STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 85-3146

)

JIMMY BUOY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on May 20, 1986, in Coral Gables, Florida. The parties completed their post-hearing submissions on August 25, 1986.

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

Petitioner suspended Respondent from his employment as a school resource specialist, without pay, for a period of 15 workdays effective August 21, 1985, and Respondent requested a formal hearing on that decision. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained in the subsequently-filed Formal Notice of Charges, and, if so, what disciplinary action should be taken, if any. Petitioner presented the testimony of Eugene McAllister, Thelma Davis, Tangela Streeter, Tracy Merchison, Lurene Mack, Henry Horstmann, and Respondent Jimmy Buoy. The Respondent also testified on his own behalf and presented the testimony of James Wallis. Additionally, Petitioner's Exhibits numbered 1-3 were admitted in evidence

Both parties submitted post-hearing proposed findings of fact in the form of a proposed recommended order. Petitioner's proposed findings of fact numbered 1-23 have been rejected as not constituting findings of fact but rather as constituting

recitation of the testimony. Similarly, Respondent's proposed findings of fact numbered 1 and 7-22 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony. Respondent's proposed findings of fact numbered 2 and 4-6 have been adopted in substance, but Respondent's proposed finding of fact numbered 3 has been rejected as being irrelevant.

FINDINGS OF FACT

1. At all times material hereto, the Respondent Jimmy Buoy has been employed by the School Board of Dade County as a School Resource Specialist, a non-instructional employee, at Madison Junior High School in Miami, Florida. He was hired for that position in January, 1980, by a Mr. Stergen, who was then the principal of Madison Junior High School. His duties at that time included maintaining the security of the students and school premises at Madison Junior High School, supervising the school monitors, enforcing school board policies and Madison Junior High School regulations, enforcing the school's dress code with reasonable force if necessary, and administering corporal punishment.

   
   

2. In November 1982, Thelma Davis became the principal at Madison Junior High School. Although she took away Respondent's authority to administer corporal punishment, the remainder of Respondent's duties remained the same. Among his other duties, he continued to have the authority to enforce the school's dress code and the authority to use reasonable force in enforcing that dress code.

   
   

3. In August 1984, a reorganization resulted in the school resource specialists being organizationally located within the special investigative unit of the school system. Pursuant thereto, area supervisors gained authority and control over school resource specialists at schools within each area however, the principals maintained their individual authority and supervision over the school resource specialist(s) employed at their schools. whether the principal's supervisory control over the school resource specialist was joint, concurrent, or "line supervision" with the area supervisor, the job description issued at the time for school resource specialists specified that the school resource specialist, among other duties, "performs other safe school activities as assigned by the principal."

4. On three occasions prior to April 26, 1985, Tracy Merchison, a student at Madison Junior High School, had a hat in his possession while on school premises, a violation of the school's dress code. Respondent confiscated Tracy's hat on each of those occasions in accordance with his long-standing procedures for doing so: Respondent returned the hat to the student at the end of the school day if it was the student's first offense; Respondent retained the hat in his possession until the end of the school year if it was the student's second or subsequent offense. The student could regain possession of his hat prior to the end of the school year, however, if the student's parent made contact with the Respondent. Respondent used the opportunity of such parental contact to advise the parent regarding the school's dress code and to enlist the parent's support in obtaining that student's compliance with the dress code. Tracy's mother had been so contacted, and Tracy's hats had been returned to him, the last hat being returned to him a day or two before April 26, 1985.

   
   

5. On April 26, 1985, Respondent observed Tracy Merchison outside the school library with a hat in his hand, the same hat that had just been returned to him after being confiscated for its appearance on the school grounds.

   
   

6. Respondent approached Tracy and asked Tracy for his hat. Tracy refused to give Respondent his hat. Respondent repeatedly requested the hat, and Tracy repeatedly refused.

   
   

7. After several requests, Respondent reached for the hat, and Tracy started switching the hat back and forth between his hands behind his back to keep it away from Respondent. Respondent continued to request the hat while reaching for it still hoping that Tracy would voluntarily and calmly relinquish it.

   
   

8. Finally, Respondent grabbed one of Tracy's arms to hold it still and took the hat from Tracy's hands with his other hand.

   
   

9. As Respondent then stepped away from Tracy, Tracy reached out with both of his hands and shoved Respondent in the chest pushing Respondent backward. Respondent grabbed the front of Tracy's shirt with both of his hands and pushed Tracy against the wall. Respondent spoke to Tracy telling him essentially to control himself so he would not get hurt and to stop showing off for his friends. Respondent then released his hold on Tracy.

10. Tracy started walking away from Respondent but started cursing and threatening Respondent. Respondent said "Fine, Tracy. Fine, but I have the hat." Tracy came back to Respondent and started pushing against Respondent attempting to get his hat back from Respondent. As Tracy continued to lean against and shove Respondent, Respondent again grabbed Tracy and shoved him back against the wall. After he shoved Tracy into the wall, he then pushed Tracy against a pole a few feet away from the wall, and the momentum forced Tracy's head to move backward hitting the pole.

    
    

11. Respondent released Tracy, and Tracy ran into the attendance office yelling, using profanity, and threatening Respondent with physical harm.

    
    

12. Tracy grabbed a stick with a nail on one end of it which is used for picking up papers from the ground and started out of the office still yelling that he was going to "get" Respondent. He was restrained, however, by Principal Davis and Assistant Principal Thompson, and the stick was taken from him. Tracy then grabbed a stapler in his continuing attempt to "get" Respondent, and Principal Davis wrestled the stapler away from him. Tracy tried to again get the stick with the nail in it but was again restrained by the administrative personnel.

    
    

13. Respondent at that point came into the office, told Principal Davis what had transpired, and left the office to break up a fight on the physical education field.

    
    

14. Since Tracy failed to calm down, he was not permitted to leave school by himself. Rather, Principal Davis, after being unable to contact Tracy's parents, had someone drive Tracy home.

    
    

15. No other disciplinary action has been taken by Petitioner against Respondent prior to or subsequent to the incident in question, and Respondent continues to enforce the dress code at Madison Junior High School in accordance with his normal procedures.

    
    

16. Respondent continues to have authority to enforce the dress code at Madison Junior High School.

CONCLUSIONS OF LAW

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

The Formal Notice of Charges alleges that Respondent's suspension for 15 days without pay is based upon his commission of acts which constitute a failure to follow the legal requirements of the law and his responsibilities and duties, specifically, that Respondent did use physical force and did have physical contact while not authorized to use said force and further that Respondent did use excessive physical force when he was not authorized to use any force. Although Petitioner relied upon numerous Florida statutes and numerous rules of the School Board of Dade County, none of those statutes or rules is sufficient to sustain disciplinary action against Respondent.

Several of those statutes and rules deal with the authority of the School Board and the Superintendent to suspend a non- instructional employee. That is not an issue in the proceeding. Several of them deal with the administration of corporal punishment. It cannot be seriously contended that Respondent was administering corporal punishment when he repelled the attacks of Tracy Merchison.

Several of the statutes and rules relied upon relate to Petitioner's argument that Respondent had no responsibility for the control and direction of students and that Respondent could not be legally delegated that authority by the principal.

Petitioner's argument is without merit. Section 232.27, Florida Statutes, although entitled "Authority of teacher," provides, in part, that:

Subject to law and to the rules of the district school board, each teacher or other member of the staff of any school shall have such authority for the control and discipline

of students as may be assigned to him by the principal or his designated representative and shall keep good order in the classroom and in other places in which he is assigned to be in charge of students. [Emphasis added.]

Further, Petitioner's job description for a School Resource Specialist begins with the provision that such employee:

Under the direction of the principal, is responsible for assisting the principal in creating a safe school environment through providing a readily accessible source of assistance in student problem areas and providing proper training of school monitors/security aides, custodial workers, cafeteria workers, and related personnel in handling disruptive incidents in the school.

That job description further provides that "The School Resource Specialist is responsible to the principal for the performance of the following duties: . . . Perform[ing] other safe school activities as assigned by the principal". Respondent testified that when he was hired by Principal Stergen in January, 1980, among his other duties he was authorized to enforce the dress code using reasonable force if necessary and that that authority has never been taken away from him. The current principal, Principal Davis, testified that Respondent is authorized to enforce the dress code using reasonable force if necessary. The investigator from the Special Investigative Unit who investigated the incident in question testified that she had satisfied herself that Respondent had the authority to use reasonable force in enforcing the dress code at Madison Junior High School. Accordingly, although Petitioner argues that Respondent was not specifically authorized to use reasonable force if necessary in enforcing the school's dress code pursuant to certain statutes and rules relied upon by Petitioner, those statutes do not prohibit Respondent from doing so; rather, Section 232.27, Florida Statutes, Petitioner's written job description, Principal Stergen and Principal Davis have authorized him to exercise control and discipline over the students at Madison Junior High School. Further, the testimony is uncontroverted that Respondent continues, even after the incident with Tracy Merchison, to enforce the school's dress code using reasonable force if necessary.

The School Board has a general minimal dress code which provides for disciplinary measures, including suspension, to be taken against a student who violates that dress code. It further authorizes individual schools to establish even more restrictive dress regulations for that school. Madison Junior High School has its own dress code which provides for "No hats in the building except those for religious purposes." The testimony is uncontroverted that that dress code is interpreted to prohibit both the wearing and the possessing of hats on school grounds. Tracy Merchison testified that he knew that

having hats at school was prohibited. In fact, Respondent had taken hats away from Tracy on three occasions prior to April 26, 1985, the last occasion being a day or two earlier. The only testimony that Respondent committed any wrongdoing in taking Tracy's hat from him comes from the Director of the Special Investigative Unit and the investigator from that Unit who investigated this case who believe that Respondent should have handled the incident with Tracy Merchison differently although they admit that the handling of each individual situation to situation. Such a hindsight evaluation of an incident which got out of hand is insufficient to form the basis for disciplinary action in the absence of a specific statute or rule violation.

Although the dress code at Madison Junior High School further provides that students wearing offending clothing should be given the opportunity to alter that attire--by covering up that clothing or being sent home to change clothes, it would be nonsensical to require a student to change his hat when no hats are allowed. Assumedly, that is why Petitioner has always allowed and still allows Respondent to take hats away from students.

Certainly no one can condone a School Resource Specialist and a Student becoming involved in a pushing match over a hat. It would certainly be more desirable for Respondent to have terminated the encounter and to have dealt with Tracy's defiance differently. However, it must be remembered that Respondent did not initiate the pushing although his reactive pushing of Tracy in response to each of Tracy's physical attacks of him clearly resulted in the situation staying out of hand. Whether Respondent overreacted or whether Respondent used poor judgment is insufficient to form the basis of disciplinary action in the absence of a specific statutory or rule violation, and Petitioner has failed to prove the violation of any specific statute or rule.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered finding Respondent Jimmy Buoy not guilty of the allegations contained in the Formal Notice of Charges filed against him and awarding full back pay and benefits for the period of time that he was suspended from his employment.

DONE and RECOMMENDED this 17th day of September, 1986, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1986.

COPIES FURNISHED:

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

Frank R. Harder, Esquire. Twin Oaks Building, Suite 100 2780 Galloway Road

Miami, Florida 33165

Dan J. Bradley, Esquire 2950 S.W. 27th Avenue Suite 310

Coconut Grove, Florida 33133

Docket for Case No: 85-003146

Orders for Case No: 85-003146