STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS ) COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1546

)

CLARENCE DAVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held on May 11, 1989, in St. Petersburg, Florida, before Donald D. Conn, Hearing Officer, 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: Lawrence D. Black, Esquire

152 Eighth Avenue, Southwest Largo, Florida 34640

ISSUE

The issue in this case is whether the school Board of Pinellas County (Petitioner) should dismiss its employee, Clarence Davis (Respondent), from continuing contract for misconduct in office and gross insubordination based upon matters alleged in the Superintendent's letters of March 13 and April 24, 1989.

PRELIMINARY STATEMENT

At the hearing, the Petitioner called sixteen witnesses and introduced fourteen exhibits. The Respondent testified on his own behalf, and also called five witnesses. No transcript of the final hearing was filed, and the parties were allowed to file proposed recommended orders, including proposed findings of fact, within ten days following the final hearing. The Appendix to this Recommended Order contains a ruling on each timely filed proposed finding of fact.

FINDINGS OF FACT

1. Respondent holds a teaching certificate from the State of Florida, and has been employed by continuing contract with the Petitioner since April 21, 1971. In 1986, he was assigned to Azalea Middle School, where he has since been employed.

2. The parties stipulated that during a prior assignment at Riviera Middle School, the principal of that school had warned Respondent to refrain from aggressively touching students.

   
   

3. During April, 1986, Dr. Scott N. Rose, Superintendent of the Pinellas County school system, removed Respondent from a counseling assignment at Pinellas Park Middle school, and transferred him to Azalea Park Middle school as a physical education teacher. The Superintendent issued a warning at the time of this transfer that he would recommend a suspension without pay or termination if Respondent's future actions at Azalea Middle school constituted insubordination.

   
   

4. During the 1987-1988 school year, Respondent was assigned to a guidance counselor position at Azalea Middle School, but he again had to be removed by the Superintendent. He was warned again that future problems would result in a suspension without pay or a termination.

   
   

5. John Leanes became principal of Azalea Middle School in January, 1988, and in October, 1988, he warned Respondent to avoid touching students. In December, 1988, senior administrative officials and representatives of the Petitioner met with the Respondent, and warned him not to touch students. They told him that if he could not meet the standards and expectations of the Petitioner for teachers in the Pinellas County school system, he would be recommended for termination of his continuing contract.

   
   

6. The Code of Student Conduct in effect in the Pinellas County school system at all times material hereto provides, in part, that:

   
   

   No form of physical punishment, other that paddling with a paddle is authorized. Corporal punishment may be used only after careful consideration of the facts by the principal, or designee. In no case shall such punishment be degrading or unduly severe in nature.

   
   

7. Around the time of the winter holiday during the 1988-1989 school year, Respondent became involved in an incident with a twelve year old female student named M.S. The student was not feeling well, and did not dress out for physical education class. She was lying down in the bleachers. Respondent yelled at

   M.S. to come down from the bleachers when he observed her talking to other students at the top of the bleachers. When she complied and approached him, he appeared to the student to be very angry, and threatening. He yelled at her so closely that saliva from his mouth struck her in the face. After yelling at her, he pushed M.S. with both hands, throwing her back onto the bleachers. This incident caused the student, M.S., to be frightened and intimidated by the Respondent. Other students observed the incident, and confirmed the testimony of M.S. at hearing. Respondent's actions in this incident reasonably caused

   M.S. to feel embarrassment, fear, and the threat of physical punishment.

   
   

8. On or about March 7, 1989, Respondent yelled at a male student, J.S., and pushed him in the chest with his finger while yelling at him. It appeared to the student that Respondent was trying to provoke him into a physical confrontation. Respondent testified that he was trying to protect another student, K.W., whom he felt was being bullied by J.S. However, K.W. testified that J.S. was not bullying him on this day, and that he and J.S. are friends. Other students witnessed the incident, which reasonably caused the student, J.S., embarrassment, and fear.

9. It is alleged that on March 8, 1989, Respondent also grabbed a student, R.L., by the shoulders, shook him, and yelled at him. R.L. is classified as an emotionally handicapped student, who has been suspended. Students who testified characterized R.L. as someone who talks alot, says bad things about, and fights with, other students, and is generally a trouble maker. Based upon his demeanor at hearing, as well as the testimony of other students about his character, it is found that the testimony of R.L. is not credible. It is reasonable to infer that R.L. heard about the incident the day before with J.S. and the Respondent, and fabricated his allegations to gain attention.

   
   

10. Based upon the testimony of Dr. Scott N. Rose and John Leanes, who were accepted as experts in education, as well as the testimony of Stephen Crosby, director of personnel services for Petitioner, incidents such as those between the Respondent and M.S. and J.S. diminish a teacher's effectiveness by creating an improper role model, teaching students that violence is a way to resolve disputes, frightening students, and causing them to be afraid of school and teachers. This creates a negative educational atmosphere, and could potentially increase the school system's liability.

    
    

11. In November and December, 1988, the Respondent was suspended without pay on two occasions based upon allegations similar to the ones at issue in this case. The period of these suspensions was three and five days, respectively. The Respondent requested an administrative hearing concerning these suspensions, and following that hearing, Hearing Officer Don W. Davis issued a Recommended Order on April 21, 1989, in DOAH Cases Numbered 88-5720 and 89-0344, recommending that the proposed suspensions be dismissed. A Final Order in this prior case has not yet been entered by the Petitioner.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. 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 dismissal from continuing contract, the elevated standard of proof of clear and convincing evidence will be applied. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

14. 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 or gross insubordination. 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.

    
    

15. 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). The Principles of Professional Conduct set forth the teacher's obligations to students, including protection of students from conditions harmful to safety or which cause embarrassment. Rule 6B-1.006(3)(a)(e). The policies of Petitioner, set forth at 6Gx52-6.045, require all instructional personnel to be familiar with all

    provisions of the Florida Statutes, as well as administrative rules adopted thereunder, which pertain to their responsibilities as educators.

    
    

16. The evidence presented clearly and convincingly shows that Respondent committed misconduct in office by improperly touching, pushing, and threatening two students, M.S. and J.S., since his actions embarrassed these students, and brought them into danger which could have resulted in physical injury. Conduct such as this reduces the effectiveness of a teacher by frightening students, and causing them to lose confidence in their school and its teachers. Respondent's conduct evidences poor professional judgment, and sends the wrong message to students about how to deal with conflicts and resolve disputes.

    
    

17. Gross insubordination is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. Rule 6B-4.009(4). The record in this case establishes that the Respondent has previously been warned, and been the subject of disciplinary action by the Petitioner for touching or punishing students in a manner which does not conform to the requirements for administering corporal punishment set forth in the Code of Student Conduct adopted by the Petitioner. Despite these prior warnings, Respondent continued his misconduct with his actions toward the students, J.S. and M.S. The prior warnings of disciplinary action, which could include dismissal, were reasonable and were given by and with proper authority by the Superintendent. Therefore, intent may be inferred from his continuing refusal to obey direct and reasonable warnings from the Superintendent, and others in authority, and such conduct constitutes gross insubordination.

RECOMMENDATION

Based upon the foregoing, it is recommended that the Petitioner enter a Final Order dismissing Respondent from continuing contract with the Pinellas County school system.

DONE AND ENTERED this 14th day of June, 1989 in Tallahassee, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1546

Rulings on Petitioner's Proposed Findings of Fact:

1-2. Adopted in Finding 1.

1. Adopted in Finding 2.

2. Adopted in Finding 3.

3. Adopted in Finding 4.

4. Rejected as irrelevant. 7-8. Adopted in Finding 11. 9-12. Adopted in Finding 5.

1. Rejected as not a finding of fact but a conclusion of law.

2. Adopted in Finding 6. 15-19. Adopted in Finding 7. 20-24. Adopted in Finding 8.

25-28. Rejected and adopted in part in Finding 9.

1. Adopted in Finding 10.

2. Rejected as not based on competent substantial evidence.

The Respondent did not file specific Proposed Findings of Fact, but incorporated argument in a proposed recommended order. Therefore, it is not possible to address specific findings of fact on behalf of the Respondent.

COPIES FURNISHED:

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

Lawrence D. Black, Esquire

152 Eighth Avenue, Southwest Largo, Florida 34640

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

Hon. Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Sydney H. McKenzie, Esquire General Counsel

Department of Education The Capitol

Tallahassee, Florida 32399-0400

Docket for Case No: 89-001546

Orders for Case No: 89-001546