STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-2505

)

RAYMOND GROSNECK, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 22, 1992, a formal administrative hearing was held in this case in Safety Harbor, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

For Respondent: B. Edwin Johnson, Esquire

1433 South Fort Harrison Avenue Suite C

Clearwater, Florida 34616 STATEMENT OF THE ISSUES

The issue in this case is whether the Petitioner, the Pinellas County School Board, should suspend the Respondent, Raymond Grosneck, from his employment as a teacher for three days without pay on charges contained in the March 31, 1992, letter from the School Superintendent, J. Howard Hinesley. The letter lists as charges: (1) that on March 6, 1992, the Respondent became angry at a student and used inappropriate and excessive physical force with her; (2) that, following a conference with district staff and the Respondent's principal regarding this matter, the Respondent made a vulgar remark in the presence of three students; and (3) that the Respondent had received a prior reprimand regarding his inappropriate display of anger directed toward a student. The letter charges that the allegations constitute misconduct in office, a ground for discipline under Section 231.36(4), Fla. Stat. (1991).

PRELIMINARY STATEMENT

By letter from counsel dated April 20, 1992, the Respondent requested formal administrative proceedings under Section 120.57(1), Fla. Stat. (1991). The matter was referred to the Division of Administrative Hearings on April 27, 1992. Initially, the case was scheduled for hearing on July 15, 1992, but the

School Board moved for a continuance, which was granted, and final hearing was rescheduled for September 22, 1992.

At the final hearing, the School Board called 14 witnesses and had Petitioner's Exhibits 1 through 7 and Respondent's Exhibits 2 through 5 admitted in evidence. The Respondent testified in his own behalf.

At the end of the hearing, the parties were given ten days in which to file proposed recommended orders. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 92-2505.

FINDINGS OF FACT

1. The Respondent, Raymond Grosneck, is a teacher at Safety Harbor Middle School in Pinellas County. He has been a teacher there for 26 years and has been on continuing contract since August, 1970. (However, his active teacher certificate expired on or about June 30, 1992, and has not been renewed, so he is not teaching during the 1992/1993 school year as of this time.) While a teacher at Safety Harbor, the Respondent's only discipline has been a written reprimand in 1985. See Finding 11, below.

   
   

2. On or about March 6, 1992, towards the end of one of the Respondent's classes, two female pupils asked the Respondent if they could "clap" the classroom's chalky blackboard erasers. The Respondent gave them permission. As usual, the pupils bent down and leaned out the classroom window and began clapping the erasers, both against each other and against the side of the outside of the building. While they were doing this, the Respondent warned them not to get any chalk dust on the bricks to either side of the window, as opposed to on the white, painted stucco directly below the window. When they finished, the Respondent walked over to the window to check and saw chalk dust on the bricks.

   
   

3. The Respondent angrily confronted the pupils in a loud voice about the chalk and about having disobeyed his instructions. (It is not clear whether he gave his instructions to the two pupils before or after they already got the chalk on the bricks; in any event, both he and other school authorities previously had given the students those instructions.) He asked which of the two did it. When they both denied it, he angrily and in a loud voice ordered the one he suspected to come to the window, where he still was standing, and look at the chalk marks, which he viewed as the proof that she was lying. When the pupil hesitated, he walked over to her and grabbed her upper arm in a motion that had the effect of a combination slap, which made an audible slapping sound, and grab. He then pulled the pupil over to the window, using a jerking motion. The episode resulted in a temporary reddening of the skin of the pupil's upper arm where it had been "slap/grabbed."

   
   

4. The Respondent's words and actions upset the pupil. When tears began to well up in her eyes, and the Respondent knew she was about to cry, he told her to go get the assistant principal responsible for the class.

   
   

5. Instead, the pupil went, crying on the way, to the nearest washroom to wipe her tears and try to regain her composure. There, she saw another pupil who asked her what happened. When she told him that the Respondent had hit her, he went to get the assistant principal.

6. The assistant principal was not there, but a counselor was, and she was led to the washroom. Soon after, the Respondent came looking for the pupil, as she had not yet returned to the classroom with the assistant principal. When he joined the group, the counselor informed him of the pupil's accusation that he had hit her. The Respondent denied hitting the pupil and insisted on going directly to the assistant principal to resolve the matter once and for all.

   
   

7. The assistant principal still was not in his office when the group arrived. In ensuing discussion with some other pupils in the class who had gone looking for the pupil after the period ended to see how she was, some of the other pupils contradicted the Respondent's version of what happened. Angrily, the Respondent stormed out of the office, slamming the door hard enough to jar loose a picture hanging from the office wall. On his way out, the Respondent was heard to say words to the effect that he did not "need this job." During the lunch period that followed, some of the pupils discussed the events that had transpired.

   
   

8. About a week later, the Respondent and his attorney met with school administrators and other education officials in the school principal's office concerning the incident. At the meeting, the Respondent was informed as to what the school's investigation of the incident had revealed to that point and as to the charges being considered. As the Respondent and his attorney exited the office, while still in the area of the administrative offices suite, the Respondent was heard by three pupil aides to ask his attorney rhetorically, "was that a bunch of bullshit, or what?" The Respondent did not know that the students were there, but he knew pupil aides ordinarily work there, and he asked the question in a normal tone of voice, not giving thought to the possibility that it would be overheard by pupils at the school.

   
   

9. As a result of these incidents, the Respondent's rapport with at least some of his pupils, who began to think that he was "mean," temporarily was impaired. Within a short time, however, he reestablished a good teaching relationship with most, if not all, of his pupils. 1/ For a short time after the incident, the school principal felt it necessary to monitor the Respondent more closely to insure against a repetition. The evidence is not clear whether closer monitoring actually occurred. In any case, no further problems involving the Respondent were observed.

   
   

10. The use of corporal punishment by a teacher is against the official policies of the Pinellas County School Board. It also is against the official policies of the Pinellas County School Board for a teacher to lay hands on students to control their movement except as necessary to prevent physical injury to themselves or others.

    
    

11. The 1985 reprimand indicates that the Respondent was accused of getting angry and yelling in the face of a pupil for getting chalk dust on several desk tops and then denying doing it. He also was accused of angrily tipping over the desk in which the pupil was sitting and leaning backwards. At the time, the Respondent denied tipping the desk over backwards but admitted losing his temper and losing control of the situation. He agreed to apologize to the pupil for losing his temper. It was not determined whether the Respondent in fact tipped the desk over backwards. Some of the witnesses to the incident said he did, but about the same number said he did not.

    CONCLUSIONS OF LAW

    
    

12. Section 231.36(4)(c), Florida Statutes (1991), provides that a teacher on continuing contract can be suspended or dismissed at any time during the school year on charges of immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. In this case, the School Board charged the Respondent with misconduct in office.

    
    

13. The School Board is required to prove the charges against the Respondent by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County,

    569 So. 2d 883 (Fla. 3d DCA 1990); South Florida Water Management District v. Caluwe, 459 So. 2d 390 (Fla. 5th DCA 1984).

    
    

14. "Misconduct in office," as used in Section 231.36(4)(c), Florida Statutes (1989), is defined in F.A.C. Rule 6B-4.009(3) 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 for 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.

    
    

15. F.A.C. Rule 6B-1.001 provides in pertinent part:

    
    

    1. The educator values the worth and dignity of every person . . ..

    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 maintaining 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.

       
       

16. The Code of Ethics of the Education Profession, in general, is aspirational in nature. The provision the Respondent is accused of violating in this case, particularly, is not susceptible, in most cases, of forming the basis for suspension or dismissal. It speaks exclusively of the educator "valuing," "seeking" and "striving." It is concluded that the evidence in this case did not prove a violation of F.A.C. Rule 6B-1.001(1)-(3), as written.

17. By comparison with the Code of Ethics, the Principles of Professional Conduct for the Education Profession set more definite and measurable standards of conduct. F.A.C. Rule 6B-1.006 provides in pertinent part:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

       * * *

       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.

       * * *

       1. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

       2. Shall not intentionally violate or deny a student's legal rights.

       
       

18. As to F.A.C. Rule 6B-1.006(3)(a), it is clear from the evidence that the Respondent did not endanger the health or safety of any of his students. Arguably, by losing his temper, yelling at one of his pupils, "slap/grabbing" her and pulling her over to the window, and later using the word "bullshit," he set bad examples for the students in appropriate ways of dealing with one's anger at others. But it is concluded that this is not the kind of "conditions harmful to learning" against which teachers are being required to protect pupils under the rule.

    
    

19. As for F.A.C. Rule 6B-1.006(3)(e), its elements include (1) "intentionally expos[ing] a student" (2) "to unnecessary" (3) "embarrassment or disparagement." Here, it is clear from the evidence (1) that it was not necessary for the Respondent to treat or handle the pupil the way he did, (2) that it embarrassed the pupil, and (3) that the Respondent acted intentionally. (A specific intent to embarrass or disparage was not proven, but specific intent is not a necessary element of the offense; a general intent to act in a way in which one reasonably could expect to result in embarrassment or disparagement is sufficient.) 2/

    
    

20. As for F.A.C. Rule 6B-1.006(3)(f), the evidence did not prove that the Respondent "intentionally violate[d] or den[ied] a student's legal rights." The School Board argues that the Respondent violated the legal rights of the pupil he "slap/grabbed" under Section 784.03, Fla. Stat. (1991). "A person commits battery if he: (a) Actually and intentionally touches or strikes another person against the will of the other; or (b) Intentionally causes bodily harm to an individual." Section 784.03(1), Fla. Stat. (1991). The Respondent did not cause bodily harm to the pupil he "slap/grabbed." (The reddening was not enough injury to be considered "bodily harm.") However, in view of paragraph (a) of subsection (1), proof of bodily harm is not necessarily essential to a conclusion that a battery has been committed. See D.C. v. State, 436 So. 2d 203 (Fla. 1st DCA 1983); L.D. v. State, 355 So. 2d 816 (Fla. 3d DCA 1978). Here, the evidence is clear that the Respondent "[a]ctually and intentionally touche[d] or str[uck] [the pupil] against the will of" the pupil. But, under Section 232.27, Fla. Stat. (1991), a teacher has "such authority for the control and discipline of students as may be assigned to him by the principal or his

    designated representative and shall keep good order in the classroom "

    The "slap/grab" in this case was not "corporal punishment," 3/ and it fell within the authority of the Respondent "for the control and discipline of students." The "slap/grab" did not violate any "legal rights" of the pupil. 4/

    
    

21. As mentioned, F.A.C. Rule 6B-4.009(3) requires that, to justify dismissal or suspension of a teacher, the violations must be "so serious as to impair the individual's effectiveness in the school system." It is concluded that the evidence in this case did not prove that the Respondent's "effectiveness" was "impaired," in the way meant by the rule. Contrary to the School Board's arguments, it is concluded that, by "impairment of effectiveness," the rule contemplates more that the momentary distraction of the class while the Respondent was dealing with the pupils who were clapping the erasers. "Impairment of effectiveness" also is not proved by the evidence that the concern (or curiosity) of some of the students was sufficiently aroused by the events in the classroom for them to inquire about the whereabouts of the pupil who was "slap/grabbed" and to discuss the events during the succeeding lunch period. It also requires more than proof that the parents of the pupil who was "slap/grabbed" considered taking the pupil out of the Respondent's class (before reconsidering and deciding to leave her in). It requires more than proof that a few of the pupils thought, for a few days, that the Respondent was "mean." It requires more than proof that the Respondent's principal thought it prudent to monitor the Respondent a little closer through the end of the year. There is no proof that the principal herself, or anyone else, in fact monitored the Respondent more closely. Whoever monitored the Respondent through the rest of the school year, the Respondent's performance confirmed that his effectiveness was not impaired.

    
    

22. As as result, it is concluded that the School Board did not prove that the Respondent was guilty of "misconduct in office," as defined by F.A.C. Rule 6B-4.009(3). 5/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Pinellas County enter a final order reprimanding the Respondent, Raymond Grosneck, for the matters referred to in Conclusions 18 and 19, but refraining from suspending him.

RECOMMENDED this 20th day of October, 1992, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON 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 20th day of October, 1992.

ENDNOTES

1/ There was evidence that the parents of the pupil who was "slap/grabbed" considered taking the pupil out of the Respondent's class, but they reconsidered and left her in.

2/ Even in the case of this provision of the rule, it conceivably could be argued, in any given case, that a method of teaching or maintaining discipline that had the side effect of "embarrassing" or "disparaging" a pupil was "necessary" under the circumstances. Such a determination would involve the exercise of judgment and discretion by the teacher and would not necessarily yield a clear disciplinary standard. But, in this case, the Respondent made no such argument, instead taking the position that he was falsely accused of the conduct in the charges.

3/ If it were "corporal punishment," the "slap/grab" would have violated the pupil's legal rights under Section 232.227(1) and (2), Fla. Stat. (1991), since the School Board did not authorize corporal punishment under these circumstances and since the procedural requirements for corporal punishment were not met.

4/ The evidence is that it also is against the official policies of the Pinellas County School Board for a teacher to lay hands on students to control their movement except as necessary to prevent physical injury to themselves or others. But the Respondent's compliance with this policy is a matter between him and the School Board and does not implicate the legal rights of the pupils.

5/ As reflected in the Findings of Fact, the evidence contained evidence of prior offenses for which the Respondent already has been reprimanded. This evidence was relevant to the Respondent's notice as to what constitutes misconduct. See F.A.C. Rule 6B-4.008. It also could have been relevant to the determination of an appropriate penalty if the charges were sustained. But since the Respondent already has been punished for them in the form of reprimands, they cannot form the sole basis for new and additional discipline.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2505

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1.-8. Accepted and incorporated to the extent not subordinate or unnecessary.

9. Rejected as not proven that the chalk dust got on the brick after the Respondent spoke.

10.-11. Accepted and incorporated to the extent not subordinate or unnecessary.

12. Rejected as not proven that it was heard in "all portions of the classroom." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

13.-17. Accepted and incorporated to the extent not subordinate or unnecessary. (As to 16., he became "concerned" when she told him that the Respondent had hit her.)

18. It was not proven to what extent the pupils were motivated by "concern," as opposed to "curiosity."

Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

19.-30. Accepted and incorporated to the extent not subordinate or unnecessary.

31. Rejected as not proven.

32.-33. Accepted but subordinate and unnecessary.

34. Rejected as not proven. Beyond the statute and policy on corporal punishment, the teachers were advised, essentially for their own protection against false or unjustified claims by pupils, not to lay hands on children to control their movement except to protect the pupil or others from injury, or property from damage.

Respondent's Proposed Findings of Fact.

1.-2. Accepted and incorporated to the extent not subordinate or unnecessary.

1. Last sentence, not supported by any evidence. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

2. Accepted but subordinate, both to facts found and to facts contrary to those found, and unnecessary.

3. Accepted and incorporated to the extent not subordinate or unnecessary.

4. Last sentence, rejected because it is not clear from the evidence whether the Respondent gave this instruction before or after the erasers were clapped on the brick. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

5. Accepted and incorporated.

6. Rejected in part as contrary to facts found and to the greater weight of the evidence. (See 6., above.) In part, accepted and incorporated to the extent not subordinate or unnecessary.

7. Rejected as contrary to facts found and to the greater weight of the evidence that she was "within an arm length." Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

10.-14. Accepted and incorporated to the extent not subordinate or unnecessary.

15. Rejected in part as contrary to facts found and to the greater weight of the evidence. (The "slap/grab" could fairly be described as a "hit.")

16.-19. Accepted and incorporated to the extent not subordinate or unnecessary.

20. Rejected in part as not clear from the evidence whether the Respondent actually was more closely monitored. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

Bruce P. Taylor, Esquire Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

B. Edwin Johnson, Esquire

1433 South Fort Harrison Avenue Suite C

Clearwater, Florida 34616

Howard Hinesley Superintendent of Schools

School Board of Pinellas County Post Office Box 4688 Clearwater, Florida 4618-4688

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE PINELLAS COUNTY SCHOOL BOARD WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE PINELLAS COUNTY SCHOOL BOARD CONCERNING ITS RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER.

Docket for Case No: 92-002505

Orders for Case No: 92-002505