Carpenter, on September 23, 1981. The parties were represented by:
For Petitioner: James A. Brown, Esquire
For Respondent: C. Anthony Cleveland, Esquire
On May 21, 1981, the Broward County Superintendent of Schools dismissed John A. Berg as an employee of the School Board. On May 22, 1981, Respondent requested an administrative hearing and Petitioner referred the matter to the Division of Administrative Hearings pursuant to Section 120.57(1), Florida Statutes. The charges are as follows:
You are hereby charged with misconduct in office and/or willful neglect of duty in that on May 19, 1981, you struck student Nicholas Tricoli in the face with your hand which resulted in laceration and redness in the inner mouth of said student which conduct violates Florida Statutes 231.36(6), 232.27, 231.09(3)(6)(8), State Board Administrative Rules 6B-1.02(2)(c)(d), 6B-1.05(2)(i), 6B-4.09,
6B-5.03(2)(b), 6B-5.07(1)(4), 6B-5.10(3)(4).
You are hereby charged with misconduct in office and/or willful neglect of duty in that on May 19, 1981, you went into the classroom of John Lyzott, teacher at McArthur High School, grabbed student Nicholas Tricoli by the shirt, bent him backward over the counter causing him to hit his head in a manner which resulted in a bump or swelling to appear on the upper right rear of his skull which conduct violates Florida Statutes 231.36(6), 232.27, 231.09(3)(6)(8), State Board of
Administrative Rules 6B-1.02 (2)(c)(d) 6B-1.05 (2)(i), 6B-4.09, 6B-5.03(2)(b), 6B-5.07(1)(4), 6B-5.10(3)(4).
You are hereby charged with misconduct in office and/or willful neglect of duty in that you violated School Board Policy 5301 by grabbing student Nicholas Tricoli in his third hour class, stricking [sic] him in the face, knocking him up against a wall, pushing him backward over a table, such acts causing a bump on the skull and visible redness in the front of the throat which conduct also violates Florida Statutes 231.36(6), 232.27, 231.09(3)(6)(8), and Florida State Board Administrative Rules 6B-1.02(2)(c)(d), 6B-1.05 (2)(i), 6B-4.09, 6B-5.03(2)(b), 6B-5.07(1)(4), 6B-5.10(3)(4).
The parties submitted proposed findings of fact and conclusions of law. To the extent these proposed findings have not been adopted or otherwise incorporated herein, they have been specifically rejected as irrelevant or not supported by the evidence.
Respondent has been employed by petitioner as a biology teacher at McArthur High School for the past ten years. He previously taught school in southern Illinois.
Nicholas Tricoli attended McArthur High School during the 1980-81 school year and was then in the ninth grade. Tricoli was assigned to Respondent's biology class during the first semester, which he failed. He was thereafter transferred to the biology class of Mr. John Lyzott for the second semester.
The charges against Respondent involve a single incident which took place during a class change period on May 19, 1981. Uncontroverted testimony established that Respondent followed Tricoli into Lyzott's biology classroom, grabbed Tricoli by the front of his shirt and stated, "I told you never to call me that again," or words of similar import. He continued to hold Tricoli by his shirt and either pushed him backward over a counter or Tricoli, in the struggle
to free himself, leaned backward over the counter, resulting in a blow to the back of his head.
The incident was witnessed by Lyzott and two of his students, Fred Stoltzfus and Kelly Lathan. Their testimony established that Respondent demonstrated substantial anger, that he held Tricoli helpless for one or two minutes and spoke angrily to him during that time. Stoltzfus testified that Berg raised his hand as if to strike Tricoli, but neither Stoltzfus nor any other witness saw him strike Tricoli.
Subsequently, Mr. Tom Patterson, the school board investigator, observed a bump on Tricoli's head, which resulted from contact with the counter described above. Patterson also observed a laceration inside Tricoli's mouth which was allegedly caused by a blow to his face. Although there is little doubt the laceration occurred during the struggle, the evidence is not sufficient to establish that Respondent struck Tricoli.
Respondent had no official basis to enter Lyzott's classroom or discipline Tricoli, who was not then his student. Lyzott was in fear that Berg, who was obviously angry, would injure Tricoli and attempted to dissuade Respondent during the course of the incident. It should be noted that Tricoli is about five feet five inches tall and weighs about 130 pounds, while Berg is over six feet tall and weighs over 200 pounds.
Respondent testified that he became angered when Tricoli referred to him as "a dick" while passing in the hallway, and that Tricoli had previously made a similar remark in the presence of other students. Respondent then followed Tricoli into Lyzott's classroom, grabbed him by the shirt and attempted to extract an agreement from him to stop referring to Berg as "a dick." However, Tricoli remained silent and Respondent perceived him to be smirking, which further angered him.
Respondent's testimony regarding the name-calling was not corroborated but is nonetheless credible. Respondent has no reputation for erratic behavior, loss of self-control or abuse of students. Conversely, Tricoli's denial of the offensive remarks was not credible. Tricoli was overheard by another teacher bragging to fellow students about getting Berg fired, and offering a large sum of money to one student to obtain his testimony in a civil suit against Berg.
Respondent demonstrated through the testimony of Lyzott and five other male teachers at McArthur High School that school administrators do not vigorously enforce discipline. These teachers also believe the principal does not support them in their efforts to discipline troublemakers.
Their testimony established that it is not uncommon for a teacher to physically restrain an unruly student. However, none of the incidents of physical intervention or approved corporal punishment which they related were in any way analagous to Respondent's attack on Tricoli.
Petitioner, through the testimony of the McArthur High School principal and the Broward County Associate Superintendent for personnel, established that corporal punishment policies require prior approval of such punishment which is then administered by the principal or his designee. These policies are set forth in rules and statutes which are made available to all teachers.
CONCLUSIONS OF LAW
Section 231.09, Florida Statutes (1979), provides in part: Duties of instructional personnel.
Members of the instructional staff of the public schools, subject to the rules and regulations of the state board and of the school board, shall perform the following functions:
(3) TREATMENT OF PUPILS.--Treat pupils under their care kindly, considerately, and humanely, administering discipline in accordance with regulations of the state board and the school board; provided, that in no case shall cruel
or inhuman punishment be administered to any child attending the public schools.
(6) COOPERATION.--Cooperate with the state, district, and local school officials in the enforcement of school laws and of state and district board regulations.
(8) RULES AND REGULATIONS.--Conform to all rules and regulations that may be prescribed by the state board and by the school board.
(12) CONTRACTS.--Fulfill the terms of any written contract, unless released from the contract by the school board.
The above statutory provisions apply to Respondent and require that he treat pupils considerately and that he follow established procedures in administering discipline.
Section 232.27, Florida Statutes (1979), provides in part:
. . .If a teacher feels that corporal punishment is necessary, at least the following procedures shall be followed:
The use of corporal punishment shall be approved in principle by the principal before it is used, but approval is not necessary for each specific instance in which it is used. The principal shall prepare guidelines for administering such punishment which identify the types of punishable offenses, the conditions under which the punishment shall be administered, and the specific personnel on the school staff authorized to administer the punishment.
A teacher or principal may administer corporal punishment only in the presence of another adult who is informed before hand, and in the student's presence, of the reason for the punishment.
Respondent's attack on student Nicholas Tricoli falls far short of meeting the above statutory standards for administering corporal punishment. 1/ Thus, Respondent's attempt to excuse or explain his conduct by resort to a corporal punishment theory must be rejected.
Chapter 6B-1, Florida Administrative Code, sets forth the code of ethics which regulates the conduct of Florida educators, and which is therefore applicable to Respondent. Subsection 6B-1.02(2), Florida Administrative Code, provides in part:
In fulfilling his obligations to the student, the educator--
Shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety.
Shall conduct professional business in such a way that he does not expose the student to unnecessary embarrassment or disparagement.
Respondent's conduct violated both of the above ethical standards. By pursuing the student, Nicholas Tricoli, into the classroom of another teacher, by demonstrating hostility toward the student and by grasping and holding him in an aggressive and menacing manner, Respondent intended to frighten him.
Further, Tricoli was injured as a direct result of Respondent's conduct, either by Respondent's pushing him or through Tricoli's struggle to free himself from Respondent's grasp.
Although the evidence did not establish that Respondent intentionally injured Tricoli, such injury was an entirely foreseeable result of Respondent's action. In addition to endangering the student's health and safety, Respondent exposed him to inappropriate humiliation.
Chapter 6B-5, Florida Administrative Code, establishes standards of competent professional performance for Florida educators, and is therefore applicable to Respondent in his capacity as an employee of the Petitioner. Subsection 6B-5.03(2) Florida Administrative Code, provides in part:
Each teacher shall:
(b) adhere to and enforce administrative policy of the school. . .
Section 6B-5.10, Florida Administrative Code, provides in part:
Competent educators are held to possess effective human and interpersonal relations skills and therefore:
Shall not show disrespect for or lack of acceptance of others,
Shall provide leadership and direction for others by appropriate example,
Respondent violated the above standards of competence through his failure to set an appropriate example for self-control and by revealing his contempt and disrespect for the student, Nicholas Tricoli. Here, however, one incident does not establish the general lack of professional competence these rules seek to identify.
Subsection 231.36(6), Florida Statutes (Supp. 1980), provides in part:
Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may be suspended or dismissed at any time during the school year; provided that the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. 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 reinstated. . .
Section 6B-4.09, Florida Administrative Code, which establishes criteria for suspension or dismissal of instructional personnel, provides in part:
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:
Misconduct in office is defined 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.
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
As with the issue of competency, Respondent cannot be found grossly insubordinate or willfully negligent of his duties as a result of a single incident. However, Respondent's attack on Nicholas Tricoli is "misconduct in office" within the meaning of the above-quoted rule and statute. The attack took place in the course of Respondent's employment as a teacher and was a direct violation of the ethical standards cited above which require him to protect the health and safety of students and to avoid exposing them to unnecessary embarrassment. This misconduct was sufficiently serious to impair, at least temporarily, Respondent's effectiveness within the Broward County School System.
In determining the appropriate disciplinary action to be taken against Respondent, the provocation by Tricoli must be considered. Additionally, there was no evidence that disciplinary action has previously been taken against Respondent in his ten years as an employee of the Broward County School Board. Finally, in the absence of substantial, competent evidence that Respondent struck Tricoli, he can be found guilty of only one of the three charges against him.
