STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-0899

)

PHILIP JAMES CHASE, II, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 10, 1991, in Dunedin, Florida.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

P. O. Box 4688

Clearwater, Florida 34618-4688

For Respondent: Mark S. Herdman, Esquire

P. O. Box 75638

Tampa, Florida 33675-0638 STATEMENT OF THE ISSUES

The issue is whether respondent, a licensed teacher, should be suspended without pay for three days for allegedly committing misconduct in office.

PRELIMINARY STATEMENT

By letter dated January 11, 1991, petitioner, School Board of Pinellas County (Board), charged that respondent, Philip James Chase, II, a licensed teacher, had engaged in inappropriate behavior in violation of Subsection 231.36(4)(c), Florida Statutes (1989), and that he would be suspended for three days without pay. More specifically, the letter alleged that on December 18, 1990, respondent "became upset at a student and kicked him in the buttocks" and that such behavior constituted misconduct in office. On May 20, 1991, the Board added the allegation that "following the incident with the student, (respondent) taunted the student with words which could be reasonably interpreted as fighting words, and were so interpreted by the student."

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes (1989). The matter was referred by petitioner to the Division of Administrative Hearings on February 11, 1991, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated March 19, 1991, a final hearing was

scheduled on June 10, 1991, in Dunedin, Florida. On June 7, 1991, the case was transferred from Hearing Officer Veronica E. Donnelly to the undersigned.

At final hearing petitioner presented the testimony of John McLay, principal at Dunedin High School (DHS) and accepted as an expert in education administration; Robert S. Wright, former principal at DHS; and Steven Crosby, Board director of personnel services and accepted as an expert in education administration. It also offered petitioner's exhibits 1-17. All exhibits were received in evidence. Respondent testified in his own behalf and presented the testimony of Roger McLean, chairman of the DHS physical education department, and Christopher Heard, a former student at DHS.

The transcript of hearing was filed on July 5, 1991. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on July 10 and 22, 1991, respectively. A ruling on each proposed finding has been made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

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

1. At all times relevant hereto, respondent, Philip James Chase, II, was employed under a continuing contract as a classroom teacher at Dunedin High School (DHS) in Dunedin, Florida. The school is under the jurisdiction of petitioner, School Board of Pinellas County (Board). During school year 1990- 91, respondent was a physical education and driver's education teacher and also served as wrestling coach. He has been an employee of the Board since 1975 and a teacher since 1971.

   
   

2. The facts underlying this controversy are relatively simple. On December 18, 1990, respondent was seated at his desk in the DHS physical education office talking to two students. At the same time, several other students were in line to weigh themselves on a weight scale which was located a few feet from respondent's desk. After one student had jumped on the scale, respondent, without looking up, said to the students still in line, "on the scale gently, please". The next student in line, Derek Carson, ignored respondent's instructions and jumped on the scale causing a loud banging noise. Respondent rose out of his chair and at the same time gently swung his foot and hit Carson's buttocks. He also told Carson, "I told you gently, please." Carson immediately launched into a tirade of verbal obscenities at the top of his voice against respondent. Realizing that Carson was obviously upset, respondent initially ignored the remarks, but after the verbal abuse continued, he told Carson that he (Carson) ought to try to talk to him in that manner "on the street". Carson then departed. At no time did Chase become upset or lose

   his composure during the incident, and he drew praise for his cool demeanor from his department chairman who was an eyewitness to the incident. There is no competent evidence that Carson "reasonably interpreted" respondent's remarks as "fighting words" as charged in the suspension letter. 1/ Since the incident occurred in the presence of a number of students and two members of the faculty, it may be reasonably inferred from the evidence that Carson was embarrassed by the incident.

   
   

3. The student then reported the incident to the principal, John McLay, who investigated the matter and initially concluded that respondent should be given a written reprimand. However, after McLay learned that Carson's grandparents (guardians) had filed a complaint with the Board, he turned the

   matter over to the Board for further action rather than handling it at the local school level. Because the Board's superintendent has proposed to increase the severity of the penalty from a reprimand to a three day suspension, Chase has requested this hearing. 2/

   
   

4. According to McLay, the faculty is given specific training at the beginning of each school year on how to resolve conflicts of this nature and is warned that a student may react negatively to physical discipline. He added that a teacher should never place his hands on a student for any reason unless the teacher is in fear of bodily harm or is trying to break up a disturbance among students. McLay also placed importance on how the student perceived the actions of the teacher. In other words, if the student perceived a light tap from the teacher as being deliberate or malicious when in fact the teacher was only kidding, McLay felt the action by the teacher would probably be unjustified. He agreed, however, that other factors, besides the student's perception of the incident, were also relevant to a final determination.

   
   

5. McLay also emphasized the importance of teachers maintaining a good rapport with a student's parents since the education of the child required their cooperation. Further, the Board's director of personnel services, Steven Crosby, established that the incident undermined the parents' confidence in respondent. He characterized the action of respondent as "poor judgment" and one which diminished his effectiveness as a teacher. This testimony on the issue of teacher effectiveness is accepted as being more credible than that offered by a student and fellow teacher who testified on respondent's behalf. Crosby added that simply because Chase was a coach who worked in a more informal atmosphere than did other teachers did not excuse his conduct.

   
   

6. Crosby noted that school policy generally calls for a three day suspension without pay for a teacher "who has struck a student". Although Chase had previously been given a reprimand for using poor judgment in 1988, Crosby felt that such a penalty was especially appropriate here without regard to the previous reprimand because Chase "had lashed out at a student, physically, out of frustration or during a time of upset." However, as noted in a prior finding, Chase did not tap the student on his buttocks out of anger or because of frustration.

   
   

7. Two witnesses to the incident described the kick to Carson's buttocks as having insufficient force to cause any injury to the student. This was not credibly contradicted. Further, one witness characterized the kick as actually being a "tap" while the other stated he was under the impression respondent was kidding when he swung his foot towards the student. Respondent added that the kick was intended to be "negative reinforcement" after his verbal instructions were ignored. He now agrees that it was a mistake to touch the student in that manner and recognizes that he violated school policy. Other than the reprimand in 1988, respondent has an unblemished tenure with the school system.

   
   

8. The Board has adopted a Code of Student Conduct (Code) which prescribes the type of disciplinary action permitted to be taken by school personnel against students. Section (7)(a) of the Code provides as follows:

   
   

   (7) DISCIPLINARY ACTION AND PROCEDURES:

   (a) TYPES OF DISCIPLINARY ACTION PERMITTED The following types of disciplinary action may be considered.

   4. Corporal Punishment: For purposes of this code, corporal punishment shall refer to physical

   punishment (as) opposed to other forms of punishment. The use of corporal punishment is not permitted as a type of disciplinary action. (emphasis added)

   
   

   Thus, corporal punishment of any form is prohibited.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

10. Because respondent's teaching certificate is not at risk, but he suffers only the potential loss of three days' pay, petitioner need only prove by the preponderance of the evidence that the allegations in the suspension letter, as amended, are true. Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990).

    
    

11. According to the charging document, respondent has committed misconduct in office in violation of Subsection 231.36(4)(c), Florida Statutes (1989). Although that term is not statutorily defined, the State Board of Education has defined the term in Rule 6B-4.009(3), Florida Administrative Code, as follows:

    
    

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, 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.

    
    

    Using this term as a guide, it must be shown, then, that respondent's conduct violated a provision within the Code of Ethics and Principles of Professional Conduct and that such conduct impaired his effectiveness as a teacher.

    
    

12. The charging document does not allege that petitioner has violated a specific provision in the Code of Ethics or Principles of Professional Conduct. However, this lack of particularity was not challenged by respondent and is accordingly deemed to have been waived. See, e. g. Jacker v. School Board of Dade County, 426 So.2d 1149, 1151 (Fla. 3d DCA 1983)(failure to seek particularization of charges prior to hearing waives any claim to lack of specificity). Even so, respondent's lack of objection to the pleadings does not relieve petitioner of its obligation to present evidence to support the charge that misconduct in office has occurred.

    
    

13. In its proposed order, petitioner contends that Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code, have been violated. The order suggests, but does not specifically state, that paragraph (2) of the former rule and paragraph (3)(d) of the latter rule are in issue. Those rules provide that a violation of the Code of Ethics and Principles of Professional Conduct has occurred when a teacher fails "to exercise the best professional judgment" and has "intentionally exposed a student to unnecessary embarrassment or disparagement". Since the evidence supports a conclusion that respondent failed to exercise his

    best professional judgment during the incident and that he exposed a student to unnecessary embarrassment by tapping him on the buttocks with his foot in front of other students and faculty, it is concluded that the first portion of rule 6B-4.009(3) has been satisfied. Next, the evidence supports a conclusion that respondent's effectiveness as a teacher was diminished by the incident.

    Therefore, it has been established that respondent violated section 231.36(4)(c) by committing misconduct in office. The only remaining issue, and the one which most concerns respondent, is what is an appropriate penalty. Since the record demonstrates that the incident did not occur out of anger or frustration on the part of respondent, which is the primary premise on which the three day suspension was made, and in light of respondent's relatively unblemished twenty year tenure as a teacher, a written reprimand is an appropriate penalty.

    
    

14. Finally, in its proposed order, petitioner has contended for the first time that respondent participated in this proceeding for an improper purpose within the meaning of Subsection 120.59(6)(e), Florida Statutes (1989). 3/ Citing respondent's "meritless defense" presented in this cause, the Board has requested costs in the amount of $233.60. Respondent's defense consisted primarily of presenting mitigating circumstances surrounding the incident which would warrant a less severe penalty than proposed by the superintendent.

Because "the hearing officer is the one charged with devising the recommended penalty, it is logical that the time to present any mitigating facts is at the administrative hearing." Ong v. Department of Professional Regulation, Florida State Board of Dentistry, 567 So.2d 1384, 1387 (Fla. 5th DCA 1990). Thus, respondent was compelled to present mitigating evidence at the section 120.57(1) hearing, and under these circumstances it must be concluded that he had "a reasonably clear legal justification for bringing this proceeding". Mercedes Lighting and Electrical Supply, Inc. v. State, Department of General Services,

560 So.2d 272, 278-79 (Fla. 1st DCA 1990). The request for costs is accordingly denied.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of misconduct in office and

that he be given a written reprimand.

DONE and ENTERED this 26th day of July, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1991.

ENDNOTES

1/ Petitioner's support for this allegation is based on the live testimony of a third party who reviewed the matter long after the incident occurred and the deposition testimony of Carson. However, the deposition of Carson was received in evidence as hearsay evidence under the authority of subsection 120.58(1)(a) since there was no showing that the deponent was unavailable for hearing.

Because his testimony did not supplement or explain other credible and persuasive testimony, it has been disregarded.

2/ It should be noted that the superintendent's recommended penalty was made without the benefit of a complete investigation. That is, three witnesses to the incident were not interviewed prior to the formulation of the penalty.

3/ Since requests for sanctions must be promptly filed with the tribunal upon discovering a basis to do so, it is questionable whether such a request can be deemed to be timely.

Petitioner:

APPENDIX

Case No. 91-0899

1-3. Partially adopted in finding of fact 1. 4-5. Partially adopted in finding of fact 6.

1. Partially adopted in finding of fact 8.

2. Partially adopted in finding of fact 1. 8-11. Partially adopted in finding of fact 2.

1. Rejected as not supported by the evidence.

2. Partially adopted in finding of fact 6. 14-15. Rejected as being unnecessary.

1. Partially adopted in finding of fact 2.

2. Rejected as being unnecessary.

3. Partially adopted in finding of fact 2.

4. Rejected as not supported by the evidence. 20-21. Covered in preliminary statement.

22-23. Partially adopted in finding of fact 5.

1. Rejected as being unnecessary.

2. Partially adopted in finding of fact 6.

3. Rejected as being irrelevant.

4. Rejected as being a conclusion of law.

Respondent:

1. Partially adopted in finding of fact 1.

2. Rejected as being unnecessary.

3. Partially adopted in finding of fact 2.

4. Partially adopted in findings of fact 2 and 7.

5. Partially adopted in finding of fact 2.

6. Rejected as being contrary to the evidence. 7-8. Partially adopted in finding of fact 3.

1. Covered in footnote 2.

2. Partially adopted in findings of fact 6 and 7.

3. Partially adopted in finding of fact 5.

Note - Where proposed findings have been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, or not supported by the evidence.

Copies Furnished:

Bruce P. Taylor, Esquire

P. O. Box 4688

Clearwater, Florida 34618-4688

Mark S. Herdman, Esquire

P. O. Box 75638

Tampa, Florida 33675-0638

Dr. J. Howard Hinesley, Superintendent School Board of Pinellas County

1. O. Box 4688 Clearwater, FL 34618-4688

   
   

   Honorable Betty Castor Commissioner of Education Plaza Level, The Capitol

   Tallahassee, Florida 32399-0400

   
   

   NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

   
   

   All parties have the right to submit written exceptions to the 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 consult with the agency that will issue the final order in this case concerning their 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.

   
   

   =================================================================

   AGENCY FINAL ORDER

   ================================================================= SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

   PINELLAS COUNTY SCHOOL BOARD,

   
   

   Petitioner,

   
   

   vs. CASE NO. 91-000899

   
   

   PHILLIP CHASE,

   
   

   Respondent.

   /

   FINAL ORDER

   
   

   WHEREAS, by letter dated January 11, 1991, which contained the reasons therefore, the Superintendent of Schools of Pinellas County, Florida, recommended to the School Board of Pinellas County that Phillip Chase, employed as a teacher by means of a continuing contract, be suspended for three days without pay, and

   
   

   WHEREAS, said Phillip Chase requested an Administrative Hearing as to the issues set forth in the Superintendent's notification letter, and

   
   

   WHEREAS, said hearing was conducted on June 10, 1991, before the Honorable Donald R. Alexander, Hearing Officer of the Division of Administrative Hearings, and

   
   

   WHEREAS, the Hearing Officer's Recommended Order, together with the entire record of the case has been reviewed by each School Board Member,

   
   

   IT IS ORDERED AND ADJUDGED that the Hearing Officer's Findings of Fact numbered 1 through 11, Conclusions of Law and rulings on Proposed Findings of Fact are hereby accepted, adopted, and incorporated herein by reference, and it is further

   
   

   ORDERED AND ADJUDGED that Petitioner's Exceptions to the Hearing Officer's Recommended Order numbered 1 through 4 are hereby accepted, adopted, and incorporated herein by reference, and it is further

   
   

   ORDERED AND ADJUDGED that the Hearing Officer's Recommended penalty of a written reprimand is hereby rejected for the following reasons:

   
   

   1. The Respondent should receive a three-day suspension without pay instead of a written reprimand because he had previously been given a disciplinary conference after exercising poor judgment and was told that "Future instances of this nature that clearly reflect poor judgment on your part will lead to more serious disciplinary action by the school district", as shown by the Superintendent's charging letter dated January 11, 1991; disciplinary conference summary dated February 9, 1988 (Petitioner's Exhibit 4); the deposition of Respondent Phillip Chase (Petitioner's Exhibit 17, pp. 16-19); and as shown by the testimony of Stephen Crosby at the Administrative Hearing in the cause, found on p. 61, l. 9-25 and p. 62, l. 1 of the transcript of the Administrative Hearing.

      
      

   2. Respondent Phillip Chase should receive a three-day suspension without pay instead of a written reprimand because such a penalty is consistent with the disciplinary recommendations of the Administration, as shown by the testimony of Stephen Crosby at the Administrative Hearing as found on p. 60, ls. 18-25 and p. 61, ls. 1-4 of the transcript of the Administrative Hearing.

      
      

   3. Respondent Phillip Chase should receive a three-day suspension without pay instead of a written reprimand because a written reprimand would be inconsistent with the disciplinary recommendations of the Administration for such behaviors as shown by the same testimony described in exception B.

      
      

   4. Respondent Phillip Chase should receive a three-day suspension without pay instead of a written reprimand because of misconduct in office of which he is guilty, the kicking of a student, as found by the Hearing Officer, is more

serious than the previous misconduct for which Respondent received a reprimand and written warning, as shown by the previously referenced portions of the record and the Hearing Officer's Finding of Fact number 2, and it is further

ORDERED AND ADJUDGED that Phillip Chase is hereby suspended without pay for three days, effective October 1, 2 and 3, 1991. Any party adversely affected by this Order has the right to appeal to the Second District Court of Appeals Lakeland, Florida, by filing notice of intent to do so with the Clerk of said Court within 30 days of the date of this Order.

DONE AND ORDERED on this the 25th day of September, 1991 in Clearwater, Florida.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

by Chairman

Attest: Ex-officio Secretary

cc: Mark Herdman, Esq.

Bruce P. Taylor, Esq.

Docket for Case No: 91-000899

Orders for Case No: 91-000899