STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-0964

)

JOHN BENAVIDEZ, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided and on May 16, 1997, a formal hearing was conducted in this case. Authority for conducting the hearing is set forth in Sections 120.56(9) and 120.57(1), Florida Statutes (1996 Supp.). The hearing location was The M. C. Blanchard Building, 190 Governmental Center, Pensacola, Florida. Charles

C. Adams was the administrative law judge.

APPEARANCES

For Petitioner: John L. Hammons, Esquire

Hammons and Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

For Respondent: John Benavidez, pro se

10141 Vixen Place

Pensacola, Florida 32514 STATEMENT OF ISSUES

Should Petitioner suspend Respondent without pay for three

(3) days for inappropriately physically restraining a student in mid-December, 1996, while Respondent was employed at Tate High

School?

PRELIMINARY STATEMENT

Petitioner, through Jim May, Superintendent of Schools for Escambia County, notified Respondent that it intended to discipline Respondent in the manner previously described. The notification was by correspondence dated January 22, 1997. The notice provided Respondent the opportunity to contest the proposed agency action calling for imposition of the discipline. Respondent requested an administrative hearing to contest the allegations calling for his suspension. That notice of contest was provided on January 29, 1997. The case was referred to the Division of Administrative Hearings to conduct a formal hearing consistent with Section 120.57, Florida Statutes. That request was received by the Division on February 24, 1997.

Originally, the case was assigned to P. Michael Ruff, Administrative Law Judge. Subsequently the case was heard before the undersigned on the aforementioned date.

At hearing Petitioner presented the testimony of Carolyn Spooner, Principal at Tate High School, and Roy Ikner, Assistant Principal at Tate High School. Petitioner's Exhibits 1 through 5 were admitted. Respondent testified in his own defense and presented the testimony of Vanetta Webb, Escambia County School Board member. Respondent's Exhibits 1 and 2 were denied admission. Respondent's Exhibits 3 through 6 were admitted.

A hearing transcript was prepared and filed with the Division of Administrative Hearings on May 27, 1997.

Petitioner filed a proposed recommended order on June 12, 1997, which has been considered in preparing the recommended order. Respondent did not offer a proposed recommended order.

FINDINGS OF FACT

1. At all times relevant to the inquiry, Respondent was an instructional employee of the Escambia County School Board. In this capacity he served as a physical education teacher. He also coached football and track.

2. Respondent has been in the teaching profession for more than 21 years. The majority of that service has been in the states of Alabama and Georgia. Respondent has been employed in the Escambia County School District for approximately two years.

3. On March 14, 1996, Respondent received a reprimand from Jim May, Principal of Tate High School. Tate High School is in Gonzalez, Florida, and is part of the Escambia County School District. The letter of reprimand stated:

   I am writing this letter of reprimand in regards to an incident that occurred at Tate High School on March 12, 1996. It is my findings [sic] that you put your hands on a student and physically forced him in a chair by grabbing him by the elbow. You should never put hands on a student unless to prevent bodily harm to himself or to others. These actions were inappropriate and must not reoccur.

   
   

   Any further actions of this sort on your part will result in serious disciplinary action to

   you, including possible suspension or termination.

   
   

4. In the fall term 1996 Mr. May met with coaches, to include Respondent, and reminded the coaches not to put their hands on students for any reason in relation to involvement between the coaches and student athletes. This meeting was occasioned by an incident between another coach and a student.

5. The policy which prohibits a teacher from putting his or her hands on a student except to prevent harm to the teacher or to others, is a policy that has application throughout the Escambia County School District.

6. When Respondent was reprimanded on March 14, 1996, Carolyn Spooner, the present Principal at Tate High School, told the Respondent, that he should have allowed the student whom he forced into a chair to walk out of the classroom, as opposed to forcing the student into the desk chair. It was the student's intention to leave the classroom before Respondent forced the student into the chair. If the student had been allowed to leave, Respondent was advised by Ms. Spooner, that the Respondent could have sent a referral to the Dean or sent for a Dean to offer assistance. The referral practice, as contrasted with physical restraint, is the policy for the Escambia County School District.

7. While the Student Handbook describing rights and responsibilities for students in the School District of Escambia

   County in the 1996-97 School Year contemplates possible corporal punishment, the school district does not impose corporal punishment for high school students. In any event the imposition of corporal punishment is not conducted ad hoc through the instructional staff. It may only be conducted through means established by guidelines for administering such punishment, which establish the nature of the punishment to be administered, under what conditions, and by whom.

8. Notwithstanding the admonitions to Respondent to refrain from placing his hands on students other than in the limited circumstances described, Respondent violated those instructions and acted contrary to the school district policy. This incident occurred on December 10, 1996, at Tate High School while Respondent was teaching a physical education class. On that date a student was less than cooperative in his participation in the physical education class. Basically, the student was unwilling to participate. There was some question about the student's ability to participate. This circumstance followed a history of the student not participating and having provided written excuses from his mother relieving him of the responsibility to participate in the physical education class. Nonetheless, on this date, Respondent felt that the student should walk, while other students played softball. At some point during this episode the student sat on some bleachers at the athletic field and refused to walk as he had been instructed to do by the

   Respondent. Respondent took the student by the elbow and "helped" the student down from the bleachers. They then commenced to walk around the practice field with Respondent holding the student by the arm. The student pulled away from the Respondent and stated words to the effect that he was not going to do anything on the field that he did not want to do.

   Respondent sent the student to the "office" to be punished, but the Respondent did not write a referral as required by school district policy.

9. As a result of the Respondent placing his hands on the student's arm, the student received bruises on the underside of his left arm that left dark spots. That injury was reported by the student's mother. The marks that were left on the underside of the student's arm were still visible the following day.

10. The incident was investigated by Ms. Spooner and Roy Ikner, Assistant Principal at Tate High School.

11. On December 13, 1996 Ms. Spooner, as Principal for Tate High School, gave notice to Respondent that disciplinary action was being considered for "grabbing the student by the arm."

12. Ms. Spooner met with the Respondent on December 16, 1996. In that meeting Respondent did not, and does not now, deny putting his hands on the student.

13. Eventually Jim May, who had been elected superintendent of schools, gave notice to Respondent on January 22, 1997, that the superintendent was recommending the imposition of a three-day

    suspension without pay for the incident with the student that took place on December 10, 1996. The nature of the alleged misconduct was inappropriate physical restraint of the student.

14. The facts reveal that Respondent inappropriately physically restrained the student on December 10, 1996, in violation of earlier instructions from his supervisor to refrain from that conduct.

15. Other than the letter of reprimand and the incident at issue in this case, no other proof has been offered concerning prior discipline of the Respondent. The Respondent in his defense presented assessment system evaluations for the school years 1995-96 and 1996-97, in which he has been found to be a satisfactory teacher overall and has exceeded expected performance in parts of the performance evaluations.

    CONCLUSIONS OF LAW

    
    

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

17. Petitioner has accused Respondent of misconduct through inappropriate physical restraint of a student on December 10, 1996, while Respondent was employed at Tate High School. Petitioner must prove that allegation by a preponderance of evidence. It has met that proof.

18. Respondent knew that he should not place his hands on a student other than to prevent bodily harm to himself or to

others. He had been told this twice. He was told once through the letter of reprimand on March 14, 1996, and on the second occasion when participating in a meeting with Mr. May attended by Respondent and other coaches. The incident with the student did not involve a risk of bodily harm to Respondent or to others.

Nonetheless, Respondent, contrary to the Escambia County School District policy, inappropriately physically placed his hands on the student, as opposed to referring the student for discipline. Respondent's actions on December 10, 1996 constituted misconduct. Through the progressive discipline that is employed within the Escambia County School District, it would be appropriate to suspend the Respondent for this incident. A three-day suspension, as recommended by the superintendent, is not inappropriate.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is,

RECOMMENDED:

That a final order be entered which finds Respondent guilty of misconduct by the inappropriate physical contact with a student on December 10, 1996, and suspends Respondent without pay for three days.

DONE AND ENTERED this 1st day of July, 1997, in Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1997.

COPIES FURNISHED:

John L. Hammons, Esquire Hammons and Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

John Benavidez 10141 Vixen Place

Pensacola, Florida 32514

Jim May, Superintendent

School District of Escambia County

215 West Garden Street Post Office Box 1470

Pensacola, Florida 32597-1470

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-000964

Orders for Case No: 97-000964