STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5862

)

KENNETH PATTERSON, )

)

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 June 8, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Reginald J. Clyne, Esquire

Williams & Clyne, P.A.

2600 Douglas Road, Suite 1102 Coral Gables, Florida 33134

For Respondent: Kenneth C. Patterson, pro se

11031 Southwest 171 Terrace

Miami, Florida 33157 STATEMENT OF THE ISSUES

Whether Respondent's professional service contract with Petitioner should be terminated on the grounds of immorality, incompetency due to inefficiency, gross insubordination, or misconduct in office.

PRELIMINARY STATEMENT

At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher pursuant to a professional service contract. On September 22, 1993, Petitioner suspended Respondent's employment and initiated proceedings to terminate his employment pursuant to the provisions of Section 231.36, Florida Statutes. By its Second Amended Administrative Complaint, Petitioner alleged certain facts pertaining to the Respondent's job performance and asserted that Respondent was guilty of immorality, incompetency due to inefficiency, gross insubordination, and misconduct in office as those terms are defined by Rule 6B-4.009, Florida Administrative Code. Respondent demanded a formal hearing as to these allegations, and this formal proceeding before the Division of Administrative Hearings followed.

At the formal hearing, Petitioner presented the testimony of five student witnesses and the testimony of Shirley Layow, Ava Innerarity, Ana Drew, Barbara Glick, Kenneth Patterson, George Cosgrove, and Stacey W. Jones. Ms. Layow, Ms. Innerarity, Ms. Drew, Ms. Glick, Mr. Cosgrove, and Mr. Jones were all employed by Petitioner and worked at McMillan Middle School at the times pertinent to this proceeding. Ms. Layow was employed as a guidance counselor, Ms.

Innerarity, Ms. Drew, and Ms. Glick were employed as teachers, Mr. Cosgrove was the assistant principal, and Mr. Jones was the principal. Mr. Jones also served as the agency representative at the formal hearing. Petitioner introduced three exhibits, each of which was accepted into evidence. Respondent did not call any witnesses and did not present any exhibits.

At the request of the Petitioner, official recognition was taken of Petitioner's rules 6GX13-4A-1.21, 6GX13-4A-1.211, and 6GX13-5D-1.07, and of Department of Education Rules found at Sections 6B-1.001, 6B-1.0016, and 6B- 4.009, Florida Administrative Code.

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 was first employed by Petitioner as a substitute teacher beginning June 8, 1990. Since August 1990, and at all times pertinent to this proceeding, Respondent was employed by Petitioner as a full-time teacher pursuant to a professional service contract and assigned to McMillan Elementary School.

   
   

2. Petitioner is charged with the duty to operate, control, and supervise all free public schools within the School District of Dade County, Florida. McMillan Elementary School is a public school in Dade County under the control of the Petitioner.

   
   

3. During the 1992-93 school year, Respondent routinely began one of his sixth grade math classes by telling jokes to his students and, at times, sang to his class songs that contained obscene lyrics. Many of these jokes contained obscenities and ethnic slurs. In addition to telling these jokes during class, Petitioner permitted his students to tell these same type jokes. This joke telling time was referred to as "joke-off" and took place in lieu of classroom instruction.

   
   

4. During the 1992-93 school year, Respondent permitted male students to draw pictures of naked females and told one student he should enlarge the figure's breasts.

   
   

5. During the 1992-93 school year, Respondent made inappropriate comments to a group of sixth grade girls, teasing them about having small breasts and buttocks. Respondent referred to these girls as the "itty bitty titty committee".

   
   

6. During the 1992-93 school year, Respondent discussed with his students two sexual encounters he had experienced.

   
   

7. During the 1992-93 school year, Respondent gambled with certain students while playing basketball and sold donuts and pencils to students.

8. During the 1992-93 school year, Respondent engaged in prohibited corporal punishment by flicking students on their ears, by twisting a student's nose, and by throwing a student against the wall outside of his classroom. Respondent lifted a student off the ground by his ankles, thereby hanging the student upside down. These acts constituted inappropriate corporal punishment of students.

   
   

9. During the 1992-93 school year, Respondent gave certain male students "wedgies" by lifting the students up by their underwear. While this activity may have been done in a playful spirit, this conduct was inappropriate and exposed the students involved to unnecessary embarrassment.

   
   

10. During the 1992-93 school year, Respondent told a female student in the presence of other students that she was "full of feces and excrement." Respondent also told this student, who is of African-Caribbean heritage, that her race was unclear because she had Caucasian hair and an African nose. Respondent told this student that she had "jungle fever" because she dated a Caucasian boy. These statements to this female student were inappropriate and exposed the student to unnecessary embarrassment.

    
    

11. During the 1992-93 school year, Respondent was habitually tardy or absent. Respondent was also frequently absent from his classroom while he conducted business unassociated with his duties as a classroom teacher. The principal and assistant principal had repeated conferences with Respondent about his attendance.

    
    

12. During the 1992-93 school year, Respondent was habitually late to team meetings, failed to bring his grade book to conferences, and appeared to be sleeping during parent conferences. Respondent entered final grades for his students in an arbitrary fashion without referencing his grade book.

    
    

13. The assistant principal reprimanded Respondent for eating in class, being absent from the classroom, and not applying approved methods for student grading.

    
    

14. Following the suspension of his employment, Respondent was directed not to be on school grounds. Respondent violated this directive. He was arrested for trespassing and reprimanded by the assistant principal. The trespassing charges were subsequently dropped.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding.

    
    

16. Petitioner has the burden of proving by a preponderance of the evidence the allegations contained in the Amended Specific Notice of Charges. See, Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981), Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990), and Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3d DCA 1990).

    
    

17. The Amended Specific Notice of Charges alleges there is just cause for Respondent's suspension and dismissal and that Respondent is guilty of immorality, incompetency due to inefficiency, gross insubordination, and misconduct in office within the meaning of Section 231.36(6)(a), Florida Statutes.

18. Pursuant to Section 231.36(6)(a), Florida Statutes, the employment of a member of the instructional staff with a professional service contract may be terminated for just cause, which is defined in Section 231.36(1)(a), Florida Statutes, as being:

    
    

    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.

    
    

19. Rule 6B-4.009, Florida Administrative Code, provides the following definitions that are pertinent to this proceeding:

    
    

    1. Incompetency is defined as an inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity

       . . . . Such judgment shall be based on a preponderance of the evidence showing the existence of one (1) or more of the following:

       1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); repeated failure to communicate with and relate to children in the classroom,

          to such an extent that pupils are deprived of minimum educational experience. . . .

          * * *

    2. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct

       sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    3. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, FAC, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-l.006, FAC, which is so serious as to impair the individual's effectiveness in the school system.

    4. 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.

20. Rule 6B-1.006, Florida Administrative Code, contains the Principles of Professional Conduct for the Education Profession in Florida and provides, in pertinent part, as follows:

    
    

    1. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's

       certificate or the other penalties as provided by law.

    2. Obligation to the student requires that the individual:

       1. Shall 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.

    * * *

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    * * *

    1. Shall not harass or discriminate against any student on the basis of race, color, religion,

       sex, age, national or ethnic origin . . . or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

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

    
    

21. Petitioner established by a preponderance of the evidence that the Respondent was guilty of incompetency due to inefficiency within the meaning of Section 231.36(6)(a), Florida Statutes, by establishing that Respondent used classroom time for inappropriate activities, such as the daily joke-off, that were unrelated to the material he was suppose to be teaching and by his failure to follow appropriate grading procedures.

    
    

22. Petitioner established by a preponderance of the evidence that Respondent was repeatedly guilty of misconduct within the meaning of Section 231.36(6)(a), Florida Statutes, by telling jokes with obscenities and ethnic slurs to his students, by permitting and encouraging male students to draw naked females, by making disparaging remarks to young girls, by making inappropriate comments about a student's ethnic background, by discussing his sexual encounters with students, by using inappropriate disciplinary techniques, and by failing to follow directives pertaining to grading.

    
    

23. It is further found that telling these obscene jokes, discussing sexual encounters with students, referring to a group of female students as the "itty bitty titty committee", and encouraging male students to draw pictures of naked females constitutes immorality, as that term is defined by Rule 6B- 4.009(2), Florida Administrative Code. Although "immorality" is not a separately listed ground for the termination of a professional service contract, the grounds listed in Section 231.36(1)(a), Florida Statutes, is not intended to exclude all grounds not listed therein. It is concluded that under the circumstances of this case, Respondent's immoral conduct constitutes good cause for the termination of Respondent's professional service contract.

24. Petitioner established that Respondent was guilty of gross insubordination within the meaning of Section 231.36(6)(a), Florida Statutes, by his failure to follow the directives of the school administrators and by his coming on to school property after having been specifically directed to stay off the school premises.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

fact and the conclusions of law contained herein and terminates Respondent's professional service contract.

DONE AND ENTERED this 17th day of August, 1994, 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 17th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5862

The following rulings are made on the proposed findings of fact submitted by the Petitioner:

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

2. The proposed findings of fact contained in paragraphs 3-9 consist of the recitation of testimony that is subordinate to the findings made.

The following rulings are made on the proposed findings of fact submitted by the Respondent:

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

2. The proposed findings of fact in paragraphs 3, 4, 5, 6, and 10 are rejected as being argument that is unnecessary as findings of fact and, in part, contrary to the conclusions reached. Respondent failed to establish that the Petitioner violated any orders pertaining to discovery as asserted in paragraph 6.

3. The proposed findings of fact in paragraphs 7, 8, 9, 11, 15, 16, and 17 are rejected as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraphs 12 and 13 are rejected as being unsubstantiated by the evidence.

5. The proposed findings of fact in paragraph 14 are subordinate to the findings made.

COPIES FURNISHED:

Reginald J. Clyne, Esquire Williams & Clyne, P.A.

1102 Douglas Centre, Suite 1102

2600 Douglas Road

Coral Gables, Florida 33134

Mr. Kenneth C. Patterson Post Office Box 161786 Miami, Florida 33116

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast Second Avenue Miami, Florida 33132

Madelyn P. Schere, Esquire School Board of Dade County 1450 Northeast Second Avenue Miami, Florida 33132

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

Docket for Case No: 93-005862

Orders for Case No: 93-005862