STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF CHARLOTTE COUNTY,)

)

Petitioner, )

)

vs. ) CASE NO. 82-1942

)

ELVA JEAN NEWLAND, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on November 18, 1982, in Port Charlotte, Florida.

APPEARANCES

For Petitioner: Daniel H. Kunkel, Esquire

290 Cocoanut Avenue Sarasota, Florida 33577

For respondent: Kenton H. Haymans, Esquire

Post Office Box Drawer 635 Punta Gorda, Florida 33950

ISSUE

Whether respondent should be terminated from her employment as a continuing contract school teacher, pursuant to Section 231.36(6), Florida Statutes (1981), for alleged gross insubordination within the meaning of Section 231.36(6), Florida Statutes (1981), and Rule 6B-4.09(4), Florida Administrative Code.

BACKGROUND

By notice dated June 11, 1982, Robert L. Bedford, Superintendent of the Charlotte County School District, charged respondent Elva Jean Newland with multiple acts of gross insubordination within the meaning of Section 231.36(6), Florida Statutes (1981) and Rule 6B-4.09 (4) Florida Administrative Code, and informed her that he would recommend that the Charlotte County School Board terminate her employment as a continuing contract school teacher. She denied the charges and requested a Section 120.57(1) hearing. Thereafter, this case was forwarded to the Division of Administrative Hearings and hearing was set for November 18-19, 1982.

At hearing, petitioner School Board of Charlotte County ("School Board" or "Board") called the following witnesses: Lawrence Mickler, Roger Jones, Johanna White, Robert Hrstka, Thomas Wagoner, Joan Smoak, Endress Barker, Nancy Jones, Harold Joyner, and Barbara Collard. Board Exhibit Nos. 1/ 2, 3, 5-11, and 13 were received into evidence.

Respondent testified in her own behalf and called Charlotte Wharton, Gilbert Hutchcraft, Helen Patricia Eckman, Glenna Grigsby, and Sarah Rains as witnesses. Respondent's Exhibit Nos. 1/ 1-5 were received into evidence.

The transcript of hearing was filed by December 23, 1982. Proposed findings of fact and conclusions of law were filed by January 12, 1982. Based on the evidence presented at hearing, the following facts are determined:

FINDINGS OF FACT I.

1. Respondent Elva Jean Newland has been a school teacher for 36 years. She has a Bachelor's Degree in Education from Radford College, a Master's Degree in Learning Disabilities from the University of Virginia, and has completed numerous post-graduate courses. (Testimony of Respondent)

   
   

2. She has spent her career teaching young children, ages five through eleven. For the past 16 years, she has been employed as a teacher by the School Board of Charlotte County. Until her suspension in May, 1982 (for alleged gross insubordination) , she was employed, under continuing contract, as a kindergarten teacher at Neil Armstrong Elementary School in Port Charlotte, Florida. (Testimony of respondent)

   
   

3. She has developed a personal philosophy on discipline in the classroom. Essentially, she maintains that "You cannot teach a child unless you have that child's attention. You cannot get his attention if there is a disruptive influence. (Tr.-175) For many years, she handled disruptive influences in the classroom by using a small paddle which she referred to as "Mister Bolo." When students became disruptive (such as talking too loud or running about the room) she would invite "Mr. Bolo" to "talk" to them. This was accomplished by the child spanking his or her own hands or feet (after removing the shoes) with the bolo paddle. If the child did not administer the spanking, respondent would. (Testimony of respondent, Hrstka)

   
   

4. At her principal's request, respondent eventually discarded the "Mr. Bolo" paddle. The School Board maintains that she used other methods of disciplining disruptive children, that she repeatedly administered corporal punishment in direct disobedience of orders of her superiors and rules of the School Board, and that such misconduct constitutes gross insubordination. Respondent denies having administered corporal punishment in violation of orders or rules, and denies the charge of gross insubordination.

   
   

   II.

   
   

   Rules for Administering Corporal Punishment

   
   

5. During the 1980-81 and 1981-82 school years, respondent was aware of the rules of the School Board and the Neal Armstrong Elementary School governing corporal punishment. (Prehearing Stipulation, p. 4)

   
   

6. These rules defined "corporal punishment" as:

   
   

   the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline

   or to enforce school rules. However, the term corporal punishment does not include

   the use of such reasonable force by a teacher or principal as may be necessary to protect themselves or other students from disruptive students. (P-2)

   
   

   Essentially,a teacher may administer corporal punishment to enforce discipline (where other methods of seeking cooperation have failed) in accordance with specific criteria. Corporal punishment must be administered in the principal's office; prior approval of the principal is necessary; an adult witness must be present; the witness and the child must be told of the reasons for the corporal punishment; excessive force cannot be used; and, a written report of the incident must be filed with the principal and sent to the child's parents. (P- 2, P-5)

   
   

7. Respondent concedes the propriety of these rules and that corporal punishment may not be administered without first complying with them. (Prehearing Stipulation, pp. 6-7)

   
   

   III.

   
   

   During the 1980-1981 School Years, Respondent Administered Corporal Punishment in Violation of the Rules of the School Board and in Defiance of the Orders of Her Principal

   
   

8. In early 1981, Lawrence H. Nickler, then principal of Neal Armstrong Elementary School, received complaints from parents that respondent physically punished her students. Mr. Mickler reacted by issuing her a written order. The order, dated February 13, 1981, instructed her

   
   

   to put aside all references to corporal measures; any gesture which might be misconstrued as of a corporal nature;

   or the use of any devices in such a manner which might be considered as dealing corporal punishment. This includes

   or could include a ruler, paddle, bolo paddle, etc. (P-7)

   
   

   He specifically warned her that the continuing concern of parents could threaten her career, that her reputation and professional future were in jeopardy. (Testimony of Mickler, P-7)

   
   

9. Nonetheless, on or about May 5, 1981, respondent administered corporal punishment to Michelle White, a student, by striking her on the head--a blow which broke the blue plastic headband she was wearing and bruised the child's scalp. Respondent administered this blow to Michelle in the classroom in the presence of other and without first taking her to the principal for corporal punishment, without first securing the presence of an adult witness, and without advising the witness of the reason for the punishment. She also failed to complete the report which must be filed with the principal and sent to the child's parents. (Testimony of respondent, White, P-8)

   
   

10. Faced with this violation of his orders, principal Mickler called respondent to his office on May 6, 1981, and discussed the incident with her, informed her that her action violated his previous order, and specifically

    warned that any further violations would result in disciplinary action. (Testimony of Mickler, P-9)

    
    

    IV.

    
    

    During the 1981-1982 School Year, Respondent Administered Corporal Punishment in Violation of Rules of the School Board and Orders of Her Principal

    
    

11. During the 1981-1982 school year, Robert Hrstka became principal of Neal Armstrong Elementary School. On the first day of school, he met with his teachers (including respondent) and reviewed the school handbook, including procedures for handling disciplinary problems. He specifically informed them that they could use corporal punishment only if they followed the rules; that any teacher who intended to use corporal punishment should report to him for a demonstration of the proper technique for administering it. Respondent, however, did not report to him for the demonstration. (Testimony of Hrstka, Prehearing Stipulation, p. 5)

    
    

12. Respondent did, however, come to Mr. Hrstka's office the next day and explain to him how she used her "Bolo" paddle. He responded that her use of the paddle constituted corporal punishment, instructed her that she was to discontinue using it, and reminded her that if she wanted to administer corporal punishment she would have to follow the rules. (Testimony of Hrstka, Prehearing Stipulation, pp. 6-7)

    
    

13. Nonetheless, during the ensuing school year, respondent administered corporal punishment to five students, on six separate occasions, in violation of the School Board's rules and her principal's orders.

    
    

    1. Emily Robarge. In October, 1981, respondent administered corporal punishment to Emily Robarge, a kindergarten student, by slapping her on the hands, causing her to cry. This was done in the classroom in the presence of other students, without securing an adult witness, without first taking the student to the principal's office, without first advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Hrstka, Respondent's Response to Requests for Admissions, para. 15)

       
       

    2. Rebecca Hoop. During February, 1982, Rebecca Hoop, a fourth grade student, was making noise by clicking the handle on the front door of the school. Respondent opened the door, pushed her back, and pinched her on the arm, breaking the skin and causing a black-and-blue bruise. This constituted corporal punishment and was administered without taking the student to the principal's office, without first securing an adult witness, without advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Jones, respondent, Hrstka)

       
       

    3. Brian Chelarducci. During March or April, 1982, respondent took Brian Ghelarducci, a student, into the restroom within her classroom and administered corporal punishment by striking him on the hands three or four times, using a ruler or other wooden object. 3/ This occurred in the presence of the other students and without respondent first securing an adult witness, without advising the witness of the reason for the corporal punishment, without taking the student to the principal's office, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Smoak, Hrstka)

    4. Emily Robarge. During the spring of 1982, Respondent again administered corporal punishment to Emily Robarge, a kindergarten student. Emily was late returning from recess and respondent met her outside the classroom door in the hallway. The door was closed. Respondent held the girl by one arm and spanked her fairly hard on the buttocks four or five times, causing the student to cry. (This was more than a series of taps or a nudging to encourage Emily to move more quickly.) This constituted corporal punishment and was administered without respondent first taking Emily to the principal's office, without securing the presence of an adult witness, without advising an adult witness of the reason for the corporal punishment, and without completing and filing the corporal punishment report form required by the School Board. (Testimony of Hrstka, Collard)

       
       

    5. Jeff Elliot. In January, 1982, respondent administered corporal punishment to Jeff Elliot, a kindergarten student, by striking him on the hands. In the presence of other students, respondent took him behind a classroom bookcase, told him to hold out his hands, and asked if he was going to slap them or would she have to do it. Several slapping sounds ensued, followed by the boy's cries. 4/ This occurred without respondent first taking Jeff to the principal'S office, without securing an adult witness, without advising the witness of the reason for the corporal punishment, and without filing the report form required by the School Board. (Testimony of Barker)

       
       

    6. Robert Myers. During 1982, respondent administered corporal punishment to Robert Myers, a kindergarten student, by striking him on the buttocks with a yardstick while he leaned across a desk. She struck him three or four times, the blows were hard enough to hurt, and the boy cried. (She admits that she "swatted him on the backside." Tr.-186) Respondent took this action in the presence of other students, without first taking Robert to the principal's office, without first securing the presence of an adult witness, without first advising the witness of the reason for the punishment, and without completing and filing the report form required by the School Board. (Testimony of Barker)

    
    

    V.

    Respondent's Violation of Rules and Orders Governing Administration of Corporal punishment Was Intentional

    
    

14. Respondent's repeated violations of rules and orders governing corporal punishment support an inference that the violations constituted willful and intentional disobedience of lawful authority.

    
    

15. When Mr. Hrstka became principal, Endress Barker--a teacher's aide and friend who worked closely with respondent--asked her not to do anything to jeopardize her (respondent's) job--not to spank children without following the procedures and filing the necessary reports. Respondent replied, "Well, we'll see." (Tr.-154) When this statement is considered together with her admission that she was aware of the corporal punishment procedures--procedures which were clear and definite, and which she repeatedly violated--the willful, even defiant, nature of her violations is convincingly established. The evidence supports a conclusion that she made a conscious decision to continue disciplining children in her own way, notwithstanding the contrary rules of the School Board and the orders of her principal.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. 120.57(1), Fla.Stat. (1981).

    
    

17. The School Board is authorized to terminate the employment of a teacher, who is on continuing contract, on grounds that she engaged in gross insubordination. 231.36(6), Fla.Stat. (1981). "Gross insubordination" is defined by Rule 6B-4.09(4), Florida Administrative Code as:

    
    

    A constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

18. Teacher dismissal proceedings are penal in nature. School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1st DCA 1980). The School Hoard must prove its charges by clear and convincing evidence, by evidence as substantial as the consequences. See, Reid v. Florida Real Estate Commission,

    188 So.2d 846 (Fla. 2nd 4 DCA 1966); Walker v. State 322 So.2d 612 (Fla. 2nd DCA 1975); Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). Measured by this standard, it is concluded that the School Board sustained its burden and established that respondent is guilty of gross insubordination within the meaning of Section 231.36(6), Fla.Stat. (1981). Her repeated and persistent violation of orders limiting the application of corporal punishment is tantamount to a continuing and intentional refusal to obey direct orders, reasonable in nature and given by proper authorities.

    
    

19. Penalty. The School Board contends that a no lesser penalty than termination is appropriate. It correctly points out that respondent has been persistently and willfully defiant, has shown no regret, and has failed to acknowledge her duty to comply with reasonable and authorized orders of her principal.

    
    

20. These reasons supply an ample basis for termination. They should, however, be weighed against her many years of capable and loyal service, and her obvious enthusiasm for--and devotion to--the teaching profession. It is respectfully submitted that the School Board should, in its sound discretion, provide respondent with another opportunity for employment if, and only if, she genuinely acknowledges her primary duty to obey reasonable and authorized orders of her principal and rules of the Board. Pursuant to the Board's authority to fix the terms for reinstating a teacher, Section 231.36(6), reinstatement should be granted only on a probationary (annual contract) basis.

    
    

21. The parties filed proposed findings of fact and conclusions of law. Those proposed findings which are incorporated herein are adopted; otherwise, they are rejected as unsupported by the evidence or unnecessary to resolution of the issue presented.

RECOMMENDATION

Based on the foregoing, it is RECOMMENDED:

That the School Board sustain charges that respondent engaged in gross insubordination, violative of Section 231.36(6), but allow reinstatement on a

probationary basis, conditioned upon her acknowledging her duty to comply with the lawful orders of her principal and the rules of the Board.

DONE AND RECOMMENDED this 15th day of March, 1983, in Tallahassee, Florida.

R. L. CALEEN, JR. 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 16th day of March, 1983.

ENDNOTES

1/ Petitioner's and Respondent's Exhibits will be referred to as "P- " and "R-

," respectively.

2/ Pages in the transcript of hearing will be referred to as "Tr.- ."

3/ Conflicting testimony on whether respondent struck Brian's hands, or her own leg, is resolved in favor of the testimony of Joan Smoak, a witness with no discernible interest in the outcome of this proceeding.

4/ Although respondent denies having slapped him, the contrary testimony of Endress Barker is accepted as more credible.

COPIES FURNISHED:

Daniel H. Kunkel, Esquire Robert L. Bedford, superintendent

290 Cocoanut Avenue Charlotte County School Board Sarasota, Florida 33577 1016 Education Avenue

Punta Gorda, Florida 33950

Kenton H. Haymans, Esquire

P. O. Box Drawer 635

Punta Gorda, Florida 33950

Honorable Ralph D. Turlington Commissioner of Education

The Capitol

Tallahassee, Florida 32301

Docket for Case No: 82-001942

Orders for Case No: 82-001942