ROBERT . BLUBAUGH, as )
vs. ) CASE NO. 77-903
Respondent. )
This case was heard on June 30, 1977, in the Conference Room of the School Board Offices located at 1260 South Florida Avenue, Rockledge, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings. This case was presented upon a complaint filed by the Superintendent of Brevard County, Florida, against Lee Mace, an instructional employee of the School District of Brevard County, alleging misconduct in office by Mace on or about April 27, 1977, at Melbourne High School, Brevard County, Florida, by unlawfully striking a student, George C. Suarez, on school property during school hours, contrary to the provisions of Section 231.36(6), Florida Statutes.
For Petitioner: Mark F. Kelly, Esquire
For Respondent: William C. Walker, Esquire
3435 S. Hopkins Avenue Post Office Box 1084 Titusville, Florida 32780
Whether Lee Mace struck Suarez and is thereby guilty of misconduct in office contrary to the provisions of Section 231.36(6), Florida Statutes.
Petitioner, Robert L. Blubaugh, is the superintendent of the School District of Brevard County, Florida.
Respondent, Lee Mace, is a member of the instructional staff of the School Board of Brevard County, Florida, employed pursuant to a continuing contract of employment.
On or about May 10, 1977, at a meeting of the School Board of Brevard County, Florida, Petitioner recommended to the School Board that Respondent be
dismissed from employment. This recommendation was based upon reports that Respondent had, on or about April 22, 1977, struck a student, George Suarez, on the premises of Melbourne High School in Brevard County, Florida. The Board acted upon the Petitioner's recommendation and suspended the Respondent with pay pending an evidentiary hearing pursuant to the provisions of Florida Statutes 231.36(6), upon the allegations asserted by the Petitioner. The School Board further voted to seek the appointment of a hearing officer the Division of Administrative Hearings for the purpose of conducting a hearing on the Petitioner's allegations. The School Board's action was set out in a complaint and request for hearing, dated May 18, 1977, and forwarded to the Division of Administrative Hearings. The Division of Administrative Hearings assigned Stephen F. Dean as Hearing Officer in this matter. Notice of formal hearing was given for a hearing to be conducted on June 30, 1977.
George Suarez was a student at Melbourne High School in Brevard County, Florida. He had been a member of the track team at Melbourne High School coached by the Respondent. Immediately prior to April 22, 1977, Suarez quit the track team. This was Suarez's third resignation from the team during the 1977 school year. On April 22, 1977, the Respondent entered the classroom of Ned Brown between second and third period at approximately 9:30 a.m. He asked George Suarez to come into the hall, and Suarez refused. Respondent then sought permission of Ned Brown to enter his classroom and speak with Suarez. He was granted this permission and spoke to Suarez concerning his return of track equipment issued to Suarez. Suarez refused to return the track equipment alleging that the Respondent had entered his track locker and given away his personal belongings to other members of the track team. The Respondent told Suarez that his belongings had been removed from his track locker but had been placed in Respondent's file cabinet in his office where he could pick them up upon return of his track equipment. During this exchange, the discussion became more heated and following New Brown's suggestion, Mace began to leave the classroom. At this time, Suarez called out to Mace words to the effect, "Why don't you beat me up like you said you would?" The Respondent, continuing to leave the room, said to Brown words to the effect, "Scum like him isn't worth beating up" and continued to leave the classroom. At this point, Suarez shouted at Mace, "You are the scum." Mace questioned Suarez concerning what he had said. The testimony of the various witnesses concerning what occurred immediately thereafter is somewhat conflicting, but there is general agreement that Suarez, who had been sitting, jumped to his feet and while doing so or immediately thereafter, Mace struck him cuting Suarez's lip. The witnesses' testimony indicates that Suarez aggressively jumped from his seat to confront Mace, and that Suarez had a reputation for being quick tempered and for fighting. However, Mace admits that Suarez never struck at him. The witnesses' testimony generally agreed that the Respondent had not struck Suarez a deliberate forceful blow, based upon their observations and the fact that the Respondent, a man with the strength and build of a professional athlete, would have severely hurt Suarez had that been his intention. There is no dispute concerning the relevant facts concerning what immediately followed the physical contact between the Respondent and Suarez.
Lee Mace enjoys a good reputation as an instructor and coach at Melbourne High School among the students, faculty, and parents. His reputation is based upon his working with student athletic teams and bringing the members of these teams together in activities which build character and which are morally uplifting. The evidence in this case indicates that he had given a great deal of personal attention, and had arranged to provide special coaching to George Suarez in an effort to keep him interested in athletics as a means of self expression to overcome Suarez's disciplinary and academic problems. Mace
had also spent many hours of his own time in repainting the football stadium at Melbourne High School and making improvements to the student locker rooms.
CONCLUSIONS OF LAW
Robert L. Blubaugh, Superintendent of the Brevard County School System, is authorized under the provisions of Chapter 231 to make a recommendation of dismissal or suspension of any member of the instructional staff based upon charges of misconduct in office by the instructor. The School Board of Brevard County by majority vote of the full membership may sustain the recommendation of the superintendent. See Section 231.36(6), Florida Statutes.
The School Board of Brevard County is authorized to refer to the Division of Administrative Hearings to conduct a formal hearing of cases arising under Section 231.36, Florida Statutes.
Notice was provided to all parties to this action pursuant to the provisions of Chapter 120, Florida Statutes.
The superintendent has recommended the dismissal of Lee Mace, an instructor in the Brevard County School System, has committed acts constituting misconduct in office which impairs his future effectiveness as an instructor in Brevard County School System. The evidence shows that on April 22, 1977, Mace did strike George Suarez, a student at Melbourne High School, on the premises of said school. The superintendent has cited several cases in its proposed recommended order as examples of conduct constituting misconduct in office of a nature which would impair the effectiveness of an instructor. These cases involved instructors found to have illegally possessed gambling equipment, taken unauthorized leave, falsified records, and commented upon sex in class. Obviously misconduct in office would include any conduct reflecting adversely upon an instructor's morals and character or directly relating to the instructor's duties in the classroom.
A charge of simple assault dose not per se reflect adversely on an instructor's moral turpitude. However, mistreatment of students is a proper basis for a charge under Section 231.36(6) because it relates directly to teaching duties.
Lee Mace has interposed to the charges against him a defense of privilege by self defense. Mace asserts that the conduct of George Suarez under the circumstances existing on April 22, 1977, could and did create an apprehension on the part of Mace that Suarez intended an immediate assault upon him. Certain of the facts do support a finding that the privilege of self defense was available to Mace. However, because Suarez never struck at Mace and because Mace had provoked Suarez to some degree by calling Suarez "Scum," the defense is only partial or imperfect. The record shows that Mace struck Suarez only one blow, that the blow was of less power than Mace would have been totally capable, and that Mace ceased as soon as Suarez was subdued. The foregoing facts do not support the superintendent's contention that Mace angrily assaulted Suarez because Suarez had quite the track team and had called Mace names.
Mace's conduct was unwise; inappropriate in part to the time, place, and circumstances; and overreactive. The facts support the finding that Mace's striking of Suarez falls short of a simple assault because Mace feared and had reason to fear an assault by Suarez, and struck Suarez to stop what he thought was an assault on him. However, because of Mace's actions and poor judgment in referring to Suarez as "Scum" and then overreacting to Suarez's conduct which Mace had provoked, Mace had miscarried his duties as an instructor in a manner
that constitutes misconduct in office. Therefore, under the provisions of Section 231.36(6), Florida Statutes, and Rules 6B-4.09(3) and 6B-1.02(2)(c) and (d), Florida Administrative Code, the factual question to be determined is whether Mace's effectiveness has been so seriously impaired by his misconduct that he should be discharged.
The facts indicate that Mace enjoyed a very good reputation prior to this incident and was very popular with the students, faculty and parents. The nature of his misconduct must be weighed against the many positive aspects of Mace's reputation as an instructor to determine the degree of impairment which the incident has caused. Weighing the fact that Mace did not assault the student angrily with the intent to punish him against Mace's positive contributions to the instructional effort in Melbourne High School, Mace's effectiveness is not so seriously impaired that it warrants his dismissal. Mace's reference to Suarez as "Scum" and his error in judgment in coming so close to Suarez thereby contributing to the subsequent incident are serious breaches of conduct which justify serious disciplinary action.
Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend to the School Board that Lee Mace be suspended without pay for a period of thirty (30) days.
DONE AND ORDERED this 1st day of September 1977, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
Division of Administrative Hearings Room 530 Collins Building Tallahassee, Florida 32301
Mark F. Kelly, Esquire
William C. Walker, Esquire 3435 S. Hopkins Avenue Post Office Box 1084 Titusville, Florida 32780
