STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2305

)

ROGER BREAULT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on March 8, 1979, in Miami, Florida.

APPEARANCES

For Petitioner: Michael P. Maguire, Esquire

44 West Flagler Street, Penthouse Miami, Florida 33130

For Respondent: Elizabeth J. du Fresne, Esquire

Suite 1782, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131

On December 11, 1978, Petitioner, the School Board of Dade County, Florida ("Petitioner") filed its Notices of Charges against Respondent, Roger Breault ("Respondent"), charging Respondent with administering corporal punishment to two students in his classes in violation of school board policies, and of committing battery upon these same two students. Respondent, through his counsel, requested a formal hearing on these charges and, pursuant to the provisions of Section 120.57(1), Florida Statutes, Petitioner requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the hearing. Final hearing in this cause was scheduled for March 8, 1979, by Notice of Hearing dated January 15, 1979.

At the final hearing, Petitioner, by stipulation of counsel for both parties, submitted its case in chief by means of the depositions of Nancy Thayer Mitchell, Dwayne Wilson, Steven Cole and Patsy Atkinson, which were marked Petitioner's Exhibits 1 through 4, respectively, and were received into evidence. In addition, Petitioner also offered Petitioner's Exhibits Nos. 5 and 6, both of which were received into evidence. Respondent testified in his own behalf, and, in addition, called John Lester Gardner and William Clark as his witnesses. Further, because of the unusually large number of character witnesses appearing at the final hearing on Respondent's behalf, counsel for Petitioner agreed that, in lieu of their live testimony, he would stipulate that their testimony would be to the effect that Respondent was "the greatest teacher

in the school system." Respondent offered Respondent's Exhibit No. 1, which was received into evidence.

FINDINGS OF FACT

1. At all times material hereto, Respondent was an instructional employee of the School Board of Dade County, Florida, and was assigned to Comstock Elementary School as a physical education teacher. At the time of the occurrences which are the subject of this proceeding, Respondent was on continuing contract and was in his seventh year as an instructor in the Dade County School System. Prior to these incidents, Respondent's evaluations with the school system had been uniformly very good.

   
   

2. On the date in question, Respondent was in charge of a third grade class of approximately sixty students, including Steven Cole and Dwayne Wilson. During the class period, Respondent had planned motor activities, physical exercise and "free play". Respondent caused the class members to line up in formation for preliminary exercises, which were to be performed to music played by Respondent on a record player. At the beginning of the exercises, Respondent requested that the class dance, clap or move around to the music. He advised the class that if anyone did not want to participate in the dancing exercises, they would be allowed to perform "push-ups" as an alternative. Utilization of "push-ups" by Respondent in his classes was not uncommon. Shortly after the beginning of the dance exercises, Respondent observed Steven Cole not participating as instructed. The youngster advised Respondent that he did not want to dance or clap his hands, so Respondent required him to begin exercises by way of "push-ups". The student performed three or four of these exercises, refused to do more, and started to walk away from the class. Respondent attempted to call the student back to the class, but the student refused to return. Thereupon, Respondent walked over to the student, took him by the arm and attempted to bring him back to the class. The student resisted Respondent's efforts, and began struggling with Respondent. The child was not hitting or kicking at Respondent, and it does not appear from the record that Respondent used excessive force in attempting to deal with the student. When it appeared to Respondent that the student was becoming upset, Respondent felt it advisable to place the student in a physical education equipment room immediately adjacent to the exercise area. Respondent placed the student in the equipment room seated on mats used for tumbling exercises, and Respondent placed his chair slightly in front of the door to avoid having the student run from the room. During the entire encounter between Respondent and the student, the student remained erect and was never thrown or tripped to the ground.

   
   

3. After placing Steven Cole in the equipment room, Respondent returned his attention to the remainder of the class. However, he then observed another student, Dwayne Wilson, refusing to participate in the classroom exercises. When Respondent inquired of the student whether he wished to participate in the dance exercises or engage in the option to perform "push-ups", the student refused any audible reply. Respondent approached the student, took him by the arm, and brought him to the front of the class immediately in front of the teacher's chair. The Respondent then placed the student in a push-up position, and Respondent extended his hands and arms approximately six inches above the student's back while the student was in a "push-up" position with his arms extended, in order to prevent the student from standing up and running from the class. Although there is conflicting testimony in the record, it is specifically found that the student attempted to stand up from the "push-up" position, lost his balance while attempting to do so, and fell to the concrete,

   hitting his forehead. There is insufficient testimony in the record to indicate that Respondent either intentionally or negligently caused the student's fall.

   
   

4. Respondent immediately observed swelling on the student's forehead where he had struck the ground, and took the student to the nearby school cafeteria in order to obtain ice to apply to the injury. As soon as the ice was obtained, Respondent had the student taken to the principal's office by cafeteria personnel, and returned to his class. Respondent then arranged for another teacher to cover his class, removed Steven Cole from the equipment room and took him with him to the principal's office.

   
   

5. The school principal conferred with Steven Cole, Dwayne Wilson, and other members of the class, called the parents of Steven Cole and Dwayne Wilson, and those students were taken to hospitals to check their condition. Although unclear from the record, Steven Cole apparently was taken to a hospital because of complaints made to the principal concerning difficulty in breathing and a pain in his chest. It is significant that, although a significant period of time had elapsed between the time Steven Cole was placed in the physical education equipment room and the time he was seen by the school principal, he had made no complaints concerning any physical injury until he saw the principal almost one-half hour after being placed in the equipment room by Respondent. In addition, there is no evidence in the record, other than the testimony of Steven Cole, to substantiate that any injury was, in fact, inflicted upon him by Respondent.

   
   

6. Dwayne Wilson was taken to Cedars of Lebanon Hospital, where he was treated for a contusion of the forehead and released.

   
   

7. As indicated above, prior to the incidents involving Steven Cole and Dwayne Wilson, Respondent has an exemplary record as a teacher in the Dade County School System. Steven Cole and Dwayne Wilson, on the other hand, had been disciplinary problems on occasion at Comstock Elementary School and had, in fact, been "paddled" by the school principal on several occasions. Since the testimony of Steven Cole and Dwayne Wilson was submitted to the Hearing Officer by way of deposition, it was, unfortunately, not possible to observe the demeanor of these young men while testifying. There exist substantial differences in the testimony of the students and that of Respondent. In attempting to resolve these differences, the undersigned noted numerous inconsistencies in the students' testimony, no doubt due, at least in part, to their youth. Steven Cole was, at the time of the incident, nine years old, and Dwayne Wilson was eight years old. In light of these inconsistencies, the Hearing Officer has chosen to accept the testimony of Respondent as the more credible in this case.

   
   

8. Both Petitioner and Respondent have submitted Proposed Findings of Fact in this proceeding. To the extent the Proposed Findings of Fact have not been adopted in, or are inconsistent with, factual findings in this Order, they have been specifically rejected as being irrelevant to the issues in this cause, or as not having been supported by the evidence.

   
   

   CONCLUSIONS OF LAW

   
   

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

10. There is insufficient evidence in the record on which to base a conclusion that Respondent violated any provision of either the Florida Statutes, the Rules of the Dade County School Board, or any provisions of the Florida Administrative Code in attempting to deal with the behavior of Steven Cole and Dwayne Wilson, as described in the Findings of Fact hereinabove set forth. Accordingly, the Notices of Charges against Respondent should be dismissed, and he should be reinstated as an instructional employee of the School Board of Dade County, Florida with full back pay.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED:

That a Final Order be entered by the School Board of Dade County, Florida, dismissing the Notices of Charges against Respondent, Roger Breault, and reinstating him as an instructional employee of the School Board of Dade County, Florida, with full back pay.

RECOMMENDED this 9th day of May, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Michael P. Maguire, Esquire

44 West Flagler Street Penthouse

Miami, Florida 33130

Elizabeth J. du Fresne, Esquire Suite 1782, One Biscayne Tower Two South Biscayne Boulevard Miami, Florida 33131

Docket for Case No: 78-002305

Orders for Case No: 78-002305