STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD,

Petitioner,

vs.

ROBERT BRINKMAN,

Respondent.

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) Case No. 00-2443

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RECOMMENDED ORDER

Administrative Law Judge Daniel Manry, conducted the administrative hearing in this proceeding on December 5, 2000, in Sanford, Florida.

APPEARANCES

For Petitioner: Sandra J. Pomerantz, Esquire

Legal Services Department Seminole County School Board

400 East Lake Mary Blvd. Sanford, Florida 32773

For Respondent: Mark Herdman, Esquire

2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause to suspend Respondent without pay for ten days for gross insubordination or misconduct in office or both, as set forth in the letter of suspension to Respondent from Superintendent Paul

1. Hagerty, dated May 16, 2000.

   By letter dated May 16, 2000, Petitioner suspended Respondent from his employment. Respondent timely requested an administrative hearing.

   PRELIMINARY STATEMENT

   
   

   At the final hearing Petitioner presented the testimony of seven witnesses and submitted 18 exhibits, all of which were received into evidence. Respondent testified on his own behalf and submitted no exhibits.

   The identity of the witnesses and exhibits, and the rulings regarding each, are set forth in the Transcript of the hearing filed on December 28, 2000. Petitioner timely filed its Proposed Recommended Order ("PRO") on January 5, 2001.

   Respondent timely filed his PRO also on January 5, 2001.

   
   

   FINDINGS OF FACT

   
   

   1. Prior to his suspension Respondent was employed as a teacher by Petitioner. During the 1999-2000 school year Respondent was a Physical Education teacher at Sterling Park Elementary School.

   2. Respondent taught for 13 years in Ohio before moving to Florida. He has been employed by Petitioner for the last 12 years.

   3. On or about October 17, 1997, Respondent received a written directive from Principal Deborah Wright. An addendum to that letter followed on April 27, 1998. Those letters addressed

      concerns about Respondent’s physical interactions with students relating to discipline.

   4. On or about September 16, 1999, Respondent received a letter from Superintendent Paul J. Hagerty. The stated purpose of the letter was to "clearly communicate the School Board’s policy and expectations regarding physical contact by teachers and other school personnel with students. . ." The policy described by the Superintendent is that school personnel will not have physical contact with students except for five enumerated reasons. One basis for allowing physical contact is: "To praise a child, such as a high five, a pat on the back, or the like, but never a pat on the buttocks."

   5. Principal Wright agreed with the Superintendent’s interpretation of the School Board’s policy. Respondent was never directed not to touch a student for purposes of offering praise.

   6. H.S. was a student in Kristen Brotsch’s class and had Respondent for physical education ("P.E."). On January 12, 2000, H.S. was the line leader for purposes of leading the class to the field for P.E. At the beginning of the class, Brotsch saw Respondent make a gesture toward H.S.'s face. The purpose of the gesture was to signal the class to go out to the field. Brotsch was between seven and ten feet from Respondent and H.S.

      when she witnessed the gesture. She did not see Respondent touch H.S.

   7. According to Brotsch, Respondent was not upset with the class or H.S. at the time he made the gesture. The gesture did not cause her any concern. She went back to her classroom after the class went to P.E.

   8. Following the P.E. class, H.S. told Brotsch Respondent had punched her in the face prior to class. The following day Brotsch reported the accusation to Principal Wright.

   9. On the night of January 12, 2000, H.S. told her parents Respondent had punched her in the side of the face that day in school. She physically re-enacted the incident by moving her hand approximately a foot from her mother’s arm. H.S. punched her mother hard enough that it "stung." The parents contacted Principal Wright about the incident the next day.

   10. On or about January 13, 2000, Principal Wright interviewed H.S. H.S. told her Respondent had hit her in the jaw with his fist, that it hurt, and that her friend T.P. had witnessed the incident. T.P. then told Principal Wright she had witnessed the incident and repeated H.S.’s story.

   11. According to H.S., Respondent was not upset or mad at the beginning of class on January 12, 2000. He did not say anything to H.S. H.S. was the line leader on that day and had done a good job of organizing the students to go out to P.E.

       When Respondent touched H.S. she did not cry. She did not believe he was trying to hurt her, and no one around said anything about the incident. H.S. told T.P. about the alleged incident on the playground during the P.E. class.

   12. Respondent has no recollection of touching H.S. anytime before class began on January 12, 2000. The P.E. class had gone exceptionally well on January 12, 2000, and Respondent was very pleased with the class. At the end of the class period, the students lined up to go back to the building. Respondent praised the entire class for their performance. Respondent turned to H.S. as the first person in line and grazed over her chin with the back of his partially closed hand while saying "great job, and let’s go."

   13. Respondent has been using the gesture involving grazing a person’s chin as a congratulatory gesture throughout his 25-year teaching career. H.S. did not appear to Respondent to be upset with the gesture. Rather, H.S. smiled as they went back to the building.

   14. Whether the touching alleged by H.S. occurred before or after class, it was not a disciplinary action. All of the testimony indicates Respondent was not upset with the students either before or after class on January 12, 2000, and was not seeking to correct any behavior.

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Sections 120.569 and 120.57(1), Florida Statutes (2000).

   16. The Charging Letter that is the basis for this action states in relevant part; "This recommendation is based upon your failure to follow previous directives as given to you by me and your principal as it relates to appropriate interaction with students under your supervision which constitutes misconduct in office and insubordination."

   17. Florida Administrative Code Rule 6B-4.009, defines "misconduct in office" as follows:

       (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, FAC., which is so serious as to impair the individual’s effectiveness in the school system.

       
       

       Petitioner has not alleged that any particular provisions of the Code of Ethics or the Principles of Professional Conduct have been violated by Respondent’s conduct. However, the only provision of Florida Administrative Code Rule 6B-1.006, possibly implicated in this matter is section (3)(a) which states:

       1. Obligation to the student requires that the individual;

          1. shall 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.

       
       

   18. Insubordination is not defined by statute or code.

       
       

       The term "gross insubordination" is defined as a "constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." Florida Administrative Code Rule 6B-4.009.

   19. The charges of misconduct in office and insubordination are subserved within the Superintendent’s allegation in the May 16, 2000, Charging Letter that Respondent’s touching of H.S. violated previous directives relating to appropriate interactions with students. Clearly, however, those previous directives related to Respondent’s physical interactions with students in disciplinary matters. On September 16, 1999, the Superintendent specifically instructed Respondent that physical contact with students was acceptable to praise a child.

   20. There is no evidence in the record that, whatever the nature of Respondent’s physical interaction with H.S. on January 12, 2000, it was done as a part of a disciplinary action. All of the evidence shows Respondent, both before and after class, was pleased with the class behavior and in no way

       was upset or unhappy or otherwise sought to take disciplinary action towards the class as a whole or H.S. individually. The only touching Respondent can recall was to praise H.S., which is acceptable within the parameters established by the Superintendent. Accordingly, Respondent is not guilty of insubordination. There is no directive he failed to follow, intentionally or otherwise.

   21. Viewing "misconduct in office" in its broadest sense Respondent is not guilty of wrongdoing. Given that Respondent has no recollection of any touching of H.S. prior to class all that remains for evaluation is H.S.’s testimony within the confines of common understanding.

   22. H.S. maintains that Respondent, for no apparent reason, punched her in the face with a closed fist. She has indicated the punch came from a foot away, and with enough force that in re-enactment it stung her mother. The punch was allegedly delivered within ten feet of another teacher and proximate to a class of students lined up behind H.S. Neither the teacher nor any of the other students witnessed any punch. The alleged punch did no damage to H.S.'s orthodontic hardware.

   23. There was less than a preponderance of evidence that Respondent ever hit or punched H.S. He may have inadvertently grazed her cheek as he was motioning the class to go outside,

but he did not intentionally strike H.S. Accordingly, there is no basis to conclude Respondent is guilty of misconduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the School Board enter a Final Order finding Respondent not guilty of the charges against Respondent.

DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001.

COPIES FURNISHED:

Mark Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Ned N. Julian, Jr., Esquire Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Dr. Paul J. Hagerty, Superintendent Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 00-002443

Orders for Case No: 00-002443