STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

v. ) Case No. 90-4714

)

LEONARD RELIFORD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in the above-styled matter on November 8 and 9, 1990, in Clearwater, Florida, before Joyous D. Parrish, a designated hearing officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Robert G. Walker, Jr.

250 North Belcher Road Suite 101

Clearwater, Florida 34625

For Respondent: Robert F. McKee

KELLY & McKEE, P.A.

1724 East Seventh Avenue

P.O. Box 75638

Tampa, Florida 33675-0638 STATEMENT OF THE ISSUES

The central issue in this case is whether the School Board should dismiss the Respondent from his employment based upon misconduct in office and gross insubordination.

PRELIMINARY STATEMENT

This case began on July 25, 1990, when the Superintendent of Schools recommended to the School Board of Pinellas County, Florida (School Board) that the Respondent's employment with the school district be terminated. The allegations against the Respondent were misconduct in office and gross insubordination in violation of Section 231.36(6)(a), Florida Statutes. More specifically, the School Board has claimed that the Respondent has, on several occasions, grabbed, pushed, picked up, or shoved students in a punitive manner contrary to direction from his supervising administrators. Additionally, the School Board alleged that Respondent was previously suspended for similar conduct. The Respondent denied the allegations of fact and requested an

administrative hearing pursuant to Section 120.57(1), Florida Statutes. The matter was forwarded to the Division of Administrative Hearings for formal proceedings on July 30, 1990.

At the hearing, the School Board presented the testimony of the following witnesses: Timothy Tidwell, Doug Lance, Jason Anger, Jason Wright, Fernandez Arana, Jerry Nguyen, Tony Umholtz, Titus Virts, Matt Smolen, Nicholas Petrosky, Ryan Addy, and William Alleman, students; Angelo Vicario, assistant principal at Seminole Middle School; Brenda Clark, principal at Gulf Beach Elementary School; Dr. Robert E. Jackson, principal at Southside Fundamental Middle School; Karalia Washington Baldwin, guidance counselor at Osceola Middle School; Margaret Nemzek, assistant principal at Osceola Middle School; James A. Steen, principal at Pinellas Central Elementary School; Nancy Zambito, diretor of school operations for areas 1 and 2; Cecile Boris, deputy superintendent; James Barker, supervisor of personnel services, Pinellas County School District; and Scott Rose, former superintendent, Pinellas County School District. The Petitioner's exhibits numbered 1 through 3, 5A, 5B, 6 through 10, 11A, 11B, and

12 through 18 were admitted into evidence.

The Respondent testified in his own behalf and presented the following witnesses: Gerald Popejoy, a teacher employed at Osceola Middle School; Jukobi Gamble, a student; and Suzanne Denny, a teacher at Azalea Middle School. The Respondent's exhibit 1 was admitted into evidence.

The transcript of the hearing was filed on November 28, 1990. The Petitioner filed a proposed recommended order and the Respondent filed a post- hearing brief both of which have been considered in the preparation of this recommended order. Specific rulings on the proposed findings of fact submitted by the Petitioner are included in the attached appendix.

FINDINGS OF FACT

Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made:

1. The School Board is the public agency authorized by Florida law to administer the Pinellas County School District.

   
   

2. At all times material to the allegations of this case, the Respondent was employed as a continuing contract teacher by the School Board.

   
   

3. Respondent began his employment with the School Board on August 25, 1980.

   
   

4. During the period August, 1980 through 1985, Respondent was assigned to Lealman E1ementary School where he taught physical education.

   
   

5. While at Lealman, the Respondent received several complaints related to his treatment of students. Administrators made Respondent aware of the complaints which alleged Respondent had inappropriately touched the young children and, in some instances, left bruises.

   
   

6. Respondent did not agree that he had intentionally injured the students, but he did acknowledge that he had touched the children and that they did have bruises.

7. As a result of the complaints, Respondent agreed to transfer to a school with older students. Consequently, Respondent was assigned to Osceola Middle School where he was again directed to teach physical education. Respondent was counseled regarding the inappropriate touching of students and was directed to refrain from physical contact of a punitive or aggressive nature. Respondent remained at Osceola from 1985 until 1990.

   
   

8. Additionally, Respondent was given several verbal and written directives regarding the touching of students. In 1985, Respondent received a formal letter of reprimand from the superintendent for touching students aggressively or too roughly.

   
   

9. In 1989, Respondent became involved in a physical confrontation with a student named Dwight Firby. The Firby child was a disruptive student who had an explosive temper. On one occasion, Respondent confronted Firby in the locker room with regard to an accusation that Firby had stolen another student's tennis shoes. Firby denied the allegations but became verbally abusive to the Respondent. One word led to another and Firby grabbed Respondent by the shirt in a combative manner. At that point, Respondent seized the student's arms and, when he refused to let go of Respondent's shirt, Respondent forced Firby's head downward to the bench. When Firby let go of the Respondent's shirt (he could no longer hold on given the position in which Respondent had him restrained), Respondent led the student into the office and physically detained him there.

   
   

10. The incident described in paragraph 9 was reported to the school administrators and investigated by appropriate authorities. As a result, Respondent was given, and accepted without formal protest, a three day suspension. Respondent was again specifically directed that he should not touch students in an inappropriate manner. Moreover, Respondent was advised that he was not to administer punitive touching of any type.

    
    

11. When Respondent returned from his suspension, he asserted at a faculty meeting that his conduct in the Firby incident had been appropriate and that given the same circumstances, he would repeat his actions. Respondent was again advised that such conduct would not be acceptable and would be deemed contrary to school policy.

    
    

12. On or about June 5, 1990, a second incident with Respondent and a student occurred. The student, Jason Wright, was in Respondent's office and, contrary to Respondent's instruction, took a basketball and passed it to another student outside in the adjacent gym area. Respondent attempted to intercept the pass but instead shoved the student in the back causing him to exit the office abruptly. Wright then mumbled something disrespectful and voiced that he did not want Respondent to touch him again.

    
    

13. Respondent followed Wright out into the gym and confronted him regarding what he had said. Wright repeated that he did not want Respondent to touch him and the situation escalated when Respondent placed his hands on Wright. The student shoved Respondent's hands away and the discussion became an exchange of profanities with both individuals making improper comments.

    
    

14. During the course of this verbal exchange Respondent mimicked Wright's manner of speech and made a derogatory comment regarding Wright's mother. Both of these comments incensed Wright and provoked additional action from the student. At one point, Wright shoved the Respondent aggressively.

15. Following physical contact from Wright, Respondent wrapped his arms around Wright, picked him up, carried him approximately twenty feet to the office, and was in the process of putting him in the office when he tripped over the threshold and fell headlong onto Wright. Fortunately, Respondent was able to break his fall so that the majority of his weight did not rest on the student.

    
    

16. As a result of the foregoing, Wright sustained only slight scratches. More important, however, was the fact that the foregoing incident was witnessed by many students. Wright was embarrassed first by the Respondent's mimicking of his speech (which is slightly impaired) and then secondly by being carried across the gym floor as described.

    
    

17. Respondent's conduct in connection with Jason Wright was not justified given the circumstances of the situation. Respondent did not need to pick the student up and certainly should not have carried him anywhere. Why he chose to act as he did cannot be justified by the situation.

    
    

18. Another touching incident between Respondent and a student, Bill Alleman, also occurred on June 5, 1990. In this case, Respondent grabbed Alleman by his ear, earring, hair, and jacket and forced the student to walk with him to another area of the gym. Once at that location, Respondent ordered Alleman to pick up a piece of paper on the floor.

    
    

19. Alleman did not know why Respondent required him to pick up the paper, did not understand why Respondent had grabbed him as described to force him to perform the task, and as a result of the touching was embarrassed and apprehensive. While Alleman did not suffer an injury from the touching, his ear was tender from the act. More important, Alleman was distressed by Respondent's act since he had not provoked the incident and did not understand Respondent's use of force.

    
    

20. Respondent's actions with Allemen were not justified given the circumstances of the situation.

    
    

21. At all times material to this case, the School Board had policies which defined standards for physical contact between teachers and students. Except for corporal punishment, teachers were prohibited from touching students in a punitive or otherwise inappropriate fashion. Teachers may use reasonable force against a student in situations where the teacher must protect himself, protect another, or protect property but only when other alternatives are either exhausted or unavailable.

    
    

22. In this case, Respondent had other alternatives available to him in connection with the students Alleman and Wright. Neither of those incidents required the touching which Respondent chose to exhibit.

    
    

23. Prior to June 5, 1990, Respondent was counseled about inappropriate touching and was aware of the School Board policy described above.

    
    

24. The School Board utilizes a progressive discipline policy. The Respondent has been frequently reminded about the policy of not touching students, has received verbal and written warnings regarding past conduct, and has had a suspension for similar conduct.

25. As a teacher, Respondent is expected to conduct himself in accordance with school policies and is required to set the example for his students. The effectiveness of a teacher is impaired when he repeatedly fails to abide by policies and exposes students to inappropriate behaviors.

    
    

26. Because he has failed to follow reasonable directives and has subjected students to inappropriate touchings and embarrassment, Respondent's effectiveness as a teacher with the Pinellas County School District has been significantly impaired.

    
    

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings.

    
    

28. The School Board bears the burden of proving by a preponderance of the evidence the allegations of this case.

    
    

29. Section 231.36, Florida Statutes,, provides that a person employed as a member of the instructional staff in any district school system may be dismissed for misconduct in office or gross insubordination.

    
    

30. Rule 6B-4.009, Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.901, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.

    
    

31. Rule 6B-4.009, Florida Administrative Code, defines gross insubordination as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

32. In this case, the School Board has established that with regard to two students, Bill Alleman and Jason Wright, the Respondent utilized an excessive and inappropriate amount of physical force. Further, such touching caused these students physical discomfort and embarrassment.

    
    

33. Respondent's mocking of Wright's speech, his use of profanity, and his failure to seek another solution to defuse the incident are inexcusable. Respondent's lack of judgment in light of more than sufficient past warnings has seriously reduced his effectiveness as a teacher.

    
    

34. With regard to Bill Alleman, Respondent unnecessarily caused this student pain. No credible explanation has been offered by Respondent to justify his actions. As a result, Respondent's professional judgment has been rendered suspect by such conduct.

    
    

35. Respondent has been progressively disciplined without apparent success. The School Board is not obligated to do more than it has to attempt to bring Respondent's conduct within an acceptable range. Respondent's repeated indifference to the directives of his superiors evidences gross insubordination.

RECOMMENDATION

Based upon the foregoing, it is recommended that the School Board of Pinellas County, Florida, enter a final order dismissing Respondent from his employment with the public school district.

DONE and ENTERED this 30th day of January, 1991, in Tallahassee, Leon County, Florida.

JOYOUS D. PARRISH

Hearing Officer

Division of Administrative Hearings 1230 Apalachee Parkway

Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1991.

APPENDIX TO CASE NO. 90-4714

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER:

1. Paragraph 1 is accepted. With regard to Respondent's status as a continuing contract teacher, no issues have been raised as to whether, procedurally, Petitioner has complied with all statutory or contractual obligations regarding tiie ter~nination of Respondent's employment; consequently, such issues have not been addressed by the hearing officer.

2. Paragraph 2 is accepted but is irrelevant.

3. Paragraphs 3 through 9 are accepted.

4. Paragraph 10 is rejected as repetitive or unnecessary.

5. Paragraph 11 is accepted but is irrelevant.

6. Paragraph 12 is accepted.

7. The first sentence of paragraph 13 is accepted. The remainder of that paragraph is rejected as irrelevant. The fact that Respondent was counseled and placed on notice of the types of touchings which would be deemed inappropriate has been established; no conclusion as to whether Respondent actually committed offenses at Lealman is made--the perception was that such acts had occurred and Respondent accepted that he had an obligation to refrain from future improper touchings.

8. Paragraphs 14 and 15 are accepted.

9. With the deletion of the final phrase "and such conduct can and has increased the school district's exposure to civil liability" which is rejected as irrelevant, paragraph 16 is accepted.

10. Paragraph 17 is rejected as irrelevant, unnecessary to the resolution of the issues of this case.

11. Paragraph 18 is accepted.

12. With regard to paragraph 19, it is accepted that Respondent acted inappropriately with regard to the incidents involving Firby, Alleman, and Wright, otherwise rejected as repetitive or irrelevant.

13. Paragraphs 20 and 21 are accepted.

14. Paragraph 22 is rejected as irrelevant.

15. Paragraph 23 is rejected as irrelevant.

16. With regard to paragraph 24, it is accepted that Respondent has acknowledged that others have perceived that his actions resulted in harm; however, Respondent has not, and this record does not establish, an admission on Respondent's part of such conduct. In fact, Respondent's unwillingness to accept criticism and alter his behavior has been instrumental in his continued refusal to abide by school policy.

17. Paragraphs 25 through 28 are rejected as irrelevant or repetitive.

18. With regard to paragraphs 29 through 44, to the extent the proposed findings are addressed in findings of fact paragraphs 12 through 17 they are accepted; otherwise rejected as irrelevant, repetitive, or unnecessary to the resolution of the issues of this case.

19. With regard to paragraphs 45 through 51, to the extent the proposed findings are addressed in findings of fact paragraphs 18 through 20 they are accepted; otherwise rejected as irrelevant, repetitive, or unnecessary to the resolution of the issues of this case.

20. Paragraphs 52, 53, 57, 58, 60, 64, and 65 are accepted.

21. Paragraphs 54, 56, 59, 61, 62, 63, and 66 are rejected as irrelevant, speculative, unsupported by the weight of the evidence, repetitive, or unnecessary to the resolution of the issues of this case. With regard to the Firby incident, it is sufficient for the purposes of this case that Respondent inappropriately touched the student, was reprimanded for that act, and has showed little interest in refraining from similar types of conduct.

RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY RESPONDENT:

Respondent filed a post-hearing brief which has been reviewed but which was not in a form to allow specific rulings on proposed facts, consequently, none are addressed here.

COPIES FURNISHED:

Robert F. McKee KELLY & McKEE, P.A.

1724 East Seventh Avenue

P.O. Box 75638

Tampa, Florida 33675-0638

Robert G. Walker, Jr.

250 N. Belcher Road, Suite 101 Clearwater, Florida 34625

Hon. Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Superintendent of

Pinellas County School District

P.O. Box 4688 Clearwater, Florida 33518

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-004714

Orders for Case No: 90-004714