STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioners )

)

vs. ) CASE NO. 84-2949

)

ANDREW MARCUS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Noticed this cause was heard by Linda M. Rigot the assigned Hearing Officer of the Division of Administrative Hearings on February 25, 1986 in Miami Florida. The parties completed their posthearing submissions on April 24, 1986.

Petitioner School Board of Dade County was represented by Frank R. Harder Esquire Miami Florida and the Respondent Andrew Marcus was represented by Dan J. Bradley Esquire Coconut Grove, Florida.

On July 17 1984 the Superintendent of Schools notified Respondent of his suspension and of the initiation of proceedings to dismiss Respondent from his employment as a teacher in the Dade County school system. Respondent timely requested a formal hearing regarding his suspension and dismissal. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained in the Specific Notice of Charges and if what disciplinary action should be taken if any.

Petitioner presented the testimony of Quentin Collins, Jessie Collins, Mary Jane Mack, Bunun Mack, Joan Erby, Berline Alridge, David Gay, Henry Pinkney, Tarsha Moored, Donnell Carter, Tristan Mack, Robert Staelens, Dr. Richard Wolff, James Monroe and Patrick Gray. Respondent testified on his own behalf. In additions Petitioner's Exhibits numbered 1-3 and Respondent's Composite Exhibit numbered 1 were admitted in evidence.

Both parties submitted proposed findings of fact in the form of a proposed recommended order. A ruling on each proposed finding of fact appears in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is a school teacher who has earned an associate's degree from Miami-Dade Community College, a bachelor's degree in education from the University of Miami and a master of science degree from Florida International University.

   
   

2. Respondent has a valid and current Florida Teacher's Certificate and is certified in the areas of science and social studies.

3. Respondent has been employed for thirteen years as a teacher by the Dade County School Board. He was employed for one year in 1965-69 re-employed in 1972 and continued his employment until his suspension on July 25, 1984.

   
   

4. The Dade County School Board has an official policy of annual performance evaluations of all teachers. The criteria established by the Petitioner for the teacher evaluations are: (1) preparation and planning, (2) knowledge of subject matter, (3) classroom management, (4) techniques of instruction, (5) assessment techniques, (6) teacher-student relationship, and

   1. professional responsibility.

      
      

5. For the years 1972 through 1983 Respondent was annually evaluated by the Petitioner, his job performance was found to be acceptable, and he was annually recommended for continuing employment with Petitioner.

   
   

6. For the school year 1983-84 Respondent received an evaluation of "acceptable" and he was recommended for employment. However principal Henry Pinkney later amended his "acceptable" evaluation recommending that Respondent continue his employment under prescription.

   
   

7. During the 1983-84 school year Quentin Collins was a student attending North Dade Junior High School where Respondent was one of his teachers.

   
   

8. On May 10, 1984, Quentin Collins was one of approximately 30 students in a class taught by Respondent.

   
   

9. On that date Collins was repeatedly talking, misbehaving, and disrupting the class. After several warnings by Respondents the student was directed to go to the teacher's desk in the front of the classroom.

   
   

10. For the next several moments while Respondent attended to the other students in the classrooms Collins was at various times sitting, kneeling, squatting and leaning on or against the teacher's desk. After he decided to sit on the floors his back was against the teacher's desk and his legs were extended straight out so as to block the aisle next to that desk.

    
    

11. After Respondent finished walking around the classroom and talking with other students, he turned to return to the area of his desk and literally, almost stepped on Collins' legs. As Respondent stepped over (and not on) Collins' legs, Collins raised his knees and grabbed Respondent's legs in such a manner that Respondent feared he was going to be "tripped" by the student. In a brief and sudden instant, Respondent grabbed both of Collins' legs, lifted him in the air, and then lowered Collins back down. During this brief bodily entanglement, Collins' head may have bumped the linoleum floor.

    
    

12. The incident was not reported to the school administrators until four days later and Collins did not tell his mother about these events until a later date.

    
    

13. Collins was examined by a physician four days after the incident. There is no evidence that the student sustained any injury or has any medical problems as a result of the incident of May 10, 1984.

    
    

14. Although Respondent was evaluated as "acceptable" and recommended for employment by the principal of North Dade Junior High School after the incident with Collins and after the principal had been advised of the incident with Collins the May 15, 1984 Annual Evaluation of Respondent was amended by the

    principal on June 7, 1984 to show that Respondent was unacceptable in the area of professional responsibility. Even the "amended" Annual Evaluation fails to recommend that Respondent be terminated from his employment.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The Specific Notice of Charges filed herein alleges that Respondent is guilty of violating Section 231.36, Florida statutes, by misconduct in office and immorality as defined by Sections 65-4.09(2) and (3), Florida Administrative Code as follows:

    
    

    1. Immorality is defined as conduct 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 service in the community.

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 65- 1.01, F.A.C. and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule

    65-1.06, F.A.C., which is so serious as

    to impair the individual's effectiveness in the school system.

    
    

17. Lastly the Specific Notice of Charges alleges that Respondent has violated Sections 65-1.06(3)(a) and (e) Florida Administrative Code which provide as follows:

    
    

    1. Obligation to the student requires that the individual:

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

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    
    

18. In its proposed recommended order Petitioner agrees that the evidence herein has failed to establish any immorality on the part of Respondent and has further failed to establish that Respondent has violated any corporal punishment prohibitions.

    
    

19. The record in this cause is replete with conflicts and inconsistencies in the testimony of the witnesses presented. The resolution of those conflicts based upon the totality of the evidence and the demeanor of the witnesses clearly reveals that Petitioner has failed to sustain its burden of proving that Respondent is guilty of misconduct in office. Although some witnesses believe

that Respondent used "inappropriate judgment" in handling a disruptive student there is no statutory or regulatory violation committed by Respondent in choosing to send a disruptive student to wait for him next to his desk while he attends to the other students' needs rather than choosing to send the disruptive student to the principal's office. It is appropriate for a teacher to attempt to deal with a disruptive student himself if he chooses to do so. When Collins later decided to sit on the floor Respondent committed no statutory or rule violation by failing to notice that Collins had sat down on the floor blocking the aisle with his legs. When Respondent then almost fell over Collins' legs and Collins grabbed Respondent's legs in an attempt to trip him Respondent acted in defense of himself and the other students by reacting in a way which seemed likely to him to terminate the situation by lifting Collins off the floor and then placing him back down. Although some witnesses in the exercise of hindsight believe that they might have handled differently Collins' behavior problems in the classrooms the situation confronting Respondent was brief and required instantaneous action. Even if others might have handled the situation differently and even if the exercise of "inappropriate" judgment had occurred in this cause, neither would constitute grounds for disciplinary action against Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is,

RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Specific Notice of Charges filed against him reinstating Respondent as an employee of the Dade County School Board and awarding to Respondent full back pay for the period of time that he has been suspended from his employment

DONE and RECOMMENDED this 8th day of May 1986, at Tallahassee Florida.

LINDA M. RIGOT

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 8th day of May, 1986.

COPIES FURNISHED:

Frank R. Harder Esquire 2750 Galloway Road

Suite 100

Twin Oaks Building Miami Florida 33165

Dan J. Bradley Esquire 2950 Southwest 27th Avenue

Coconut Grove Florida 33133

Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami Florida 33132

Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools

1410 Northeast Second Avenue Miami Florida 33132

APPENDIX

1. Petitioner's proposed findings of fact numbered 1-3 and 6 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, argument of counsel or conclusions of law.

2. Petitioner's proposed findings of fact numbered 4 and 5 have been rejected as not being supported by the evidence herein.

3. Respondent's proposed findings of fact numbered 1-11, 13, and 14 have been adopted either verbatim or as modified to conform with the evidence or style.

4. Respondent's proposed finding of fact numbered 12 has been rejected as being immaterial.

5. Respondent's proposed findings of fact numbered 15 and 16 have been rejected as not constituting findings of fact but rather as constituting recitations of the testimony, argument of counsels or conclusions of law.

Docket for Case No: 84-002949

Orders for Case No: 84-002949