STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 79-768

)

RANDOLPH RICE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on May 31, 1979, in Room 200 of the Lindsey Hopkins Building, Miami, Florida. The issue for determination at the hearing was whether the respondent should have been suspended for a thirty-day period and transferred to another school for the reasons set forth in the Notice of Charges dated April 9, 1979.

APPEARANCES

For Petitioner: Jesse J. McCrary, Jr.

Assistant Board Attorney

3050 Biscayne Boulevard, Suite 300-F Miami, Florida 33137

For Respondent: William du Fresne

One Biscayne Tower, Suite 1782 Miami, Florida 33131

FINDINGS OF FACT

Upon consideration of the testimony adduced at the hearing, the following relevant facts are found:

1. Respondent Randolph Rice has been employed by the petitioner Dade County School Board for seven years. At all times relevant to the charges involved in this proceeding, he was employed as a physical education teacher at Miami South Ridge Senior High School.

   
   

2. In the school years 1977-78 and 1978-79, Randy Turner regularly appeared on the campus of South Ridge. Mr. Turner was never enrolled as a student at said high school.

   
   

3. Believing that Mr. Turner was a student at South Ridge, respondent Rice allowed him to participate in Rice's physical education classes. Respondent Rice knew that Turner was not enrolled in his class, but he believed that Turner was enrolled at South Ridge to complete two credits he needed for graduation. When Mr. Turner participated in class, he wore the school's regular physical education uniform.

4. At least six students attending and enrolled at South Ridge observed Mr. Turner on campus almost daily for the school years 1977-78 and 1978-79.

   They saw him in the hallways carrying books, around the physical education area, participating in physical education classes and in the locker room. Turner shared a locker with an enrolled student. He was also observed in a class in plastics. Mr. Turner's photograph appeared in the school's yearbook along with the pictures of enrolled students.

   
   

5. Four employees at South Ridge -- a physical education teacher and three persons who work in security -- observed Mr. Turner in the hallways of South Ridge carrying books and around the physical education area. Three of these employees assumed Mr. Turner was an enrolled student at South Ridge. Another, who knew Turner from another high school, had the impression that Mr. Turner had probably finished school.

   
   

6. The basketball coach at South Ridge, Everett Moncur, allowed Mr. Turner to help out and keep the statistics in the basketball games end courses. Mr. Moncur assumed Mr. Turner was not enrolled as a student as he had known Turner from another high school. Moncur worked closely with respondent Rice and did not discuss with Rice Mr. Turner's status as a student or non-student.

   
   

7. On or about February 9, 1979, respondent Rice's physical education class was having a special challenge with the other physical education classes, and several games were occurring simultaneously. During this period, Mr. Turner became involved in a fight with an enrolled student and the other student was injured. Respondent Rice did not witness this event. The parties have stipulated that there is no legal causal connection between Turner's participation in class and the injury that was received by the other student.

   
   

8. Excerpts from the minutes of a March 21, 1979, Dade County School Board meeting indicate that the Board approved the suspension without pay of respondent Rice. By letter dated March 26, 1979, Mr. Rice was notified that the Board bad suspended him without pay for a period of thirty days for willful neglect of duty in allowing a nonschool youth to participate in his class. He was further advised that prior to the expiration of his suspension, he would be advised of his reassignment to another work location to be effective May 3, 1979.

   
   

9. The respondent requested a hearing on the suspension, and, on April 9, 1979, the School Board filed "Notice of Charges" charging respondent with willful neglect of duty by allowing a nonschool youth to participate in his physical education class. The Board asked for a thirty-day suspension and reassignment to another school in Dade County.

   
   

10. Respondent has served his period of suspension without pay and has been assigned to another school. Respondent seeks to be reinstated at South Ridge High School and further seeks back pay for the period of suspension.

    
    

    CONCLUSIONS OF LAW

    
    

11. Florida Statutes, Section 231.36(6), in relevant part provides that a member of the instructional staff may be suspended without pay for willful neglect of duty. Said section further provides that if the charges are not sustained after a hearing, the employee shall be reinstated and his back salary shall be paid.

12. The evidence presented in this proceeding does not support a conclusion that respondent Rice willfully and neglectfully allowed a non- student, Mr. Turner, to participate in his physical education class. While the petitioner has proven that Mr. Turner was not a registered or enrolled student at South Ridge High School, it has failed to demonstrate that respondent had knowledge of this Fact. Indeed, the testimony from other faculty or personnel, other students and the respondent himself illustrates that it was not unreasonable to assume that Mr. Turner was an enrolled student. He appeared on campus on a regular basis, carried books in the hallways, wore a school uniform for his physical education classes, shared a locker with another student and even appeared in the school's yearbook. Those two witnesses who apparently had an impression that Mr. Turner was not an enrolled student gained their knowledge from the fact that they had known Turner from another high school and felt that it was time for Turner to have graduated. Mr. Moncur did not discuss this knowledge with respondent and he himself allowed Turner to participate or help out in his own basketball classes. In short, because of Mr. Turner's conduct on the school grounds, many students and faculty alike reasonably believed him to be enrolled student at South Ridge. The charge against respondent for willful neglect of duty is not supported by the evidence adduced in this cause.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that a final order be entered by petitioner rescinding respondent's suspension and transfer to another school, and that respondent be reimbursed for the salary lost during his suspension and be reinstated to his former position at South Ridge High School.

Done and entered this 2nd day of July, 1979, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Jesse J. McCrary, Jr. Assistant Board Attorney 3050 Biscayne Boulevard Suite 300-E

Miami, Florida 33137

William du Fresne Suite 1782

One Biscayne Tower Miami, Florida 33131

Phillis Douglas

Dade County Public Schools Administrative Office Lindsey Hopkins Building 1410 NE 2nd Avenue

Miami, Florida 33132

================================================================= AGENCY FINAL ORDER

=================================================================

SCHOOL BOARD OF DADE COUNTY SCHOOL BOARD OF DADE COUNTY,

Petitioner,

1. CASE NO. 79-768

   
   

   RANDOLPH RICE,

   
   

   Respondent.

   /

   
   

   ORDER OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

   
   

   THIS CAUSE came on for hearing before The School Board of Dade County, Florida at its regular meeting of September 5, 1979, upon the Hearing Officer's findings of fact, conclusions of law and recommended order, and upon the exceptions filed by counsel for the School Board. The Board having considered the same and having heard argument of counsel,

   
   

   IT IS THEREUPON ORDERED by The School Board of Dade County, Florida that:

   
   

   1. The Hearing Officer's findings of fact, conclusions of law and recommended order attached hereto be and the same hereby is adopted as the final order of the School Board, with the exception of the recommendation that the respondent be reinstated to his former position at Miami Southridge Senior High School, which is rejected by the School Board; and

      
      

   2. The suspension of Randolph Rice for the period March 22, 1979 through May 2, 1979 be and the same is hereby rescinded, and the respondent, Randolph Rice, shall be reimbursed for all salary lost during the period of that suspension.

DONE AND ORDERED this 5th day of September 1979.

THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

By Phyllis Miller, Chairman

Docket for Case No: 79-000768

Orders for Case No: 79-000768