vs. ) CASE NO. 88-1437
JOHN G. COCO, )
Respondent. )
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Don W. Davis, on July 12-13, 1988 in West Palm Beach, Florida. The following appearances were entered:
For Petitioner: Abbey G. Hairston, Esquire
For Respondent: John J. Chamblee, Jr., Esquire
This matter began when the Superintendent of Schools for Palm Beach County filed a Petition For Dismissal against Respondent alleging that Respondent was guilty of misconduct in office and subject to dismissal from employment. The Respondent was alleged to have committed misconduct in the classroom by permitting students to use profanity; by discussing his personal sex life; by discussing the male's sexual anatomy; by discussing and permitting the discussion of sex and drugs; and coercing students to refrain from assisting Petitioner's investigation of these incidents. Respondent requested a formal administrative hearing and this proceeding ensued.
At hearing, Petitioner presented the testimony of 11 witnesses and eight evidentiary exhibits. Respondent presented the testimony of 17 witnesses and 16 evidentiary exhibits. The parties jointly presented one exhibit. Proposed
findings of fact submitted by the parties are addressed in the appendix to this recommended order.
Based on all the evidence, the following findings of fact are determined: FINDINGS OF FACT
Lake Worth High School distributes copies of the Student Conduct Code to students. The Code distributed for the 1987-88 school year prohibited the use of profanity on the school campus.
As a result of teacher dissatisfaction with inconsistent disciplinary treatment of students by the school administration, the school principal determined to implement a program of assertive discipline for the 1987-88 school year. The program requires each teacher to prepare a listing of classroom rules and a plan of action to follow upon student violation of a rule. Parents and administration are provided with written notice of the plan. The goal of such a program is to discipline erring students without anger and to provide consistency in the treatment meted out for certain offenses.
Due to disagreements concerning certain aspects of the assertive discipline program, approximately 20 of the 100 teachers on the faculty, including Respondent, were required in the middle of the 1987-88 school year to revise individual assertive discipline plans previously submitted by them.
Respondent has been employed at Lake Worth High School in Palm Beach County as a teacher since the 1983-84 school year. Respondent's initial teaching assignments were English and drama classes. His primary responsibility was to build a drama program at the school. Respondent was issued a Professional Service Contract, effective beginning with the 1986-87 school year. During that school year he received an evaluation indicating that improvement was needed in classroom management as a result of the number of student referrals made by him to the Dean's office. Respondent took exception to the evaluation and filed a detailed reply.
At the end of the 1986-87 school year, Respondent requested a leave of absence for the 1987-88 school year. The leave request was granted. Later, Respondent rescinded his request for leave and returned to work for the 1987-88 school year. He was assigned one drama class and four compensatory education classes in remedial English. His classroom schedule was as follows:
Period | 1 | Planning |
|
Period | 2 | Drama |
Period | 3 | English-Compensatory | Education |
Period | 4 | English-Compensatory | Education |
Period | 5 | Planning |
|
Period | 6 | English-Compensatory | Education |
Period | 7 | English-Compensatory | Education |
Students at Lake Worth High School come from various types of family backgrounds. Depending on ability, students may be classified into certain groups: advanced/gifted; regular; basic; compensatory education; and special education. Respondent's compensatory education English classes included several students with histories of school related discipline problems, not uncommon for the courses he was assigned to teach. Many of the students were placed in Respondent's classes in order to improve skills required to successfully take the standardized State Student Assessment Test (SSAT).
Claims of problems relating to student usage of profanity in Respondent's classes related exclusively to the third period class. Prior to the transfer of two students, Danny Bell and Troy Bueckman, to that class, the class operated smoothly. After their arrival, bantering in the class increased. Bueckman in particular seemed to be involved in these activities. Bueckman entered the class at the beginning of the second semester which began on January 20, 1988. He and Bell had been transferred from Respondent's sixth period class for disciplinary reasons at Respondent's request.
During Respondent's third period class on February 4, 1988, Respondent was implementing a change in the seating order of the class. The seating chart change was a part of revisions to Respondent's assertive discipline policy approved by the school administration. After two names had been called for seating changes, Danny White, a black student, accused Respondent of racial prejudice since the two students who were being reassigned seats were also black. White whispered to another student that he was going to hit Respondent. White then stood up and glowered at Respondent. Words were exchanged. Respondent told White to sit down and shut up. White refused and ultimately was referred by Respondent to the school administrative office. White met with the school dean who advised the student not to return to Respondent's class until the matter had been reviewed. White did not follow this directive and returned to Respondent's classroom. White confronted Respondent in a belligerent manner with clenched fists, then exited the room with a comment to the effect that he was going to "get" Respondent. Respondent advised the school dean of the incident. White was subsequently suspended for three days expressly for violation of the directive by the dean not to return to Respondent's classroom.
On February 11, 1988, a meeting was convened at the school as the result of a conference request by White's mother. In attendance at the meeting were White's parents, Respondent, the school principal and the school dean. The principal determined that an investigation should be undertaken concerning allegations made in the meeting about the conduct of Respondent's classes.
Statements were subsequently obtained by the school principal and the school dean from White and other members of the third period class. The principal then contacted district personnel officials to determine if disciplinary action should be taken against Respondent.
After the February 11, 1988 meeting, Respondent consulted with the school security specialist, a certified police officer, and requested the specialist investigate White's actions for possible criminal violations. After questioning students who witnessed the incident, the specialist filed a charge of assault against White with the Office of the State Attorney. At the time of hearing, no persecutory action had been taken by the State Attorney
Respondent routinely warned and reprimanded students for use of profanity, and routinely counselled students on curbing the use of profanity.
No evidence was presented that Respondent used profanity himself or condoned its use students. Testimony of incidents where profanity was frequently voiced by students establishes that Respondent routinely warned, admonished and reprimanded students when he heard such language. During the first semester, He referred Denise Thomas and Lafils Joasus to the office of the assistant principals or deans for disciplinary action as a result of those students use of profanity and defiance or insubordination to the Respondent. The record is unclear that Respondent heard the profanity or sexual discussions among male
students in those incidents which form the basis for allegations that Respondent allowed such language or discussion.
Respondent's belief that a teacher has an obligation to counsel students was not objected to by the school principal. In that regard, he occasionally answered questions relating to sex or drugs for students. Once, he answered a question of a sexual nature for Danny White. The record is unclear as to the nature of the question. A statement was made by Respondent on another occasion about sailing his sailboat where he alluded to the motion of the ocean and that his fiancee had become ill. Some students chose to imbue the comments with a sexual context. On another occasion, a student reported to Respondent that another student had said Respondent was a "faggot." Respondent told this student that he was not gay. Respondent later told a class that students should refrain from using such terminology and that sexual preference was a personal matter.
Students testifying at hearing stated that Respondent was a teacher they felt free to talk with about their problems. Respondent's discussions with students relating to drugs or drug abuse were an attempt on his part to inform students of the dangers of drug abuse and prevent such abuse by the students. Particular incidents of drug abuse discussions relied upon by Petitioner at hearing usually involved one or two students and ended with the clear message from Respondent that use of drugs was harmful. Respondent's admission, on one occasion, in the course of such counseling that he had experimented with cannabis in the 1960's is not shown to have diluted his message of warning to students regarding the dangers of drug abuse.
Troy Bueckman, after transfer to Respondent's third period class, made quips to Respondent which were sometimes handled by Respondent by ignoring the student or in some other manner that would not, in Respondent's judgement, create disruption in the classroom. This was an approach used by other teachers in the school. There were occasions where he admonished or reprimanded Bueckman for misbehavior.
The school principal testified that it was appropriate for a teacher to discuss drugs with students, provided such discussions were not done on a constant basis. He also testified he was unaware of the number of occasions Respondent had had such classroom discussions or was claimed to have had them. Respondent estimated that discussions involving drugs, sex or related matters was limited to one or two percent of the total time he taught the students in his class. Such discussions were not a daily event.
Testimony at hearing by the school principal, the school dean and others establishes that profanity is a common problem at the school which is usually judged in the context of who is making the statement and the manner in which the statement is made in determining disciplinary action. Generally, the use of profanity in a conversation would, if overheard by an official of the school, result in an admonishment to cease such language. Further disciplinary sanctions might be imposed if the profanity were used as part of an attack on another student. No particular penalty for violation of the prohibition against use of profanity is specified by the assertive discipline plan, student conduct code or other school policy. Punishment for this offense is something that a teacher is expected to decide on a case by case basis depending on the "circumstances and seriousness."
Teachers at the school do not automatically refer students to the school office for discipline as a result of student profanity in the classroom.
Sanctions are generally imposed in a manner consistent with the degree of the offense. A student who fails to respond to a directive to cease profanity will normally be referred for discipline or subjected to a detention penalty.
Respondent's discipline for the offense of profanity did not differ from that of other teachers or the practice used by school administration officials. There were occasions where Respondent did refer students to the office for profanity. During the previous school year of 1986-87, Respondent was criticized by school administrative officials for an excess of such referrals.
As the result of the referral of a number of students to the administration for discipline in January of 1988, Respondent was asked to revise his assertive discipline policy to achieve more rigid discipline prior to referrals. This refinement of the assertive discipline policy was an ongoing process within the school. Other teachers were also advised to revise procedures. Respondent did not adhere strictly to his assertive discipline plan during the first semester on the mistaken assumption that he was not required by administration policy to follow it. After being advised by the assistant principal that such compliance was mandatory, Respondent submitted a revised plan which was approved in February, 1988. Respondent began implementation of that new stricter plan around January 29, 1988, by advising students that they were getting out of hand and he would be less lenient than he had been in the past. Bantering by students decreased. Subsequent to Respondent's revision and implementation of his policy and approval of that policy by the administration, the incident with Danny White occurred on February 4, 1988.
Danny White had been previously referred by Respondent to the office of the school dean on January 20, 1988, for demanding to see his grade, and, upon Respondent's refusal to show him the grade, going to the grade book and opening it himself. White is acknowledged by classmates and others who know him as a short tempered individual who generally gets mad "too quick."
By his own admission at hearing, Danny White has no "beef" against Respondent. But he also admitted he attempted to get Respondent to intervene with school officials concerning his suspension from class in order to prevent injury to his grades and his continuing ability to play football. Due to his candor and demeanor while testifying, the testimony of White that he was not trying to get Respondent fired as retribution for previous discipline referrals is not credited.
Students in the third hour class discussed their statements with each other during the administration's investigation of the allegations forming the basis of the allegations against the Respondent in this case. The object of the students' action was to support Danny White in the face of administrative action suspending him for his confrontation with Respondent. Testimony of a student named Spencer Johnson that Danny White had not solicited other students to bake up statements against Respondent is not credited due to the testimony of Brenda Johnson, his mother, regarding admissions to the contrary made by her son to her. Ms. Johnson testified that her son confided in her that the students had discussed making statements that he knew were not true. In particular, they intended to testify that Respondent "let them do anything in class..." even though Spencer knew this was not true. Spencer further told his mother that student claims would consist of false accusations of being allowed to curse and engage in improper class discussion about sex and drugs. Spencer further admitted in his own testimony that Dan White had told him he "was going to say whatever he had to say" to get the Respondent fired.
The testimony at hearing of Laverne Grantlin, another student, cannot be credited in view of her candor and demeanor while testifying, and her admission that she had given a previous deposition admitting White intended to claim Respondent discussed matters that were not true. Grantlin's testimony was also at variance with testimony offered by White's mother, Ms. St. Juste, with regard to how Ms. St. Juste was apprised of Respondent's alleged improper conduct. White's mother testified that she was approached in a shopping mall and given a written list of student names by an unknown girl who told her the named students would corroborate Respondent's classroom management deficiencies. Grantlin admitted to being the girl who informed White's mother, but denied supplying a list of names or being a stranger to Ms. St. Juste.
The testimony at hearing of another student, Barbara Brown, is corroborative of Grantlin's deposition version of events that claims against Respondent were to be manufactured by students. Brown testified she went to see the school principal to "back out of this case because I feel like I was doing something wrong..." Brown took this action after Respondent told members of the third period class that parents of students who lied in the course of the proceedings against him could be held liable. Brown did not think she learned anything in Respondent's third period class because it was too easy and she wanted to be in a regular, instead of compensatory, English class.
In spite of any alleged misconduct by Respondent, all students in the third period class, with the exception of Barbara Brown, thought Respondent was a good teacher. The progress of the class was not disrupted. Testimony of a student named Darrin Rivnyak, offered by deposition after he ignored a subpoena for attendance at the final hearing, is not credited for this or any other purpose due to the numerous conflicts in various portion of his testimony and the contradictory nature of Rivnyak's assertion that Respondent's class was both a nonlearning experience and that everything was fine in the class until Troy Bueckman was admitted to the class on January 20, 1988.
Respondent advised the school principal that students being called from his classroom to provide statements in the course of the administration's investigation of Respondent should be instructed as to the import of their statements. In response to a question raised by a student in the third period class, Respondent advised the students to tell the truth and that if they made a false statement, they or their parents could be liable. Respondent did not coerce the students in any way in the giving of statements. Respondent did tell the students that nothing would happen to them if they told the truth.
The school principal testified that a great deal of turmoil had been created by "this incident." Beyond this statement, and testimony of Barbara Brown that she felt she was not learning anything in Respondent's class, there is no evidence establishing that Respondent's teaching effectiveness has been impaired.
The testimony at hearing by present and previous students at the school that they liked and respected Respondent is impressive and supports a very positive finding as to the credibility of Respondent's teaching effectiveness. The candor and demeanor of Respondent during his testimony, coupled with the testimony of students establishes that he engendered a relationship of trust with his students which was beneficial to them. While some might not agree with Respondent's techniques such as the one incident of personal revelation by him of drug experimentation in his youth, this counselling methodology was effective and consistent with the trust and confidence reposed in him by the students. The fact that a student would broach
such a subject to a teacher and provide that teacher with an opportunity to discourage student drug abuse is a commendation to Respondent.
Respondent was suspended without pay by the Palm Beach County School Board effective March 16, 1988.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes.
Petitioner has charged Respondent with misconduct in office. Misconduct is defined in Rule 6B-4.009(3), Florida Administrative Code, as a violation of the Code of Ethics and the Principles of Professional Conduct as adopted in Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual teacher's effectiveness in the school system.
Petitioner has failed to establish that conduct by Respondent was so serious as to impair his effectiveness in the school system. Respondent violated no written or articulated rule, policy or practice, but instead acted in a manner consistent with the practice of other teachers and administrative officials of the school in the application of discipline to misbehaving students.
The proof fails to establish those allegations of the Petition For Dismissal that a disparity in discipline of students for class disruption through profanity usage and drug discussion existed in Respondent's class.
Danny White was suspended after the February 4, 1988, incident for disobeying the assistant principal's directive to stay away from Respondent's class. In no way could that suspension be considered to be a result of Respondent's conduct. It is noted that the student alleged to have received favorable treatment was admitted to the class on or about January 21, 1988. The incident which resulted in the investigation and subsequent filing of the Petition For Dismissal occurred on February 4, 1988. The possibility that Respondent embarked upon a course of conduct during this brief span of time which established a disparity in the administration of discipline in his classroom sufficient to impair his effectiveness and incite Danny White to take the actions in which he engaged is not proven and is not persuasive.
Turmoil at the school as a result of Petitioner's investigation is not sufficient to establish impairment of Respondent's teaching effectiveness.
Baker v. School Board of Marion County, 450 So.2d 1194, (Fla. 5th DCA 1984).
There is no competent evidence supporting the allegation that Respondent discussed the male sexual anatomy or his personal sex life with students. Further, Respondent called down students for use of profanity on occasions where it was heard by him, and there is no reasonable indication in the evidence that he condoned the use of profanity. Likewise, discussions related to drug use were permissible, as pointed out by the school principal, with the proper setting as determined by the teacher. Respondent's discussion of drug use was an effort to educate students about such dangers and did not deviate from any written or articulated policy, or send a message that he condoned in any way the use of drugs.
Where topics of sex arose in the classroom in which Respondent was involved, the evidence fails to reveal the discussion was outside the scope of the materials or lessons being discussed, or outside the scope of counselling. Where joking on the subject occurred, Respondent either attempted to divert the discussion or brought it to a stop.
The evidence fails also to establish that Respondents threatened, intimidated or coerced students concerning information to be elicited from them by school administrative officials, beyond urging students to tell the truth. Notable, the subject was not raised by Respondent in class and his statement was in response to a student question.
The finding in Respondent's 1986-87 evaluation that he had too many disciplinary referrals is, at best, inconsistent with the present charge that he has committed misconduct by not having more disciplinary referrals.
Petitioner bears the burden of proving to a preponderance of the evidence the charges set forth in the Petition For Dismissal. Petitioner has not met that burden.
RECOMMENDED that a final order be entered dismissing the Petition For Dismissal, reinstating Respondent to his position of employment on professional service contract and directing payment to him of back pay and attendant benefits withheld from the date of his suspension to the date of his effective reinstatement.
DONE AND ENTERED this 16th day of September, 1988, in Tallahassee, Leon County, Florida.
DON W. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 16th day of September, 1988.
Abbey G. Hairston, Esquire Attorney for Petitioner
John J. Chamblee, Jr., Esquire Chamblee, Miles and Grizzard
Sydney H. McKenzie, Esquire General Counsel
Hon. Betty Castor Commissioner of Education Department of Education The Capitol
Thomas J. Mills Superintendent
