STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5695

)

BOBBY L. HICKS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on January 13, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Gerald A. Williams, Labor Attorney Mack & Bernstein

The School Board of Dade County

1450 Northeast Second Avenue, Suite 562

Miami, Florida 33132

For Respondent: William Du Fresne, Esquire

Du Fresne & Bradley

2929 Southwest Third Avenue Miami, Florida 33129

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

Petitioner The School Board of Dade County, Florida, advised Respondent by letter that it was suspending him from his employment and initiating dismissal proceedings effective at the close of the April 22, 1992, workday for misconduct in office and conduct unbecoming a School Board employee. Respondent timely requested a formal hearing regarding those allegations. This matter was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding, and Petitioner subsequently filed its Notice of Specific Charges.

Petitioner presented the testimony of Thomas Rolle, Antron Durant, Gigi M. Gilbert, June T. Day, Robert Asencio, and Lurene K. Mack. The Respondent testified on his own behalf and presented the testimony of Shikera Williams and Stacey Bacon. Additionally, Petitioner's Exhibits numbered 1-5 were admitted in evidence.

Although both parties were granted leave to submit post-hearing proposed findings of fact in the form of proposed recommended orders, only Petitioner did so. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. From 1985 until his suspension on April 22, 1992, Respondent was employed by the School Board as a school monitor and was assigned to Kelsey L. Pharr Elementary School.

   
   

2. Respondent attended mandatory training sessions for school monitors on March 24, 1989; February 2, 1990; September 20, 1990; February 1, 1991; April 1, 1991; and January 31, 1992. During those training sessions, the job description of a school monitor was reviewed. The school monitors were given suggested guidelines on how to handle situations with students and were provided with scenarios that they might encounter on a daily basis. They were specifically instructed to use the least force necessary to bring a situation under control and to always contact a school administrator for assistance using their hand- held radios before putting their hands on a student. School monitors have never been given the authority to administer corporal punishment.

   
   

3. At the end of the school day on February 4, 1992, Respondent observed a male student, Thomas Rolle, attempting to kiss a female student. A few days earlier, Respondent had observed him engaging in that same conduct.

   
   

4. Respondent approached Rolle and told him that he could not kiss his girlfriend on school premises. Rolle responded by cursing at Respondent, using profanity and a racially derogatory remark.

   
   

5. Rolle then turned and began running away from Respondent. Respondent threw his hand-held radio, striking Rolle behind his ear, causing a laceration which began to bleed.

   
   

6. Not knowing that Rolle had been injured, Respondent did nothing to assist him. Further, Respondent did not report the incident to a school administrator, as he had not reported the problem with Rolle a few days earlier.

   
   

7. One of Rolle's friends told Rolle that his ear was bleeding, and Rolle became quite agitated. He and his friends proceeded to the school building were they encountered the assistant principal at one of the exit doors to the building. The assistant principal, Gigi Gilbert, saw that Rolle was crying and bleeding. Rolle and his friends told her that Rolle had been "doing something" to a girl, that Respondent had told him to stop, that Rolle then began using profane language, that he started running with Respondent running after him, and that Respondent hit Rolle with the radio which Respondent had thrown. Gilbert sent Rolle to the office to receive first aid.

   
   

8. Gilbert signaled to the school principal, June Day, to come to where Gilbert was standing with the group of students. Gilbert advised Day as to what the students were telling her and as to Rolle's injury. Day sent a student to

   get Respondent, and within moments Respondent came to where Day and Gilbert were standing. The principal told Respondent what the students had reported, and Respondent denied that the incident had occurred.

   
   

9. Respondent then asked if he could speak with the principal privately, and Gilbert left them alone. Respondent then admitted to the principal that he threw the "walkie-talkie" at Rolle.

   
   

10. Day went to the office and attempted to speak to Rolle about the incident. She was unable to because he was too upset and would only say that he was going to "get him," referring to Respondent. She contacted the School Board's Special Investigative Unit, and an investigator was sent to the school. Respondent admitted to that investigator that he had struck Rolle with the radio.

    
    

11. Respondent was arrested and charged with aggravated battery. He subsequently plead guilty to that charge, was placed on probation for a period of eighteen months, and was ordered to pay court costs in the amount of $225. Adjudication of guilt was withheld.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

13. Section 230.23(5)(f), Florida Statutes, authorizes the School Board to suspend or dismiss non-instructional employees. Petitioner has suspended Respondent and seeks to have that suspension sustained and to dismiss Respondent from his employment with the School Board. The Notice of Specific Charges filed in this cause alleges that Respondent is guilty of conduct unbecoming a School Board employee, use of force causing bodily harm, failure to report disruptive behavior, and misconduct in office.

    
    

14. School Board Rule 6Gx13-4A-1.21 provides, in pertinent part, as follows:

    
    

    I. Employee Conduct

    
    

    All persons employed by The School Board

    of Dade County, Florida are representatives of the Dade County Public Schools. As such, they are expected to conduct themselves in a

    manner that will reflect credit upon themselves and the school system.

    Unseemly conduct or the use of abusive and/or profane language in the presence of students is expressly prohibited.

    * * *

    1. Reporting Crime and Disruptive Behavior

       
       

       . . . All employess of the Dade County

       public school system are under an affirmative duty to report any criminal act and/or disruptive behavior occurring on School Board property to

       the administrator or designee to whom the employee is responsible. . . .

       
       

    2. Failure to Report

    
    

    All law violations and incidents of disruptive behavior are to be reported in accordance with administrative procedures established by the Superintendent of Schools.

    
    

    Personnel willfully failing to report such occurrences to the responsible administrator and/or police agency and/or Special Investigative Unit will be subject to disciplinary action as determined by the area superintendent or divisional administrator.

    
    

15. The job description of a School Monitor provides, in pertinent part, as follows:

    
    

    Function of Job: Under general directions

    from the school principal, he/she perform [sic] duties to monitor student activity in promoting and maintaining a safe learning environment and insure that appropriate standards of conduct are followed.

    
    

    Description of Duties: Visually observe student behavior during school hours, on school property. Report serious disturbances to the school administration and correct minor altercations. . . .

    Report any safety or security problems to the administration. Perform any other duties set by the school principal or his designee.

    
    

16. School Board Rule 6Gx13-4A-1.21 requires all Dade County Public School employees to conduct themselves in a manner which reflects credit upon themselves and upon the school system. It also imposes an affirmative duty to report disruptive behavior and criminal acts occurring on school property to an administrator. Respondent's conduct of throwing his radio at the student, thereby injuring the student, constitutes conduct unbecoming an employee of the School Board of Dade County. Respondent also violated that Rule by failing to report Rolle's disruptive behavior and use of abusive language on the day in question and his own disregard of safety by throwing the radio at Rolle in an attempt to control Rolle's behavior. Respondent's failure to report was a breach of his affirmative duty, as set forth in that Rule, and subjects him to disciplinary action.

    
    

17. Respondent's failure to report the incident in question also violated his affirmative duty as a school monitor to report serious disturbances, as set forth in his job description. That job description also places Respondent under

    a duty to promote and maintain a safe learning environment, and Respondent's excessive use of force violated the requirements of that job description.

    
    

18. Rolle's disruptive and abusive behavior in using profanity and a racially derogatory term toward Respondent was highly inappropriate. It appears that Respondent lost his temper as a result of Rolle's unacceptable conduct.

The School Board's obligation to maintain a safe learning environment is compromised by a school monitor who loses his temper and commits an act of aggression, thereby injuring a student. Such conduct discredits the school system and cannot be overlooked.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Respondent's

suspension and dismissing him from his employment with the School Board of Dade County.

DONE and ENTERED this 26th day of April, 1993, at Tallahassee, Florida.

LINDA M. RIGOT

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 26th day of April, 1993.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-5695

1. Petitioner's proposed findings of fact numbered 3-11, 13-17, and 19-23 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed findings of fact numbered 1, 2, and 18 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony.

   
   

3. Petitioner's proposed finding of fact numbered 12 has been rejected as not being supported by the weight of the competent evidence in this cause.

COPIES FURNISHED:

Gerald A. Williams, Labor Attorney Mack & Bernstein

The School Board of Dade County, Florida 1450 N.E. Second Avenue-Suite 562

Miami, Florida 33132

William Du Fresne, Esquire Du Fresne & Bradley

2929 S.W. Third Avenue Miami, Florida 33129

Octavio J. Visiedo Superintendent of Schools Dade County School Board

1450 Northeast Second Avenue, Suite 562

Miami, Florida 33132

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: 92-005695

Orders for Case No: 92-005695