STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 85-2047

)

BRYCE DAVID FORRESTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing before Ella Jane P. Davis, the assigned Hearing Officer of the Division of Administrative Hearings on August 27, 1985, in Miami, Florida.

APPEARANCES

For Petitioner: Jackie Gabe, Esquire

Law Offices of McCrary, Valentine & Mays P.A.

3050 Biscayne Boulevard

Suite 800

Miami, Florida 33137

For Respondent: Gary Forrester, father

8340 S. W. 97th Street Miami, Florida 33130

By a May 18, 1985 letter of assignment, the School Board of Dade County assigned the student, Bryce David Forrester to Youth Opportunity School-South, an alternative school placement.

Timely request for review pursuant to Section 230.2315(5) was made by May 29, 1985 letter of Gary Forrester father of the student, which letter was received by the School Board on May 31, 1985 and forwarded to the Division of Administrative Hearings on June 12, 1985.

Petitioner presented the testimony of Judy Cobb as its sole witness in chief and Thomas Zelenak as a rebuttal witness and

had admitted 3 exhibits (P-1 through 3). Respondent presented the testimony of William R. Perry, Donald Hollis, Thomas Zelenak, and Gary Forrester, and had admitted Exhibits R-1 through 4, and R-6; (R-5 was not admitted).

No transcript was provided. Both parties have submitted proposed findings of fact and conclusions of law which have been considered and adopted where appropriate. Where inappropriate, they have been rejected as irrelevant, immaterial, cumulative, or not supported by the evidence.

FINDINGS OF FACT

1. Bryce David Forrester attended 7th grade at Glades Junior High for the 1984-1985 school year until his alternative school assignment on May 18, 1985.

   
   

2. Petitioner's witness Judy Cobb, Assistant Principal of Glades Junior High had no personal knowledge of Bryce David Forrester's behavior and was not the official record custodian of his records. Her testimony provided no information of probative value.

   
   

3. Thomas Zelenak is presently Principal of Glades Junior High and was formerly assistant principal there during the 1984- 1985 school year. He had no personal knowledge of the referrals which allegedly culminated in the computer record of disciplinary referrals admitted as the School's business record (P-2). The discipline referral slips were not offered. All discipline referrals had been by teachers who were not present for hearing and all counseling of the student had been handled by retired Principal Skinner or former Assistant Principal Zahner, neither of whom were available for hearing. Mr. Zelenak also had no personal knowledge of the Respondent's alleged disruptive/ behavior which resulted in the referrals and referral slips which allegedly were behind the computer record. Mr. Zelenak did conduct a parent-administrator conference on April 1, 1985 with Respondent's parents and agreed to Respondent's continued placement at Glades Junior High School provided his behavior improved. Respondent's father testified that at this conference Mr. Zelenak told him that alternative school placement was not in the student's best interest. Mr. Zelanek denied saying this. It is significant that P-2 does not reflect this conference ever occurred even though both Mr Zelenak and Mr. Forrester agree it did occur and the occurrence of this conference is corroborated by other exhibits.

   Therefore, this entire computer record (P-2) is of doubtful

   credibility. Mr. Zelenak gave his opinion at hearing that although the student may possess the ability to become a productive student he was not doing so at Glades Junior High and that the student belongs in an alternative placement program because of his disruptive behavior and its effect on the children around him. However, there was no predicate established for Mr. Zelenek's forming this opinion.

   
   

4. The official record of the student's final grades for the year indicates failure in three subjects on the date he was withdrawn by the parent, May 22, 1985.

   
   

5. Respondent's position was that the School Board did not make appropriate parent contact so as to forestall the alternative school assignment and that the procedure by which School Board officials reviewed and acted upon the principal's(Mr. Skinner's) recommendation of alternative school placement was contrary to School Board Rules duly adopted and promulgated. The testimony of William R. Perry, Director of Alternative Education Placement and Donald Hollis, Coordinator, Alternative Education Placement, that the procedure by which the assignment was made was in substantial compliance with the School Board rules is accepted over a single late postmark offered by Respondent for one of the notifications.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over this cause and the subject matter thereof. The proceedings before the Division of Administrative Hearings are de novo. Accordingly, all issues raised by the Respondent concerning untimely notification of the alternative school placement are moot.

   
   

7. A motion to dismiss for failure of proof at the conclusion of Petitioner's case in chief would have been appropriate but was not made by the pro se Respondent. Even through the use of rebuttal testimony and exhibits, Petitioner as proponent, was unable to present any direct, credible evidence of disruptive behavior by the student so as to bring him within the eligibility requirements for alternative school placement set out in Rule 6A-1.994(2)(a) Florida Administrative Code. The failing grade record alone is not sufficient, in- light of the exhibits admitted and contrary testimony of Mr. Zelenak and Mr. Forrester to show either a "lack of sufficient involvement in the traditional school program" or that "the effort to provide assistance is either rejected or is

ineffective," as required for alternative placement by Rule 6A- 1.994(2)(b) Florida Administrative Code.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order returning Bryce David Forrester to an appropriate regular school program, preferably at Glades Junior High School.

DONE and ORDERED this 27th day of September, 1985, in Tallahassee, Florida.

ELLA JANE P. DAVIS

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 27th day of September, 1985.

COPIES FURNISHED:

Jackie Gabe, Esquire 3050 Biscayne Boulevard

Suite 800

Miami, Florida 33137

Gary Forrester (Parent) 8340 S. W. 97th Street Miami, Florida 33130

Phyllis 0. Douglas, Esquire 1450 N. E. 2nd Avenue Miami, Florida 33122

Madelyn P. Schere, Esquire 1450 N. E. 2nd Avenue - Miami, Florida 33132

Dr. Leonard Britton Superintendent of Schools Dade County Public Schools Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 85-002047

Orders for Case No: 85-002047