STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 81-554

)

JESSE BLACK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before the Division of Administrative Hearings, by its duly designated Hearing Officer, DONALD R. ALEXANDER, on July 22, 1981, in Miami, Florida.

APPEARANCES

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

305D Biscayne Boulevard, Suite 300 Miami, Florida 33137

For Respondent: William Du Fresne, Esquire

1782 One Biscayne Tower

2 South Biscayne Boulevard Miami, Florida 33131

BACKGROUND

On February 25, 1981, Petitioner, School Board of Dade County, voted to dismiss Respondent, Jesse M. Black, from the position as a mathematics instructor at Nautilus Junior High School in Miami Beach, Florida. Thereafter, a Notice of Charges was filed against Respondent on March 7, 1981, which delineated the specific charges against Respondent. It was charged therein that: (1) on or about March 28, 1971, Respondent, while in an instructional capacity, assaulted one Bobby Jenkins, a 12-year old male student, (2) on or about April 10, 1980, Respondent, while in an instructional capacity choked a 13-year old female student causing emotional and physical trauma to the child, and (3) on or about November 13, 1980, Respondent struck a 13-year old male student in his classroom and postured towards that student carrying a knife, and that such acts violated school board policy and Section 784.03, Florida Statutes, and amounted to "incompetence, misconduct in office, gross insubordination and immorality" in violation of Section 231.36(6), Florida Statutes.

Respondent disputed the allegations of fact and requested a formal hearing pursuant to the provisions of Section 120.57(1), Florida Statutes. On March 13, 1981, the matter was referred to the Division of Administrative Hearings by the Petitioner with a request that a Hearing Officer be assigned to conduct a hearing. By Notice of Hearing dated April 24, 1981, the final hearing was

scheduled for July 9, 1981, in Miami, Florida. By agreement of the parties, the matter was rescheduled to July 22, 1981, at the same location.

At the final hearing, Petitioner called Soloman S. Lichter, Victor Giardana, Joshua Neuman and Bobby Jenkins as its witnesses and offered Petitioner's Exhibits 1-3, each of which was received into evidence. Respondent testified on his own behalf and presented the testimony of Eugene Miller, Theodore Johnson and Robert McDonald. Additionally, pursuant to Section 120.60, Florida Statutes, and with the consent of the parties, the undersigned has taken official notice of Section 230.22(2), Florida Statutes, and Dade County School Board Policy 6Gx13-4A-1.302 which relates to the use of firearms and weapons on school property by its employees.

The transcript of hearing was filed on August 13, 1981. The parties were given the opportunity to file proposed findings of fact and conclusions of law; however, they waived their right to do so.

At the outset of the hearing, the petitioner withdrew the charge that on or about April 10, 1980, Respondent choked a 13-year old female student causing her physical and emotional trauma. Remaining at issue herein is whether Respondent

1. assaulted a student and (2) struck another and concurrently postured towards that student carrying a knife, thereby justifying his dismissal from employment with petitioner.

   
   

   Based upon all the evidence, the following facts are determined:

   
   

   FINDINGS OF FACT

   
   

   1. At all times relevant thereto, Respondent, Jesse M. Black, was employed in an instructional capacity teaching mathematics at Nautilus Junior High School in Miami Beach, Florida, by Petitioner, the School Board of Dade County. He has been employed at that school since 1976.

      
      

   2. On or about March 28, 1979, Black was teaching a mathematics class in which one Bobby Jackson, aged 12 years, was a student. After the "tardy" bell had rung, Jackson entered the classroom. Instead of being seated Jackson went directly to the rear of the room and began "yelling" and "playing" with other students. After being told by Black to be seated all other students except Jackson sat down; however, Jackson continued to remain in the rear of the room to borrow a sheet of paper. He then started towards his desk which was at the front of the room and directly in front of Respondent's desk. By this time, Black was approximately 10 minutes late in beginning classroom instruction. In order to prevent any more disruption in the classroom, Black told Jackson to leave the room and reached over and placed his hands on Jackson to escort him to the hall where an assistant principal would take him to the principal's office. When Black placed his hands on the student, Jackson slipped and fell over his desk; however, Black did not use unreasonable force in dealing with the student.

      
      

   3. Jackson was later suspended from Nautilus for fighting and other disciplinary problems and new attends an Opportunity School in Dade County.

      
      

   4. On or about November 13, 1980, Black went to his classroom at approximately 6:45 a.m. to prepare an examination to be given that day to his students. At approximately 7:45 a.m. one Nicholas Catania, aged 13 years, entered the classroom. Because class did not begin until 8:30 a.m., Black advised him that he could remain in the classroom to study but otherwise would have to leave. After Catania had placed another student's books on top of a

      light fixture, Black tapped him on the shoulder and told him to leave the classroom. When class convened at 8:30 a.m. that morning and the Pledge of Allegiance was being conducted, Catania gave a Nazis Salute which prompted laughter in the classroom. After the Pledge of Allegiance was over Black went to Catania, grabbed him on the shoulder, and told him that what the Nazis did was not to be glorified. In the presence of four students, Black then pulled a closed pocketknife out of his pocket, placed it behind Catania's leg, and then replaced it in his pocket. When he did this, he was smiling and did not make the student feel threatened or in danger of physical harm. At no time was the blade on the knife ever opened or exposed.

      
      

   5. Black has been a public school teacher since September, 1957. His speciality is mathematics and he holds two degrees. His immediate supervisor characterized him as being a dedicated and well-prepared teacher. He was also described by another teacher as having an extensive educational preparation and one who possessed the skills to be a good teacher.

      
      

   6. Black has had an undisclosed number of problems with discipline in his classroom. He has also been counseled by his principal on several occasions at Nautilus concerning his management skills. However, there was no evidence to show that his effectiveness as a teacher had been impaired by virtue of the incidents herein.

      
      

      CONCLUSIONS OF LAW

      
      

   7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Section 120.57(1), Florida Statutes.

      
      

   8. Subsection 231.36(6), Florida Statutes, provides in part:

      
      

      ... [A]ny member of the instructional staff

      ... may be suspended or dismissed at any time during the school year; provided that the charges against him must he based an im- morality, misconduct in office, incompetency, gross insubordination. . .Whenever such charges are made against any such employee of the school board, the school board may suspend

      such person without pay, but if charges are not sustained he shall be immediately re- instated, and his back salary shall be paid.

      
      

   9. The Petitioner has charged Respondent with immorality, misconduct in office, incompetency and gross insubordination for which it contends dismissal is warranted. All such charges are based upon two incidents involving students Bobby Jackson and Nicholas Catania. Because the Petitioner seeks to dismiss Respondent from his position as an instructor, the proceeding takes on special significance in terms of the evidence necessary to prove the charges. Bowling

      v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). Accordingly, the evidence that is required to "substantially" support a job dismissal such as this must be greater than that required to "substantially" support conventional forms of regulatory action. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 789 (Fla. 1st DCA 1981)

   10. The charge of gross insubordination stems from Respondent's alleged violation of school board policy relative to the possession of any firearm, weapon or destructive device on school property. That policy is set forth in School Board Policy No. 6Gx13-4A-1.302 and provides in pertinent part as follows:

       
       

       No employee, except as legally authorized, shall bring upon any school property or have in his or her possession, while on any school property any firearm, weapon or destructive device. Any employee in violation of this rule shall be subject

       be reprimand, suspension, and/or dismissal.

       * * *

       A "weapon" means any dirk, metallic knuckles, sling shot, billie, tear gas gun, chemical weapon or device, or any electric weapon or device, which through the appli- cation or use of electrical current, is designed, redesigned, used, or intended to be used for offensive or defensive pur- poses, the destruction of life, or inflic- tion of injury, or any deadly weapon, except a firearm or common pocketknife.

       (Emphasis supplied)

       
       

       The "weapon" which Respondent had in his possession when the Catania incident occurred was a common pocketknife, and as such, was specifically exempt from the Board's weapon policy. Accordingly, the charge of gross insubordination for violation of the Petitioner's firearm and weapon policy should be dismissed.

       
       

   11. The remaining charges involve the "assault" of one student, and the "striking" of another and posturing towards that student carrying a knife, both of which were allegedly violations of "school policy" and Section 784.03, Florida Statutes.

       
       

   12. Initially, it should be noted that other than the firearm and weapon policy referred to above, Petitioner did not refer to or make a part of this record the "school policy" which was allegedly violated by Respondent. While there may be such a policy, its absence from the record precludes consideration of the same. Henderson Signs v. Florida Department of Transportation, 397 So.2d 769 (Fla. 1st DCA 1981). Accordingly, if a finding of guilt is to be ascribed to the conduct of Respondent, it must be for some reason other than a violation of "school policy".

       
       

   13. Petitioner also contends that a battery was committed by Black upon students Jackson and Catania in contravention of Section 784.03, Florida Statutes. That Section provides as follows:

       
       

       1. A person commits battery if he:

          1. Actually and intentionally touches or strikes another person against the will of the other; or

          2. Intentionally causes bodily harm to another individual.

          Here there was no bodily harm committed upon the students; at the same time the touching of the students by Black was done in moderate exercise of his disciplinary authority over the pupils, was within the bounds of moderation, and was not shown to be unreasonable. Thus, the charge that Respondent committed a battery in violation of State law is without merit.

          
          

   14. The testimony supporting the charge of "assault" by Black against student Jenkins is equally unpersuasive. After having had his class disrupted for almost 10 minutes, Black found it necessary to physically escort the errant student be the door so that further disciplinary action could be taken against him. There is insufficient evidence in the record to show that Black used unreasonable force in dealing with this student, who was subsequently suspended from Nautilus for disciplinary problems, and this portion of the charges should be dismissed.

       
       

   15. The events surrounding the Catania incident are conflicting and hazy, and not susceptible to a conclusion that an illegal "striking" of the student occurred. The testimony of one "eyewitness" revealed that be was told of the assault by Catania, and never actually observed the act. A second student claimed Black was "pushing" Catania after Catania and others began disrupting the class. Catania himself never testified. Black denied the charges and contended he had merely given a "playful tap" to Catania before the class began. Again, the evidence does not reveal a use of unreasonable force by Black in dealing with a disruptive student, and it is concluded that even if Black did "push" Catania as testified to by the student, such act did not constitute an illegal "striking" of the student so as to warrant disciplinary action against Respondent.

       
       

   16. The evidence discloses and Black so concedes that he drew a closed pocketknife from his pocket and placed it momentarily behind Catania's leg before returning it to his pocket. The evidence reveals, however, that it was done in a joking fashion and without intent to threaten or harm the student.

       
       

   17. This act was undoubtedly an exercise of poor judgment on the part of Respondent. However, for the reasons earlier stated, it did not constitute a violation of the school's weapon policy. Moreover, it was not shown to be a violation of any other school policy, for none were made a part of this record. If such act warrants disciplinary action against Respondent, then it must be an set that falls within the scope of the remaining charges, namely, incompetency, misconduct in office or immorality. Petitioner has not favored the undersigned with a definition of those terms, or how the act falls within them. However, a class examination of Rule 6B-4.09, Florida Administrative Code, provides insight into the type of acts that are intended to be prohibited by Section 231.36(6), supra. There the term "immorality" is defined as follows:

       
       

2. [C]onduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's effectiveness

in the school system.

Because there has been no showing that the act was in any way "immoral" within the meaning of that term, or that the conduct has impaired the Respondent's effectiveness in the school system, it is concluded that this element of the statute has no application to the facts at hand. Next, Section (3) of the Rule

defines "misconduct in office" as a "violation of the Code of Ethics of the Education Profession so serious as to impair the individual's effectiveness in the school system." Again, the absence of any evidence to demonstrate a loss of Respondent's effectiveness in the school system requires a conclusion that no misconduct in office has occurred. Finally, "incompetency" is defined in Section (1) of the Rule as the "inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity." Here there was no showing of inefficiency or incapacity on the part of Respondent and it is concluded that this element of the statute has no application to the factual circumstances herein.

18. There being insufficient evidence of a "substantial" nature to support the charges, the Respondent should be immediately reinstated to his teaching position with full back pay. Section 231.36(6), supra.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent be found not guilty of the allegations in

the Notice of Charges dated March 7, 1981, and that he be immediately reinstated be his teaching position with full back pay.

DONE and ENTERED this 24th day of August, 1981, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1981.

COPIES FURNISHED:

Jesse J. McCrary, Jr., Esquire 3650 Biscayne Blvd., Suite 300

Miami, Florida 33137

William Du Fresne, Esquire 1782 One Biscayne Tower

2 South Biscayne Blvd. Miami, Florida 33131

Docket for Case No: 81-000554

Orders for Case No: 81-000554