STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3138

)

RUSSELL BINGHAM, )

)

Respondent. )

) BETTY CASTOR, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6637

)

RUSSELL BINGHAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, Joyous D. Parrish, held a formal hearing in the above-styled case on February 11, 12, and 15, 1993, in Orlando, Florida.

APPEARANCES

For Petitioner, Roseanna J. Lee

case no. 92-3138: Frank C. Kruppenbacher

HONIGMAN MILLER SCHWARTZ AND COHN

390 North Orange Avenue, Suite 1300 Orlando, Florida 32801

For Petitioner, Margaret E. O'Sullivan

case no. 92-6637: Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For Respondent: Tobe Lev

EGAN, LEV & SIWICA, P.A.

Post Office Box 2231 Orlando, Florida 32802-2231

STATEMENT OF THE ISSUES

The central issue in case no. 92-3138 is whether or not Respondent should be dismissed from his continuing contract as a teacher employed by the Orange County school district.

The central issue in case no. 92-6637 is whether Respondent committed the violations alleged in the administrative complaint; and, if so, what disciplinary action should be imposed.

PRELIMINARY STATEMENT

Case no. 92-3138 began on April 28, 1992, when the School Board of Orange County, Florida (Board) sought to terminate the continuing contract of Respondent, Russell Bingham, Jr., a teacher employed by the district. By letter dated May 4, 1992, Respondent contested that decision and the matter was forwarded to the Division of Administrative Hearings for formal proceedings on May 22, 1992. At issue in this proceeding are allegations that Respondent used inappropriate physical actions to attempt to control students, that he had been counseled and directed not to use force, and that his failure to abide by such prior reprimands constitutes gross insubordination, willful neglect of duty and/or misconduct in office as well as being a breach of his employment agreement with the Board.

An initial order was entered in the case on June 1, 1992. That order provided, in part, that the parties were expected to discuss the possibility of settlement, enter into prehearing stipulations of fact and law, identify and limit issues of law, and exchange exhibit and witness lists to expedite the hearing process. Further, the order required that discovery be completed five days before the date of final hearing unless extended for good cause.

Additionally, an order for prehearing statement was entered on September 18, 1992, that set forth a specific prehearing schedule. The hearing in case no. 92-3138 was originally scheduled for August 19-20, 1992; however, after a series of continuances, the last of which was granted on January 12, 1993, the matter was heard on February 11, 12 and 15, 1993.

Case no. 92-6637 began when Betty Castor, as the Commissioner of Education, filed an administrative complaint against the Respondent that recommended action by the Education Practices Commission. By an election of rights executed October 27, 1992, Respondent disputed the allegations of that administrative complaint and requested a formal hearing. The case was forwarded to the Division of Administrative Hearings on November 4, 1992. Following the entry of an initial order that included the language noted above, the case was scheduled for hearing on February 12, 1993. At issue in this proceeding are allegations that Respondent acted inappropriately and unprofessionally in that he used improper force to discipline a student.

The complaint further alleged that Respondent's action constitutes misconduct as set forth in Section 231.28(1)(f), Florida Statutes, because: his personal conduct seriously reduces his effectiveness as an employee of the Board; Respondent failed to make reasonable effort to protect students from conditions harmful to learning or to health or safety; and Respondent intentionally exposed students to unnecessary embarrassment or disparagement.

At the hearing, Petitioners presented the testimony of the following witnesses: Johnny Wyatt, Brandon Stevens, Joel Lingo, Shushunn Rora, Lester Taylor, Damon Holmes, and Max Loving, students enrolled at Carver Middle School (Carver); Fred Townsend, an assistant principal at Carver; John B. Hawco, senior manager of employee relations for the Board; Richard Vail, an assistant principal at Walker Middle School, formerly at Carver; Ernest Bradley, former principal at Carver, now assigned to Westridge Middle School; Alice Tisdell, a senior manager in the employee relations office for the Board; Kim Paulsen- O'Keefe, an employee of the Child Protection Team; and Richard Miller, an investigator with the Department of Health and Rehabilitative Services assigned to institutional investigations of child abuse or neglect. The Petitioners' exhibits numbered 1, 2, 3 (pages 15-16, 41, 59-60), 4, 5, 5A, 6, 6B, 7, 8, 13,

14, 14A, 15, 16A, 17A, 19, 23A, 24A, 25A, 26, 27, 28, 29, and 32 were admitted

into evidence.

The Respondent testified in his own behalf and presented the testimony of the following: Linda K. Olson, a physical education teacher employed at Chickasaw Elementary School; Amy Prendergast, a physical education teacher employed at Carver; Raymond Martin, a permanent substitute teacher employed at Carver; Andrew Hamre, a teacher at Conway Middle School formerly assigned at Carver; Christine Youngblood, an exceptional education teacher at Carver; Sandra Jones, a secretary at Carver; and Margaret Rora, the parent of Shushunn Rora.

Respondent's composite exhibit numbered 1 was admitted into evidence.

The transcript of the proceedings was filed on March 11, 1992. The parties' proposed recommended orders have been considered in the preparation of this order, and specific rulings on the proposed findings of fact are addressed in the appendix at the conclusion of this order.

FINDINGS OF FACT

1. The Respondent holds Florida teaching certificate no. 427416, covering the areas of driver's education and physical education. Such certificate is valid through June 30, 1997.

   
   

2. At all times material to this case, Respondent has been employed as a teacher for the Orange County School District. He has been so employed since approximately 1978.

   
   

3. In the fall of 1987, Respondent was assigned to Carver where he taught physical education. He remained at Carver until he was relieved of duty on March 26, 1992.

   
   

4. Prior to being assigned to Carver, Respondent was employed at Chickasaw Elementary School where he received satisfactory evaluations and did not have any problems with student discipline.

   
   

5. After accepting the job at Carver, Respondent became one of four physical education teachers employed there. Respondent faced discipline problems at Carver he had not experienced during his elementary school tenure. Examples of the problems Respondent faced were: students showing disrespect; students teasing (such as name calling); or students being aggressive and argumentative.

   
   

6. On March 7, 1989, Respondent received a written reprimand from the Assistant Principal at Carver, Fred Townsend, for inappropriately disciplining a student. The incident cited in the reprimand was directly related to

   Respondent's class management and the discipline of students. Mr. Townsend's letter instructed the Respondent to adequately supervise students and to use appropriate disciplinary techniques. Mr. Townsend verbally counselled the Respondent concerning appropriate disciplinary techniques.

   
   

7. On April 7, 1989, Respondent was involved in an incident with one of the Carver students which resulted in Mr. Townsend issuing Respondent a written directive to refrain from shoving students, and to follow procedures outlined in the Carver Faculty Handbook and the "assertive discipline strategies" when disciplining students.

   
   

8. The procedures for disciplining students as outlined in the Carver Faculty Handbook did not permit a teacher to push, shove, or physically discipline a student. Teachers are permitted to use force to intervene to protect students who may be fighting or to protect themselves if attacked.

   
   

9. On October 24, 1989, Respondent was directed, in writing and verbally, by a senior manager of employee relations, John Hawco, not to take physical or disciplinary action against students but to follow school and Board rules pertaining to student discipline and control. The directive followed an incident where Respondent allegedly shoved or pushed a student.

   
   

10. On or about March 1, 1990, Board staff gave Respondent a letter outlining sources of assistance available through the school system regarding appropriate means to control and discipline students.

    
    

11. On March 2, 1990, Respondent received an oral and written directive together with a written letter of reprimand from Mr. Hawco. This written directive was issued after Respondent allegedly used physical force against two students. Such conduct would have been contrary to Mr. Hawco's earlier directive. The March 2, 1990, directive again advised Respondent not to use force or take physical disciplinary action against students. Mr. Hawco's letter urged Respondent to seek assistance and warned Respondent that if he failed to follow the directive, he could be recommended for dismissal.

    
    

12. Respondent was also verbally advised at the time he received the March 2, 1990, directive that should similar incidents occur in the future a recommendation could be made for his dismissal.

    
    

13. Despite the prior warnings and counselings, during the 1990-1991 school year, John Hawco was called to Carver to investigate several allegations against the Respondent. Such allegations involved inappropriate student discipline.

    
    

14. One of the incidents involved a minor male student who allegedly hit the Respondent. In the Respondent's referral to the office, the Respondent stated that the student "hit me in the nose with his fist, so I hit him back". Although the incident caused Mr. Hawco to have concerns about the Respondent, after investigation, the Board took no formal action against the Respondent for this alleged incident.

    
    

15. On or about March 13, 1992, the Respondent received a written directive from the Senior Manager of Employee Relations, Alice Tisdell. This directive advised Respondent not to take physical or disciplinary action against students, to exercise appropriate classroom management skills and to follow proper procedures for disciplining students. Ms. Tisdell issued this directive

    after she was called to investigate allegations that the Respondent continued to physically intervene with students contrary to prior directives to discontinue this type of discipline.

    
    

16. On or about March 10, 1992, Ms. Tisdell advised Respondent, verbally and in writing, that should he continue to fail to comply with the directives, appropriate disciplinary action could be taken. Respondent was advised that such disciplinary action could include his dismissal.

    
    

17. During the period from 1989 until he was recommended for dismissal in 1992, Respondent was verbally directed by the Carver principal, assistant principals, and Board management, to use appropriate classroom management techniques and to refrain from pushing, shoving, or using force when dealing with students.

    
    

18. Despite the oral and written directives, on March 20, 1992, Respondent shoved a student, Johnny Wyatt, into a locker causing minor physical injury to that student. Such act occurred in connection with the discipline of the student, was contrary to the prior directives issued to Respondent, and resulted because Respondent had failed to maintain control of his assigned area.

    
    

19. Wyatt is a minor male student at Carver who, at the time of hearing, was in the seventh grade. During the 1991/1992 school year, he was enrolled in Ms. Carry's sixth grade physical education class.

    
    

20. The male students in Ms. Carry's class dressed out in the boy's locker room supervised by the Respondent and another male physical education teacher, Dennis Goldsmith.

    
    

21. On March 20, 1992, Mr. Goldsmith was absent and Raymond Martin, a permanent substitute employed at Carver, was assigned to cover the locker room with Respondent.

    
    

22. When sixth period began, students assembled at their assigned bench seats in order to dress out. Some students began to misbehave by shouting, running around, and engaging in horseplay. On two occasions, the light switches were turned off and on for several seconds.

    
    

23. Wyatt came to the sixth period class and sat down after dressing out. With Mr. Martin's permission, he went to the restroom and returned to his seat.

    
    

24. The Respondent accused Wyatt of talking. When the student protested that he had not misbehaved, the Respondent grabbed Wyatt by the arm and began to lead him to the locker room office. Wyatt continued to verbally protest while Respondent held his arm. When they reached a row of lockers, the Respondent pushed Wyatt causing his back to strike the lockers. This incident was witnessed from several different vantage points by other students who were in the locker room that day.

    
    

25. When the Respondent pushed the student, Wyatt's back struck a metal clasp on the locker and an injury resulted.

    
    

26. Contact with the metal clasp caused a one to two inch scrape located just slightly to the right of the student's spine. Approximately eleven months after the incident, a faint scar is still visible.

27. Immediately following the incident, the Respondent ushered Wyatt to the locker room office and Assistant Principal, Richard Vail, was summoned to deal with the students. Mr. Vail arrived five to ten minutes after the beginning of sixth period. Mr. Vail spoke to the students about their misconduct, and sent them on to their respective class groups.

    
    

28. Wyatt approached Mr. Vail, showed him the injury to his back, and told him that the Respondent had pushed him into a locker. Mr. Vail asked the student if he wanted to go to the clinic. When Wyatt declined, Mr. Vail sent him on to join his class.

    
    

29. When Wyatt arrived at Ms. Carry's class she observed the injury and sent him to the office. Wyatt was subsequently sent to the clinic by Principal Ernest Bradley.

    
    

30. When Wyatt went home after school, his parents learned of the incident. The student's father brought him back to school that same day and spoke to Mr. Bradley and the Respondent. Wyatt's parents were upset about the injury.

    
    

31. The Respondent denies the incident entirely. He claims that he did not push or shove Wyatt in any way on March 20, 1992, and that he did not learn of the alleged incident until the end of the school day. The credible proof in this case is to the contrary.

    
    

32. The Respondent had difficulties controlling the students in his physical education class. Students in his class frequently acted disrespectfully and failed to follow his instructions. Such students challenged Respondent's authority and were disruptive.

    
    

33. Because of class rotation, the other physical education teachers had the same students at different times of the year. The other physical education teachers did not experience the difficulties with the frequency or the severity that the Respondent experienced. As a general rule, the students behaved themselves for Mr. Goldsmith, Ms. Pendergrast, and Ms. Carry. Of the four, only Respondent allowed the students to get out of control.

    
    

34. Mr. Townsend formally evaluated Respondent during the 1987-88 school year. Mr. Townsend specifically recommended that the Respondent seek help in the areas of student relations and discipline, and that he enroll in workshops for help with management of student conduct.

    
    

35. Mr. Townsend formally evaluated the Respondent during the 1988-1989 school year. Mr. Townsend's evaluation rated the Respondent "Satisfactory with Recommendation" in the area of Classroom Management and Discipline. Respondent was again advised to enroll in training programs for management and discipline.

    
    

36. Mr. Vail observed and evaluated the Respondent during the 1989-1990 school year. Mr. Vail observed the Respondent having difficulties in maintaining control of his class and supervising activities. Mr. Vail suggested methods of improving the structure of the class. He also suggested a different roll-taking method.

    
    

37. Mr. Vail's 1989-90 evaluation rated the Respondent as "Needing Improvement" in the area of classroom management and discipline. The Respondent received a "Satisfactory with Recommendation" in the areas of subject matter

    knowledge, planning and student relations. Mr. Vail also gave the Respondent verbal directives to exercise appropriate classroom management.

    
    

38. Mr. Vail evaluated the Respondent for the 1991-1992 school year. He observed the Respondent on March 9, 1992, and found several deficiencies with the Respondent's performance. Mr. Vail rated the Respondent as "Needs Improvement" in the areas of classroom management and discipline, planning and delivering instruction, student relations, and professional responsibilities and ethics. Mr. Vail categorized the Respondent as "Satisfactory with Recommendation" in the areas of subject matter knowledge, evaluation of instructional needs, and methods and techniques.

    
    

39. Throughout his tenure at Carver, the Respondent has been counseled concerning appropriate discipline techniques and given several opportunities to improve. The Respondent's ability to effectively manage the students did not improve. In short, he was unable to keep good order in his classroom. Respondent has received two reprimands and several directives regarding proper discipline of students.

    
    

40. Respondent is required to abide by the Code of Ethics of the Education Profession of Florida. Further, teachers are expected to adhere to reasonable directives issued to them by their supervisors. The Respondent received numerous verbal and written directives concerning the appropriate discipline and management of student conduct. These directives were reasonable and were within the scope of the school's authority.

    
    

41. Despite the directives, the opportunities to improve, and the offers of assistance, the Respondent did not improve in the areas of classroom management and student discipline.

    
    

42. The Respondent was warned of the impropriety of physical contact with students, yet subsequently pushed and injured a student. The incident involving Wyatt was in violation of the prior directives, and constituted insubordination and misconduct.

    
    

43. The Respondent's effectiveness as an employee of the Board has been substantially reduced. Despite several attempts to provide Respondent with assistance, he continued to use inappropriate discipline with students. Understandably, school personnel have lost confidence in Respondent's ability to manage a class, to the point where Respondent cannot return to the classroom.

    
    

44. Although the Respondent did not intentionally injure Wyatt, his indifference to the situation placed the student in danger. Respondent failed to protect the student from an avoidable injury. Respondent's use of force was unwarranted as the student did not present a harm to others or to the Respondent. Assuming Wyatt was one of the misbehaving students (which the evidence in this case does not support), force would not have been necessary to discipline a talkative student.

    
    

    CONCLUSIONS OF LAW

    
    

45. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, this case.

    
    

46. Petitioners bear the burden of proof. In the case of the Board, it must establish its burden by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3rd DCA 1990). In the case of the

    Commissioner of Education, she must establish her burden by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). Here, the respective parties have satisfied their burdens.

    
    

47. Section 231.28, Florida Statutes, provides, in part:

    
    

    Education Practices Commission; authority to discipline.

    1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or

       1. for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the

          holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period

          of time not to exceed 10 years, with reinstatement subject to the provisions of subsection (4);

          to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

          * * *

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

          2. Has breached a contract, as provided in s. 231.36(2); or

          3. 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.

48. Section 231.36, Florida Statutes, provides, in pertinent part: (1)(a) Each person employed as a member of

    the instructional staff in any district school

    system shall be properly certificated and shall be entitled to and shall receive a written contract as specified in chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of

    the contract only for just cause. Just cause includes, but is not limited to, misconduct

    in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    * * *

    1. Any person so employed on the basis of a written offer of a specific position by a duly authorized agent of the school board for a stated term of service at a specified salary, and who accepted such offer by telegram or

       letter or by signing the regular contract form, who violates the terms of such contract or agreement by leaving his position without first being released from his contract or agreement by the school board of the district in which

       he is employed shall be subject to the juris- diction of the Education Practices Commission. The school board shall take official action on such violation and shall furnish a copy of its

       official minutes to the Commissioner of Education.

       * * *

       (4)(a) An employee who has continuing contract status prior to July 1, 1984, shall be entitled to retain such contract and all rights arising therefrom in accordance with existing laws,

       rules of the State Board of Education, or any laws repealed by this act, unless the employee voluntarily relinquishes his continuing contract.

       1. 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 dis- missed or may be returned to annual contract status for another 3 years in the discretion of the school board, at the end of the school year, when a recommendation to that effect is submitted in writing to the school board on or before April 1 of any school year, giving good and sufficient reasons therefor, by the superintendent, by the principal if his con- tract is not under consideration, or by a majority of the school board. The employee whose contract is under consideration shall

          be duly notified in writing by the party or parties preferring the charges at least 5 days prior to the filing of the written recommendation with the school board, and such notice shall include a copy of the charges and the recommendation to the school board. The

          school board shall proceed to take appropriate action. Any decision adverse to the employee shall be made by a majority vote of the full membership of the school board. Any such decision adverse to the employee may be appealed by the employee pursuant to s. 120.68.

       2. 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 with-

       out 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 deter- mine 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.

       
       

49. Rule 6B-4.009, Florida Administrative Code, sets forth the criteria for suspension and dismissal and provides, in part:

    
    

    1. Misconduct in office is defined as a violation of the Code of Ethics of the Educational Profession in Florida 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.

    
    

50. Rule 6B-1.001, Florida Administrative Code, sets forth the Code of Ethics of the Education Profession in Florida, and provides, in part:

    
    

    1. Aware of the importance of maintaining

       the respect and confidence of one's colleagues, of students, of parents, and other members of the community, the educator strives to achieve

       and sustain the highest degree of ethical conduct.

       
       

51. Rule 6B-1.006, Florida Administrative Code, provides, in pertinent part:

    
    

    1. Obligation to the student requires that the individual:

       1. Make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

    * * *

    1. Obligation to the Profession of Education requires that the individual:

       1. Shall maintain honesty in all professional dealings.

    
    

52. The Petitioners have proven by clear and convincing evidence that the Respondent has pursued a course of conduct which has seriously reduced his effectiveness as a teacher with the Orange County school district. Respondent was given reprimands and several directives, following allegations of inappropriate discipline, and advised to refrain from shoving or using physical force to manage students. Respondent was also advised of management techniques and made aware of training services available to assist him further. Despite repeated directives, Respondent failed to maintain order in his classroom and, on a specific occasion, such failure led to the injury of a student.

    
    

53. Further, despite being advised not to use force in discipline, Respondent grabbed Johnny Wyatt by the arm and, by force, was directing him to the locker room office when the student's back was injured. Respondent's failure to follow a reasonable directive led to Wyatt's injury.

    
    

54. Understandably, the Board has lost confidence in Respondent. The use of force was inappropriate and Respondent was well aware of the consequences of such conduct. He had been counseled and warned that continued refusal to follow the directives would be grounds for dismissal. For whatever reason, Respondent was not able to comply. It was his responsibility to maintain class order and to protect his students from harmful conditions.

    
    

55. Of additional concern is Respondent's lack of remorse or concern regarding the severity of the allegations. An avoidable injury resulted from Respondent's behavior. Had he developed adequate classroom management or refrained from using force with the student, the incident complained of would not have occurred. Directives which are reasonable in nature must be met. Respondent's failure (or his inability) to comply resulted in a pattern of conduct which was unacceptable.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

As to case no. 92-3138, that the School Board of Orange County, Florida enter a final order dismissing the Respondent from his employment with the district.

As to case no. 92-6637, that the Education Practices Commission enter a final order placing the Respondent on probation for a period of not less than three years, requiring Respondent to successfully complete some remedial course of instruction related to class management and discipline of students, and to receive a letter of reprimand for the conduct established by this record.

DONE AND RECOMMENDED this 27th day of August, 1993, in Tallahassee, Leon County, Florida.

Joyous D. Parrish 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 27th day of August, 1993.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3138 and 92-6637

Rulings on the proposed findings of fact submitted by Petitioner, Orange County School Board:

1. The following paragraphs are accepted: 1 through 7, 9, 13, 15, 16, 18 through 33, 36 through 43, 45, 46, and 48.

2. Paragraph 8 is accepted with the deletion of the last sentence which is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent.

3. With regard to paragraph 10, it is accepted that Respondent received the directive noted otherwise rejected and not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior directives which have not been supported by competent evidence or an admission by the Respondent.

4. With regard to paragraph 11, it is accepted Respondent was adequately apprised of the consequences should his conduct continue; it is not accepted that such warning was in the form of a formal reprimand.

5. Paragraph 12 is rejected as irrelevant.

6. With the deletion of the last sentence which is rejected as irrelevant, paragraph 14 is accepted.

7. Paragraph 17 is rejected as irrelevant.

8. Paragraph 34 is rejected as argument or comment.

9. Paragraph 35 is rejected as irrelevant.

10. Paragraph 44 is rejected as irrelevant.

11. Paragraph 47 is rejected as vague or argument.

12. Paragraphs 49 through 52 are rejected as argument or irrelevant.

Rulings on the proposed findings of fact submitted by the Petitioner, Betty Castor:

1. The following paragraphs are accepted: 1, 3 through 10, 12, 14, 15, 16, 17, 18, 20, 21, 23 through 32, 34 through 38, 41 through 45, and 47.

2. Paragraph 2 is rejected as contrary to the weight of the credible evidence.

3. Paragraph 11 is not supported by direct evidence of the incident described; no finding is made as to the underlying facts related to prior

   directives which have not been supported by competent evidence or an admission by the Respondent.

4. Paragraph 13 is rejected as irrelevant.

5. With the deletion of the last sentence of the paragraph which is rejected as irrelevant, paragraph 19 is accepted.

6. With the deletion of the word "severely" which is rejected as vague or argumentative or contrary to the weight of the credible evidence, paragraph 22 is accepted.

7. Paragraph 33 is rejected as contrary to the weight of the credible evidence.

8. Paragraph 39 is rejected as argument.

9. Paragraph 40 is rejected as argument.

10. Paragraph 46 is rejected as argument or vague.

11. Paragraphs 48 through 51 are rejected as argument or irrelevant.

Rulings on the proposed findings of fact submitted by the Respondent:

1. The following paragraphs are accepted: 1, 2, 4, 5, 6, 17, 21 and 22.

2. Paragraph 3 is rejected as irrelevant. Respondent voluntarily accepted the position at Carver and was expected to fulfill his teaching responsibilities at that school.

3. Paragraph 7 is rejected as contrary to the weight of the credible evidence especially as to allegations that he "rarely reacted physically". The last sentence is accepted as accurate.

4. Paragraph 8 is rejected as irrelevant; the discipline options available to Respondent did not include using force.

5. Paragraph 9 is rejected as irrelevant.

6. With regard to paragraph 10, it is accepted that Respondent was offered courses to improve and that he may have attended same, he just didn't comply with the directives or improve his skills either through indifference or otherwise.

7. With regard to paragraph 11, it is accepted Respondent received a reprimand on the date in question for inappropriate discipline techniques; otherwise, rejected as irrelevant or contrary to the credible evidence.

8. With regard to paragraph 12, it is rejected as irrelevant or contrary to the weight of credible evidence.

9. With the deletion of the last sentence which is rejected as contrary to the weight of the credible evidence, paragraph 13 is accepted.

10. Paragraph 14 is rejected as repetitive, argumentative, or irrelevant.

11. Paragraph 15 is rejected as argument or irrelevant.

12. Paragraph 16 is rejected as argument or irrelevant.

13. Paragraph 18 to the extent that it suggests Respondent's action was in self-defense is rejected as contrary to the weight of the credible evidence and otherwise rejected as comment, argument, or irrelevant.

14. Paragraph 19 is rejected as unnecessary comment.

15. Paragraph 20 is rejected contrary to the weight of credible evidence.

16. Paragraph 23 is rejected as contrary to the weight of evidence, argumentative, or irrelevant.

17. Paragraph 24 is rejected as irrelevant. Mr. Wyatt's account of the incident at the hearing has been deemed credible and wholly accurate as to the incident that transpired in the locker room that date. Respondent's account, on the other hand, was not.

18. Paragraph 25 is rejected argumentative and contrary to the weight of credible evidence.

19. The first sentence of paragraph 26 is accepted; the remainder rejected as irrelevant.

20. Paragraph 27 is rejected as speculative, irrelevant, or argumentative.

21. With regard to paragraph 28, it is accepted that Respondent did not use inappropriate language; otherwise rejected as irrelevant or contrary to the weight of the credible evidence.

22. With the clarification that Wyatt did scrape his back on the locker and the rejection of the "allegedly" comment which is contrary to the weight of the credible evidence, paragraph 29 is accepted.

23. Paragraph 30 is rejected as contrary to the weight of the credible evidence.

24. Paragraph 31 is rejected as argumentative and irrelevant.

25. The first sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence.

26. Paragraph 33 is accepted to the extent is identifies Wyatt as the student injured by Respondent on March 20, 1992; otherwise rejected as irrelevant or contrary to the weight of the credible evidence.

27. Paragraph 34 is rejected as contrary to the weight of the credible evidence.

28. Paragraph 35 is rejected as irrelevant or contrary to the weight of the credible evidence.

29. Paragraph 36 is rejected as irrelevant or argument.

COPIES FURNISHED:

Tobe Lev, Esq.

EGAN, LEV & SIWICA, P.A.

Post Office Box 2231

Orlando, Florida 32802-2231

Roseanna J. Lee, Esq.

Frank C. Kruppenbacher, Esq. HONIGMAN MILLER SCHWARTZ AND COHN

390 N. Orange Avenue, Suite 1300 Orlando, Florida 32801

Margaret E. O'Sullivan, Esq. Jerry Moore, Administrator Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

Karen Barr Wilde, Exec. Dir.

301 Florida Education Center

325 W. Gaines Street Tallahassee, Florida 32399-0400

Donald Shaw, Superintendent Orange County Shool Board Post Office Box 271 Orlando, Florida 32802-0271

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.

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD,

Petitioner,

vs. DOAH CASE NO.: 92-3138

SCHOOL BOARD CASE NO.: 93-001

RUSSELL BINGHAM,

Respondent.

/

FINAL ORDER

THIS MATTER having come on to be heard on November 9, 1993 in open public session before THE SCHOOL BOARD OF ORANGE COUNTY, FLORIDA ("the School Board"), pursuant to notice, and the School Board, having heard argument of counsel and being fully advised in the premises, it is thereupon

ORDERED as follows:

1. The Respondent's Exceptions to the Hearing Officer's Recommended Order are hereby DENIED by a vote of 6-0.

   
   

2. The School Board, by a vote of 6-0, adopts as its final order in this cause the Recommended Order of the Hearing Officer dated August 27, 1993, a true copy of which is attached hereto.

   
   

3. A majority of the full membership of the School Board, having determined that the charges against Respondent, Russell Bingham, are sustained (as more fully set forth in the Recommended Order), Respondent is discharged, and his contract of employment is cancelled.

DONE AND ORDERED in Orlando, Orange County, Florida this 16th day of November 1993.

The School Board of Orange County, Florida

BY:

as its Chairman

Notice of Right to Judicial Review: All parties are hereby notified that, pursuant to Section 120.68, Florida Statutes, and the Florida Rules of Appellate Procedure, they have the right to judicial review of the Final Order by filing a petition with the district court of appeal in the appellate district where the School Board maintains its offices (the Fifth District Court of Appeal) or where the Respondent resides. The petition must be filed within 30 days of the date this Order is filed with the School Board's clerk.

NOTICE OF FILING WITH CLERK

This Final Order was filed with the Clerk of The School Board of Orange County, Florida on November 17, 1993.

The School Board of Orange County, Florida

BY:

as its Clerk

Copies to:

Roseanna J. Lee, Esquire Tobe Lev, Esquire

The Honorable Joyous D. Parrish

Docket for Case No: 92-003138

Orders for Case No: 92-003138