STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2936

)

ALFRED GORTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on October 4, 1993, in Fort Myers, Florida.

APPEARANCES

For Petitioner: John M. Hament, Esquire

Suite 785, 1800 Second Street

Sarasota, Florida 34236

For Respondent: Robert J. Coleman, Esquire

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902 STATEMENT OF THE ISSUE

Whether cause exists for the Petitioner's 20 day suspension without pay of the Respondent (employed under a continuing contract) for alleged misconduct in office.

PRELIMINARY STATEMENT

Respondent Alfred Gorton was employed by the Lee County School Board as a teacher at the Dunbar Middle School in Fort Myers, Florida.

By letter dated March 31, 1993, the Respondent was notified that the Petitioner had determined that cause existed to suspend the Respondent from his position as a teacher. The letter stated that the Petitioner's decision was "based on your misconduct exhibited in the classroom at Dunbar Middle School on February 4, 1993 when you used a racial slur in the presence of your students."

By Petition for Suspension Without Pay dated April 9, 1993, the Respondent was notified of the specific misconduct allegation of which he was charged. The Respondent requested a formal administrative hearing. The matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing, the Petitioner presented the testimony of two witnesses and had one exhibit admitted into evidence. The Respondent presented the testimony of two witnesses, testified on his own behalf and had one exhibit admitted into evidence. A prehearing stipulation filed by the parties was admitted into evidence as a Hearing Officer's exhibit.

A transcript of the hearing was filed on December 2, 1993. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Since August 16, 1972, and at all times material to this case, Alfred Gorton (Respondent) was employed as a member of the Lee County School District instructional staff by a continuing contract with the Lee County School Board.

   
   

2. In February, 1993, the Respondent was teaching a Social Studies class during third period at Dunbar Middle School. The Respondent had recently been moved into the classroom and much of his instructional material remained boxed.

   
   

3. While his students were working on an assignment, the Respondent began to search for a book in his possession which had been requested by another teacher. He intended to deliver the book upon its discovery. As he went from box to box, he chanted, "ennie meenie miny moe...ennie meenie miny moe."

   
   

4. Upon opening a box and locating the book, he exited the classroom and completed his "ennie meenie miny moe" chant while standing just outside the classroom door by saying "catch a nigger by the toe."

   
   

5. Immediately upon making the statement, he realized his error. He delivered the book to the teacher and returned to his classroom. Upon entering his classroom, he was confronted by some of his students who had heard the remark. Some of the students took offense at the statement and the connotation of disrespect towards black persons.

   
   

6. At that time, the Respondent engaged the class in a brief discussion during which he attempted to explain his statement. He stated that, in his opinion, the word "nigger" could be applied to white or black person, apparently believing that no one should be offended.

   
   

7. The Respondent testified, and there is no evidence to the contrary, that he had not previously used the term "nigger" in the classroom other than as to the history of slavery.

   
   

8. He further testified that he did not intend to offend anyone. He stated that the rhyme was one he learned as a child, and that he was reciting it apparently absentmindedly while searching through the boxes.

   
   

9. One student took specific offense at the remark. Several days after the incident, the Respondent discussed the matter with both the student and his father and apologized for his statement.

10. The student's father suggested that the Respondent should also apologize to the entire classroom. The Respondent discussed the matter with the school's principal. Because of the lapse of time since the incident, the principal thought it better to let the matter rest and directed the Respondent to refrain from further classroom discussions regarding the statement.

    
    

11. The school principal testified that he does not condone the use of the word "nigger" and does not believe the Respondent's behavior was appropriate.

    In discussions with the school board officials, the principal recommended that the Respondent receive a written reprimand for his behavior.

    
    

12. On April 13, 1993, the school board suspended the Respondent without pay and benefits for twenty (20) working days.,

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.

    
    

14. Section 231.36(4)(c), Florida Statutes, provides that a member of an instructional staff who is under continuing contract may be suspended or dismissed at any time during the school year, "however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude." In this case, the Petitioner asserts that the Respondent's actions constitute misconduct in office.

    
    

15. 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. Rule 6B-4.009(3), Florida Administrative Code.

    
    

16. In order to prevail, the Petitioner must establish by a preponderance of the evidence that the Respondent's behavior constitutes misconduct in office sufficient to warrant the Respondent's suspension. Allen v. Dade County School Board, 571 So.2d 568 (Fla. 3rd DCA 1990). The evidence fails to establish that the Respondent's statement constitutes misconduct in office so serious as to impair the individual's effectiveness in the school system.

    
    

17. This is not to indicate that the Respondent's statement was acceptable. The Respondent acknowledged using the term in the classroom during studies which included the history of slavery. He clearly was aware that students could react negatively to his offhanded use of the term. The Respondent realized upon uttering the word, that he had erred. The students who heard the reference made sure he was aware of their concern. He made an immediate effort to address the matter with his students. He further met and discussed the matter with one student's father.

    
    

18. Because the misconduct was not so serious as to impair the Respondent's effectiveness in the school system, his suspension by the school board is inappropriate. As was originally suggested to the board by the principal at the Respondent's school, the appropriate penalty for the Respondent's behavior would be a written reprimand.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Lee County School Board enter a Final Order rescinding the suspension of Alfred Gorton and providing for back pay and benefits for the

20 day period of suspension.

DONE and RECOMMENDED this 10th day of January, 1994, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

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 10th day of January, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2936

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

5-8, 10-12, 20-23, 25-26. Rejected, subordinate, unnecessary. Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

8. Rejected, subordinate.

COPIES FURNISHED:

Dr. James A. Adams, Superintendent School Board of Lee County

2055 Central Avenue

Fort Myers, Florida 33901-3988

Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue

Fort Myers, Florida 33901-3988

John M. Hament, Esquire Kunkel & Hament

Suite 785, 1800 Second Street

Sarasota, Florida 34236

Robert J. Coleman, Esquire 2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902

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 ten 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: 93-002936

Orders for Case No: 93-002936