STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-5748

)

HERBERT LATIMORE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida on March 18, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Keith B. Martin, Esquire

Pinellas County School Board

301 4th Street, Southwest Largo, Florida 34649-2942

For the Respondent: Lawrence D. Black, Esquire

650 Seminole Boulevard

Largo, Florida 34640 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent should be suspended without pay for five (5) days by the Pinellas County School Board because of the misconduct alleged in the Superintendent's letter of September 22, 1993 concerning Respondent's use of inappropriate language to students.

PRELIMINARY MATTERS

By letter dated September 22, 1993, Dr. J. Howard Hinesley, Superintendent of Schools for Pinellas County, advised Respondent of his intention to recommend to the School Board at its October, 1993 meeting that Respondent be suspended without pay for five (5) days because of his use of inappropriate language to students. In response, by letter dated October 5, 1993, Respondent requested a formal hearing and the matter was referred to the Division of Administrative Hearings for appointment of a Hearing Officer. This hearing followed.

At the hearing, Petitioner presented the testimony of Dr. J. Howard Hinesley, Superintendent of Schools for Pinellas County; Kathy A. Zavadil, parent of a student at Tyrone Middle School; Jose G. Valdes and Victoria R. Desmond, Assistant Principal and Principal, respectively, at Tyrone Middle School; and James M. Barker, Administrator with the Office of Professional Standards, Pinellas County Schools, and an expert in school administration.

Petitioner also introduced Petitioners Exhibits 1 through 5. Respondent testified in his own behalf but called no other witnesses nor did he introduce any documentary evidence.

No transcript was provided. However, subsequent to the hearing, counsel for the School Board submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order. Counsel for Respondent submitted an Argument within the framework of a Proposed Recommended Order.

This proposal did not contain Proposed Findings of Fact, per se, but some paragraphs of the Argument portion contain Findings of Fact which are addressed in the Appendix.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner, Pinellas county School Board, operated the primary and secondary public school system for Pinellas County, Florida. Respondent, Herbert Latimore, was employed by the Petitioner as a continuing contract teacher of physical education at Tyrone Middle School, a school operated by Petitioner.

   
   

2. On August 25, 1993, very early in the school year, Respondent made a presentation to a group of sixth grade students in a physical education class. In prior years, Respondent had experienced a reluctance on the part of some students to take showers after physical education classes, and to forestall that problem, he indicated verbally that he did not want the boys to stand outside the showers looking at each other because, "...there were no faggots around here."

   
   

3. He also told the students he expected compliance and that he did not want parents calling the administration about student shower misconduct because that created problems for him and would get him "pissed off."

   
   

4. It is also alleged that in the course of his presentation he told a group of male students who were not paying attention that he spoke clearly and did not talk like a "nigger." Respondent, who is, himself, African-American, denies making that comment though, according to Mr. Valdes, the vice principal, Respondent admitted doing so to him in an interview the day after the alleged incident took place. It is found that Respondent did, in fact, use the word, "nigger" in his discussion with the students, but it can not be said, under the circumstances, that it was used in a racist or manner derogatory toward any student or group of students.

   
   

5. One of the students in the Respondent's class to whom he made the comments complained of was Stephanie Zavadil, a young female who did not want to be in a physical education class in the first place and who was supposed to be in a music class instead. The incident took place the first day of school which was, coincidentally, the first day of middle school for the students in this particular class.

   
   

6. After school that day, Stephanie, who was quite upset by the Respondent's use of the language alleged, told her mother what had happened and indicated she would rather go to summer school than be in Respondent's class. She also cried when recounting the story and indicated she was so afraid of Respondent, she would not appear to testify at hearing even under subpoena.

   Mrs. Zavadil, herself a high school teacher in the Pinellas County system, after discussing the matter with her husband, reported it to the school principal, Ms. Desmond. She also indicated she did not want her daughter in Respondent's

   class. There is no indication any other student or parent has indicated a similar objection, though as a result of the press' attendance at a School Board meeting at which this matter was discussed, an article appeared in the Clearwater edition of the St. Petersburg Times reporting the incident.

   
   

7. Before she could call Respondent in to discuss the matter, Ms. Desmond was approached by him in the school cafeteria the following day. Ms. Desmond, who was on cafeteria duty at the time, told Respondent she would discuss the matter with him later, but he followed her to the side of the room, still trying to talk with her. When she finally had the quiet to talk with Respondent, she reported to him the substance of the complaint she had received from Mrs. Zavadil and told him that in her opinion his use of the words alleged was inappropriate and a demonstration of bad judgement. Respondent acknowledged he had used the words.

   
   

8. Thereafter, the matter was reported to the office of the Superintendent of schools, where the matter was investigated by Mr. Barker who interviewed Stephanie and other students involved. He also spoke with Respondent who admitted the use of all words alleged except "nigger." Mr. Barker also reviewed Respondent's personnel file in which he found two prior disciplinary actions taken against Respondent. In 1982, Respondent was reprimanded for pushing a student, and in 1992, was again reprimanded for using poor judgement in making inappropriate statements in front of a student and the use of physical force with a student. On the basis of his investigation, Mr. Barker, utilizing the school board's unwritten progressive discipline policy, recommended that disciplinary action to include a suspension without pay for five days be imposed. His recommendation was based on his conclusion that Respondent's effectiveness as a teacher had been impaired by his use of the words alleged.

   
   

9. Mr. Barker is of the opinion that teachers should comport themselves in a manner which causes students to look up to them. Here, Respondent's comments could affect the way students perceived him and also might frighten some students who, as a result, might not want to take classes from him. Respondent's use of the word "faggot", as alleged here, complicates the already existing problem schools have regarding the reluctance of some elementary and middle school children to dress out for physical education training.

   
   

10. Mr. Barker's opinion regarding Respondent's effectiveness was reinforced by those of Dr. Hinesley, Ms. Desmond, and Mr. Valdes. Dr. Hinesley believes that teachers should be role models and Respondent's use of the language alleged was a violation of the Teacher Code of Conduct which could undermine public support for the educational process if left unpunished. Ms. Desmond agrees with the proposed suspension because of her belief that Respondent's language was both frightening to the students and inappropriate. Students and their families discuss what happens at the schools and if Respondent, because of his language, were to develop an unfavorable reputation within the community, it would make it difficult for him to establish credibility and would also impact the school's effectiveness in the community.

    
    

11. Respondent does not contest his use of the terms "pissed-off" and "faggot" but claims he has heard them used many times by other teachers and had never been told by the principal or anyone else that they were bad words. He claims that had he considered the words to be inappropriate, he would not have used them. He also claims, and it is so found, that he did not call any student either a "faggot" or a "nigger", not did he claim to be "pissed-off" at any particular student.

12. Respondent has three daughters and professes to love children, asserting he would never intentionally use bad language to hurt anyone. With regard to his alleged admissions to Ms. Desmond and Mr. Valdes, he claims neither one specifically asked him about his use of the words alleged. Mr. Barker did do so, however, and Respondent admitted to the use of "faggot" and "pissed-off." He has been a teacher for 18 years and during that time has never received a bad evaluation. He claims he has never been cautioned about his language, and the reprimand administered in 1992 relates more to the use of poor judgement in attempting to intimidate student rather than to the use of "inappropriate" language.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. In his letter notifying Respondent of the intended suspension action sought herein, the Superintendent characterizes Respondent's use of the terms alleged as "misconduct in office" which is actionable under the provisions of Section 231.36(4)(c), Florida Statutes. This section provides for the discipline, including suspension, of a teacher holding a continuing contract, for immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. If proper grounds for discipline are found to exist, the Superintendent of Schools, as well as the School Board, has the authority to suspend instructional staff members. (Sections 230.33(7)(e) and 230.23(5)(f), respectively.) The burden of proof in this case rests upon the School Board which must establish Respondent's misconduct in office by a preponderance of the evidence.

    
    

15. "Misconduct in office" is defined as a violation of the Code of Ethics of the Education Profession, and the Principles of Professional Conduct for the Education Profession, adopted in Rules 6B-1.001 and 6B-1.006, F.A.C., respectively, which is so serious as to impair the individual's effectiveness in the school system. (See also Rule 6B-4.009, F.A.C..) Rule 6B-1.001(2), F.A.C. indicates that the educator's primary professional concern must always be for the student and the development of the student's potential. The educator, therefore, is to strive for professional growth and to seek to exercise the best professional judgement and integrity in the performance of his or her duties.

    
    

16. The evidence of record here clearly establishes, by the Respondent's own admission, his use, in front of young sixth graders, of the words, "faggot" and pissed-off", and by credible other evidence of the word, "nigger." Under the circumstances, the use of the term "nigger" to describe the antethesis of what he proposes as correct speech, does not demean any particular student or any class of students and cannot, in these circumstances, be held to be either inflammatory or inappropriate. On the other hand, the use of the term "faggot" as a potential characterization of some of his students, and the use of the term "pissed-off", a coarse, common vulgarism, in routine conversation with 11 to 12 year old children, is inappropriate and indicative of extremely poor judgement.

    
    

17. The witnesses who testified for Petitioner, all of whom are educational professionals, concluded that Respondent's use of the language described in the teacher student relationship was improper and diminished his effectiveness as a teacher. Only one student was heard to complain, however, and it is hard to conceive the language was so egregious as to cause this

    child's reaction to it. She was not attacked and the terms so are not so abusive as to justify the reaction reported. However, the professional educators who testified concluded Respondent's effectiveness was compromised and Respondent presented no evidence to contradict that uniform opinion. It is so concluded.

    
    

18. This leaves for consideration the quantum of punishment to be imposed for Respondent's misconduct. The statutory provision referenced above, which authorizes discipline for misconduct in office, provides for either suspension or dismissal in appropriate cases. In the instant case, Respondent has been disciplined twice before, though the first of these two occurred in 1982 and the second not until 1992. Save for the instant occurrence, Respondent's demeanor has not been the basis for any other discipline nor is there any indication his routine performance has been less than acceptable. Were it not for the most recent incident for which discipline was imposed in 1992, where again, Respondent used poor judgement, a reprimand would surely be sufficient for this incident. However, Respondent was warned then of the potential for increased penalty for future misconduct and has again failed to comport himself in a manner worthy of emulation by his students and his peers. His willingness to bring his relationship with students down to the lowest common denominator, by the use of language such as used here, in light of his previous disciplinary record, warrants suspension without pay for the period indicated.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Respondent, Herbert Latimore, be suspended from employment as a teacher with the Pinellas County School Board, without pay, for a period of five (5) days.

RECOMMENDED this 15th day of April, 1994, in Tallahassee, Florida.

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 15th day of April, 1994.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-5748

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. - 13. Accepted and incorporated herein.

14. & 15. Not relevant to the issues herein.

FOR THE RESPONDENT:

ARGUMENT paragraphs, unnumbered, as treated in sequence.

1. Not a Finding of Fact but a Conclusion of Law.

2. Accepted and incorporated herein.

3. & 4. Accepted as a correct comment on the state of the testimony.

5. & 6. Accepted as a correct comment on the state of the evidence.

1. Accepted and incorporated herein.

2. Not evidence but argument and statement of position.

3. Accepted as an accurate recounting of Respondent's testimony.

4. Accepted as an accurate comment on the evidence.

5. Accepted as Respondent's position.

COPIES FURNISHED:

Keith B. Martin, Esquire Pinellas County School Board

301 4th Street, Southwest Largo, Florida 34649-2942

Lawrence D. Black, Esquire 650 Seminole Boulevard

Largo, Florida 34640-3625

J. Howard Hinesley, Ed.D. Superintendent

Pinellas County Schools

301 4th Street, Southwest Largo, Florida 34649-2942

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 be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 93-005748

Orders for Case No: 93-005748