STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-5546

)

DAVID BARTH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on August 4 and 5, 1988, in Kissimmee, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Lane Burnett, Esquire

331 East Union Street Jacksonville, Florida 32202

For Respondent: Joseph Egan, Jr., Esquire

Tobe Lev, Esquire Egan, Lev & Siwica

Post Office Box 2231 Orlando, Florida 32802

BACKGROUND

By Administrative Complaint dated November 23, 1987, Petitioner alleged that Respondent, who was a teacher, grabbed one of his students and pushed him so that the student fell to the ground and sustained a serious head injury. The Administrative Complaint alleged that Respondent thereby violated Sections 231.28(1)(f) and (h), Florida Statutes, because he was guilty of personal conduct that seriously reduced his effectiveness as a teacher and otherwise violated the law or rules of the State Board of Education. The Administrative Complaint alleged that Respondent violated Rules 6B-1.006(3)(a), (e), and (f), Florida Administrative Code, by failing to make reasonable effort to protect the student from conditions harmful to learning or health and safety, intentionally exposing a student to unnecessary embarrassment or disparagement, and intentionally violating or denying his or her rights.

At the hearing, Petitioner presented eight witnesses and offered into evidence seven exhibits. (The final exhibit was misidentified as Petitioner's Composite Exhibit 8; it should have been Petitioner's Composite Exhibit 7.) Respondent presented seven witnesses and offered into evidence one exhibit. All exhibits were admitted into evidence except for Petitioner's Exhibits 3 and 7.

Additionally, the proffered testimony of Ms. Chapin is excluded. The grounds for the exclusion of Petitioner's Exhibit 3 and Ms. Chapin's testimony are that

this evidence concerns a different proceeding, which involved different issues and, in any event, resulted in Respondent's exoneration.

Each party filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the Appendix.

FINDINGS OF FACT

1. Respondent was a physical education teacher at St. Cloud Middle School for the 1986-1987 school year. He holds teaching certificate number 400221, which was issued on October 26, 1985.

   
   

2. Respondent was a good instructor and enjoyed good rapport with the students. Respondent maintained good discipline in his physical education classes. Unlike his predecessors, Respondent did not remain in his office while students piled into the locker room, but instead imposed proper control from the start.

   
   

3. On February 9, 1987, Respondent was preparing for the second-period physical education class. The class was going to start a program of wrestling, and Respondent had laid out the new mats. The mats were placed in a large locker room on a tile floor. As the class, which consisted of about 60 seventh- grade boys, began entering the locker room, the other physical education teacher who should have been in the room was in the administrative office. The entrance area was unusually congested due to the excitement of the students at seeing the new mats for the first time and the space that the mats occupied on the floor.

   
   

4. As the students poured into the room, locker room doors banged and the children yelled and screamed. Shouting to make himself heard over the din, Respondent told the students to keep off the mats in their street shoes. Respondent was attempting to protect the mats and restore order to avoid injury to any of the children.

   
   

5. While making his way toward the front entrance to control the students entering the locker room, Respondent saw two of the students, Mark Baker and Carlo Baker, who had been engaging in horseplay, rushing toward him and the mats. As the two boys reached the mats, Respondent reached out and grabbed each of them by one arm. This was the first time that Respondent had encountered Mark Baker.

   
   

6. Respondent then turned them around so that each boy was facing him and off the mats. Respondent, who is right handed, grabbed Mark Baker in his left hand and Carlo Baker in his right hand. Grabbing each boy by the front of his shirt collar near the top buttons, Respondent drew in his arms about halfway and bent down so that he could more easily maintain eye contact with the boys. Respondent, at five feet eleven inches and 170 pounds, is considerably taller than the boys, who were about the same size. Respondent yelled at each of them that they knew that they were not supposed to be on the mats. After obtaining a positive response from each boys Respondent then said, "If you do it again, I'll put your face into the mats." This warning was not given literally. Respondent frequently employed roughhouse hyperbole in order to relieve the tension of a directive. Students knew that such a statement was not to be taken at face value.

   
   

7. Respondent simultaneously released the boys. He had held them for a total of about ten to fifteen seconds. At all times, their feet had been on the ground. While in Respondent's grasp, the boys had not struggled or attempted to

   pull away. Upon his release, Carlo Baker took a reflexive step backwards. Carlo Baker was uninjured by the incident and reported no bruises or marks.

   
   

8. Mark Baker, who was handled in the same manner and for the same period of time, lost consciousness as he was released. As his eyes rolled upwards, he tipped over and, with his body perfectly rigid, fell backwards with his head striking the tile floor in advance of the rest of his body.

   
   

9. Mark Baker had been alert while in Respondent's grasp. The suddenness of the loss of consciousness prevented Respondent from catching Mark Baker before he fell.

   
   

10. The evidence did not prove what caused Mark Baker's sudden loss of consciousness. He may have fainted, possibly in part induced by the stress of the moment preceded by a prior period of exertion. He may have buffered an epileptic seizure. His half-brother and a couple of cousins suffer from epilepsy, and Mark Baker himself had a history of memory lapses not inconsistent with epilepsy.

    
    

11. Petitioner failed to prove that Respondent's grasp caused the loss of consciousness. There were a couple of unexplained light marks that appeared shortly after the incident, but they quickly vanished. Petitioner was unable to prove that these marks were caused by Respondent. Mark Baker also had a fresh abrasion, together with swelling, on his nose, which was clearly not inflicted by Respondent or suffered in the fall. Respondent, who had never met Mark Baker before, did not hold Mark Baker any tighter than he held Carlo Baker, who was in Respondent's stronger hand and yet suffered no injury or reported bruising. Respondent's yelling was necessitated by the background noise of the locker room and did not indicate a loss of temper.

    
    

12. As a result of the fall, Mark Baker suffered a serious concussion and required hospitalization for several days for observation. Through the date of the hearing, Mark Baker was taking prescribed phenobarbital in order to relieve his occasional headaches, whose inception can be traced to the injury.

    
    

13. The Osceola County School District Code of Student Conduct (Student Code) was given to Respondent when he began teaching at St. Cloud Middle School. Notwithstanding any contrary provisions in the Student Code, teachers at St. Cloud Middle School customarily administered corporal punishment to students during the 1986-1987 school year. However, under the Student Code and prevailing custom at the school during the period in question, a teacher was not permitted to grab students by the shirt collar under the above-described circumstances.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and parties. Sections 120.57(1) and 231.262(5), Florida Statutes.

    
    

15. The Education Practices Commission has final agency authority in all cases involving the revocation and suspension of certificates of teachers. Section 231.261(8)(b), Florida Statutes.

16. The Education Practices Commission may discipline any teacher who has been found guilty of personal conduct which seriously reduces his or her effectiveness as an employee of the school board. Section 231.28(1)(f), Florida Statutes.

    
    

17. The Education Practices Commission may discipline any teacher who has violated any law or rule of the State Board of Education, provided the penalty for such violation, as set forth in the rules, is revocation.

    
    

18. Rule 6B-1.006(3)(a), Florida Administrative Code, provides that a teacher's certificate may be revoked if the teacher fails to make "reasonable effort to protect the student from conditions harmful to learning or to health or safety."

    
    

19. Rule 6B-1.006(3)(e), Florida Administrative Code, provides that a teacher's certificate may be revoked if the teacher "intentionally expose[s] a student to unnecessary embarrassment or disparagement."

    
    

20. Rule 6B-1.006(3)(f), Florida Administrative Code, provides that a teacher's certificate may be revoked if the teacher "intentionally violate[s] or den[ies] a student's legal rights."

    
    

21. Petitioner must prove its allegations by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

    
    

22. Petitioner failed to prove that Respondent was guilty of conduct that seriously reduced his effectiveness as an employee of the Osceola County School Board. Petitioner candidly admits this lack of proof in its Proposed Recommended Order.

    
    

23. Petitioner has failed to prove that Respondent failed to make a reasonable effort to protect the students from conditions harmful to learning or to health or safety. Unlike his predecessors, Respondent left the sanctuary of his office to try to maintain order among the incoming students and protect the students from harm. Grabbing the two students by their arms and then their shirt collars did not pose an unreasonable risk of harm to the students. The sudden loss of consciousness suffered by Mark Baker could not in any meaningful way be attributed to Respondent. Petitioner understandably failed to prove why Mark Baker suddenly collapsed because no one appears to know why this happened. The facts show that, by intervening, Respondent was trying to safeguard his students and that, by the manner of intervening, Respondent did not fail to make a reasonable effort to protect the Baker boys from injury.

    
    

24. Petitioner has also failed to prove that Respondent intentionally exposed Mark Baker to unnecessary embarrassment or disparagement. Momentarily grabbing and yelling at two roughhousing students, in a crowded, noisy locker room just prior to a physical education class, did not constitute unnecessary embarrassment or disparagement. The sole reason that this incident became memorable was due to the serious injury suffered by Mark Baker, but, even assuming that such injury constitutes embarrassment or disparagement, Respondent did not intend or even anticipate such a result.

    
    

25. Petitioner also argues that the grabbing of the students, under the circumstances, violated their student rights because such action was in excess of the standards set forth in the Student Code. Although the emphasis in the Student Code is clearly upon student responsibilities and the consequences of the failure to meet those responsibilities, student rights are implicit in the

    Student Code. The student may reasonably expect that his or her punishment will not exceed the guidelines set forth in the Student Code. The only reference therein to modification of punishment guidelines contemplates the use of "mercy and understanding" in "extenuating circumstances" in order to relax the guidelines.

    
    

26. The Student Code divides student transgressions into four levels. The Baker boys were guilty of a Level I infraction, which is the least serious category. A Level I infraction involves "[m]inor misbehavior . . . which impedes orderly classroom procedures or interferes with the orderly operation of the school." Included in this level is "[t]hrowing objects." Although neither of the boys was throwing objects, this example of a Level I infraction answers Respondent's argument that the misbehavior was a more serious infraction due to the possibility that another student could have been injured. A chance of injury exists when students throw objects. But Level III and IV infractions, which contemplate a risk to the safety of other students, cover intentional misbehavior which is or resembles "criminal" behavior. The two students certainly were not involved in any misbehavior approaching the criminal. The only other category is Level II, but the emphasis here is on repetitive Level I- type misbehavior, which is not present in the case of Mark Baker, whom Respondent had never previously encountered before the day in question. The students' misbehavior in this case was therefore a Level I offense.

    
    

27. The Student Code provides a range of discipline, from verbal reprimands to counseling, for a first-time Level I offense. The Student Code does not allow corporal punishment in this type of situation. Further, Section

    7.4 of the Student Code sensibly defines corporal punishment as "the moderate use of physical force or physical contact by a teacher or principal as may be necessary to maintain discipline or enforce school rules." The first contact where Respondent almost reflexively grabbed the two boys by the arms is not fairly classified as corporal punishment. In so acting, Respondent was simply trying to stop the two boys from running through the crowded locker room. However, the second contact involved a different intention. Any immediate peril had been eliminated. By moving the boys off the mats and grabbing them around their collars, Respondent was disciplining them. As physical contact by a teacher to maintain discipline, the second contact met the Student Code definition of corporal punishment.

    
    

28. Although a teacher could, at the time, administer corporal punishment, such discipline was not warranted, under the Student Code or by custom, under the above-described facts. Respondent thereby violated the student's rights, as they were set forth in the Student Code. This violation is intentional insofar as Respondent was provided with a copy of the Student Code when he first began working at St. Cloud Middle school five months earlier and must be assumed to be familiar with its contents.

    
    

29. The penalties for violating any of the above-described provisions range from revocation of the certificate to a reprimand. Section 231.262(6), Florida statutes. There are numerous mitigating factors and no aggravating factors in this case. Respondent intended no harm and, more importantly, no one could have foreseen that any harm would have resulted from Respondent's actions. Respondent acted spontaneously to a common situation. Analyzed in hindsight, the technical violation of the student's rights can, with some effort, be identified. However, Respondent did not administer what would readily be regarded as corporal punishment. But for Mark Baker's completely unpredictable loss of consciousness, which is a factor unrelated to the Respondent's

violation, this case would not have been a case at all. Respondent's narrow deviation from the Code of Ethics merits only a written reprimand.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of intentionally violating a student's legal rights, in violation of Rule 6B- 1.006(3)(f) , Florida Administrative Code, and Section 231.28(1)(h), Florida Statutes, and, pursuant to Section 231.262(6)(f), Florida Statutes, issuing a written reprimand.

DONE and RECOMMENDED this 5th day of October, 1988, in Tallahassee, Florida.

ROBERT E. MEALE

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 5th day of October, 1988.

APPENDIX

Treatment Accorded Petitioner's Proposed Findings

1-13. Adopted, except that Respondent's face was close but slightly in excess of one foot from the boys' faces.

14. Rejected as legal conclusion and irrelevant. 15-16. Adopted.

17. Rejected as against the greater weight of the evidence. 18-21. Adopted.

1. Rejected as recitation of testimony.

2. Adopted.

3. Rejected as against the greater weight of the evidence. 25-27. Adopted.

Treatment Accorded Respondent`s Proposed Findings 1-8. Adopted.

1. Adopted to the extent that the reasonableness of

   Respondent's action is at issue.

2. First sentence rejected as irrelevant. The second touch was not to get the students' attention. Respondent got their attention as a result of grabbing their arms. a moment earlier. Second sentence rejected as against the greater weight of the evidence to the extent that it implies that the teacher may make physical contact, under

   such circumstances as when Respondent grabbed the boys by the shirt collars, for a Level I infraction. Remainder rejected as irrelevant. 10 (second). First sentence adopted in substance. Remainder rejected as against the greater weight of the evidence.

3. First sentence adopted. Second sentence rejected as irrelevant and against the greater weight of the evidence. Third sentence rejected as against the greater weight of the evidence. Fourth sentence rejected as against the greater weight of the evidence and a legal conclusion.

4. Adopted.

COPIES FURNISHED:

Joseph Egan, Jr., Esquire Karen B. Wilde Egan, Lev & Siwica Executive Director

Post Office Box 2231 Education Practices Commission

Orlando, Florida 32802 125 Knott Building

Tallahassee, Florida 32399

Lane Burnett, Esquire

331 East Union Street Martin Schaap Jacksonville, Florida 32202 Administrator

Professional Practices Services Sydney H. McKenzie, Esquire 319 West Madison Street

General Counsel Room 3

Knott Building Tallahassee, Florida 32399 Tallahassee, Florida 32399

Docket for Case No: 87-005546

Orders for Case No: 87-005546