STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02-3154

)

KEITH GOODLUCK, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Lauderdale, Florida, on January 15, 2003.

APPEARANCES

For Petitioner: Carmen M. Rodriguez

Law Offices of Carmen Rodriguez, P.A. 9245 Southwest 157th Street

Suite 209

Miami, Florida 33157

For Respondent: Mark F. Kelly

Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301

Tampa, Florida 33675-0638 STATEMENT OF THE ISSUE

The issue is whether Petitioner may terminate Respondent's contract for immorality, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009, Florida Administrative Code; misconduct in office, in violation of Section

231.36(1)(a), Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code; and incompetency, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(1), Florida

Administrative Code.

PRELIMINARY STATEMENT

By Administrative Complaint dated July 5, 2002, Petitioner alleged that Respondent hit a student on several occasions with a closed fist, causing the student to become afraid to attend class; verbally threatened to "hit" or "pop" students and "knock them out" if they did not do their work; refused to allow male students to leave the classroom to go to the bathroom; denied a student permission to contact his mother regarding his medication; made derogatory remarks about students, such as "bony boy," "skinny boy," "peanut head," and "dirty boy"; repeatedly issued behavioral referrals for petty reasons; yelled at students, using the words "hell" and "bloody"; shoved a student out of a portable classroom; and ignored many students while explaining work only to a few students.

The Administrative Complaint alleges that Respondent is thus guilty of immorality, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009, Florida Administrative Code; misconduct in office, in violation of Section 231.36(1)(a), Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code; and incompetency, in violation of Section

231.36(1)(a), Florida Statutes, and Rule 6B-4.009(1), Florida Administrative Code.

The Administrative Complaint seeks the dismissal of Respondent from employment.

At the hearing, Petitioner called seven witnesses and offered into evidence 18 exhibits. Respondent called three witnesses and offered into evidence three exhibits. Following the hearing, with permission of the Administrative Law Judge, Petitioner filed Petitioner Exhibit 19, which is a transcript of a predisciplinary hearing that took place on February 8, 2002, and Respondent filed the testimony of Gary Itzkowitz and Victoria Kaufman, which was taken on February 6, 2003. This post-hearing testimony has been designated as the third volume of the hearing transcript. All exhibits were admitted.

The court reporter filed the transcript on February 26, 2003. The parties filed their proposed recommended orders on March 12, 2003.

FINDINGS OF FACT

1. Respondent came to the United States from British Guyana in 1977. In 1988, Respondent obtained an educator's certificate and began teaching in Dade County. Petitioner hired him in 1992 and assigned him to Silver Lakes Middle School.

2. For several years, Respondent taught language arts, which is the area in which he is certified, to all grades.

   Petitioner later assigned Respondent to teach students in the dropout prevention program at Silver Lakes Middle School. The students in the dropout prevention program typically represent greater academic challenges to a teacher than do their counterparts in regular education.

3. For the past five or six years, Respondent taught dropout prevention at Silver Lakes Middle School. His teaching approach is to try to develop rapport with the students during the first nine weeks of the school year while, at the same time, identify specific areas of weakness within each student that may require attention during the school year.

4. On October 17, 2001, Respondent administered a diagnostic test to identify areas in which students needed work. Unable to answer some of the questions, some students asked Respondent for help. Respondent declined to help because his assistance would destroy the purpose of the test. Some of the students began to misbehave. After several attempts by Respondent to control these students, they threatened to go to the office and complain about Respondent.

5. Respondent invited the students to go to the office and complain about him. He wrote passes for several students, and several more students joined the others to visit the office, rather than take the test, and complain to an administrator about Respondent.

6. The principal received the students in her office and listened to their complaints, which appear to have been the source of the allegations in this case. The principal took statements from the students and then returned with them to Respondent's classroom.

7. While in the classroom, the principal helped the students with the diagnostic test that Respondent had been administering. Recognizing that the diagnostic value of his test was lost, Respondent then joined the principal in helping the students with their diagnostic test.

8. Prominent among the students' complaints to the principal was that Respondent had struck a student, J. H. Petitioner produced little direct evidence supporting this allegation. Twice, J. H. ignored subpoenas to testify in this case. Respondent testified that J. H. later admitted to him that other boys in the class made him lie and say that Respondent hit him. J. H.'s failure to comply with subpoenas is consistent with Respondent's testimony.

9. Absent J. H.'s testimony, it is difficult to determine exactly what, if anything, happened with him and Respondent. The most likely scenario is that J. H. succumbed to the pressures of other students in the class and lied that Respondent had hit him, knowing that the only contact that had

   taken place between Respondent and J. H. was incidental contact during a minor incident of horseplay.

10. Three of the four student witnesses whom Petitioner called to substantiate the charges were unconvincing. The fourth--J. G.--was vague and unable or unwilling to supply evidence against Respondent, whom he described as "the nicest man."

11. Student D. S. testified at the hearing that Respondent ignored the students' questions in class about classroom material, called J. H. "peanut head," called "Jarvis" "bumbleclot," told D. S. that he lacked motivation and was lazy, and told other students that they came to school looking like a "bum." "Bumbleclot" appears to be a derogatory term in a Jamaican patois, although the record does not establish the intended or actual effect that any use of the word would have in Respondent's class.

12. When handed a previous statement, D. S. added to his complaints that Respondent often said "bloody" in class and would . . . like nudge [J. H.], like, hit him in the arm."

    D. S. also recalled that Respondent said "cock-eyed" in class.

    
    

    D. S. admitted that he never heard Respondent threaten to "pop" a student.

13. Discrepancies exist between D. S.'s testimony and his prior statements. First, he initially omitted the most

    significant allegation--that Respondent struck J. H.--and, when he later mentioned it, he downplayed it to a "nudge." Likewise,

    D. S. initially omitted any mention of Respondent's use of "bloody." Also, D. S. never mentioned Respondent's use of "bumbleclot" in his previous statements.

14. D. S.'s testimony establishes the unlikelihood that Respondent actually hit J. H. or that he ever threatened to "pop" a student in class.

15. Student J. P. testified that she heard other students say that Respondent pushed D. V. out the door of the portable classroom after ejecting him from class. Due to J. P.'s admitted failure to have observed the incident, the Administrative Law Judge struck the testimony. However, despite admitting that she did not see this incident, J. P. stated that she went to the office with other students and informed the principal of the incident. J. P. also testified that Respondent often said "bloody" and refused to explain all of an assignment to her after she missed school, which she admitted happened frequently. Lastly, J. P. complained that Respondent issued her a referral for going to the bathroom. In addition to missing school, J. P. was often tardy when returning from various errands, and many times she did not do her work. J. P.'s testimony establishes only that Respondent may have said "bloody" a few times in class.

16. Student J. G. testified that he recalled Respondent using "hell or damn" in class, although, on cross-examination, he denied any recollection of any use of either of these words.

    J. G. testified that he heard Respondent say something about knocking a student into next week, although he could not recall whether the latter comment was made in jest. J. G. added that he saw Respondent give J. H. "a little hit."

17. Student D. V. testified that he saw Respondent hit

    
    

    J. H., although his description of the conversation accompanying the incident was materially different at the hearing than in a previous statement. D. V. testified that Respondent threatened to "pop" students and told them to "shut [their] bloody mouths."

    D. V. added that he asked Respondent one time if he could call his mother to bring his medication for attention deficit disorder, and Respondent denied him permission to make the call.

    D. V. also testified that Respondent, while sitting beside the door, pushed D. V. on the shoulder to get him out of the classroom, and D. V. responded by warning that he would get his sister to "kick [Respondent's] ass."

18. Although D. V.'s testimony is not undermined by the inconsistencies plaguing the testimony of D. S. and J. P., D. V. shares the antipathy of these other two students for Respondent. Each of these students resented Respondent's efforts to discipline and teach them. Each of these students betrayed a

    desire to act in concert to get Respondent in trouble, as they felt he had gotten them into trouble.

19. Respondent called as a witness one student, W. L., who testified forcefully that she heard the other students coercing

    J. H. to say falsely that Respondent had hit him. W. L. testified that the only improper word that she heard Respondent use was "bloody" and that Respondent and J. H. engaged in some horseplay in class.

20. Perhaps the most useful witness was an assistant principal at Silver Lakes Middle School. At the end of the 2001-02 school year, the assistant principal completed an

    evaluation of Respondent in which he assigned him a satisfactory rating, which is the highest, in all categories, including classroom management. It is clear from the testimony of the assistant principal that he gave the complaints of Respondent's students exactly the weight that they deserved.

21. Respondent admitted that he used "bloody" in class, but the record fails to develop the appreciation of his students for the intensity of this word in certain non-American cultures. Respondent admitted that he once used the phrase, "pop you one," but the record fails to develop the context so as to preclude the likelihood that Respondent said these words in jest. Respondent admitted that he used "cock-eyed," "skinny boy," and "bony boy," but, again, the record fails to establish a context

    as to permit a finding that these terms were abusive or disparaging. Respondent, who is black, mentioned that he had been called "black nugget" and "kiwi," but only as part of an effort to develop tolerance for names among students eager to take offense.

22. Respondent ejected D. V. from the classroom for legitimate reasons. According to D. V. himself, any followup contact was with Respondent in the seated position, so as not likely to have been significant. According to another student,

    D. V. grabbed Respondent. At most, the record depicts an angry, disruptive student who has stubbornly refused to comply with his teacher's ejection of him from the classroom, so that other students have a chance to learn.

23. Likewise, D. V.'s complaint that Respondent denied him the chance to call his mother for his attention deficit medication suffers for the lack of context. Undoubtedly, D. V. joined in ongoing efforts to disrupt the class and avoid receiving instruction. The only context for this request provided by the record is that D. V. asked for permission immediately after returning from lunch, when he would have had ample opportunity to call his mother. Although it is possible that D. V. first thought of the missing medication after lunch, it is at least as likely that he thought of the missing

    medication as a convenient excuse to extend his mid-day respite from learning.

24. For the foregoing reasons, Petitioner has failed to prove that Respondent was guilty of misconduct in office, incompetency, or immorality.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

26. Section 231.36(1)(a) provides that professional service contracts, such as Respondent's contract, shall provide for termination for "just cause," which shall include "misconduct in office, incompetency, [or] conviction of a crime involving moral turpitude."

    27. Rule 6B-4.009(1), (2), and (3) provide:

    
    

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    
    

    1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term, an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert

       witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one (1) or more of the following:

       1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

       2. Incapacity: (1) lack of emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

          
          

    2. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

       
       

    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.

1. Petitioner must prove the material allegations by a preponderance of the evidence. Dilleo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

2. Petitioner has failed to prove the material allegations.

RECOMMENDATION

It is

RECOMMENDED that the Broward County School Board enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 2nd day of April, 2003, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

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 2nd day of April, 2003.

COPIES FURNISHED:

Dr. Franklin L. Till, Jr. Superintendent

Broward County School Board 600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel

325 West Gaines Street 1244 Turlington Building

Tallahassee, Florida 32399-0400

Carmen M. Rodriguez

Law Offices of Carmen Rodriguez, P.A. 9245 Southwest 157th Street

Suite 209

Miami, Florida 33157

Mark F. Kelly

Kelly & McKee, P.A. 1718 East 7th Avenue Suite 301

Tampa, Florida 33675-0638

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 02-003154

Orders for Case No: 02-003154