavior was inappropriate.

    
    

15. After the conference, Respondent filled out worker's compensation forms and visited Dr. Leslie Wilson.

    
    

16. Dr. Wilson found an inflammation of the ear drum and prescribed antibiotics and pain medication. At a follow

    Wilson decided Respondent did not need to see a specialist. Dr. Wilson opined that the injury was the result of trauma, but could not determine the cause.

    
    

17. Dr. Wilson also determined that Mr. Bozeman's ear drum injury resulted from "something hitting the head or actually hitting the ear drum." The injury to Mr. Bozeman could not have resulted from being struck by a piece of paper. Dr. Wilson's opinion was based, in part, on the information he had received from Respondent.

    
    

18. Mr. Krawchuk, the principal, conducted an internal investigation of the incident. The investigation included searching the gym for any evidence of a hard object that could have been concealed in the paper Bockelman had thrown. Mr. Krawchuk was unable to find any such objects in the gym area. He had students who witnessed the incident write statements concerning this event. 1/

    
    

19. Krawchuk concluded that Respondent's actions were improper and amounted to excessive force and that Respondent's effectiveness would be diminished "quite a bit." He testified that the ability to keep order in a classroom and discipline students relates to effectiveness and that if a teacher could not keep students in line, the teacher was ineffective.

    
    

20. Krawchuk also testified that using force against a child is a breach of a teacher's duty to protect the child's safety and health and violated the Code of Professional Conduct. The effect is to embarrass and demoralize the child, and has an adverse effect on the child's peers. He knew of no justification for physically touching a student in this situation. The appropriate response was to verbally reprimand the student and refer him to the office for discipline.

    
    

21. Based on his entire investigation, Krawchuk recommended that Respondent be suspended without pay and then terminated. Krawchuk felt that

    Respondent could no longer be effective in the classroom, because he did not "have it within him now to deal with children."

    
    

22. Mr. Ponder, the superintendent, agreed with Mr. Krawchuk and concluded that Respondent violated the Code of Professional Conduct by failing to protect the health, safety, welfare and learning environment of the students and that Respondent should therefore be terminated. He also concluded that Respondent violated the code by failing to preserve students from embarrassment and disparagement. Mr. Ponder believed that Respondent's actions amounted to misconduct in office because there would be concern or fear on the part of children later in that class. He testified that Respondent's actions seriously impaired Respondent's effectiveness in the classroom because Respondent's conduct was unprofessional, the students would be afraid and would lose respect for Respondent.

    
    

23. Mr. Ponder also testified that an appropriate response to being hit by an object would be to send the student to the office. Once the student stops his bad conduct, there would be no justification for striking, touching or hitting the child.

    
    

24. On the other hand, none of the students who testified offered any competent substantial evidence that there would be any ill effect to the students caused by Mr. Bozeman returning to teach. Indeed, Bockelman told another student, Jonathan Tindell, that he was not trying to get Mr. Bozeman fired, and did not want him fired on his account. In fact, the evidence showed that Respondent at the time did not have the respect of the students and was not very good at maintaining order in his classes. However, the evidence showed that Respondent's behavior prevented him from regaining any student's respect, thereby continuing his ineffectiveness as a teacher. Therefore, the evidence did demonstrate that Respondent remained ineffective as a teacher at least due in part to his conduct towards Bockelman.

    
    

25. Franklin County does use progressive discipline for employees. However, an assault on a student is a severe infraction and at a minimum merits suspension under Franklin County's progressive disciplinary code. On the other hand, Respondent's disciplinary record shows no serious discipline being imposed other than peer help in maintaining better order and discipline in his classes.

    
    

26. Based on these facts, the school board has demonstrated that Respondent committed misconduct in office by threatening the use of excessive force against Lance Bockelman. The evidence showed that Respondent's conduct was serious enough to continue his impaired effectiveness as a teacher. Therefore, the Board could have taken disciplinary action against Respondent. Finally, there were no mitigating factors shown by the evidence. Therefore, given the severity of Respondent's attempted use of force which was thwarted only by a student's intervention, termination is an appropriate penalty.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

28. Because Respondent had a continuing contract, he could only be terminated for the reasons outlined in Section 231.36(4)(c), Florida Statutes, which states:

    (c) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid. In cases of suspension by the school board or by the superintendent, the school board shall determine upon the evidence submitted

    whether the charges have been sustained and, if the charges are sustained, shall determine either to dismiss the employee or fix the terms under which he may be reinstated. If such charges are sustained by a majority vote of the full membership of the school board and such employee is discharged, his contract of employment shall be thereby canceled. Any such decision adverse to the employee may be appealed by the employee pursuant to

    s. 120.68, provided such appeal is filed within 30 days after the decision of the school board.

    
    

29. Respondent was charged with misconduct in office by using excessive force on Lance Bockelman.

    
    

30. Rule 6B-4.09(3), Florida Administrative Code defines misconduct in office as:

    
    

    a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B

    Professional Conduct for the Education Profession in Florida as adopted in Rule 6B

    impair the individual's effectiveness in the school system.

    
    

    Thus the code establishes a two

    
    

31. The Code of Ethics of the Education Profession contained in Rule Chapter 6B

    6B-1.01, Florida Administrative Code, provides:

    
    

    1. The educator values the worth and value of every person, the pursuit of truth, devotion to excellence, acquisition of

       knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

    2. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

    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.

       
       

32. Rule 6B-1.006, Florida Administrative Code, defines the teacher's obligation to the student and states:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or other penalties as provided by law.

    3. 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.

       2. Shall not unreasonably restrain a student from independent action in pursuit of learning.

       3. Shall not unreasonably deny a student access to diverse points of view.

       4. Shall not intentionally suppress or distort subject matter relevant to a student's academic program.

       5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       6. Shall not intentionally violate or deny a student's legal rights.

       7. Shall not on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition if otherwise qualified, or social or family background exclude a student from participation in a

          program; deny a student benefits; or grant a student advantages.

       8. Shall not exploit a professional relationship with a student for personal gain or advantage.

       9. Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.

          
          

33. Rule 6B

    competent professional performance in the area of discipline. Rule 6B Florida Administrative Code, states in part:

    
    

    The educator, commensurate with job requirements and delegated authority, shall demonstrate competence in the following management techniques:

    1. Resolve disciple problems in compliance with the policies of the school, rules of the district school board and the State board, and Florida Statutes.

    2. Maintain Consistency in the application of policy and practice by:

       (b) Formulating appropriate standards for student behavior.

       (4) Use management techniques appropriate to the particular setting.

       
       

34. Section 228.041(27), Florida Statutes (1991), defines corporal punishment as:

    
    

    (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 principal as may be necessary to protect himself or other students from disruptive students.

    
    

35. Section 232.27, Florida Statutes, authorizes a teacher to administer corporal punishment only under the following circumstances:

    
    

    Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall

    have such authority for the control and discipline of students as may be assigned to him by the principal or his designated representative and shall keep good order in the classroom and in other places in which he is assigned to be in charge of

    students. If a teacher feels that corporal

    punishment is necessary, at least the following procedures shall be followed:

    1. The use of corporal punishment shall be approved in principle by the principal before it is used, but approval is not necessary for each specific instance in which it is used. The principal shall prepare guidelines for administering such punishment which identify the types of punishable offenses, the conditions under which the punishment shall be administered, and the specific personnel on the school staff authorized to administer the punishment.

    2. A teacher or principal may administer corporal punishment only in the presence of another adult who is informed beforehand, and in the student's presence, of the reason for the punishment.

    3. A teacher or principal who has administered punishment shall, upon request, provide the pupil's parent or guardian with a written explanation of the reason for the punishment and the name of the other adult who was present.

       
       

36. The Franklin County School Board has adopted a more stringent procedure regarding corporal punishment. The Franklin County School Board Code of Conduct provides as follows:

    
    

    No teacher shall inflict corporal punishment on a pupil before being specifically authorized, IN EACH CASE, to do so, by the principal in charge of the school. Corporal punishment shall not be degrading or unduly severe, whether it be administered by the principal or by the teacher as authorized by the principal.

    Only a teacher or principal may administer corporal punishment. It shall be WITNESSED BY AT LEAST ONE OTHER PERSON ON THE STAFF.

    
    

    Section 4.41, Franklin County Code of Conduct. (Emphasis in original.)

    
    

37. In this case, Respondent's use of physical contact against Bockelman was minor and was not necessary to maintain discipline. However, Respondent's conduct would have escalated to the use of inappropriate physical contact had Mr. Dalton not intervened. Such physical contact would have violated both the statutory and board provisions regarding the use of corporal punishment of a student.

    
    

38. In dismissal proceedings, the burden is on Petitioner to establish proof of the charges by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So.2d 883, 884 (Fla. 3d DCA 1990). Allen v. School Board of Dade County, 569 (Fla. 3d DCA 1990).

    
    

39. In this case, Petitioner proved that Respondent's action constituted misconduct in office and that Respondent could have been suspended or dismissed.

    Section 231.36(4)(c), Florida Statutes (1991). The evidence demonstrated that Respondent violated the aspirational goals of the Code of Ethics by not exercising the best professional judgment, and violated the Principles of Professional Conduct by failing to make a reasonable effort to protect Mr.

    Bockelman from harm. Respondent's actions amounted to the threatened use of excessive force against an eighth grade student for which there was not justification or excuse. More serious force was only prevented by the intervention of Mr. Dalton. Such conduct by Respondent was so serious as to impair Respondent's effectiveness in the school system. See Department of Education v. Ferrell, 10 F.A.L.R. 4279, 4297 (May 4, 1988); Forehand v. School Bd. of Gulf Co., 600 So.2d 1186 (Fla. 1st DCA 1992). The testimony of the school principal who has extensive experience as both a classroom educator and administrator, supports the conclusion that Respondent's conduct seriously reduced his effectiveness as an employee of the school board. Castor v. Wright, 11 F.A.L.R. 1650, 1657 (Feb. 17, 1989); See Roberts v. Castor, 629 So.2d 311 (Fla. 1st DCA 1993).

    
    

40. There was no evidence presented that Bozeman also violated

    6B

    did not observe the incident and therefore intentionally exposed Bockelman to unnecessary embarrassment and disparagement.

    
    

41. Given the seriousness of Respondent's conduct, suspension and dismissal were appropriate penalties.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly,

RECOMMENDED that the Respondent be found guilty of violating Chapter 231.36, Florida Statutes, (1991), by committing an act of misconduct in office which seriously impaired his effectiveness as an employee of the school board and that his suspension without pay be upheld as well as his dismissal.

DONE AND ORDERED this 2nd day of August, 1994, in Tallahassee, Florida.

DIANE CLEAVINGER

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 2nd day of August, 1994.

ENDNOTE

1/ There was some evidence that a week to two weeks before this incident metal pellets had been found in an area of a classroom where a group of students,

including Bockelman, sat. However, this evidence was never linked to Bockelman or to the incident involved in this case.

APPENDIX TO DOAH CASE NO. 91-7575

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, 15, 17, 21, 22, 24 and 28 of Petitioner's proposed findings of fact are adopted in substance insofar as material.

2. The facts contained in paragraphs 11, 12, 16, 18, 19, 20, 23, 25, 26 and 27 of Petitioner's proposed findings of fact are subordinate.

3. The facts contained in paragraphs 1, 2, 3, 5, 15, 19, 20, 23, 25, 26 and 27 of Respondent's proposed findings of fact are adopted in substance insofar as material.

4. The facts contained in paragraphs 4, 6. 7. 8. 9. 10. 11. 12. 13. 14.

1. 17. 18. 20. 21. 24 and 28 of Respondent's proposed findings of fact are subordinate.

   1. The facts contained in paragraphs 25, 26, 27, 29, 31 and 32 of Respondent's proposed findings of fact were not shown by the evidence.

   2. Respondent's proposed findings of fact did not contain a paragraph numbered "30."

COPIES FURNISHED:

Barbara Sanders, Esquire

P.O. Box 157 Apalachicola, FL 32320

David Kundin, Esquire

P.O. Box 430 Tallahassee, FL 32302

Douglas L. "Tim" Jamerson Commissioner of Education The Capitol

Tallahassee, FL 32399

1. T. Ponder Superintendent of Schools Franklin County

155 Avenue "E"

Apalachicola, FL 32320-2059

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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: 91-007575

Orders for Case No: 91-007575