STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF DADE )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-7098

)

JOHN N. ACKLEY, )

)

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 April 21, 1994, in Miami, Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

School Board of Dade County

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley, P.A.

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

Whether Petitioner has just cause to terminate the professional service contract with Respondent on the grounds of immorality, gross insubordination and neglect of duties, and misconduct in office.

PRELIMINARY STATEMENT

At all times pertinent to this proceeding, the Respondent was a classroom teacher employed by the School Board of Dade County, Florida, (the School Board) pursuant to a professional service contract. On November 3, 1993, the School Board acted to suspend the Respondent's employment and initiated proceedings to terminate his employment pursuant to Section 231.36(4)(c), Florida Statutes.

Respondent timely filed a request for a formal administrative hearing and this proceeding followed. The School Board furnished its Specific Notice of Charges to Respondent on January 7, 1994. The Specific Notice of Charges corrected the statutory reference and advised Respondent that it was proceeding pursuant to Section 231.36(6)(a), Florida Statutes.

The Specific Notice of Charges alleged that Respondent was guilty of immorality, misconduct in office, and gross insubordination and willful neglect of duties, as those terms are defined by Rule 6B-4, Florida Administrative Code. The School Board also contends that Respondent's violations of School Board rules, contract provisions, and State Board of Education rules, and his alternative assignments leaving him without student contact, constitute just cause for dismissal.

At the hearing, the Board presented the testimony of the following witnesses: James Maisonnerve, student; Marie Pierre, parent; Wendy Steiner, teacher; Harold Meredith Jones, principal; Minnie T. Eckles-McNeal, principal; Rosetta Vickers, retired administrator, Berneva Bruton, teacher's aide; Willard Hart, retired teacher; Dedrick R. Whipple, Sr., paraprofessional; Felipe Garza, teacher; Annie Ferrell, teacher; and Dr. Joyce Annunziata, director in the Board's Office of Professional Standards (OPS). The Board's exhibits numbered 1 through 20 were admitted into evidence.

Respondent testified in his own behalf and presented the testimony of the following witnesses: Henry Marrow, custodian; and Minnie T. Eckles-McNeal.

Respondent offered no exhibits.

Without objection from Respondent, Petitioner was granted leave to file three post-hearing depositions of witnesses who had been scheduled to appear at the formal hearing, but who did not appear. Additionally, Respondent was granted leave to file a rebuttal deposition to those depositions. The depositions of Keyota Ragin, a student; Jacquelin Ragin, Keyota's mother; Bessie Adderly, Keyota's grandmother, and the rebuttal deposition of the Respondent have been accepted into evidence and have been considered in the preparation of this Recommended Order.

No transcript was filed. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was employed by the School Board pursuant to a professional service contract. He is certified to teach Elementary Education, grades K through 6. He began his employment with the School Board on October 10, 1983, and he was assigned at different times pertinent to this proceeding to Broadmoor Elementary School (Broadmoor), Allapattah Elementary School (Allapattah), Touissant L'Ouverture Elementary School (L'Ouverture), or an alternative assignment.

   
   

2. At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all free public schools within the School District of Dade County, Florida.

   
   

3. On April 3, 1989, while carrying out his duties as a teacher at Broadmoor, Respondent was involved in an incident with an eight year old third grade female student. The School Board initiated disciplinary proceedings against the Respondent that were subsequently referred to the Division of Administrative Hearings where it was assigned DOAH Case No. 89-3358. Following a formal hearing in DOAH Case No. 89-3358, a Recommended Order was entered which found Respondent guilty of misconduct in office and recommended that his employment be suspended without pay for ten days. The School Board adopted the Hearing Officer's Recommended Order as its Final Order on March 21, 1990. The Hearing Officer found that the Respondent and the child had accidentally fallen

   to the ground while the Respondent was using an inappropriate technique to restrain the child. The Hearing Officer further found that the Respondent had pushed the child back to the ground when she tried to stand after the fall. As a result of this incident, the student suffered scrapes on her face and a swollen lip. Pertinent to this proceeding, the Recommended Order contained the following statement, which may properly be considered to be a warning to the Respondent: ". . . a 250 pound man must demonstrate more caution and restraint in handling a third grade student." The School Board adopted this warning as a part of its Final Order and the warning served as a directive to the Respondent. The Hearing Officer in DOAH Case No. 89-3358 further found that Respondent's effectiveness as a teacher had been impaired as a result of that incident.

   
   

4. As a result of the incident involved in DOAH Case 89-3358, the Commissioner of Education and Respondent entered into a "Deferred Prosecution Agreement," to be implemented through the end of the 1990-91 school year. Respondent was directed to complete a college course in conflict resolutions, complete a college course in behavior management, to comply with all Board rules, State Board of Education rules and to perform his duties in a professional manner satisfactory to the Board and in compliance with the rules of the Florida Department of Education. Petitioner's Office of Professional Standards (OPS), through Dr. Joyce Annunziata, monitored the implementation of this agreement.

   
   

5. On March 21, 1990, the School Board entered its Final Order in DOAH Case No. 89-3358. Subsequent to that date, the Respondent was assigned to teach at Allapattah.

   
   

6. Respondent reported to work at Allapattah on March 23, 1990. He was given a faculty handbook and verbal directions concerning school procedures.

   The substitute teacher who had been assigned to the class previously, offered to update Respondent on each student, but Respondent rejected the help.

   
   

7. On April 4, 1990, Respondent, who is six feet tall and weighs approximately 250 pounds, towered over a small male student and yelled loudly at the student for chewing gum. He forced the student to stand in front of his class with his mouth open and pockets out.

   
   

8. On April 23, 1990, Respondent was formally observed in the classroom by his principal, Mr. Jones. Using the Board's Teacher Assessment and Development System (TADS), Mr. Jones rated Respondent unsatisfactory in preparation and planning and classroom management. Respondent's lesson plans were incomplete and lacked the required components. Respondent's students were off task and not paying attention when Mr. Jones observed the class.

   
   

9. On April 27, 1990, a conference for the record was held involving Respondent, Dr. Annunziata, Mr. Jones, and one other administrator. As conditions of his employment, Respondent was directed to participate in assertive discipline training and to undertake coursework through the Teacher Education Center (TEC) in classroom management, disciplinary techniques and skills for improving student behavior.

   
   

10. Respondent was prescribed help to improve his deficiencies. He was instructed to write lesson plans and review those plans with the grade level chairperson. Respondent was told to update his assertive discipline plan and to intervene quickly when off task or disruptive behavior occurred. He was instructed to read the TADS Prescription Manual for additional techniques and

    strategies to improvement classroom management. On April 27, 1990, the school counselor met with Respondent to review and reinforce assertive discipline techniques and to offer support and assistance.

    
    

11. On May 3, 1990, Respondent visited two fifth grade classes to observe classroom management techniques.

    
    

12. On May 8, 1990, Felipe Garza, a teacher and grade chairperson at Allapattah, heard a disturbance in Respondent's classroom and entered the classroom. A group of students had locked another student in a closet in the rear of Respondent's classroom. Respondent had told the students to let the student out of the closet, but his instruction had been ignored. Respondent remained seated at his desk and took no further action to release the student from the closet. It appeared to Mr. Garza that Respondent had no interest in restoring order to his classroom or in releasing the student from the closet. Because of Respondent's prior discipline by the School Board, he was reluctant to physically remove the student from the closet. Mr. Garza asked another student to let the child out of the closet and took steps to restore order to the classroom. Thereafter Mr. Jones, the principal, entered Respondent's classroom and order was immediately restored. Two students had actually been locked in the closet, but the other student had been let out of the closet before Mr. Garza came into the classroom. While neither student was placed in danger by being locked in the closet, it is clear that Respondent failed to maintain control over his classroom. Instead of using appropriate disciplinary techniques to restore order to his class, Respondent elected to take no action.

    
    

13. Following the incident on May 8, 1990, Mr. Jones referred Respondent to the Employee Assistance Program (EAP). The referral form indicated that the observed behavior causing the referral involved altercations with students and Respondent's exercise of poor judgment. Mr. Jones testified at the formal hearing that he had observed Respondent shouting at students, pulling and grabbing students, and hitting students. Respondent's students were disruptive, out of control, and running in the hallway. The students had been throwing objects, such as rubber bands, spitballs, and paperclips. Mr. Jones stated the following in his request for an evaluation of the Respondent:

    
    

    Please consider our request for a medical fitness determination on John Ackley, a fifth grade teacher at Allapattah Elementary School.

    Because of several incidents involving disruptive behavior and an atmosphere not conducive to our students's learning, we fear for the safety of our students.

    The classroom instructional program has suffered because of the off-task behavior of students and the inability of the teacher to redirect this behavior.

    
    

14. On June 20, 1990, a conference for the record was held with Respondent to address the incident of the students being locked in the closet. While the incident was being investigated, Respondent was placed on alternate assignment in the region office without student contact for approximately six weeks.

15. On July 18, 1990, Respondent was issued a letter of reprimand from Mr. Jones for allowing the two students to remain locked in the closet and for refusing to remove the students from the closet. Respondent was directed to maintain control and discipline of his students. He was directed to immediately implement appropriate procedures for insuring safety. He was "directed to refrain from using inappropriate procedures in dealing with inappropriate classroom behavior of students". He was directed to follow professional ethics and School Board rules. He was put on notice that any recurrence would result in additional disciplinary action.

    
    

16. Respondent's annual evaluation for the 1989-90 school year was overall unacceptable and was unacceptable in professional responsibility. He was rated unacceptable for failure to comply with school site rules and policies and for failure to perform assigned professional duties. He was directed to read the Code of Ethics of the Education Profession in Florida (Ethics Code) and the Principles of Professional Conduct for the Education in Florida (Professional Conduct Principles) and to delineate a written plan on ethics and how they would apply in his classroom daily. He was to review the staff hand book section on classroom discipline procedures. His salary was frozen at the previous year's level.

    
    

17. At Allapattah Respondent was unable to control the students in his classroom, which resulted in an atmosphere that was dangerous to students' learning and safety. His lack of control was the result of poor planning, an inability to communicate with the students, and the failure to use appropriate disciplinary techniques.

    
    

18. For the 1990-91 school year, and thereafter, Respondent was assigned to L'Ouverture where he was assigned to teach a "classroom indoor suspension" class. The "classroom indoor suspension" class consisted of students who had been disruptive of other classes and who could not be controlled by other teachers using ordinary means. 1/

    
    

19. On January 15, 1993, James Maisonnerve, a fourth grade student at L'Ouverture, was fighting and hitting other students in the cafeteria. James often caused trouble at school and his mother had difficulty disciplining him at home. Respondent, who was on duty at the cafeteria, forced James to sit down next to him and restrained James by placing James' arm under his (Respondent's) leg. James tried to escape from the Respondent and, in the process, twisted his arm. James was injured as a result of this incident and he experienced pain. When James came home from school, his mother observed that his hand was swollen and called the police. A fire-rescue unit was called and he was taken to Jackson Memorial Hospital where x-rays revealed no fracture. His arm was swollen and had to be bandaged. Petitioner alleged that Respondent twisted James's arm, causing the injury. It is found that the injury occurred when James tried to free himself from this restraint and that Respondent did not intentionally twist James's arm. It is further found that the technique used by Respondent to restrain James was inappropriate.

    
    

20. Keyota Ragin was a fourth grade student at L'Ouverture during the 1992-93 school year and was, at the time pertinent to this proceeding, approximately three feet six inches tall and weighed approximately 60 pounds. Keyota frequently caused trouble. Keyota testified Respondent had, on May 25, 1993, grabbed her by her arm and pushed her into the line so that her jaw hit another boy's head. Keyota also testified that when she stepped out of line again and laughed, Respondent hit her with his fist on the top of her head. Keyota testified that her injuries hurt and caused her to cry. Keyota further

    testified that when she returned to Respondent's classroom, Respondent grabbed her by the arm and put her in the corner and that he later grabbed her by the hair and pulled her across the room to her seat. Keyota's face was swollen when she arrived at home after school, and her mother called the police.

    
    

21. Respondent testified that Keyota was hit in the face by a fellow student named James. Respondent denied that he pushed Keyota into another student, that he struck her, that he grabbed her, or that he pulled her hair. Respondent's denial is just as credible as Keyota's version of the incident. Consequently, it is found that Petitioner failed to establish that Respondent pushed, struck, grabbed, or pulled the hair of Keyota.

    
    

22. While this incident was being investigated, Respondent was placed on alternative assignment for one month and was out of contact with students. For the entire semester, he only worked in a classroom for six weeks.

    
    

23. Wendy Steiner, a friend and fellow teacher of the Respondent at L'Ouverture, observed Respondent forcing students to stand with their arms outstretched while holding books and she also observed Respondent restraining students by leaning against them. These are inappropriate disciplinary techniques.

    
    

24. Respondent's annual evaluation for the 1992-93 school year was overall unacceptable and unacceptable in the category of professional responsibility. Respondent was found deficient because he failed to comply with Board policy and rules regarding corporal punishment and employee conduct and because he violated the labor contract provisions concerning student discipline and instructional planning. He was also found deficient in following the Ethics Code and the Professional Conduct Principles. He was found deficient in compliance with site directives concerning the use of physical means to effect discipline and maintaining a safe learning environment for students. He was given a prescription to help him over come his deficiencies.

    
    

25. During the last three years of employment, Respondent has spent approximately one year at alternate assignments, without student contact, pending investigations. He received his full teacher's salary during those alternate assignments.

    
    

26. The Respondent's effectiveness as a teacher in the Dade County School System has been impaired by his continued use of inappropriate disciplinary techniques and his service to the School Board has been unproductive. Respondent has exercised poor judgment after repeated efforts to train him in the use of appropriate disciplinary techniques. Respondent's rough handling of

    students has received notoriety in the school and in the community. His conduct has reflected poorly on himself and on the school system.

    
    

27. The Board has also adopted School Board Rule 6Gxl3-5D-l.08 which provides teachers the authority to direct and discipline students and requires teachers to keep good order in the classroom and in other places in which responsibility for students is assigned. The Board has also adopted School Board Rule 6Gxl3-5D-l.07 which prohibits the corporal punishment of students.

    
    

28. On November 3, 1993, the School Board suspended Respondent's employment without pay and initiated these dismissal proceedings against him.

    CONCLUSIONS OF LAW

    
    

29. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(l), Florida Statutes.

    
    

30. Petitioner has the burden of proving by a preponderance of the evidence the allegations contained in the 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).

    
    

31. The Specific Notice of Charges alleges there is just cause for Respondent's suspension and dismissal and that Respondent is guilty of immorality, gross insubordination and willful neglect of duties, and misconduct in office within the meaning of Section 231.36(6)(a), Florida Statutes.

    
    

32. Pursuant to Section 23l.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.

    
    

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

    
    

    1. 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.

    2. 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.

    3. 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.

34. 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.

          
          

35. Petitioner established that Respondent repeatedly failed to exercise proper professional judgment in dealing with disciplinary problems. On some occasions, Respondent ignored discipline problems and permitted his students to act out of control. When he attempted to discipline students, he handled the students in a rough and demeaning manner that was contrary to School Board policy and contrary to explicit instructions that had been given to him. Respondent failed to make a reasonable effort to protect his students from conditions harmful to learning and to their physical health and safety. Petitioner established that Respondent violated the provisions of Rule 6B- 1.006(3)(a) and (e), Florida Administrative Code, and that the violations were so serious as to impair his effectiveness in the school system. Consequently, it is concluded that Petitioner has established by the greater weight of the evidence that Petitioner engaged in misconduct in office.

    
    

36. Petitioner argues that the same acts that establish misconduct in office also establish "immorality" within the meaning of Rule 6B-4.009, Florida Administrative Code. That argument should be rejected since the findings contained herein do no establish "conduct that is inconsistent with the standards of public conscience and good morals." Instead, the findings establish that Respondent was guilty of "misconduct" as found above.

    
    

37. Petitioner also established that Respondent's conduct in continuing to use inappropriate disciplinary and restraint techniques after having been repeatedly told to use only techniques approved by the School Board constitutes "gross insubordination or willful neglect of duties" within the meaning of Rule 6B-4.009, Florida Administrative Code. See, Johnson v. School Board of Dade County, Florida, 578 So.2d 387 (Fla. 3d DCA 1991).

    
    

38. Petitioner also argues that it has just cause to terminate Respondent's employment because Respondent was frequently on alternate assignment pending investigation of the various incidents involved in this proceeding, thereby rendering his service nonproductive. It was, however, Petitioner's prerogative to place Respondent on alternate assignment or to keep him in the classroom. It was also the Petitioner that controlled the scope and duration of the investigations. The fact that Respondent was placed on alternate assignment pending investigations does not provide a separate basis to terminate his contract of employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Dade County, Florida issue a Final

Order which adopts the findings of fact and the conclusions of law contained herein and which sustains the suspension without pay of John N. Ackley and which terminates his professional service contract with the School Board of Dade County, Florida.

DONE AND ENTERED this 14th day of June, 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 14th day of June, 1994.

ENDNOTE

1/ There was no explanation why a teacher with Respondent's history of problems with discipline and control was assigned to the classroom indoor suspension class.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7098

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

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 7, 9, 11, 12, 13, 14, 15, 17, 18, 19, 21, 24, 27, 29, 30, 31, 33, 34, 35, 38, 39, and 40 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 6, 8, 20 and 32 are subordinate to the findings made.

3. The proposed findings of fact in paragraphs 16, 36, and 37 are rejected as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraphs 22, 23, and 25 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made.

5. The proposed findings of fact in paragraphs 26 and 28 are adopted in part by the Recommended Order, but are rejected to the extent they are unnecessary to the conclusions reached.

The following rulings are made as to the proposed findings of fact submitted by the Respondent.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 6, 7, 8, 9, 10, and 12 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraphs 5, 11, and 14 are subordinate to the findings made.

3. The proposed findings of fact in paragraphs 13 and 15 are rejected as being unnecessary to the conclusions reached since it is found that the Petitioner, as the party with the burden of proof, failed to establish its factual allegations as to these incidents.

COPIES FURNISHED:

Madelyn P. Schere, Esquire School Board of Dade County Suite 301

1450 Northeast Second Avenue Miami, Florida 33132

William Du Fresne, Esquire Du Fresne and Bradley, P.A. Suite One

2929 Southwest Third Avenue Miami, Florida 33129

Octavio J. Visiedo, Superintendent School Board of Dade County

Suite 301

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: 93-007098

Orders for Case No: 93-007098