STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF )

PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2289

)

KYLE M. EVANS, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on September 16, 1988, in Clearwater, Florida, before Donald D. Conn, a duly assigned Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 4688 Clearwater, Florida 34618

For Respondent: Charleen C. Ramus, Esquire

Post Office Box 75638 Tampa, Florida 33675

The issue in this case is whether the School Board of Pinellas County (Petitioner) should impose a three day suspension without pay upon Kyle M. Evans (Respondent) based upon actions which he allegedly took constituting misconduct in office. At the hearing, the Petitioner called four witnesses and introduced twelve exhibits. Four additional exhibits which Petitioner sought to introduce were rejected as cumulative and unnecessary, and the testimony of a fifth witness called by Petitioner was rejected and stricken as irrelevant. The Respondent testified on his own behalf.

A transcript of the final hearing was filed on October 14, 1988, and the parties were allowed to file proposed recommended orders, including proposed findings of fact, within ten days thereafter. The Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. At all times material hereto, Respondent was employed by Petitioner under a professional service contract as a physical education teacher at Seminole Middle School in the Pinellas County school system.

   
   

2. Respondent holds a regular teaching certificate number 555676, issued by the State of Florida, Department of Education.

3. On March 18, 1988, Respondent was conducting a physical education class at Seminole Middle School. The class consisted of both male and female students, and was being held indoors since it was raining on that day. Respondent was directly supervising a group of students who were engaged in a "bowling" activity. This activity consisted of the students rolling a reduced- size bowling ball, approximately four inches in diameter but made of regular bowling ball material, at pins which were set up at one end of the floor. There was no alley or lane, as such, but there was a distance of approximately twenty feet between the students and the pins. Respondent would set up the pins after each student rolled the bowling ball.

   
   

4. While Respondent was still bending over to set up the pins after a previous student had rolled the ball, John Ondich, a fourteen year old student, threw the bowling ball very hard in the direction of Respondent and the pins. Respondent looked up as the ball was approaching him, and saw that it was about to strike him in the face. He blocked the ball with his hands, causing it to graze off the wall in back of the pins. Thereupon, Respondent retrieved the ball, and threw it at Ondich in a three-quarters over hand motion, with what Respondent termed some intensity." The ball missed Ondich, but struck Anjeanette Milone in the mouth, causing it to bleed. She was treated at the school clinic with ice to reduce swelling, but no stitches were required. Respondent immediately apologized to Milone and expressed concern for her.

   
   

5. Based upon the testimony of students present during this incident, as well as Respondent's own testimony and a statement he made to his principal, C.

   W. Mock, about this incident, it is found that Respondent threw the bowling ball at Ondich in anger, and with the intent of hitting Ondich. Respondent was angered by the manner in which Ondich had thrown the bowling ball while he was still setting up the pins.

   
   

6. Based upon the testimony of C. W. Mock and Steven Crosby, who were accepted as experts in education, Respondent's action on March 18, 1988, impairs his effectiveness as a teacher due to the loss of respect among students and parents which has resulted. He failed to exercise good professional judgment, and instead his actions caused embarrassment and physical injury to one of his students. This conduct by a teacher impairs the teaching profession as a whole. Corporal punishment is specifically prohibited at Seminole Middle School.

   
   

7. By proper notice to Respondent, petitioner sought to impose a three day suspension without pay as a result of this incident, and Respondent has timely sought review of this Proposed action.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has juridiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes.

   
   

9. The Petitioner has the burden of proof in this proceeding. Section 231.36(4)(c), Florida Statutes. Since this case involves the possible loss of livelihood resulting from a suspension without pay, the elevated standard of proof of clear and convincing evidence will be applied. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

   
   

10. Section 231.36(4)(c), Florida Statutes, authorizes school boards to Suspend or dismiss any member of the instructional staff who engages in misconduct in office. Rule 6B-4.009(3), Florida Administrative Code, defines

    misconduct in office as a violation of the Code of Ethics of the Education Profession and the Principles of Professional Conduct, which have been adopted as Rules 6B-1.001 and 6B-1.006, that is so serious as to impair the teacher's effectiveness in the school system.

    
    

11. The Code of Ethics specifically requires the exercise of the best Professional judgment and integrity, as well as maintaining the respect and confidence of students and parents. Rule 6B-1.001(2)(3), Florida Administrative Code. The Principles of Professional Conduct set forth the teacher's obligations to students, including the protection of students from conditions harmful to safety or which cause embarrassment. Rule 6B-1.006(3)(a)(e), Florida Administrative Code. The policies of Petitioner, set forth at Rule 6Gx52-6.045, require all instructional personnel to be familiar with all provisions of the Florida Statutes, and administrative rules adopted thereunder, which pertain to their responsibilities as educators.

    
    

12. Respondent's action on March 18, 1988 clearly brought his students, John Ondich and Anjeanette Milone, into danger and caused physical injury to Milone. The resulting impact of this incident on students and parents has reduced Respondent's effectiveness as a teacher, and has caused him to loose the confidence and respect of students and parents. He acted out of anger, and this conduct evidences very poor professional judgment. As such, the evidence in this case clearly and convincingly establishes that Respondent's action on March 18, 1988, constitutes misconduct in office, a proper basis for Petitioner to impose a three day suspension without pay.

RECOMMENDATION

Based upon the foregoing, it is recommended that Petitioner enter a Final Order imposing a three day suspension without pay upon Respondent.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of October, 1988.

DONALD D. CONN

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 26th day of October, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2289

Rulings on Petitioner's Proposed Findings of Fact:

Petitioner did not timely file a Proposed Recommended Order containing Proposed findings of fact.

Rulings on the Respondent's Proposed Findings of Fact: 1-2. Adopted in Findings of Fact 1 and 7.

1. Adopted and Rejected, in part, in Findings of Fact 3, 5.

2. Rejected as irrelevant and unnecessary.

COPIES FURNISHED:

Scott Rose, Ph.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618

Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618

Charleen C. Ramus, Esquire Post Office Box 75638 Tampa, Florida 33675

Commissioner Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Docket for Case No: 88-002289

Orders for Case No: 88-002289