STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF ORANGE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4403

)

ELDON F. POWELL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on December 19 and 20, 1989 in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Frank C. Kruppenbacher, Esquire

William E. Curphey, Esquire Parker, Johnson, Owen,

McGuire, Michaud, Lang and Kruppenbacher, P.A. Post Office Box 640 Orlando, Florida

For Respondent: Michael Barber, Esquire

Post Office Box 1928 Kissimmee, Florida

STATEMENT OF THE ISSUES

Whether the Respondent, a teacher under contract with the Orange County School Board, should be terminated from his employment based on misconduct in office, which occurred on January 12, 1989.

Whether the Respondent, a teacher under contract with the Orange County School Board, should be terminated from his employment based on gross insubordination or willful neglect of duty for failure to follow a prior directive from his principal not to physically touch a student, except under very limited conditions.

Whether such actions of Respondent are so violative of the legitimate expectations of professional conduct of a teacher as to impair the effectiveness of service to the school district by the Respondent and to pose a serious danger to the continued safety, health and welfare of the students of Orange County, Florida.

PRELIMINARY STATEMENT

On April 19, 1989, the School Board of Orange County by and through its Superintendent, James L. Schott, charged Respondent with misconduct in office, gross insubordination and willful neglect of duty in an Administrative Complaint. On August 10, 1989, Respondent, through counsel, requested a formal hearing before the Division of Administrative Hearings. Respondent's Answer to the Administrative Complaint was filed on September 11, 1989. This matter was then set for hearing.

During the hearing, counsel for Respondent was permitted to have a standing objection to the introduction of any evidence concerning alleged misconduct by the Respondent which occurred more than two years prior to January, 1989. The basis for said objection was that, according to the contract between the teacher's union and the School Board, any reprimands received by a teacher were to be removed from the teacher's personnel file after two years,

if there are no recurrences. Ruling on the objection was reserved during the hearing. The objection is now sustained.

The School Board and the Classroom Teachers Association, the authorized collective bargaining agent for Orange County teachers, negotiated a collective bargaining agreement which is binding on both parties. The relevant section of the agreement is Article 12, Section B, which reads as follows:

1. A written reprimand shall not serve as prima facie evidence of the facts alleged therein in any later hearing or

   if a suspension or dismissal of the teacher is recommended.

2. Any written reprimand shall contain the statement that the letter shall be removed from the teacher's file, if there are no similar problems for a specified period of time which shall not exceed two years.

The School Board presented testimony to show that those documents, when removed from the personnel file, would be transferred into the employer- relations disciplinary files where they can be used in subsequent evaluations of employees regarding their prior disciplinary conduct.

Generally, personnel files of school board employees are subject to the public record law. Cf. Gadd v. News-Press Publishing Co., Inc., 412 So.2d 894 (Fla. 2d DCA 1982); Douglas v. Michel, 410 So.2d 936 (Fla. 5th DCA 1982).

This procedure adopted by the School Board is not provided for under the specific exemption provisions to the Public Records Law (Chapter 119, Florida Statutes), Section 231.291(3), Florida Statutes (1987). Personnel

records may not be maintained under two headings, one open and one confidential. See 1973 Op. Atty Gen. Fla. 073-51.

The plain language of the contract provision must apply. After two years, if there are no similar problems, any prior reprimands shall be removed from the teacher's file. If they are removed, they cannot be considered in subsequent evaluations. Therefore, those exhibits which relate to incidents which occurred more than two years prior to January 12, 1989, will not be considered since they are not relevant or material. They include: School Board

Exhibits 1,8,10,11 (composite), 12 (composite), 19 (composite), and Respondent's

Exhibits 2,3 and 4.

At the hearing, Petitioner offered the testimony of fourteen witnesses and nineteen exhibits, including six depositions, were admitted in evidence. Respondent introduced five exhibits, including one deposition, called three witnesses and testified himself.

The transcript of the hearing was filed on January 22, 1990. Petitioner filed proposed findings of fact and conclusions of law on February 12, 1990. Respondent filed his proposals on February 14, 1990. The proposals have been given careful consideration, and each are addressed in the Appendix attached hereto.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times material to the allegations in the Administrative Complaint, Respondent was a licensed teacher, having taught in the Orange County School System for 21 years and at Conway Middle School for over 19 years. Respondent's classroom evaluations over the years were satisfactory and higher.

   
   

2. Respondent was a school representative for the teachers' association for approximately 16 years.

   
   

3. Respondent is a large man, 6 feet, 3 inches tall and weighs 300 pounds.

   
   

4. On January 12, 1989, Respondent was teaching his regular sixth-period American History class.

   
   

5. The bell had rung, signaling the beginning of the class period, but some students were still coming into the classroom. The Respondent was preparing to show the class a filmstrip.

   
   

6. Peyton Dickson, a student in the class, walked from his seat in the rear of the classroom to the light switch at the front of the classroom and turned the light switch on and off several times. Respondent told him to stop and to sit down. He remained standing and "talked back" to Respondent.

   
   

7. Dickson's conduct angered the Respondent who then walked to where Dickson was standing, grabbed him by the arms and shoved him up against the wall. Respondent called Dickson a "punk." Dickson then angrily returned to his seat.

   
   

8. Shortly thereafter, during the same class period, Todd Ray, another student in the class, walked over to use the pencil sharpener. On the way back to his seat, he stopped to help another student with a bookcover.

   
   

9. The Respondent grabbed Ray, walked him a short distance back to the student's desk and pushed him down into his seat.

   
   

10. The class continued without further interruption. The Respondent did not contact the school office concerning the incidents at the time that they occurred.

11. After class was over, several students, including Peyton Dickson and Todd Ray, approached the school principal, Beth Provancha, in the hall and told her about the actions of the Respondent.

    
    

12. Later that same day, the principal, through Mr. Nelms, directed the Respondent to prepare a written account of what had occurred in the classroom. The Respondent submitted his written version of the facts the next day, January 13, 1989. (School Board Exhibit 14).

    
    

13. On January 29, 1989, the Respondent received a letter relieving him of duty effective January 30, 1989, because of "serious" allegations of misconduct.

    
    

14. In the case of a student who disrupts a classroom, School Board policy directs that a student should be verbally directed by the teacher to cease disruptions. If that does not resolve the situation, the office should be "buzzed" and an administrative person summoned to remove the disruptive student from the classroom. It is not permissible for a teacher to physically abuse a student except in the case of an emergency, and no emergency existed in Respondent's classroom on January 12, 1989.

    
    

15. Respondent had been directed by the principal, personally, as well as in the Faculty Handbook, not to physically touch students, except for friendly gestures or in emergencies. At the time of the January 1989 incidents, the Respondent knew he had been directed not to "touch" students. In spite of this knowledge, the Respondent deliberately grabbed and shoved or "touched" the two students who had been disruptive in class.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Sections 120.57(1) and 230.23(5)(f), Florida Statutes.

    
    

17. The issue in this case concerns whether the Orange County School Board should terminate the Respondent from his position of employment as a continuing contract teacher. Such charges are clearly penal in nature. School Board of Pinellas County v. Noble, 384 So.2d 205 (Fla. 1 DCA 1980). Although termination proceedings are penal proceedings, the charges must only be proven by the preponderance of the evidence. Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986).

    
    

18. It is the Hearing Officer's function to consider all the evidence presented, resolve conflicts, judge credibility of the witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact. State Beverage Department v. Ernal, Inc., 115 So.2d 566 (Fla. 3d DCA 1959); Cenac v. Florida State Board of Accountancy, 399 So.2d 1013 (Fla. 1 DCA 1981); Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1 DCA 1985).

    
    

19. The testimony presented in this case was contradictory. The version of events given by the Respondent was markedly at odds with that given by the majority of other witnesses. In order to resolve the factual dispute it is helpful to examine bias and candidness of the witness and consistency and tenability of the testimony. In weighing the conflicting versions of events, the Respondent's stake in the outcome of these proceedings is far greater than that of any of the other eyewitnesses.

20. The testimony of Respondent was not consistent, and he shaded the facts to avoid culpability. Discounting somewhat the Respondent's version of the facts, and considering the other eyewitness testimony as a whole, much of it from students who think well of Respondent, it is clear that in both of the incidents on January 12, 1989, the Respondent was angry at the two disobedient students, and he treated those two students in a manner he knew he was not permitted to do.

    
    

21. Section 231.36(1)(a), Florida Statutes, authorizes district school boards to dismiss members of the instructional staff only for "just cause" which is specified to include, but not be limited to, misconduct in office, incompetence, gross insubordination, willful neglect of duty or conviction of a crime involving moral turpitude. See, also: Section 231.36(4)(c), Florida Statutes. In determining whether grounds for disciplinary action exist, the principal of each school has the primary responsibility to recommend to the superintendent that such action be taken by the school board. Specifically, Section 231.085, Florida Statutes, states that school principals "shall supervise the operation and management of the schools," and shall perform

    duties relating to "administrative responsibility, instructional leadership of the education program of the school to which the principal is assigned, (and) submission of personnel recommendations to the superintendent . . ."

    Further, the Legislature has recognized that the principal is the administrative and instructional leader of a public school. Section 231.0861, Florida Statutes.

    
    

22. The disciplinary grounds provided in Section 231.36, as set forth above, which are applicable to this case are "misconduct in office," and "gross insubordination." These terms are defined in Rule 6B-4.009, Florida Administrative Code, as follows:

    
    

    1. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct or the Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

    2. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. (Emphasis supplied.)

1. Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, referenced in the definition of "misconduct in office," provided in relevant part:

   
   

   6B-1.001, Code of Ethics of the Education Profession in Florida.

   1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the

      achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

   2. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore

      strive for professional growth and will seek to exercise the best professional judgment and integrity.

   3. Aware of the importance of main- taining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain

      the highest degree of ethical conduct.

      6B-1.006 Principals of Professional Conduct for the Education Profession in Florida.

      1. Obligation to the student requires that the individual:

         1. Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety. .

      (e) Shall not intentionally expose a stu- dent to unnecessary embarrassment or disparagement.

      (5) Obligation to the profession of edu- cation requires that the individual:

      (a) Shall maintain honesty in all professional dealings.

      
      

2. Petitioner has shown that Respondent was guilty of misconduct in office for his failure to follow the reasonable directive of his principal concerning his "touching" of students. He failed to follow the specific directions prescribed by the principal concerning the manner of dealing with disruptive students. He grabbed and pushed two students and was vocally belligerent toward at least one of the two students in front of the other students. Such misconduct on the Respondent's part clearly shows an inability to control his temper that was harmful to the students and impaired his effectiveness in the school system.

   
   

3. In Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1 DCA 1981), the First District recited the definition for misconduct in office and gross insubordination as those terms are defined in Rule 6B-4.009, Florida Administrative Code, and found that the action of an employee did not meet the definition of gross insubordination because her conduct amounted to a single isolated outburst and could not be deemed constant or continuing. See also, Rutan v. Pasco County School Board, 435 So.2d 399 (Fla. 2d DCA 1983).

   
   

4. There is not sufficient competent, substantial evidence to support a finding of gross insubordination, as defined in Rule 6B-4.009(4), Florida Administrative Code, as applied to the Respondent.

   
   

5. Respondent has taught in the Petitioner's school system for a period of twenty-one years. His classroom evaluations have been consistently good

over the years, including the most recent evaluation prior to this incident. This should be considered in mitigation of the penalty.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Orange County find Respondent guilty

of misconduct in office, and not guilty of gross insubordination.

It is FURTHER RECOMMENDED that Respondent be suspended, without pay, from the date of the incident January 12, 1989, until the end of the School Year 1988-89; and the Respondent receive counseling in stress management prior to returning to the classroom.

DONE AND ENTERED this 22nd day of February, 1990, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 22nd day of February, 1990.

APPENDIX

The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner's Proposed Findings of Fact:

Accepted: Paragraphs 1,2,3,4 (in part), 5,6,7,8,9,10,11,12,13,14 (in part).

Rejected: Paragraph 13 and a portion of 14 - not relevant.

Respondent's Proposed Findings of Fact:

In view of the fact that Respondent's proposals are not numbered, they will be referred to by page and paragraph number as they appear in the proposed finding starting on page 3 thereof.

Accepted in substance:

second full paragraph on page 3

Rejected as argument:

first full paragraph on page 3 third full paragraph on page 5 second full paragraph on page 6

Rejected as not supported by the evidence:

third full paragraph on page 3 (continuing on page 4)

first full paragraph on page 4 (except the phrase: ... "and was aware of the previous reprimands at the time the Respondent sought to control the two students' actions.)

second full paragraph on page 5

Rejected as a conclusion of law which is ruled on in the Preliminary Statement or Conclusions of Law section of this Recommended Order:

second full paragraph on page 4 first full paragraph on page 5 fourth full paragraph on page 5 first full paragraph on page 6

fifth full paragraph on page 5 (concluding on page 6)

APPENDIX

The following constitute rulings on the findings of fact proposed by the parties.

Petitioner's Findings of Fact

1. Adopted in paragraph 1.

2. Adopted in paragraphs 10 and 12.

3. Adopted in part in paragraph 9, although the identification of the Respondent at the party is discredited as improbable.

4. Rejected as unsubstantiated by the weight of evidence. Even

   if the smell had been marijuana smoke, it was not established that the odor existed prior to Respondent's departure the evening of the 18th, or that he could identify the odor as marijuana.

5. Rejected as contrary to the evidence.

6. Adopted in paragraph 18.

7. Adopted in substance in paragraph 15.

8. Rejected as contrary to the weight of evidence.

9. & J. Rejected. The testimony of these witnesses was essentially credible.

1. Rejected as contrary to the weight of evidence.

2. Rejected as contrary to the weight of evidence.

3. Rejected as immaterial. The conduct was not proven.

Respondent's Findings of Fact

Respondent's 18 numbered Findings of Fact include multiple sub- parts containing findings mixed with argument and summary of evidence. The findings of fact are generally adopted and are incorporated herein.

COPIES FURNISHED:

Frank C. Kruppenbacher, Esquire William E. Curphey, Esquire Parker, Johnson, Owen,

McGuire, Michaud, Lang and Kruppenbacher, P.A. Post Office Box 640 Orlando, Florida

Michael Barber, Esquire Post Office Box 1928 Kissimmee, Florida

James L. Schott Superintendent

Orange County Public Schools Post Office Box 271

434 N. Tampa Avenue Orlando, FL 32802

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Sydney H. McKenzie General Counsel The Capitol, PL-08

Tallahassee, FL 32399-0400

Docket for Case No: 89-004403

Orders for Case No: 89-004403