Judges: ARNOLD H. POLLOCK
Agency: County School Boards
Latest Update: Jun. 08, 1990
Summary: Teacher could use reasonable force to exercise control and keep order in class.
83-1946.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 83-1946
)
GARY TEMPLE, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, on October 18, 1983, in Miami, Florida. The issue for consideration here was whether Respondent should be disciplined because of alleged misconduct contained in the Notice of Charges.
APPEARANCES
For Petitioner: Jesse J McCrary, Jr., Esquire
3050 Biscayne Boulevard, Suite 800
Miami, Florida 33137-4198
For Respondent: William Du Fresne, Esquire
Du Fresne & Bradley
2929 Southwest Third Avenue Miami, Florida 33129
BACKGROUND INFORMATION
On June 8, 1983, the School Board of Dade County, Florida (Board), voted to suspend Respondent from employment for ten workdays for insubordination and misconduct in office arising out of alleged batteries committed by Respondent upon students in the school where he teaches. Respondent was notified of the Board's action by letter dated June 9, 1983. The following day, June 10, Respondent's counsel appealed the decision of the Board and requested a hearing on the matter. Thereafter, on June 22, 1983, the Board Attorney filed a Notice of Charges with the Division of Administrative Hearings setting forth the allegations as a violation of Section 231.36(4)(c), Florida Statutes (1981), citing incompetency and misconduct in office.
Petitioner presented the testimony of Arlene Y. Pratt, Ann P. Miller, Anthony Bermudez and Linda C. Judge, as well as the stipulated proffer of the testimony of Kimberly Walker, Ricky Cruzado, Dean Festge, Michelle Einstein and Lillian Woods. Respondent testified in his own behalf, presented the testimony of Judith Gasman, David Deater and Ely Feldman, and offered the stipulated proffer of the testimony of Larry Adams and Dominique Wilson.
FINDINGS OF FACT
At all times pertinent hereto, Respondent, Gary Temple, was a teacher of mathematics at North Miami Junior High School, Dade County, Florida, and was an employee of Petitioner under a continuing contract.
On March 22, 1983, at the close of the fifth period, Respondent noticed that the heavy door from the hall to the classroom was remaining open after the students left the room. Since this was unusual, he started toward the door to see what or who was holding it open and saw one of his students, Anthony Bermudez, throw a piece of paper, which hit Respondent in the face. When Respondent asked Bermudez why he threw the paper, Bermudez denied having done so. When Respondent asked Bermudez to come back into the room, Bermudez refused. Since Respondent did not want to make a scene in the hallway, Respondent grabbed Bermudez by the arm and pulled him back into the room. In the process of this pulling, Bermudez either stumbled or was pushed by Respondent and may have fallen against a student desk and the teacher's desk. Respondent says Bermudez was not pushed and did not hit the desks. Bermudez contends Respondent pushed him and he fell against the two desks. Another student, Lisa Judge, while not remembering any other details of the incident, including whether it was before or after class or who else, if anyone, was there, recalls seeing Respondent push Bermudez, who then fell. The proffers of the testimony of several other students who were present show that Respondent, in fact, pushed Bermudez, who then stumbled and collided with the desks.
However, the cumulative evidence also shows that Bermudez has frequently thrown paper in Respondent's classroom before, is disrespectful and has been taken to the school office for discipline, by Respondent, at least three times previously. It also shows that Bermudez did throw paper at the time in question, and whether or not it was thrown directly at Respondent, he had reason to think it was.
In any case, Respondent then immediately took Bermudez to the vice principal's office for discipline. Mr. Murray, the vice principal, was not there at the time, nor was anyone else with the requisite authority to take appropriate action. Therefore, since the next class period had begun, since Respondent had to plan for classes, and since Bermudez had a class to attend, Respondent gave him a pass to go, late, to his sixth period class.
Bermudez suffered no injury as a result of this incident.
Several days later, on Friday, March 25 1983, Respondent administered a test to his students in one of his early morning classes. It is his policy to grade tests immediately and make the grades available to the students as soon as possible. Therefore, when two of his students, Arlene Y. Pratt and Ann P. Miller, who had taken the test, asked to see their grades, Respondent told them if they would come to his classroom between classes, he would give them their grades.
At the end of the fourth period, that day, Pratt and Miller showed up in Respondent's classroom asking to see their grades. Pratt indicates she asked for and got her grade. Miller was not given her grade because she had not finished the test. When the second bell rang, signaling the start of the next period, Respondent allegedly began to yell at them to get out of his classroom and pushed Pratt several times, which resulted in her bumping into the doorjamb and hitting her chest and head. She denies being disrespectful to Respondent or doing anything to provoke the attack.
Respondent, on the other hand, states that he gave Pratt her grade and told Miller she did not have a grade because she had not finished the test. Pratt, however, was not satisfied with just the grade she wanted to see the test. Since at this point the bell starting the next period had rung and the students were already in the classroom, he told her she had to go. She refused several times to leave. Since he had to start his class, and since she was disrupting his class discipline, he admits he gently pushed her toward the door. At the door, she again refused to leave, so he nudged her with his hand, and she made contact with the door frame.
Pratt contends she had pain in her chest and her head for about a week after this incident. Respondent denies she hit the door frame with enough force to cause that pain; and Pratt admits that just at that time, she came down with chicken pox, which could have caused her pain.
Respondent did not report either incident. Pratt did not say anything about it in school that day, but mentioned it to her mother when she got home. The following Monday, Pratt and her mother reported the incident to Mr. Pittman, the principal who called Respondent into a meeting with all parties. No apologies were forthcoming from either side.
Respondent understands that under the corporal punishment rule of the Dade County School Board, the principal has the sole authority to administer this action. The teacher has authority only to maintain order. In the past, however, when he has used the normal referral procedure to send disruptive students to the school administrators, he has not, in many instances, he feels, received the support he needs.
Several of Respondent's colleagues who have known him as a teacher from five to ten years respect him as a competent teacher with a good reputation in his profession who maintains an orderly classroom, but who has not been known to ever have physically abused students.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Section 231.36(4)(c), Florida Statutes (1982 Supp.), provides that any member of a school district instructional staff who is under continuing contract, as Respondent is, may be suspended at any time during the school year if the charges against him are based on certain grounds which include incompetence, insubordination and misconduct in office.
Here, in the letter of suspension, Respondent was notified he was suspended for insubordination and misconduct in office; and in the subsequent Notice of Charges, he was alleged to be guilty of incompetency and misconduct in office. There has been no showing of any evidence of either insubordination or incompetency. Therefore, the only question for resolution is whether Respondent's conduct constitutes misconduct in office so as to support the disciplinary action proposed.
Misconduct in office is defined in Rule 6B-4.09(3), Florida Administrative Code, as a "violation of the Code of Ethics of the Education Profession so severe as to impair the individual's effectiveness in the school system." Here, Respondent, identified by his peers as an excellent teacher,
took steps to maintain discipline and an atmosphere conducive to learning in his classroom in one case and immediately outside in the other.
Under the provisions of Section 232.25, Florida Statutes (1981), each pupil shall, when on the school premises, be under the control and direction of the principal and teachers. Section 232.27, Florida Statutes (1981), provides that each teacher shall have the authority for the control and discipline of students and shall keep good order in the classroom and in other places where he is assigned to be in charge of students.
Inherent in that charge is the authority to utilize such moderate and reasonable force as is necessary under the circumstances to exercise control and keep good order in the classroom (Pratt) and other places, such as the hallway just outside the classroom (Bermudez) . Notwithstanding Pratt's assertion she in no way provoked Respondent to action, her refusal to leave when asked, in a classroom situation where an entire class is watching and waiting for class to begin, justifies more reaction by the teacher than a mere referral of the student to the office. Notwithstanding Bermudez' denial that he threw paper at Respondent, there is substantial evidence he did. Again, in light of Respondent's prior disciplinary history with this student and the lack of action by the administration, more latitude in action was allowed to Respondent than a mere referral.
Consequently, it is clear that Respondent's actions here were a moderate exercise of his disciplinary authority over the pupils, were within the bounds of moderation and were not shown to be unreasonable. Therefore, it cannot be said that Respondent's actions constituted misconduct in office. (See Division of Administrative Hearings Case No. 81-554, School Board of Dade County
v. Black.)
RECOMMENDATION
Based on the foregoing, it is RECOMMENDED:
That Respondent be found not guilty of insubordination, incompetence, or misconduct in office, as alleged in the Notice of Charges dated June 22, 1983; that the School Board's suspension for ten days of Respondent be rescinded and that he be reinstated with full back pay.
RECOMMENDED this 15th day of December, 1983, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 15th day of December, 1983.
COPIES FURNISHED:
Jesse J. McCrary, Jr., Esquire 3050 Biscayne Boulevard
Suite 800
Miami, Florida 33137-4198
William Du Fresne, Esquire Du Fresne & Bradley
2929 S.W. Third Avenue Miami, Florida 33129
Dr. Leonard Britton Superintendent of Schools Dade County Public Schools 1410 N.E. Second Avenue Miami, Florida 33132
Docket for Case No: 83-001946
Orders for Case No: 83-001946
