STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 78-494

)

WAYNE TROUTMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held at the State Office Building, 1350 Northwest 12th Avenue, Miami, Florida on May 24, 1977, commencing at 10:30 a.m., before Delphene C. Strickland, State Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jesse J. McCrary, Jr., Esquire

3000 Executive Building

3050 Biscayne Boulevard, Suite 300E Miami, Florida 33137

For Respondent: Elizabeth J. du Fresne, Esquire

1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

ISSUE

Whether Respondent Troutman should have been suspended as an employee of the Dade County School Board.

FINDINGS OF FACT

The evidence and testimony presented and the proposed recommended order and memorandums of law have been considered in the writing of this order.

1. Respondent Wayne Troutman is a five year-tenured teacher employed by the Petitioner School Board of Dade County Florida, at Brownville Jr. High School.

   
   

2. On November 4th, 1977, Respondent was in the school washroom washing football uniforms. Students were walking down the halls enroute to class. A thirteen (13) year old eighth grade student, Prince Sharpe, called out the word "hook", a term he said he uses when speaking to at least two of his friends.

   
   

3. Respondent did not see Sharpe at the time the comment was made but testified that he recognized Sharpe's voice and that the student was speaking to

   him and called him "hook nigger" three times. Sharpe denied he used the term in reference to Respondent.

   
   

4. Shortly thereafter, Respondent entered the classroom in which Ms. Edwinda Dennis, a teacher, was convening her third period class. Be asked permission to speak to her student, Prince Sharpe, and having secured permission went to Sharpe's seat. When Sharpe leaned back in the desk smiling and laughing, Respondent grabbed the boy's shirt in the collar area holding him so that he could only move his feet and aims. Respondent pushed the student against the wall and the window so that the plastic window pine popped out and the student was pushed partially out the window. Ms. Dennis became alarmed, shouted at Respondent to try to stop the struggle and ran to the back of the room and jumped on Respondent's back endeavoring to separate the two. The student was screaming "Let me go!" and when he was released he ran from the classroom. The principal told relatives of the incident and they came to the school and talked with the Respondent.

   
   

5. The Respondent admitted that he was "tense" at the time of the struggle. He also testified that he had used such force on other students from time to time.

   
   

6. The Petitioner placed Respondent on indefinite suspension charging the violation of School Hoard Policy 6GX13-50-1.07; violation of Section 231.36(6), Florida Statutes, and Section 784.07, Florida Statutes.

   
   

7. Petitioner contends:

   
   

   That she term "hook" or "hook nigger" may or may not have had a negative connotation; that there was evidence the child who weighed approximately ninety

   (90) pounds was pushed against a wall and partially through a window; that Respondent grabbed him around the neck and collar area with undue force and that the attack was unprovoked and an assault on the child; that the conduct of Respondent was inappropriate and misconduct; that Respondent should have been suspended and should be dismissed.

   
   

8. Respondent contends:

   
   

   That Respondent did not administer "corporal punishment" as defined in the Board Rules; that the acts of Respondent were not a physical assault and battery; that as a teacher, Respondent stood in "loco parentis" and that touching was acceptable; that the child provoked the teacher with a comment, lend talk and laughter; that the acts of Respondent were mere discipline in a school where discipline is a major problem; that the student was not afraid of Respondent; that Respondent should be reinstated with back pay.

   
   

   CONCLUSIONS OF LAW

   
   

9. Dade County School Board Policy 6Gx13-5D-1.07 provides in part: Elementary and Secondary

   Corporal Punishment

   
   

   Subject to Florida Statutes each teacher or other member of the staff of any school shall have such authority for the control and discipline of students as may he assigned by the principal or designated

   representative and shall keep good order in class- room and in other places assigned. The teacher or principal is authorized the moderate use of physical force or physical contact as may be necessary to main- tain discipline or to enforce school rules.

   
   

   Annually, the principal shall inform all parents, student, and instructional staff of those acts of misbehavior that could result in administration of corporal punishment. Except for those acts of mis- conduct which are so antisocial or disruptive in nature as to shock the conscience, corporal punish ment should never be employed as initial action to deal with students' misbehavior. Corporal punishment should never be administered in anger. Corporal punishment, as used in this rule, is defined as follows:

   
   

   The strokes applied as a penalty for acts of misconduct administered by the principal or designee upon the student's buttocks with a paddle within prescribed dimensions.

   
   

   Except in the case of excessive force and cruel and unusual punishment, a teacher or other member of the Instructional staff, a principal. or his/her designated representative shall not be civilly or criminally liable for administering corporal punishment carried out in strict conformity with State Statutes and District School Board rules.

   
   

10. The Respondent did not inflict corporal punishment as herein defined but did use excessive physical force against a student. There is no showing that the force used by Respondent was necessary to maintain discipline or to enforce school rules. In fact the student was not seen by Respondent at the time of the alleged "name calling" and was in another teacher's class and seated at his desk when Respondent grabbed him.

    
    

11. The acts of Respondent were a violation of the foregoing rule by the use "of excessive force" although the incident did not amount to "cruel and unusual punishment".

    
    

12. Section 231.36 provides in part:

231.36 Contracts with instructional staff.-

(6) Any member of the district administrative or supervisory staff and any member of the instruction- al staff, including any principal, may be suspended or dismissed at any time during the school year; pro- vided that no such employee may be discharged or removed during the school year without opportunity

to he heard at a public hearing after at least 10 days written notice of the charges against him aid of the time and place of hearing; and, provided further,

that the charges must be based on immorality, mis- conduct in office, incompetency, gross insubord -

nation, willful neglect of duty, drunkenness:, or con- viction of any crime involving moral turpitude.

The actions of Respondent are "misconduct in office" contrary to the foregoing statute. The acts of Respondent did not amount to an assault under Chapter 784 inasmuch as the student Sharpe apparently was in no fear of the Respondent.

RECOMMENDATION

Affirm the suspension without pay until the end of the school year in which the incident took place and reinstate for the next year.

DONE AND ORDERED this 28th day of July, 1978, in Tallahassee, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire 3000 Executive Building

3050 Biscayne Boulevard Suite 300E

Miami, Florida 33137

Elizabeth J. du Fresne, Esquire 1782 One Biscayne Tower

Two South Biscayne Boulevard Miami, Florida 33131

Docket for Case No: 78-000494

Orders for Case No: 78-000494