STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-6425

)

PAUL McDERMOND, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida on April 7 and 8, 1994, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Keith B. Martin, Esquire

School Board of Pinellas County

301 4th Street, Southwest Post Office Box 2942 Largo, Florida 34649-2942

For the Respondent: Robert F. McKee, Esquire

Kelly and McKee, P.A.

1718 East 7th Avenue, Suite 301 Post Office Box 75638

Tampa, Florida 33675-0638 STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent, Paul McDermond, should be dismissed from employment or otherwise disciplined by the Pinellas County School Board, because of the matters alleged in the Administrative Complaint filed herein.

PRELIMINARY MATTERS

By letter dated October 20, 1993, Dr. J. Howard Hinesley, Superintendent of the Pinellas County Schools, advised Respondent that because he had attempted to physically assault a student on October 11, 1993, he was suspended with pay effective October 19, 1993, until the November 10, 1993 meeting of the School Board, at which Dr. Hinesley intended to recommend Respondent's dismissal, effective November 11, 1993. Thereafter, by letter dated November 2, 1993, Respondent's counsel requested a formal hearing on the allegations and this hearing followed.

At the hearing, Petitioner presented the testimony of Aaron E. Simmons, a student at Gibbs High School and the alleged victim of the assault; Natoya N. Jackson and Lakesha L. Cameron, also students at Gibbs and members of the school's Gladiator Patrol; Benny K. Zeigler, John L. Glenn, Ktrece M. Land, and Jeremiah D. Leonard, all students at Gibbs; Patricia E. LaVoy, an Assistant Principal at Gibbs and an expert in educational administration, Jill Deleanis, also an Assistant Principal at Gibbs and an expert in school administration; Barbara C. Shorter, Principal at Gibbs and an expert in school administration; Ann M. Stuckey, Principal at Ridgecrest Elementary School and an expert in educational administration; and James M. Barker, Administrator in the Board's Office of Professional Standards, and an expert in educational administration. Petitioner also introduced Petitioner's Exhibits 1 through 6.

Respondent testified in his own behalf and presented the testimony of Mr. Barker, who also testified for Petitioner; Robert L. Moulds, a science teacher at Gibbs; Michael A. Hawkins, a patrol officer with the St. Petersburg Police Department and school resource officer at Gibbs; Herbert H. Dixon, Assistant Principal at Gibbs; Kevin King, Charles Wincelowicz, Jr., Billi Jo Walter, and Michelle Stickney, all students at Gibbs; and Frankie McDermond, also a student at Gibbs and Respondent's son. Respondent also introduced Respondent's Exhibits A through C. Respondent's Exhibit E was marked for identification but not admitted.

A transcript of the proceedings was furnished. 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 School Board of Pinellas County was the agency of county government responsible for the provision of public primary and secondary education in Pinellas County, operating Gibbs High School in the City of St. Petersburg.

   
   

2. Respondent, Paul McDermond, was employed as a teacher by the Pinellas County School District since 1974. During the 1993 - 1994 school year, he was serving as an industrial arts teacher at Gibbs High School under a continuing contract.

   
   

3. On October 11, 1993, Frankie McDermond, Respondent's son and an 11th grade student at Gibbs High School, was involved in a fight with another student, Aaron Simmons, and sustained some injury to his eye, including a fracture of the orbital bone. Respondent, who was in his classroom at the time, was summoned by some of the students to the quadrangle on campus where the fight had taken place and where the two participants were still located. Upon notification, Respondent left his classroom and went to the fight scene where he saw his son.

   
   

4. After pushing his way through the crowd of students who had gathered as the scene, he approached his son and asked him. "Who did this?" Frankie indicated Simmons had done it and pointed in the direction of a nearby wall where Simmons was standing. Several other students also pointed in that direction.

   
   

5. Respondent left his son and began moving toward Simmons. He appeared angry. Approaching to within three to four feet of Simmons, Respondent was grabbed by some students and restrained. The evidence indicates that Respondent

   was swinging his arms around at the time, but is not clear whether this was an attempt to break free of those holding him or a real attempt to get at Simmons and strike him. No contact was made with Simmons by the Respondent who said nothing all during this time.

   
   

6. Some students and faculty called to the scene indicate Respondent was trying to get at Simmons to strike him. Ms. Shorter, the Principal, who spoke by phone with Respondent late in the afternoon of the incident, claims Respondent told her he wanted to strike Simmons but was restrained from doing so. On the other hand, Respondent claims he was trying to get to the crowd to which some of the students had pointed when asked who had assaulted his son, but denied even knowing that Simmons was the one who inured his son until, at Ms. Deleanis' direction, he went inside and then returned outside to get Frankie.

   It was only then, when he and Frankie had gone back inside, he claims, that he found that Simmons was the perpetrator. Clearly, this does not track with the other evidence of record.

   
   

7. It is found, therefore, that Respondent knew after first speaking with his son that Simmons had injured him, and he was trying to get to Simmons who had been identified to him by other students, to apprehend him. Respondent admits to being very upset at the condition in which he found his son and wanted to take action against the individual responsible for that. It is possible that at some time, during the course of his movement from his son toward Simmons, Respondent intended to strike Simmons if he could. This is a perfectly natural reaction and it is so found.

   
   

8. However, whether his anger cooled of its own accord, or whether, being restrained by students and intercepted by members of the administration he changed his mind, it is clear that by the time he reached the group in which Simmons was located, Respondent's desire to strike Simmons had abated, and his struggles as described by the students restraining him were more an effort to release himself from the hands of the students than an attempt to assault Simmons. It is impossible to know exactly what was in Respondent's mind at the time, but the fact remains that no contact was made between Respondent and the student.

   
   

9. Respondent has been the subject of two previous disciplinary actions during his teaching and coaching career. In September, 1976, some seventeen years prior to the instant situation, Respondent assaulted and committed a battery upon a student who had stolen his car. Later that same month, he also threw to the ground a student who was disrespectful and defiant to him, as coach, during a football practice. For both these offenses Respondent received one combined letter of reprimand for exercising poor judgement. In February, 1985, nine years later, he subjected a female student to unnecessary disparagement and embarrassment in class, for which he was given a 30 day suspension without pay. Nothing untoward has been made a matter of record since that time.

   
   

10. Petitioner claims it is School Board policy to take graduated action in matters of staff discipline. The documentation of other actions taken by the Board regarding other faculty members, however, does not show this policy to have been regularly or evenly applied.

    
    

11. The incident with Simmons was made a matter of public knowledge when the Board's suspension action was reported in the local newspaper. All the faculty personnel who testified for the Board unanimously concluded that Respondent's actions severely compromised his effectiveness as a teacher.

    Teachers cannot, ideally, allow their students to learn what actions will cause the teacher to lose control - to identify their buttons, so to speak. All of the administrators and the Board staff who testified at hearing believe that by reacting as he did, Respondent's effectiveness as a teacher was destroyed. It is clear this is too quick a judgement to make. Numerous students testified at the hearing on Respondent's behalf, and there is evidence that a wave of support for Respondent manifested itself in the circulation of a student petition to save Respondent's employment with the school.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

13. Under the provisions of Section 231.36(4)(c), Florida Statutes, the School Board has the authority to dismiss instructional staff members holding continuing contracts any time during the school year if the charges supporting the dismissal action are based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

    
    

14. The burden of proof is upon the Board in a dismissal hearing to establish its basis for that action by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3DCA 1990); Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3DCA 1990).

    
    

15. To meet this burden in a case where, as here, the operative statutory clause supporting dismissal is misconduct in office, the Board must show misconduct so serious as to impair the individual's effectiveness in the school system. This is the definition as outlined in the Code of Ethics of the Education Profession, adopted in Rule 6B-1.001, F.A.C., and in the Principles of Professional Conduct for the Education Profession in Florida, adopted in Rule

    6B-1.006, F.A.C..

    
    

16. Both the Code and the Rules, supra, as adopted by the Florida Department of Education, indicate the educator's primary concern will always be for the student and the development of his or her potential. Consistent therewith, the educator is enjoined to strive for professional growth and seek to exercise the best professional judgement and integrity, (Rule 6B-1.001(2), F.A.C.). He or she shall also make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety, (Rule 6B-1.006(3)(a), F.A.C.).

    
    

17. In the instant case, the evidence is clear that Respondent did not strike Simmons or injure him in any way. He was understandably upset and, by his own admission, sought to identify and take some action against the individual who had injured his son. At hearing, he claimed he was going to do no more than apprehend Simmons and take him to the office for further action. Whatever his purpose, however, the evidence also indicates that Respondent's approach to the student was excessive. He charged toward him with a clear indication of anger and some students obviously felt he had to be restrained. Regardless of his intentions, this aggressive approach was indicative of poor judgement and constitutes misconduct even though the issue of the destruction of his effectiveness as a teacher is far from settled. His position as a teacher was compromised, however.

18. Misconduct having been established, the issue then remains as to an appropriate disciplinary action to take. Notwithstanding the Board's claim its application of discipline is even handed and a system of progressive severity based on previous misconduct is followed, in application this is far from clear. It is clear, however, that Simmons was not struck or injured in any way. It is also clear that there is significant support for the Respondent among the students which tends to indicate he remains effective as a teacher regardless of this incident. Further, the prior misconduct took place no less than eight years ago and, as to the earliest, some seventeen years ago. While it is impossible to condone the embarrassment caused to the female student, there is some substantial question as to the motivation for and, for that matter, the seriousness of the earlier offenses, considering the facts and the times in which they occurred.

RECOMMENDATION

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

RECOMMENDED that the School Board of Pinellas county enter a Final Order finding the Respondent, Paul McDermond, guilty of misconduct in office based on a lack of judgement in his aggressive approach to a student, Aaron Simmons, and suspending him from duty without pay for a period of 15 days.

RECOMMENDED this 25th day of May, 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 25th day of May, 1994.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-6425

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. & 2. Accepted and incorporated herein.

3. - 6. Accepted and incorporated herein.

7. - 10. Accepted and incorporated herein.

11. - 13. Accepted and incorporated herein.

1. & 15. Accepted.

   1. Rejected as not supported by evidence of record.

   2. Accepted and incorporated herein.

FOR THE RESPONDENT:

Respondent's Proposed Findings of Fact are not numbered. Therefore, they will be referred to as the appear in the Proposal.

1. Accepted and incorporated herein except for the last sentence of the paragraph which is merely a restatement of testimony.

2. Conclusions are accepted and incorporated herein. However, the comments on the state of the evidence are disregarded.

3. Not a Finding of Fact but a comment on the evidence.

4. Not a Finding of Fact but a comment on the evidence, except for the finding that Simmons was not struck by Respondent.

COPIES FURNISHED:

Keith B. Martin, Esquire

School Board of Pinellas County

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 34649-2942

Robert F. McKee, Esquire Kelly & McKee, P.A.

1718 East Seventh Avenue Suite 301

Post Office Box 75638 Tampa, Florida 33675-0638

Dr. J. Howard Hinesley Superintendent

Pinellas County Schools

301 Fourth Street Southwest Post Office Box 2942

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.

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AGENCY FINAL ORDER

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD,

Petitioner,

vs. CASE NO. 93-6425

PAUL McDERMOND,

Respondent.

/

FINAL ORDER

WHEREAS, by letter dated on or about October 20, 1993, the Superintendent of Schools for Pinellas County, Florida, recommended to the School Board of Pinellas County that PAUL McDERMOND be dismissed from his employment for the reasons stated in the letter; and

WHEREAS, said PAUL McDERMOND timely requested an administrative hearing;

and

WHEREAS, an administrative hearing was conducted on April 7 & 8, 1994,

before Hearing Officer Arnold Pollock, Division of Administrative Hearings; and

WHEREAS, the entire record of the case including the Hearing Officer's Recommended Order, together with the Petitioner's Proposed Findings of Fact, Conclusions of Law and Supporting Memorandum and the Respondent's Proposed Findings of Fact and Conclusions of Law, Petitioner's Exception to the Recommended Order, Amended Petitioner's Exception to the Recommended Order, Respondent's Exceptions to the Recommended Order and Transcript of Proceedings with Exhibits have been carefully reviewed, it is

ORDERED AND ADJUDGED that the Hearing Officer's Recommended Order is hereby ACCEPTED AND ADOPTED and incorporated herein in its entirety with the exception of the recommended penalty, and it is further

ORDERED AND ADJUDGED that the Petitioner's Exceptions to the Hearing Officer's Recommended Order is accepted and the Hearing Officer's recommendation that a Final Order be entered suspending Respondent, PAUL McDERMOND, without pay for fifteen (15) days is rejected in that:

1. As shown by Petitioner's Exhibit 1, this is the third occasion upon which the Respondent has been involved in violent conduct toward a student;

   
   

2. The Respondent's act of aggression toward the student occurred in the presence of many students (Transcript of Proceedings, Testimony of Patricia Lavoy, Assistant Principal, Gibbs High School, Page 118, Lines 12-17);

3. The Respondent's aggressive actions toward the student lead to the need for other students to restrain him (Hearing Officer's Findings of Fact No.

   5 and Testimony of Natoya Jackson, Transcript of Proceedings, Page 38, Line 12 through Page 39);

   
   

4. The Respondent did not respond to direction from Administrators to stop approaching the student and to stay away from the student (Testimony of Jill Dileanis, Assistant Principal, Gibbs High School, Transcript of Proceedings, Page 135, Lines 14 through 18);

   
   

5. The incident became a matter of public knowledge (Hearing Officer's Findings of Fact No 11);

   
   

6. Respondent's actions exhibited poor judgment and have compromised his position as a teacher (Hearing Officer's Conclusion of Law No. 17).

   
   

7. The Respondent previously was suspended without pay for thirty (30) days for causing unnecessary disparagement and embarrassment to a female student in his class by requiring her to turn around in front of the male students in the class, while he made inappropriate comments concerning the fact that she did not look like a boy. (Petitioner's Exhibits Nos. 2 and 7.) It is further

ORDERED AND ADJUDGED that Respondent's Exception to the Hearing Officer's Finding of Fact No. 7 is denied in that the record does contain evidence that the Respondent, PAUL McDERMOND, knew after first speaking with his son that Simmons' had injured his son. (Petitioner's Exhibit 8, Lines 12-15, Paragraph 3; Petitioner's Exhibit 9, Page 13, Line 11 through Page 14, Line 14; Testimony of Paul McDermond, Page 217, Lines 14-17; Testimony of Patty Lavoy, Page 121, Line 3 through Page 122, Line 4; and Testimony of Benny Zeigler, Page 50, Lines 6-23 and Page 53, Lines 1-13). It is further

ORDERED AND ADJUDGED that Respondent's Exception to Hearing Officer's Conclusion of Law set forth in Paragraph 17 of the Recommended Order is denied in that the Hearing Officer found that the SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA did meet its burden of proof in establishing that the Respondent's actions on the day in question resulted in the impairment of his effectiveness as a classroom teacher in the Pinellas County School System by finding in his Recommendation and Conclusion of Law No. 17 that PAUL McDERMOND'S actions constituted misconduct in office which is defined in Florida State Board of Education Administrative Rules as including the impairment of effectiveness rather than the complete destruction of effectiveness as a teacher, Florida State Board of Education Administrative Rule 6B-4.0093. It is further

ORDERED AND ADJUDGED that PAUL McDERMOND shall be suspended without pay for sixty (60) work days, and shall receive full back pay and other compensation for the balance of the period of time between November 10, 1993 and today's date.

It is further

ORDERED AND ADJUDGED that PAUL McDERMOND is prohibited from teaching at Gibbs High School, but in all other respects shall be reinstated to all his teaching benefits with Pinellas County Schools, and it is further

ORDERED AND ADJUDGED that PAUL McDERMOND is hereby notified of his right to appeal this Order to the Second District Court of Appeals in Lakeland, Florida, by filing notice of intent to do so with the Clerk of the Court or on Keith B. Martin, Assistant School Board Attorney, within thirty (30) days of this date.

Dated this 12th day of July, 1994, at Largo, Florida.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By: Chairman

Attest:

Ex-officio Secretary

Docket for Case No: 93-006425

Orders for Case No: 93-006425