STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDUCATIONAL PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1625

) MOSES SYLVESTER RICHARDSON, 1/ )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on December 9, 1980. The Division of Administrative Hearings received the transcript of proceedings on January 5, 1981; respondent's proposed recommended order on January 13, 1981, and petitioner's proposed recommended order on January 14, 1981. The parties were represented by counsel:

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: Stephen O. Parker, Esquire

607 Florida Theatre Building Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

By petition for the revocation of teacher's certificate dated August 5, 1980, the Professional practices Council alleged that respondent "violated Section 6B5.03(1)(a), Rules of the State Board of Education [RSBE], in that he failed to keep records"; "violated Section 6B5.03(2)(a) [RSBE], in that he failed to utilize available instructional materials and equipment necessary to accomplish the designated task"; "violated Section 6B5.05(1)(a) [RSBE], in that he failed to provide frequent and prompt feedback covering the success of learning and good achievement efforts"; "plead[ed] guilty to driving while intoxicated" on or about March 29, 1979; "plead[ed] no contest to driving while intoxicated" on or about August 19, 1974; "was found guilty of driving while intoxicated" on or about April 22, 1967; "committed personal conduct which seriously reduces his effectiveness as an employee of the School Board, . . . committed acts which are not a proper example for students, and . . . failed[ed] to meet the minimum standard of competent professional performance"; "all in violation of Florida Statutes Section 231.28, Section 231.09 and Section 6B5."

FINDINGS OF FACT

1. The parties stipulated that respondent holds Florida Teacher's Certificate No. 039140, Graduate, Rant III, in the areas of physical education and social studies, due to expire on June 30, 1982.

   
   

2. In the fall of 1967, after obtaining the B.S. degree from Florida Memorial College in St. Augustine, respondent, who was 57 years old at the time of the hearing, began working for the Duval County School Board. He first taught American history at Standard Vocational High School. After two years at Standard Vocational, he began at Fort Caroline Junior High School in 1969, where he taught ninth grade civics for two months, then physical education, after which he left off teaching and worked as an administrative assistant, with responsibilities for discipline and supervision of students in the cafeteria and bus loading area. Respondent then worked at Darnell Cookman as an administrative assistant until that school closed, when he returned to Fort Caroline Junior High School, as an administrative assistant. In the fall of 1974, Mr. Richardson began as an administrative assistant at Andrew Jackson, a position he held through the end of the 1976-1977 school year. In the fall of 1977, he began teaching geography and American history at Landon Junior High School. The next school year Mr. Richardson received an unsatisfactory evaluation from his principal, the first such evaluation in his career. In accordance with school board policy in such circumstances, his request for a transfer was honored and he began teaching in the fall of 1979 at Oceanway Seventh Grade Center (hereinafter "Oceanway").

   
   

3. On June 8, 1974, a Saturday, respondent was arrested and charged with driving while intoxicated. On his plea of nolo contendere, he was found guilty as charged on August 23, 1974. Respondent was again arrested on March 10, 1979, also a Saturday, and charged with driving while intoxicated. He was adjudicated guilty on his plea of guilty on March 20, 1979.

   
   

4. Judith Poppell began as principal at Oceanway in the fall of 1979. Before she met respondent, she received a letter informing her that his work the preceding school year had been evaluated as unsatisfactory and asking her to evaluate respondent no later than October 31, 1979.

   
   

5. At all pertinent times, only the Oceanway principal, the dean of boys, and the dean of girls had authority to administer corporal punishment. Any teacher, however, was authorized to use reasonable force to break up a fight or in self-defense.

   
   

6. On the morning of September 26, 1979, Mr. Richardson had responsibility for supervising students in the area where they were disembarking from buses.

   He directed the students to stand clear of the bus ramp and placed his hand on a 15-year-old boy who hung back. The student called respondent a "motherfucker" and threw his books at Mr. Richardson, breaking his glasses. Respondent then pushed the student to the ground.

   
   

7. Ms. Poppell asked respondent and the other teachers at Oceanway to furnish her copies of lesson plans weekly. Respondent furnished Ms. Poppell copies of lesson plans, but some were late or incomplete or, in Ms. Poppell's opinion, unrelated "to the minimum skill objectives." (T. 121) It appeared to her "that what in fact [respondent] was doing was going sequentially in the textbook" (T. 125) rather than teaching what would be tested on the minimum level skills test, a standardized achievement test administered county wide.

8. On October 3, 1979, Ms. Poppell observed respondent teaching his Man and Society class at which time "the students were involved in a discussion of values and beliefs and needs, which is part of the course material." (T. 127) During this class, respondent lectured and, in Ms. Poppell's opinion, "did make some very good points" although eventually the students "began to get wiggly." (T. 127)

   
   

9. On October 17, 1979, Ms. Poppell was in or near the gymnasium "getting together a candle order to be filled" (T. 128) when she heard respondent lecturing on softball to a physical education class which included "some children . . . who were disciplinary problems." (T. 129) While Ms. Poppell was listening, respondent shouted to a student, "Shut up. I'm not talking to you." (T. 129)

   
   

10. During the 1979-1980 school year, Wade Randall Godfrey, a seventh grade student in Mr. Richardson's physical education class, complained to Joseph

    H. Fowler that Mr. Richardson had hit him with an aluminum baseball bat. After looking into this allegation, Mr. Fowler "could not find any evidence that [Godfrey] was actually struck by a baseball bat." )T. 43) Neither did the evidence adduced at hearing establish that respondent struck the student Godfrey with a baseball bat.

    
    

11. On October 31, 1979, Ms. Poppell evaluated respondent's work as unsatisfactory based on her observations and those of Dr. Beyerle and Mr. Kitchens, which she related to respondent. At that time she suggested that respondent join ten other Oceanway teachers for an after school seminar (1.5 hours for each of six successive days) "designed to help teachers deal with disruptive students." (T. 130) Respondent did not avail himself of this opportunity because he coached soccer after school Respondent did attend two days of observation of physical education programs, at the behest of school administrators. Ms. Poppell asked the head of the social studies department at Oceanway, Mrs. Wiggins, to assist respondent in the preparation of lesson plans.

    
    

12. At Mrs. Poppell's instance, Mrs. Wiggins spoke to respondent in November of 1979 about the failure of respondent's lesson plans to "follow the minimum level skills booklet." (T. 63) She began preparing respondent's lesson plans for him and continued preparing them for four or five weeks. In mid December, Mrs. Wiggins complained to the principal that a classroom she used the period after respondent had taught a class in it was littered with paper. Mrs. Poppell wrote respondent a note about the incident which Mrs. Wiggins took from respondent's mail box. Mrs. Wiggins meant to intercept the note to avoid hard feelings on respondent's part, but did not realize that respondent had already read and replaced it. After this episode, respondent prepared his own lesson plans, unassisted.

    
    

13. While Mr. Richardson taught at Oceanway, Richard Edward Chandler was a student in his first semester Man and Society class. Mr. Richardson gave this class several tests. In one instance, he passed out only three to five copies of a test to the entire class. On that occasion, he instructed the recipients to pass the test copies on to other students after copying the test questions. As a result, the student Chandler did not have enough time to finish the test. According to respondent, he meant for the students to work in groups on the test, a technique he has concededly never used before or since.

    
    

14. At the end of the first grading period in the fall of 1979, respondent was one of a number of teachers to whom John A. Beyerle sent messages because all of their students' grades had not been reported on time. Mr. Richardson was

    late with grades for eleven students, at the end of the first grading period. At the end of the second grading period, he was late with grades for seventeen students.

    
    

15. James Kitchens, a physical education supervisor for the Duval County School Board, observed respondent teaching on two occasions. The first time was incidentally in October of 1979 when he was evaluating the physical education program at Oceanway as a whole. On one visit or another, Mr. Kitchens observed some students "running loose," (T. 173) and probably on the second visit, remarked the inefficient use of tumbling mats: single lines of students crossed mats longitudinally instead of double lines crossing the widths of the mats.

    Mr. Kitchens agreed that respondent had "some basic competence and skills in physical education management" (T. 180) but detected "some rustiness." (T. 180)

    
    

16. On December 5, 10, and 11, 1979, Maurice Shuman, Duval County School Board's supervisor for social studies, observed respondents teaching his social studies classes. Mr. Shuman testified, "If I were going to evaluate Mr. Richardson certainly I would need, you know, a greater number of visits" (T.

    197) and offered various suggestions and comments he felt would be helpful to respondent in his teaching. Dr. Beyerle observed respondent teaching two classes. On the first occasion, respondent spent the hour reviewing and, although Dr. Beyerle perceived certain "weaknesses," he really c[ould]n't say it was a bad lesson." (T 190) On the second occasion, respondent taught "a pretty good lesson." (T. 90) On at least one occasion, respondent failed to call the roll in a social studies class. At various times, respondent lectured, engaged students in "well paced" questions, used a globe, cassettes, and ditto sheets.

    
    

17. Under the Duval County School Board's policies, no student could pass either the seventh grade geography or Man and Society courses, if he failed a standardized test administered at the end of the course, regardless of his performance in class or on other tests. In violation of this policy, respondent gave passing grades to two students, Carmella Scott and Anthony Watts, who had failed the minimum level skills test (MLST). Of approximately 36 students in respondent's first semester Man and Society class, eight failed the MLST, including students who had received "B"s for the 9- and 18-week grading periods and who had done well on a final exam respondent prepared.

    
    

    CONCLUSIONS OF LAW

    
    

18. Petitioner is authorized to take disciplinary action against respondent's teaching certificate upon a showing that he "has proved to be incompetent to teach or to perform his duties as an employee of the public school system . . . has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation . . . has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board; or has otherwise violated the . . . rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate." Section 231.28(1), Florida Statutes (Supp. 1980). The duties of an employee of the public school system are set out, in part, in Section 231.09, Florida Statutes (1979). Petitioner has pleaded various provisions of Rule Chapter 6B-5, Florida Administrative Code:

    
    

    Each educator shall keep records for which responsible in accord with law and accepted practices of school system. Rule 6B- 5.03(1)(a), Florida Administrative Code.

    Each teacher shall utilize available instructional materials and equipment necessary to accomplish the designated task. Rule 6B-5.03(2)(a), Florida Administrative Code.

    
    

    The competent educator shall utilize or promote the utilization of acceptable techniques to analyze the needs and potential of individuals. Rule 6B-5.04, Florida Administrative Code.

    
    

    Each educator shall create an atmosphere which fosters interest and enthusiasm for learning and teaching. Rule 6B-5.05(1)(a), Florida Administrative Code.

    
    

    In exercising management techniques, the competent educator shall [r]esolve discipline problems in accordance with law, state board regulations, school board policy, administrative regulations and accepted school policies. Rule 6B-5.07(1), Florida Administrative Code.

    
    

    The petition for revocation of teacher's certificate cites Rule 6B-5.09, Florida Administrative Code, in its entirety but it is clear from the petition that this language is relied upon:

    
    

    [T]he competent educator shall . . . [provide frequent and prompt feedback concerning the success of learning and goal achievement efforts. Rule 6B-5.09(2), Florida Administrative Code.

    
    

    "[T]he revocation of the teaching certificate," Section 231.28(1), Florida Statutes (Supp. 1980), is not a penalty for the violation of any one of the foregoing rules, which were promulgated to implement Section 231.57, Florida Statutes, now repealed. Chapter 80-190, Section 10, Laws of Florida (1980).

    
    

19. Petitioner established that respondent was twice convicted of driving while intoxicated in violation of Section 316.193, Florida Statutes (1979), and a predecessor statute, but did not prove all three convictions alleged in the petition. Driving while intoxicated poses a risk of death or great bodily harm to innocent persons, and this offense is not "a minor traffic violation" within the meaning of Section 231.28(1), Florida Statutes (Supp. 1980). See also Section 231.28(2), Florida Statutes (Supp. 1980). There was no showing, however, that these two episodes were known to other teachers, administrators, or students, or that respondent's effectiveness was in any way reduced by their occurrence.

    
    

20. Petitioner did not establish the allegations of paragraphs 5, 6, or 8. Respondent's reaction to the book-hurling student amounted to the administration of corporeal punishment in violation of the rules of the Duval County School Board, and therefore a failure to perform his duties as defined by Section 231.09(3), Florida Statutes (1977). Petitioner proved other violations by respondent of local board rules or policies, viz., that he was late with report

    cards, that he awarded passing grades to two students who should have failed, and that he did not always draw lesson plans in conformity with a minimal teaching skills booklet he had been given for that purpose, but petitioner failed to prove respondent incompetent as alleged in the petition, and violation of local school board rules is not a grounds for disciplinary action against a teacher's certificate under Section 231.28(1), Florida Statutes (Supp. 1980), as amended. Neither did petitioner allege any violations of Rule Chapter 6B-1, Florida Administrative Code. Contrast Professional Practices Council v. Michael

    J. Cushing, No. 79-1218 (Rec. Order entered December 24, 1979).

    
    

21. Respondent's violations of local board rules and policies also amounted to derelictions of some of the duties prescribed by Section 231.09, Florida Statutes (1979), for instructional staff of the public schools. Section 231.09, Florida Statutes (1979), does not, however, authorize revocation of a teacher's certificate or disciplinary action of any kind against a teacher's certificate.

RECOMMENDATION

Upon consideration of the foregoing, it is

RECOMMENDED that petitioner suspend respondent's teacher's certificate for one (1) year.

DONE AND ENTERED this 3rd day of February, 1981, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1981.

ENDNOTE

1/ Respondent's name was listed as Sylvester M. Richardson in the original style of the case, which has been changed sua sponte by the hearing officer to conform to the weight of the evidence.

COPIES FURNISHED:

L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

Stephen O. Parker, Esquire 607 Florida Theatre Building Jacksonville, Florida 32202

Docket for Case No: 80-001625

Orders for Case No: 80-001625