STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, EDUCATION ) PRACTICES COMMISSION, RALPH D. ) TURLINGTON, COMMISSIONER OF )

EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3004

)

JAY R. ROTH, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before P. Michael Ruff, Hearing Officer, on May 8, 1984, in Fort Myers, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: J. David Holder, Esquire

Post Office Box 1694 Tallahassee, Florida 32302

For Respondent: John C. Coleman, Esquire

COLEMAN & COLEMAN

2300 McGregor Boulevard Fort Myers, Florida 33901

This cause commenced by the filing of an Administrative Complaint by Ralph

1. Turlington, Commissioner of Education, against Respondent, Jay Robert Roth. The complaint alleges, in essence, that in December 1982 the Respondent chased a minor male student down a hallway at Alva Middle School, grabbed the student and threw him against the wall. It also alleges that on or about January 6, 1983, the Respondent struck a minor male student in the chest, knocking him to the ground, as the student was walking home after school.

   
   

   In view of these allegations, the Petitioner asserts that the Respondent violated Section 231.28, Florida Statutes, in that he is guilty of personal conduct which seriously reduces his effectiveness as an employee of the Lee County School District. The Petitioner further charges that the Respondent violated Rule 6B-1.06(3)(a), (e) and (f), Florida Administrative Code, by allegedly failing to make a reasonable effort to protect students from conditions harmful to learning or to health or safety; intentionally exposing students to unnecessary embarrassment or disparagement and intentionally violating students' legal rights.

   
   

   At the hearing, the Petitioner presented eight witnesses and Respondent presented four. Additionally, the Respondent presented six exhibits, all of

   which were admitted into evidence. At the conclusion of the proceeding, the parties requested a transcript and chose to file proposed findings of fact and conclusions of law. These proposed findings and conclusions were timely filed.

   
   

   All proposed findings of fact, conclusions of law, and supporting arguments have been considered. To the extent that they are in accordance with the findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they are rejected. Certain proposed findings and conclusions are omitted as not relevant nor as necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. See, Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3rd DCA 1982); Sierra Club v. Orlando Utilities Commission, 436 So.2d

   383 (Fla. 5th DCA 1983).

   
   

   The issue to be resolved in this proceeding concerns whether the Respondent committed the acts with which he is charged in the Administrative Complaint and whether that conduct, if proven, has seriously reduced his effectiveness as an employee of the Lee County School District, constitutes violations of the other statutory and regulatory authority charged, and if so, the requisite penalty, if any.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent, Jar Robert Roth, holds Florida Teaching Certificate 333599 issued by the Department of Education covering the areas of social studies, administration and supervision, and junior college. The Petitioner is an agency of the State of Florida charged with the licensure of teachers, regulating the licensure status of teachers and enforcing the professional practice standards related to teachers, and imposing disciplinary sanctions where proven to be appropriate. At all times material to this proceeding, the Respondent was employed by the Lee County School District as a teacher at Alva Middle School (Alva).

      
      

   2. At the beginning of the 1982-1983 school year, the Respondent taught an eighth grade physical education class. During the school year, the Respondent was teaching out of his field and had little prior experience with middle school students. The Respondent taught the physical education class for a short time, probably less than nine weeks. During this period of time, he had no difficulties or disciplinary problems between student Richie Jones and himself at all.

      
      

   3. One day in December 1982, Richie Jones, a 12-year old student, was walking down a hallway at Alva Middle School when he saw the Respondent approaching him. In a joking vein, Richie called the Respondent "ugly." The Respondent replied, "come here, kid" or words to that effect and advanced towards Richie. Richie replied to the effect that the Respondent should beware because he knew karate. At that juncture, the Respondent grabbed the student by the collar or lapels and pushed him against the wall, picking him up off the floor slightly (Richie was 12 years old and a very small child for his age). When this occurred, Richie told the Respondent that he was just joking. The Respondent replied "you'd better be," or a similar admonishment, possibly regarding sending Richie to the principal's office, and walked away. Richie walked away in the other direction. The record does not reflect whether the Respondent's comment before walking away was in a serious or joking vein. However, as revealed by Alice Moore, the Petitioner's own witness, a teacher who

      observed the incident, she saw Richie and the Respondent laughing and joking during the incident when the Respondent physically grabbed Richie, picked him up and pushed him against the wall. According to Ms. Moore, the time elapsed from the point when the Respondent and Richie were laughing and joking, to the time that the Respondent put him down and walked away, was only a matter of seconds. Richie possibly was briefly scared by the incident, but was unhurt, and, by his own admission, forgot about it and thought no more of it thereafter. No report of this incident to other teachers was made by Richie or anyone else.

      
      

   4. On the afternoon of January 6, 1983, at approximately 3:30 p.m., John Gouley, Glenn Dyess and Paul Meloy, Alva Middle School students, were walking to Alva Supply Store approximately one to one and a half blocks from the school, after school hours, to obtain refreshments. Paul was walking several steps ahead of John and Glenn as they were waling down the side of the road. At that time, John and Glenn were engaged in an argument. They were approximately one hundred yards from the school at that time. As the boys were walking along the side of the road, the Respondent passed them when leaving the school grounds in his van. The Respondent, in the belief that John Gouley had shouted "Roth sucks" or made an obscene gesture, or both, slammed on his brakes, jumped out of the van, and approached the boys. The Respondent got close to John Gouley, facing him, and Gouley asked "What did I do?" The Respondent replied, "I heard what you said" and the Respondent then pushed Gouley with the open palms of his hands applied to the boy's chest. Following this pushing, Gouley either fell into the ditch behind him or went down on one knee. The evidence in this regard conflicts. Gouley had grass stains on the seat of his pants as well as his knees. He maintains he fell into the ditch on his back, while the Respondent maintains the he merely grabbed Gouley's lapels causing him to go down on one knee. In any event, the Respondent admits to physically touching Gouley in this instance. Gouley was unhurt, although somewhat shaken and upset. The three boys then returned to school and reported the incident to Ms. Louise King, a physical education and health teacher at Alva Middle School, who was in the principal's office at the time the boys sought out the principal, who was absent at the time.

      
      

   5. The boys explained the incident to Ms. King. Ms. King observed Gouley's chest and saw that it was red, although not bruised and with no finger marks. Gouley was upset and crying at the time, and his clothes appeared dirty. Ms. King made notes of the incident and informed Mr. Watson, the Principal, by calling him at home. Both Glenn Dyess and Paul Meloy observed the incident, and two female students were present in the office when Ms. King and John Gouley were discussing the incident. Mr. Thomas Benton, Director of Personnel Services for the Lee County School District, interviewed the Respondent the following day, January 7, 1983. The Respondent told Mr. Benton that he did indeed push the student, indicating that he regretted it, but simply acted impulsively.

      
      

   6. In any event, the incident with John Gouley was related by Gouley to people at his church; his friends and other teachers were in various ways made aware of the incident. The fact of the incident was published in a newspaper of general circulation in Lee County, the Fort Myers News Press.

      
      

   7. Mr. Roth has been in the teaching profession for approximately 12 years, most of that time as a teacher and as a dean at Riverdale High School in Lee County. The last one and a half years before his resignation were spent in middle school, where he was required to teach out of his field with students younger than those he was accustomed to relating to and instructing. Mr. Roth's entire career has been characterized by exemplary performance of his duties, also characterized by a vital concern for his students' education and personal

      and social development. He is greatly concerned with the success of his students. Upon beginning teaching at Alva Middle School, when he observed many failing students in the sixth grade, he organized "Parent's Nights" so he could discuss the students' problems with parents and assist parents in helping the students at home so that more of them would pass his courses. His practice of the profession has also been characterized by extracurricular activities he has organized in order to attempt to make learning interesting for his students, and to assist to motivating them.

      
      

   8. Indeed, one parent, Mrs. Helen Henderson, thought that the Respondent made a substantial contribution to education in Lee County, finding him to be a dedicated, considerate teacher who is the only teacher in the 17 years this parent had children in both Riverdale and Alva Middle Schools, who bothered to call her from his home in the evening to discuss the problems here child was having, and to offer his assistance. That assistance for her daughter resulted in her raising her poor grade average to an "A" average. This parent found the Respondent always willing to share his knowledge and give extra help to students, and the students in his seventh grade science and other classes were taught extra skills compared to other sections dealing with the same subject matter and grade level. Additionally, the Respondent taught an extra first aid class which he organized and offered on his own for the benefit of his students, and this parent found his method of teaching, based upon experience with her daughter's progress in Roth's classes, to be both fun and interesting. This parent, who was aware of the incident involved in the case at bar and the publicity related to it, obviously would allow the Respondent to educate her children if that were still possible, even with that knowledge.

      
      

   9. Ms. Karen Dyess, another parent, who had a son in the Respondent's class, also found him to be an exemplary teacher. This parent's son was having difficulty with the subjects in Mr. Roth's class and Ms. Dyess attended a number of classes to observe. The Respondent's class was well organized and the Respondent had a good rapport with his students. He conducted himself in a totally professional manner. The Respondent made extra efforts to enable Ms. Dyess' son to pass the course, to no avail. Ms. Dyess, however, believes the Respondent put forth a lot of extra professional effort in assisting her son, and she was impressed with his sincere desire to help him, and indeed Ms. Dyess has commended the Respondent to his Principal, Mr. Watson. This parent, also with knowledge of the altercation involved in the case at bar, has a high opinion of the Respondent as a teacher and finds it would be regrettable to lose his services on "our teaching staff."

      
      

   10. The Respondent is married and the father of three children. There is no evidence that any such incidents have ever arisen in his professional career prior to those involved in the charges at issue. The Respondent enjoys teaching and working with young people and desires to continue teaching in the Lee County School System.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

       
       

   12. Section 231.28(1)(f), Florida Statutes, provides that an individual's teaching certificate may be suspended, revoked or otherwise subjected to discipline if it can be shown that the licensee is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board.

   13. Section 231.28(1)(h), Florida Statutes, provides that a teaching certificate may be suspended, revoked or otherwise subjected to disciplinary sanctions if the holder thereof has violated rules of the State Board of Education, the penalty for which is the revocation of that certificate.

       
       

   14. Rule 6B-1.06(2), Florida Administrative Code, provides that a violation of any of the Principles of Professional Conduct for the education profession in Florida subjects the individual to revocation or suspension of his teaching certificate or other penalties provided by law.

       
       

   15. Rule 6B-1.06(3), Florida Administrative Code, requires that the holder of a teaching certificate:

       
       

       1. shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety.

          * * *

          1. shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          2. shall not intentionally violate or deny a student's legal rights.

          
          

   16. In a proceeding under a penal statute such as this one, involving suspension or revocation of a valuable professional license and means to earn a livelihood, the term "substantial competent evidence" takes on vigorous implications not so clearly present on other occasions calling for agency action pursuant to Chapter 120. Evidence which is "substantial" for one purpose may be less so on another, graver occasion. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981).

       
       

   17. In proceedings such as the instant case, where a professional is faced with suspension or revocation of his license, it is well established that "the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences." Sherburne v. School Board of Suwannee County, 9 FLW 1252, 1253 (Fla. 1st DCA June 15, 1984), citing Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981).

       
       

   18. Initially, it should be pointed out, with regard to the incident involving student Richard Jones, that it has not been established that the Respondent and Richard Jones were doing anything other than horseplay when the Respondent pushed Jones against the wall at the conclusion of their incident of "laughing and joking" in the hallway at Alva Middle School. The Respondent clearly exercised poor judgment in this regard in engaging in horseplay with a student and physical contact with the student. There was no demonstration that any harm to the student's health or safety occurred, that any intent to expose the student to unnecessary embarrassment or disparagement existed, nor was any intentional violation of the student's legal rights demonstrated. In a similar vein, the incident with Richie Jones was never mentioned again, was not communicated to principals, other teachers or students, and both the Respondent and Richie Jones never gave the incident a second thought. Thus, it has not been proven by Petitioner that the incident constituted the source of a serious reduction of his effectiveness as an employee of the Lee County School Board.

       
       

   19. The Petitioner has proven that the Respondent, as Respondent admitted, engaged in inappropriate physical contact with student John Gouley, as described in the above Findings of Fact. The Respondent did lose his composure and engage

in physical contact with the student off school premises and after school hours, which resulted in Gouley either falling or being pushed to the ground. The Respondent's conduct in this episode does constitute a violation of Rule 6B- 1.06(3)(e) and (f), Florida Administrative Code, in that he must be concluded to have intentionally exposed Gouley to unnecessary embarrassment or disparagement and to have intentionally violated the student's legal rights to be free from such a physical assault. The Hearing Officer understands, however, that the Respondent was acting as many an ordinarily law-abiding human being would, when he believed that obscenities had been directed at him of the nature of which the Respondent believed Gouley to have shouted at him. Be that as it may, by his intentional pushing or grabbing of Gouley, the Respondent must be presumed to have intended the natural and probable consequences of those knowing acts and it is reasonable to infer that the Respondent intended the consequences which ultimately resulted, that is, Gouley being forced or pushed to the ground. U.S. v. Durham, 512 F2d 1281, cert. denied 96 S.Ct. 137, 423 U.S. 871, 46 L.Ed. 2d

102. Thus, it having been shown, as evidenced by the above Findings of Fact that Gouley was upset, embarrassed and "disparaged" in front of his two companions and was still in such a state of mind when he related the incident to Ms. King, it must be concluded that an intentional violation of Subsection (e), cited above, has been established. The physical contact and the threat of it, by the Respondent to Gouley, is technically an assault and battery, and inappropriate corporal punishment, (Section 232.26, Florida Statutes) and thus, a violation of the student's legal rights. The act having been intentional,

sub-paragraphs (f) must be deemed to be violated also.

1. There has been no proof, however, that the Respondent failed to protect Gouley from a condition harmful to his health or safety. He was clearly unhurt and the physical contact involved was of such a moderate nature as to more involve the considerations of embarrassment and disparagement and violation of the student's legal right to be free from such physical abuse, a protection intended by the adoption of the corporal punishment statute, Section 232.26, Florida Statutes. Subsection (a) of the rule cited above is not truly germane to the facts of this case, since it envisions a failure to adequately protect students in the learning setting. In view of the fact that student Gouley was not harmed physically by the incident, but rather was embarrassed, humiliated and disparaged by it, and also had his legal right to be free from physical abuse violated, Subsections (e) and (f) are truly the germane charges which relate to an incident such as this and it is not deemed that a violation of Subsection (a) has been proven.

   
   

2. Finally, it has not been established that the Respondent's conduct in this instance has seriously reduced his effectiveness as an employee in the Lee County School District. Although some parents knew of the incident involving John Gouley, and although the fact of it was published once in a newspaper of general circulation, the fact also remains that some parents, who have children in Alva Middle School and Riverdale High School, still genuinely believe that the Respondent is an exemplary, effective, conscientious teacher and deserves to continue to teach in their school system, and indeed they urged he be allowed to do so. The strength of the conviction of the two parents who wrote the letters constituting Respondent's Exhibits 5 and 6, Mrs. Helen Henderson and Mrs. Karen Dyess, respectively, is such that they saw fit to correspond thereby with the Commissioner of Education and Ms. Greenfield of the Education Practices Commission regarding their desire that the Respondent be allowed to continue to teach in their school. The only other parent whose testimony appears of record is that of John Gouley himself, who supports the position of the Petitioner, for understandable and somewhat self-serving reasons. The letters in support of the Respondent constituting Exhibits 5 and 6 are corroborative of the testimonies of

   the Respondent's colleagues, witnesses Linda Thrall and Karen Yingst, who taught with the Respondent and who, in Ms. Yingst's case, was the Respondent's supervisor. Both of these teachers and colleagues testified to the exemplary performance of the Respondent as a teacher, to his deep concern for the welfare and success of his students, and attested to his value as a teacher to the Lee County School Board. The testimony of these two colleagues corroborated by the testimony in Respondent's Exhibits 5 and 6, show that indeed the Respondent has lost very little effectiveness as an employee of the Lee County School Board, and certainly has not had his effectiveness seriously reduced as is required by the above statute before disciplinary measures may be imposed.

   
   

3. The testimony of expert witness Benton regarding the Respondent's alleged loss of effectiveness is not accepted. Mr. Benton spoke only to Mr. Watson, the Principal of Alva Middle School, John Gouley's mother and the students involved, before recommending that Roth be suspended or submit his resignation, also recommending resignation to Roth himself, after hearing Roth's "side of the story." Mr. Benton conferred with no other principals in any Lee County School concerning Roth's ability to teach and whether it would be seriously reduced in view of the John Gouley incident, and only knows of one article being published in the Fort Myers News Press concerning the incident, which was not shown to be an edition which is circulated throughout Lee County. In short, in the face of the instructional evaluation in evidence reflecting the highest levels of performance as a teacher; in the face of the testimony of Respondent's colleagues and supervisor, Linda Thrall and Karen Yingst, and in view of the corroborative testimony of the two parents referred to above who desire him to continue teaching, it is concluded that the expert opinion of witness Benton is based on an insufficient factual predicate, when juxtaposed against the Findings of Fact related to the above-mentioned witnesses and exhibits, to justify a finding that the Respondent has suffered a serious reduction of his effectiveness as an employee of the Lee County School Board. See, Donald G. Braddock v. School Board of Nassau County, Florida and Craig Marsh, Superintendent of Schools (1st District, Case No. AU128, August 22, 1984).

   
   

4. Thus, it has been shown that the Respondent has violated Subsections

(e) and (f) of the above-cited rule, but the remaining charges of the Administrative Complaint have not been proven. Because of the Respondent's exemplary performance as a teacher heretofore, and because this is an isolated instance of poor judgment appearing on his record as an educator, it is clear that only a minimum penalty is warranted under the circumstances of this case.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the penalty of a written reprimand shall be imposed as provided for in Section 231.262(6)(f), Florida Statutes.

DONE AND ENTERED this 21st day of November 1984 in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of November 1984.

COPIES FURNISHED:

J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302

John C. Coleman, Esquire Coleman & Coleman

2300 McGregor Boulevard Fort Myers, Florida 33901

Honorable Ralph Turlington Commissioner of Education The Capitol

Tallahassee, Florida 32301

Donald Grieshiemer, Executive Director Education Practices Commission

Knott Building Tallahassee, Florida 32301

Docket for Case No: 83-003004

Orders for Case No: 83-003004