STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner of ) Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0176

)

ROLLAND GENE KERR, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Miami, Florida on April 22, 1992, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Margaret E. O'Sullivan, Esquire

Department of Education

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

For the Respondent: William Du Fresne, Esquire

Du Fresne & Bradley, P.A.

2929 SW Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent's certification as a teacher in Florida should be disciplined because of the matters set forth in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By Administrative Complaint dated October 8, 1991, Betty Castor, as Commissioner of Education, seeks to discipline Respondent's license as a teacher in this state alleging, in four Counts, that he was guilty of gross immorality or an incident involving moral turpitude; has violated a rule of the Board of Education; has failed to make a resonable effort to protect his students from conditions harmful to learning, health or safety; and has intentionally exposed students to unnecessary embarrassment or disparagement, in violation of Section 231.28(1), Florida Statutes or Rule 6B-1.003, F.A.C..

In his response to the Administrative Complaint, Respondent elected to attempt settlement of the issues with the understanding that if settlement negotiations were not successful within 45 days, the matter would be referred to

formal hearing. Settlement negotiations were not successful, and by letter dated January 6, 1992, the file was forwarded to the Division of Administrative Hearings for the appointment of a Hearing Officer.

By Notice of Hearing dated January 22, 1992, issued after the parties' response to the Initial Order entered herein, Hearing Officer J. Stephen Menton set the matter for hearing in Miami on April 22, 1992 at which time it was held as scheduled by the undersigned to whom the case was assigned in the interim.

At the hearing, Petitioner introduced the testimony of Joyce Annunziata, Director of the Office of Professional Standards for the Dade County School Board, (DCSB); Patricia A. Grimsley, Principal at Drew Middle School in Dade County; and Maxcine Brown, Anthony Collins, and Shaneka Ford, all former students at Drew. Petitioner also introduced Petitioner's Exhibits 1 through 3.

Respondent testified in his own behalf and introduced Respondent's Exhibits A through C. A transcript was provided and both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner was the official responsible for the certification of teachers and educational professionals in this state. The Respondent was certified as a teacher in Florida by certificate No. 615085, covering the areas of guidance, physical education and health education, and which is valid through June 30, 1993.

   
   

2. During the 1990 - 1991 school year, Respondent was employed as a teacher of exceptional education math and social studies at Charles R. Drew Middle School, a school under the administration of the School Board of Dade County. Respondent has taught for between 11 and 12 years and took the course in crisis prevention and intervention offered by the National Crisis Preventon Institute in 1988.

   
   

3. In September, October and November, 1991, Respondent was teacing exceptional math and social science to classes of between 4 and 7 students, all of whom were classified as either educable mentally handicapped, learning disabled, or emotionally handicapped. He had neither teaching aides nor assistants. In order to keep the class size small, the instructors in these classes were required to forego their planning period and spend that period in the classroom setting.

   
   

4. On or about September 26, 1991, between the 4th and 5th class periods, Respondent was standing out in the hallway of the school, positioned in such a way that he could monitor the students' behavior in the hall as well as in his classroom. He heard a confrontation arise between K.G., a minor male student, and M.B., a minor female student. He went into the room and saw the two students screaming at and hitting each other. Though he told them to quiet down, they did not do so and he stepped in and broke up the fight, sending each student to his/her respective seat. Since their seats were near to each other in the back of the room, he removed K.G. to the front to the room to put as much distance between them as was possible.

   
   

5. The two students still continued their verbal assaults on each other regardless of his efforts so he again stepped in and settled them down. Having determined that the argument arose out of M.B.'s accidentally stepping on K.G.'s

   sore foot, he advised K.G. that hitting was no basis for settling any dispute.

   K.G. allegedly responded that he hit anyone he wanted at any time.

   
   

6. As Respondent subsequently crossed the room, he accidentally bumped K.G's foot which, he claims, K.G. shoved out in front of him. When he did, K.G. came out of his chair, struck Respondent twice in the stomach, and kicked him in the shin. K.G., who was not present to testify, claimed that Respondent intentionally stepped on his foot. This evidence is hearsay and no other direct evidence on the matter was offered. It is found, therefore, that if Respondent did come in contact with K.G.'s foot, the contact was accidental and not intentional.

   
   

7. Regardless of the prompting, there is little question that K.G. struck the Respondent in the stomach and when he did, Respondent, applying the techniques for crisis prevention and intervention he had been taught, took K.G. to the floor with his arm behind him and sent another student for security.

   
   

8. As a result of this altercation, K.G. was not injured at all but Respondent had to see a doctor for the blows to the stomach and the kick to the shins. He was given two days off from work to recuperate and offered more if he needed it.

   
   

9. From that point on, K.G., who within two weeks of the incident, handed Respondent a letter of apology, was one of the best behaved students in the class. In addition, he was one of the two students who gave Respondent a Christmas present that year. He was subsequently removed from Respondent's class and from the school, but that departure was voluntary and had nothing to do with the altercation described above.

   
   

10. When the matter was reported to Ms. Annunziata, the school board's Director of Professional Standards, she decided that an administrative review of the incident was sufficient action. The memorandum of understanding between Respondent and the school principal, Ms. Grimsley, regarding the incident, referred him to procedures for handling student discipline and commented on the need to use sound judgement and call school security before a situation escalated into a physical confrontation between the teacher and a student.

    
    

11. Less than a month later, on October 15, 1991, Respondent was putting some information on the blackboard during class when another student, A.C. came up and stood beside him close enough to interfere with his work. He moved to another section of the board, and noting that A.C. had a toothpick in his mouth, directed him to resume his seat and remove the toothpick. A.C. did as he was told, but immediately came back up and stood beside the Respondent with another toothpick in his mouth. Again Respondent directed the student to sit down and take the toothpick out of his mouth, and the student did as told. However, he shortly again came up to stand near Respondent at the board with a toothpick in his mouth, so close as to cause concern in Respondent for the safety of his eye. Having already told the student to sit down and remove the toothpick twice without lasting success, Respondent reached over and took the tooth pick out of the student's mouth. A.C. claims that in doing so, Respondent grabbed his lips, but this is doubtful. The other student called to testify about this incident was not clear on details and it is found that while Respondent removed the toothpick from A.C.'s mouth, he did not grab the student's lips.

    
    

12. In any case, however, the student reacted violently. Respondent again told the student to sit down but he refused and shouted he was leaving. Respondent asked another student to go for security since there was neither an

    intercom system nor a workable phone in the room, but no one did. A.C. started out of the room and on his way, veered over to where the Respondent stood and struck him in the rib cage with his elbow.

    
    

13. At this Respondent, again using the CPI techniques he had been taught, took A.C. down to the floor and, holding the student's arms behind his back, opened the door and called for help. A teacher from another classroom came into the room and took A.C. to the school office.

    
    

14. Shortly thereafter, Ms. Grimsley, the Principal, heard a teacher trying to calm A.C. down after what she was told was an incident with the Respondent. In her discussion with the student he told her that Respondent had hit him in the mouth, thrown him to the floor, and pulled his arm up behind his back.

    
    

15. An investigation into this incident was reportedly conducted by the school administration. Thereafter, a conference was held in the Dade County Schools' Office of Professional Standards, attended by Respondent; Ms. Grimsley; Ms. Menendez, Coordinating Principal; the Union representative; and Ms. Annunziata, Director of the Office of Professional Standards, to discuss, inter alia, this alleged battery and Board policies and rules regarding discipline.

    
    

16. A copy of the report was given the Respondent and he was afforded an opportunity to respond to the allegations. He denied using intentional restraint on A.C., and when asked why he had not called security, pointed out that all prior efforts to seek security assistance were met with no response.

    
    

17. Thereafter, on February 26, 1991, he was administered a letter of reprimand by Ms. Grimsley. This reprimand indicated he had violated the provisions of the teacher contract as well as the School Board Rules and that he was being rated as unacceptable in Category VII, Professional Responsibilities, of the TADS. Neither the memo of the conference nor the letter of reprimand reflect any specific findings of fact regarding the incident. Only the conclusion that Respondent inappropriately disciplined a student is listed as a reason for the reprimand. Respondent accepted the Reprimand on March 1, 1991 without exception.

    
    

18. A.C.'s disciplinary record for the months of the pertinent school year prior to the incident in question, maintained by school authorities, reflects that on September 5, 1990, he was the subject of a parent conference because of his general disruptive conduct and his defiance of school authority. On September 19, 1990 he was found guilty of fighting; on October 11, 1990, reprimanded for general disruptive conduct; on October 23, 1990, reprimanded for defiance of school authority; and on October 30, 1990, suspended for the use of provocative language. This is not the picture of a young man who would reasonably feel mistreated by a teacher who stood up to him.

    
    

19. Respondent continuously maintains he did not initiate any physical contact with the student nor did he intend to use physical restraint. He made that clear at the conference in early February. Yet he was apparently not believed though the student's disciplinary record would tend to support Respondent's recollection of the incident.

    
    

20. Dade County Schools prohibit the use of corporal punishment and allows restraint only for the protection of students or teachers. The application of these guidelines must be effected with common sense and a recognition of the

    empirics of the situation, however. Under the circumstances Respondent's actions do not appear inappropriate.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

    
    

22. The Education Practices Commission of the Florida Department of Education has the final agency authority in cases involving the suspension and revocation of the certificates of teachers and school administrators. Section 231.261(8)(b), Florida Statutes. To properly discipline the certificate of a teacher, the Commission, as Petitioner, has the burden to establish the misconduct of that teacher by clear and convincing evidence, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

23. Under the provisions of Section 231.28, Florida Statutes, the Commission may suspend a teacher's certificate for up to 3 years; revoke a teacher's certificate for a period of up to 10 years; or permanently revoke the teacher's certificate for, inter alia:

    
    

    (c) ... gross immorality or an act involving moral turpitude;

    * * *

    (h) ... violat[ing] the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

    
    

24. Rule 6B-1.006(3), F.A.C., indicates that the [teacher's] obligation to the student requires that he:

    
    

    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 student to unnecessary embarrassment or disparagement.

       
       

25. Without question, teachers are properly held to a high moral standard in the community, Adams v. State Professional Practices Council, 410 So.2d 1170 (Fla. 1DCA 1981). In the instant case, Respondent was required to restrain two unruly students by applying physical force in a modest, no more than necessary, manner. In the first case, the student, recognizing he was in the wrong, subsequently gave Respondent a written apology. Nonetheless, Respondent was counselled. In the latter case, a student with a demonstrated continuing record of general disruptive conduct, fighting, and the use of provocative language, assaulted the Respondent who had done no more in provocation than remove a toothpick from the student's mouth. Petitioner has not established, by clear and convining evidence, that such action on the Respondent's part either involved moral turpitude or was grossly immoral. To suggest it does borders on the ludicrous.

    
    

26. As to the allegation that Respondent violated a rule of the Board of Education by either failing to make a reasonable effort to protect his students from conditions harmful to learning, health or safety, or by intentionally

    exposing a student to unnecessary embarrassment or disparagement, again, the circumstances of this case make it perfectly clear that Respondent did neither.

    
    

27. The very terms of the rule in question require the teacher to protect his students from conditions harmful to learning. Where students step on other students' feet, or where students get so out of control, they feel free to stand in a contemptuous or menacing manner right next to a teacher attempting to teach other students so as to interfere with that effort, that teacher would be in violation of the rule were he not to take immediate, pointed, but appropriate action to end the student's disruptive misconduct.

    
    

28. Mr. Kerr denies having stepped on the first student's foot but admits to having tripped over the foot which was stuck out in front of him, and it was so found. This same student then physically assaulted Mr. Kerr who properly restrained him. No action was taken against Mr. Kerr for that incident other than to have him review the rules regarding discipline of students. It is clear he did only that which was necessary under the circumstances and consistent with his responsibility to give his other students an opportunity to benefit from the information being taught.

    
    

29. Mr. Kerr admits to having removed the toothpick from the second student's mouth when that student stood so close to him that the toothpick almost touched his eye. It is clear that this student, of whom the other students were afraid, was attempting to disrupt the class and again Mr. Kerr did no more than was necessary to bring order so that his students could receive instruction. Only when he took the first step, removing the toothpick, and was physically assaulted by this student, did he respond as he had been taught in crisis prevention classes. Neither student was in any way harmed by Mr. Kerr's actions. It would be inappropriate to discipline Mr. Kerr for doing that which it was his responsibility to do.

    
    

30. The Commission recognizes that both students exhibited improper conduct in these cases for which they were punished. There is insufficient evidence, certainly not clear and convincing evidence, to show that Mr. Kerr intentionally exposed either student to unnecessary embarrassment or disparagement. He acted in response to a situation. He has the authority and the responsibility to maintain a learning environment. When he directs a student to cease misconduct and that student refuses, he can take reasonable steps to enforce his directions. Here, he did this and the students over- reacted. His actions were justified, especially in light of the fact that his prior efforts to obtain security assistance always went unanswered. One student, recognizing his error, apologized. The tears of the other, rather than demonstrating remorse and embarrassment, may well be frustration that he did not get his way.

    
    

31. If either student was embarrassed by being taken down in an approved, taught crisis prevention method, their embarrassment, far from being unnecessary as is prohibited by the rule, was a logical and appropriate consequece of their aberrant behavior.

    
    

32. When teachers are exposed to the hazard of personal injury in the classroom, they are taught, and must be afforded the prerogative to use, appropriate methods of crisis prevention without the fear of subsequent discipline to their license. To do otherwise is an abandonment of the teacher and an exposure to risks they need not be required to assume.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Administrative Complaint filed in this matter be dismissed.

RECOMMENDED in Tallahassee, Florida this 5th day of June, 1992.

ARNOLD H. POLLOCK

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 5th day of June, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0176

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

For the Petitioner:

1. Rejected as not supported by competent evidence. In an interview with Mr. Kerr after this incident, as per her testimony at hearing, Ms. Grimsley related that he indicated he asked K.G. what he would do if he, Kerr, stepped on K.G.'s foot. When she indicated she thought to challenge a student like that was an error in judgement, he agreed, but at no time did he indicate he had stepped on K.G.'s foot.

2. & 11. Accepted and incorporated herein.

12. & 13. Accepted and incorporated herein.

1. & 15. Accepted and incorporated herein except that the incident was repeated three times before Mr. Kerr removed the toothpick from A.C.'s mouth.

   1. Accepted and incorporated herein with the modification that A.C. was standing very close to Respondent at the time the toothpick was removed and was not in his seat.

   2. & 18. Accepted in part. The better evidence indicates

      that A.C. left the room only after assaulting Mr. Kerr by hitting him in the stomach.

      1. Accepted and incorporated herein.

      2. Accepted and incorporated herein.

      3. Accepted in part. An inquiry was made, but only the ultimate conclusion was presented to the Hearing Officer. Neither the report of investigation nor specific findings of fact were presented.

      4. Accepted and incorporated herein.

      5. Accepted as Ms. Annunziata's opinion. The policy was not introduced into evidence. All cases of physical contact might well not constitute a violation.

      6. Accepted. This was not found to have happened, however.

For the Respondent:

1. - 4. Accepted and incorporated herein.

1. & 6. Accepted and incorporated herein.

   1. Accepted but what was in the Respondent's mind - his purpose - is unknown.

   2. Accepted and incorporated herein.

   3. Accepted and incorporated herein.

   4. - 13. Accepted and incorporated herein.

1. & 15. Accepted.

   1. Accepted and incorporated herein.

   2. Accepted. A.C.'s partial disciplinary record has been incorporated herein.

COPIES FURNISHED:

Margaret E. O'Sullivan, Esquire

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399

William Du Fresne, Esquire

2929 SW Third Avenue, Suite One Miami, Florida 33129

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

Tallahassee, Florida 32399-0400

Jerry Moore Administrator

Professional Practices Services

352 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

George A. Bowen, Acting Executive Director

301 Florida Education Center

325 West Gaines Street Tallahassee, Florida 32399-0400

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should b e filed with the agency which will issue the Final Order in this case.

Docket for Case No: 92-000176

Orders for Case No: 92-000176