vs.
KRISTOPHER J. HUNTER,
Respondent.
) Case No. 12-2080TTS
On August 14, 2012, a duly-noticed hearing was held in Jacksonville and Tallahassee, Florida, via video teleconference, before F. Scott Boyd, an Administrative Law Judge assigned by the Division of Administrative Hearings.
For Respondent: David A. Hertz, Esquire
Whether Respondent's employment as a teacher by the Duval County School Board should be terminated for the reasons
specified in the Notice of Termination of Employment Contract dated May 8, 2012.
Petitioner sent a Notice of Termination of Employment Contract and Immediate Suspension without Pay to Respondent, advising him of the alleged grounds for termination, and of his right to an administrative hearing. On June 4, 2012, Respondent requested an administrative hearing. The matter was referred to the Division of Administrative Hearings ("DOAH") for the assignment of an administrative law judge on June 14, 2012. The case was scheduled for final hearing on August 14, 2012.
The parties entered into a stipulation, which was accepted at hearing. Petitioner presented the testimony of three witnesses: Mr. Gary Mericle, the Site Director of the Day Treatment Program in which Respondent worked; Ms. Edna Lee, Para-Professional in the Day Treatment Program and Respondent's assistant; and Ms. Sonita Young, Chief Human Resources Officer for Duval County Schools. Petitioner offered Exhibits P-1 through P-4, P-7, and P-9, which were admitted into evidence without objection. Respondent, an Exceptional Student Education teacher, testified on his own behalf and offered Exhibit R-1, a demonstrative diagram of Respondent's classroom, which was admitted without objection.
The Transcript of the hearing was filed at DOAH on August 28, 2012. Petitioner filed an Unopposed Motion for Ten Day Extension of Time to File Proposed Recommended Orders on
August 30, 2012. This Motion was granted and the deadline was extended to September 14, 2012. On September 11, 2012, a Notice of Intent to Take Official Recognition of a 1998 special law, some 1997 statutes incorporated therein, and a case on incorporation by reference was filed by the undersigned, affording each party an opportunity to present information relevant to the propriety of taking official recognition and to the nature of the matter recognized. Proposed Recommended Orders were timely filed by both parties and were considered.
The Duval County School Board is charged with the responsibility to operate, control, and supervise all free public schools within the School District of Duval County, Florida.
Mr. Kristopher J. Hunter has been employed by the Duval County School Board as an Exceptional Student Education (ESE) teacher since 2006. He is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended (Tenure Act) and the Collective Bargaining Agreement between Duval Teachers United and the School Board for 2009-2011. At the time of the events
at issue in this proceeding, Mr. Hunter was assigned to Arlington Middle School.
Mr. Hunter was born in Florida in 1977. He attended college at the University of Virginia, graduating in three years with a degree in Geography. He played professional basketball for about six years. He then returned to school and received a teaching degree from the University of North Florida. He began teaching at Arlington Middle School in the Duval County School District in 2006. He was teaching as an ESE teacher, successfully working with children with a range of cognitive and physical disabilities integrated into the least restrictive environment, that is, the regular school classroom environment.
At the beginning of the 2011-2012 school year, Mr. Hunter was assigned to a classroom in the Day Treatment Program (DTP). The DTP is the most restrictive environment offered at Arlington Middle School for ESE students. The program is housed in a separate building at the back of the
school, and has five teachers and 22 students. The students assigned to DTP are those with the most severe emotional and behavioral disorders, and Mr. Hunter's previous ESE experience did not include working with students of this type. Although his ESE qualification covered working with these students,
Mr. Hunter felt unprepared.
The DTP teachers have access to an "intervention room" and four "time out" rooms contained within the intervention room if it becomes necessary to remove a student from their classroom because of a high magnitude disruption. The teacher can call, and staff from the intervention room will respond to help remove the disruptive student.
Mr. Gary Mericle is the Site Director for DTP, responsible for the overall administration of the program. He has taught Physical Education for about 12 years and is also the Athletic Director. He is not ESE certified, but has administered the DTP for three years. Mr. Mericle is trained in Professional Crisis Management (PCM), including the use of three techniques designed to gain control of a disruptive student in a safe, efficient, and secure manner to minimize danger to the student and others. The "wrist–triceps" hold is the simplest method to obtain basic physical control over a student; the "Sunday stroll" technique is a bit more secure; while the "bar procedure" is the most difficult to effect, but results in the student being immobilized in a prone position, and so is appropriate for the most violent situations.
Each ESE teacher in DTP has a para-professional assistant in their classroom. Ms. Edna Lee is assigned as Mr. Hunter's assistant. Ms. Lee has 14 years of experience in ESE and has been working with the most severely disabled
students for the last six or seven years. She has experienced highly disruptive behavior and violence on numerous occasions and has been trained in PCM.
R.J. is an ESE student who was transferred into DTP at Arlington prior to the Christmas break. His behavior is erratic and unpredictable. R.J. is calm some days, but at other times he engages in violent behaviors, throwing any items within his reach in a room. Mr. Hunter was aware of these behaviors in R.J., but had never experienced them in his own classroom, although R.J. did "act out" in other ways "every single day."
Sometime after the Christmas school break, Mr. Hunter was trained in the PCM techniques described above for the first time. Training for the school personnel had been staggered so that everyone would not be away from their duties at the same time. After his training and before the incident involving R.J. which led to this proceeding, Mr. Hunter had had occasion to use both the "wrist-triceps" and "Sunday stroll" techniques.
Mr. Mericle was aware that Mr. Hunter had completed this training and had seen Mr. Hunter employ those tactics to manage disorderly students.
In the early afternoon of April 2, 2012, R.J., who had been released from a voluntary "time out" in the intervention room, entered Mr. Hunter's classroom through the door at the lower-right corner1/ of the room. When he entered, Mr. Hunter
was seated at his desk in the upper-left corner of the classroom, diagonally across from the door through which R.J. entered. Ms. Lee was seated at her desk in the upper-right corner of the room straight ahead of R.J. In the middle of the room were nine student desks, arrayed roughly in a square formation.
Ms. Lee testified that as soon as R.J. entered the room, she could see that he was in an agitated state. Another student may have been in the room when R.J. first entered, but immediately left,2/ leaving only Mr. Hunter, Ms. Lee and R.J. in the classroom. R.J. began walking toward Ms. Lee, going to a computer set up on a table against the right hand wall. When he was unable to sign on at the computer because it was locked, he became even more upset, cursing and kicking the chair.
Ms. Lee asked R.J. what was wrong, but he did not respond. He grabbed a fistful of pens or pencils and began to throw them. Mr. Hunter asked him to stop, and when he did not, Mr. Hunter warned him that he would have to call intervention. R.J.'s behavior continued, and Mr. Hunter used his walkie-talkie to call Mr. Mericle in intervention and asked him to come to the classroom.
Mr. Mericle immediately responded to the call. There was no physical contact between Mr. Hunter and R.J. prior to the time Mr. Mericle entered the room. When Mr. Mericle entered,
R.J. was out of control, throwing pencils, books, and other items. Mr. Hunter and Ms. Lee were still at their desks. After observing R.J. for only a moment, Mr. Mericle concluded that his behavior constituted a high magnitude disruption, and that R.J. needed to be escorted back to intervention. At this time R.J. was moving generally in a counter-clockwise direction around the room, on the outside of the student desks. He had been throwing pencils at the window above Mr. Hunter's desk, and some of these pencils had bounced off the windows and had hit Mr. Hunter.
Mr. Mericle had responded alone because they were short-handed in intervention. Mr. Mericle went to Mr. Hunter's desk and asked for his help to restrain R.J. Mr. Mericle had dealt with R.J. before under similar circumstances and believed that R.J. could be restrained fairly easily with the "wrist- triceps" hold, in which two people approach the disruptive student from each side, securing the student's wrist with their outside hand and placing their inside hand on the underside of the student's upper arm. R.J. was of slight build, about five feet, eight inches tall, and weighing about 140 pounds.
Mr. Hunter is a big man, about six feet, 10 inches tall, and weighing about 290 pounds. Mr. Mericle believed that R.J. could easily be restrained.
R.J. was continuing his counter-clockwise walk around the room, now going down the left side of the room opposite the
computers, and turning onto the base wall of the room which contained the door where he had originally entered. As he reached the counter against this base wall, he began to run his arm across the top of it, scraping all of the items that were sitting on the counter off onto the floor. He picked up a soap dispenser and threw it. Mr. Mericle and Mr. Hunter were approaching him from behind, and caught up with him as he was about ten feet away from the wall containing the computers, when
R.J. was almost back to the point at which he had first entered the room.
Just as Mr. Mericle was about to draw even with R.J. on R.J's left side and was reaching for his left arm, R.J. shot forward at a high rate of speed, slammed into the wall straight in front of him, and then slid down and collapsed to the floor. Ms. Lee testified that Mr. Hunter, who had been approaching R.J. from behind on R.J.'s right side, had raised his right foot and shoved it into R.J.'s lower back, propelling R.J. into the wall. Ms. Lee testified that while R.J. had been propelled into the wall from the push, that she believed R.J. was exaggerating the effect of the push, because the effect on R.J. was overdone, like "bad acting." Mr. Hunter then quickly followed R.J., picked him up off the floor by his shirt or shoulders, lifted him completely off of the floor, shook him, and slammed his back against the wall with R.J.'s face held above Mr. Hunter's head.
Mr. Mericle said that he heard R.J.'s head hit the wall behind him. Ms. Lee stated that Mr. Hunter said to R.J. in a loud voice, "You can't come in my room doing this." When Mr. Hunter released him, R.J. dropped to the floor, and then got up and left the room. Mr. Mericle went after R.J., saying, "I've got him, I've got him." Ms. Lee testified that she found
Mr. Hunter's actions to be "very shocking."
Mr. Mericle followed R.J., who went to the front of the school. The School Resource Officer (SRO) was there and
Mr. Mericle told the SRO what had happened before continuing his pursuit. Mr. Mericle caught up with R.J. on the softball field. He asked R.J. to return to the DTP building with him. R.J. went calmly, without any use of PCM.
R.J. was subsequently transported by Jacksonville Fire Rescue to Shands Medical Center. There was no evidence at hearing of any serious injury.
Mr. Hunter's version of events was slightly different.
He testified that he stuck his foot out and that R.J. tripped. He stated that R.J. was holding a pencil like a knife in a threatening manner, and that this was the reason Mr. Hunter then grabbed R.J. and lifted him up against the wall. Mr. Hunter said that R.J. calmed down when he was lifted off of the floor and that Mr. Hunter then lowered R.J. back to the floor.
Mr. Hunter testified that he never intended to harm R.J. and
that he was just trying to get control of the situation.
Mr. Hunter testified that R.J. could have hurt anyone in the room or even himself. Mr. Hunter admitted that his actions, even as he had described them, were not appropriate.
Ms. Lee was a credible witness whose demeanor suggested that she did not wish to cause Mr. Hunter trouble. She relayed the facts as she saw them, while giving every benefit to Mr. Hunter in her own interpretation of those facts. Her testimony that Mr. Hunter kicked R.J. into the wall is credited. Ms. Lee's conclusion that Mr. Hunter "didn't lose control, but was only trying to get R.J.'s attention" seems quite charitable, however. In any event, it is not acceptable to kick students or lift them off the ground and slam them against a wall to "get their attention."
Mr. Hunter's suggestion that his actions were motivated in part by defensive or safety concerns because R.J. was wielding a pencil is discredited. Neither Ms. Lee nor
Mr. Mericle, both of whom were closely watching R.J., saw a pencil displayed in a threatening manner. Even if a pencil had been wielded as a weapon, the response was completely inappropriate. At all relevant times during this incident, there were three PCM trained adults in the room with a single ESE middle school student. Mr. Hunter did not cooperate with Mr. Mericle's efforts to use approved techniques. Shoving a
student or picking him up and slamming him against a wall are inconsistent with the sanctioned procedures designed to defuse high magnitude disruptions in a safe and secure fashion.
Mr. Hunter, provoked by R.J.'s behaviors, used physical force against R.J. in frustration and anger. Mr. Hunter did not intend to physically hurt R.J., but acted inappropriately to get
R.J. under control.
Ms. Sonita Young is the Chief Human Resources Officer for Duval County Schools. In determining the appropriate action to recommend to the Superintendent in this case, Ms. Young considered the progressive discipline policy reflected in the Collective Bargaining Agreement. Ms. Young testified that she discussed the matter with others, and that she concluded that termination was appropriate even though Mr. Hunter had not had the various steps of progressive discipline imposed on him earlier, because of the severe behavior in this incident.
On May 8, 2012, a Notice of Termination of Employment Contract and Immediate Suspension Without Pay was sent to
Mr. Hunter.
On May 9, 2012, Mr. Hunter was arrested on felony child abuse charges based on the incident. Subsequently, on or about June 15, 2012, Mr. Hunter voluntarily entered and was accepted into a pretrial diversionary program in regard to his May 9, 2012, arrest.
Prior to the incident described in the May 8, 2012, termination letter, Mr. Hunter had been informed and was aware that Duval County School Board policies prohibited the conduct described therein.
Prior to the incident described in the May 8, 2012, termination letter, Mr. Hunter had been informed and was aware that the State Educator's Code of Ethics and Principles of Professional Conduct of the Education Profession prohibited the conduct described therein.
Respondent's demonstrated inability to follow prescribed protocols and his resort to physical force in dealing with an ESE student in frustration and anger impairs his effectiveness in the school system.
Respondent's misconduct in office constitutes just cause to terminate his employment as a teacher.
CONCLUSIONS OF LAW
The Division of Administrative Hearings (DOAH) has jurisdiction over the subject matter and parties in this case, pursuant to Section 5 of the Duval County Teacher Tenure Act, chapter 21197, Laws of Florida (1941), as amended, (Tenure Act) providing for chapter 120 hearing procedures. Consistent with the Tenure Act, and pursuant to section 120.65(11), Florida Statutes (2012), the Duval County School Board has contracted with DOAH to conduct these hearings.
Respondent completed over three years of employment with the Duval County School Board, was no longer in his probationary period, and was a tenured teacher within the meaning of the Tenure Act.
Petitioner seeks to terminate Respondent's employment, which does not involve the loss of a license or certification, therefore, Petitioner has the burden of proving the allegations in its Notice of Termination by a preponderance of the evidence, as opposed to the more stringent standard of clear and convincing evidence. See McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883, 884 (Fla. 3d DCA 1990).
Applicable Law
As agreed by the parties, the Tenure Act applies in this case, and takes precedence over provisions of general law on the same subject. See Alford v. Duval Cnty. Sch. Bd., 324 So. 2d 174, 177 (Fla. 1st DCA 1975); Muldrow v. Bd of Pub. Inst., 189 So. 2d 414, 415 (Fla. 1st DCA 1966); Harley v. Bd. of Pub. Inst., 103 So. 2d 111, 112 (Fla. 1958).
Another special act, chapter 98-468, Laws of Florida, similarly applies. It provides in pertinent part:
Notwithstanding any special act that applies to Duval County, sections 231.29 and 231.36,
Florida Statutes, as amended by chapter 97- 310, Laws of Florida, apply to school district personnel in Duval County; however, persons employed continuously by the district school board of Duval County before July 1, 1998, may retain all rights that they have under chapter 21197, Laws of Florida, 1941, as amended.
Chapter 98-468, Laws of Florida, does not repeal the Tenure Act, but instead expressly provides that two statutes dealing with teacher assessments and with contracts with instructional staff, supervisors, and principals (particularly including grounds for dismissal) apply to all subsequently hired school district personnel in Duval County, notwithstanding the Tenure Act. These provisions supersede provisions of the Tenure Act on the same subjects as to such new personnel. However, individuals continuously employed prior to July 1, 1998 are "grandfathered" in, and for them, the provisions of the Tenure Act on assessments and contracts continue to be applicable.
The referenced provisions of sections 231.29 and 231.36, Florida Statutes (1997), were subsequently amended by chapters 98-163, 99-398, 2000-301, 2001-90, and 2001-47, Laws of Florida, before these two statutes were ultimately repealed and replaced with sections 1012.34 and 1012.33, Florida Statutes, in 2002. See chap. 2002-387, Laws of Fla.
However, these subsequent amendments and repeals did not affect the interpretation of chapter 98-468. When a special act adopts the whole or part of statutes by specific reference, such adoption takes the referenced statutes as they existed at the time of adoption, and does not include any subsequent amendments or repeals. State v. J.R.M., 388 So. 2d 1227, 1229 (Fla. 1980). Chapter 98-468 is the effective law, and its incorporation by reference of two statutory provisions as they read in 1997 survives the repeal of those referenced statutes. State ex rel. City of Casselberry v. Mager, 356 So. 2d 267, 268
n.3 (Fla. 1978)("The fact that § 120.31 has been repealed, however, does not render its provisions ineffective for the purposes of § 171.081. We have held that the repeal of one statute which the Legislature has by reference incorporated into another will not affect the referencing statute."). In other words, under incorporation by reference doctrine, the specifically referenced provisions of sections 231.29 and 231.36 as they read in 1997 remain as much a part of the 1998 special act as if their entire text had been written out within the special act verbatim. Hecht v. Shaw, 151 So. 333 (Fla. 1933)("A statute may adopt a part or all of another statute by specific and descriptive reference thereto, and the effect is the same as if the statute or the part thereof adopted had been written into the adopted statute.").
In applying the terms of the 1998 special act to the facts of this case, two factors should be noted. First, it is clear that the proviso language appearing after the semicolon in the 1998 special act, which "grandfathers in" some employees, has no application in this case. The evidence indicates that Respondent began employment with the Duval County School Board in about 2006. Since he was not employed continuously by the Duval County School Board before July 1, 1998, he is covered by provisions parallel to those of the 1997 statutes to the extent they conflict with any provisions of the Tenure Act.
Second, the 1998 special act contains its own definition of "just cause" for dismissal of a teacher. In pertinent part, section 321.36, Florida Statutes, read in 1997, and so the special act reads now:
All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.
These provisions, setting forth the grounds of dismissal applicable to Mr. Hunter, differ slightly from both the grounds set forth in the Tenure Act3/ and from the grounds set forth in section 1012.33(1)(a), Florida Statutes (2011).4/
Charges and Specifications
The Notice of Termination, however, alleges that Respondent's conduct violated the definition of "just cause" contained in section 1012.33(1)(a). It also asserts that Respondent has specifically violated certain provisions of the Code of Ethics and a Principle of Professional Conduct for the Education Profession in Florida. These provisions have been incorporated in Florida Administrative Code Rule 6A-5.056(3), adopted by the State Board of Education to define "misconduct in office." But as discussed above, the provisions of section 1012.33(1)(a) have no applicability, and must give way to the similar provisions on the same subject contained in the 1998 special act, paralleling section 321.36 (1997).
The Notice of Termination also alleges that Respondent violated two statutes, sections 1012.795(1)(g) and (1)(j), Florida Statutes, which set forth grounds for the Educational Practices Commission to suspend or revoke a teaching certificate. These charges are essentially duplicative, and are not statutes directly applicable to teacher termination by a school board.
Respondent was not technically charged with a violation of chapter 98-468, Laws of Florida or the 1997 statutes it incorporates by reference.
Although the specifications in the Notice of Termination are technically deficient for this reason, it is well settled that an administrative complaint need not be cast with that degree of technical nicety required in a criminal prosecution. Libby Investigations v. Dep't of State, 685 So. 2d
69 (Fla. 1st DCA 1996). An administrative complaint must only state the acts complained of with sufficient specificity to allow an applicant a fair chance to prepare a defense. Davis v. Dep't of Prof. Reg., 457 So. 2d 1074 (Fla. 1st DCA 1984). The specifications certainly might have been crafted with more legal precision, but the allegation that Respondent's conduct constituted just cause for dismissal was clear, especially in light of the description of the physical altercation that took place on April 2, 2012. As noted earlier, the applicable provisions of the 1998 special act are substantially similar to those that were actually alleged in the charges and specifications.
Misconduct in Office
Petitioner did not cite a specific element of the applicable definition of "just cause" contained in section
231.36 (1997) as the basis for termination. However, Petitioner has not argued, and there is no evidence to suggest, that Respondent's actions in this case constitute incompetency, gross
insubordination, or willful neglect of duty, or that Respondent was convicted of a crime involving moral turpitude.
Further, the specific provisions of the Code of Ethics and Principle of Professional Conduct for the Education Profession with which Respondent was technically charged are elements of the definition of misconduct in office as defined by the State Board of Education, as noted above. Respondent was clearly advised that he was being charged with misconduct in office constituting just cause for dismissal. Respondent was not prejudiced in preparing his defense.
The issue, then, is whether or not Respondent's conduct is "misconduct in office" constituting just cause to terminate his employment under the 1998 special act.
In Dietz v. Lee County School Board, 647 So. 2d 217 (Fla. 2nd DCA 1994), Judge Blue (specially concurring) stated the following:
I agree section 231.36, Florida Statutes (1991), provides no objective standard by which school boards are required to judge the conduct of instructional staff, resulting in school boards exercising a nearly pure subjective analysis when deciding to terminate a teacher during the term of a professional service contract. I write because I am not sure the legislature intended to endow school boards with this absolute discretion. If not, section 231.36 should be amended to clarify the conduct that would warrant the dismissal of teachers holding a professional services contract.
Perhaps partially in response to the concerns expressed by Judge Blue, the Florida Legislature amended section
231.36 a few years later. See chap. 99-398, Laws of Fla. "The 1999 amendment took from local school boards the 'absolute discretion' to define just cause as it relates to the dismissal of instructional staff during the term of the employee's professional services contract and vested with the State Board of Education the authority to define by rule what constitutes just cause." Manatee Cnty. Sch. Bd. v. Wampole, Case No. 12- 0801TTS (Fla. DOAH Aug. 16, 2012).
Incorporating the 1997 version of section 231.36 as it does, the 1998 special act does not legally require the Duval County School Board to apply definitions adopted by the State Board of Education. However, though not bound by these definitions, it wisely may choose to consider them when exercising its own "absolute" authority to determine what conduct constitutes "misconduct in office." While not directly applicable, the standards governing most teachers similarly situated throughout the state may be persuasive to the County.
State Board of Education Rule 6A-5.056(3) provides, "Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in rule 6B-1.006,
F.A.C., which is so serious as to impair the individual's effectiveness in the school system."
Rule 6B-1.001 is entitled Code of Ethics of the Education Profession in Florida, and provides:
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Rule 6B-1.006 is entitled Principles of Professional Conduct for the Education Profession in Florida, and provides in relevant part:
Obligation to the student requires that the individual:
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.
While by its terms rule 6A-5.056(3) requires that conduct be shown to violate both the Ethics Code and the Principles of Professional Conduct, it has been noted that the precepts set forth in the Ethics Code are "so general and so obviously aspirational as to be of little practical use in defining normative behavior." Miami-Dade Cnty. Sch. Bd. v.
Brenes, Case No. 06-1758 (Fla. DOAH Feb. 27, 2007; Miami-Dade Cnty. Sch. Bd. Apr. 25, 2007). Attention should therefore be directed toward any violation of the Principles of Professional Conduct for the Education Profession in Florida, because violations of these specific Principles would necessarily also violate the more general and aspirational Code of Ethics.
It is axiomatic that the duty of a teacher to protect students from conditions "harmful to their physical health or safety" is completely breached when it is the "protecting" teacher who resorts to physical acts against a student. Respondent's acts of shoving R.J. against the wall with his foot, and then picking R.J. up by his shoulders, shaking him, and slamming him against the wall are actions which clearly violate this Principle of Professional Conduct for the Education Profession in Florida. Numerous cases involving School Boards or the Educational Practices Commission have found physical acts against students to constitute violations of this Principle. Duval Cnty. Sch. Bd. v. Brown, Case No. 11-1040 (Fla. DOAH
Sept. 12, 2011; Duval Cnty. Sch. Bd. Nov. 16, 2011)(striking of student in hallway by teacher was violation of rule 6B- 1.006(3)(a)); Castor v. Likins, Case No. 93-0045 (Fla. DOAH Sept. 23, 1993; Commn. Of Educ. Oct. 6, 1995)(teacher's act of grabbing student by the feet and pulling him from under the teacher's desk that resulted in injury violated rule 6B- 1.006(3)(a) and failed to protect student from harm); Sch. Bd. of Dade Cnty. v. Glansberg, Case No. 91-6338 (Fla. DOAH July 17, Sch. Bd. of Dade Cnty. Aug. 25, 1992)(striking student with piece of wood on buttocks in forceful manner in anger and frustration violated rule 6B-1.006(3)(a)).
A violation of a Principle of Professional Conduct for the Education Profession in Florida does not necessarily constitute misconduct in office or just cause for dismissal, however, unless it is "so serious as to impair the individual's effectiveness in the school system." Rule § 6A-5.056(3); MacMillan v. Nassau Cnty. Sch. Bd., 629 So. 2d 226, 230 (Fla. 1st DCA 1993).
While no direct testimony regarding impairment of effectiveness was presented at hearing, impairment may be shown in some instances simply from the nature of the misconduct. Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d 492 (Fla. 5th DCA 2000)(lying under oath and resisting arrest was misconduct that supported inference that effectiveness was impaired); Walker v.
Highlands Cnty. Sch. Bd., 752 So. 2d 127 (Fla. 2d DCA 2000)(commotion in class, including intoxicated student, showed class was out of control such that no evidence of impaired effectiveness was necessary, misconduct "spoke for itself"); Summers v. Sch. Bd. of Marion Cnty., 666 So. 2d 175, 175 (Fla. 5th DCA 1995)(though no specific evidence presented, it was clear that conduct must have impaired effectiveness as a teacher). It is not difficult to conclude from the evidence presented that Respondent's demonstrated inability to follow prescribed protocols in dealing with an exceptional education student and his resort to physical force against a student in frustration and anger impairs his effectiveness in the school system.
Termination of Contract
It is also clear that the use of physical force against a student is adequate grounds for termination of contract. Lee Cnty. Sch. Bd. v. Strawder, Case No. 08-5085 (Fla. DOAH Apr. 13, 2009; Lee Cnty. Sch. Bd. May 8, 2009)(striking of student by food service worker was misconduct in violation of rule 6B-1.006(3)(a) and just cause for termination); Miami-Dade Cnty. Sch. Bd. v. Moore, Case No.
03-3102 (Fla. DOAH Dec. 30, 2004; Miami –Dade Cnty. Sch. Bd. Feb. 22, 2005)(inappropriate physical restraint of students was misconduct in office and just cause for termination); Miami-Dade
Cnty. Sch. Bd. v. Wilner Saint Juste, Case No. 00-2937 (Fla. DOAH July 18, 2001; Miami-Dade Cnty. Sch. Bd. Aug. 22, 2001)(pushing, grabbing and choking of student was misconduct which impaired effectiveness and warranted termination of contract); Orange County School Board v. Bingham, Case No. 92- 3138 (Fla. DOAH Aug. 27, 1993; Orange Cnty. Sch. Bd. Nov. 11 1993)(shoving of student into locker after receiving directives regarding maintaining class order caused school board to lose confidence in Respondent's effectiveness as a teacher and justified Respondent's termination); Sch. Bd. of Dade Cnty. v. Rodgers, Case No. 90-6675 (Fla. DOAH Apr. 29, 1991; Sch. Bd. of Dade Cnty. May 22, 1991)(teacher's abusive corporal discipline of her own foster child on school grounds was misconduct in office and just cause for termination of professional services contract).
Progressive Discipline
Respondent argues, however, that even if termination might otherwise be appropriate, it cannot be imposed in this case because there has been no progressive discipline of Respondent.
Article V. D. 1 of the Collective Bargaining Agreement applicable to Respondent's employment, entitled Progressive Discipline Policy, provides in relevant part as follows:
The following progressive steps must be followed in administering discipline, it being understood, however, that some more severe acts of misconduct may warrant circumventing the established procedure:
Verbal Reprimand
No written conference summary is placed in personnel file
Employees must be told that a verbal reprimand initiates the discipline process
Written Reprimand
Suspension without Pay
Termination
No evidence was presented at hearing to indicate that Mr. Hunter was progressively disciplined. Petitioner contends that this case comes within the specified exception for "severe acts of misconduct," and that termination is therefore justified.
Protection of the health and safety of the students entrusted to their care is perhaps the most fundamental duty of instructional personnel in the public schools. When that duty has been breached through a teacher's acts of physical force against a student because of frustration and anger, there can be no doubt that this constitutes a "severe act of misconduct" to warrant circumvention of the "progressive discipline" policy within the meaning of the Collective Bargaining Agreement.
Petitioner established that Respondent is guilty of misconduct in office constituting just cause for dismissal pursuant to the 1998 special act governing Duval County School Board teachers not continuously employed prior to July 1, 1998.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED
That the Duval County School Board enter a final order terminating the employment contract of Kristopher J. Hunter as a teacher.
DONE AND ENTERED this 3rd day of October, 2012, in Tallahassee, Leon County, Florida.
F. SCOTT BOYD Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2012.
1/ Descriptions of locations and directions in the room are made with reference to Respondent's Exhibit R-1, a not-to-scale diagram entered into evidence to assist in visualizing the events that took place.
2/ Contrary to the testimony of Ms. Lee, Mr. Hunter testified that another student was in the room when R.J. first entered, but then immediately left. However, it is undisputed that no one other than R.J., Ms. Lee, and Mr. Hunter was in the room at the time of Mr. Hunter's actions.
3/ Section 4 of the Tenure Act provides in relevant part that discharge may be imposed for "persistent violation of or willful refusal to obey the laws of the State of Florida or regulations adopted by authority of law, relating to the public schools or the public school system" as well as immoral character, excessive absence, dishonesty, or professional incompetency.
4/ Section 1012.33(1)(a), as quoted in the Notification of Termination, provides:
Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
Additional provisions applicable to contracts entered into, extended, or readopted on or after July 1, 2011, that address annual performance evaluation ratings are not involved here.
David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard
William E. Pratt-Dannals Superintendent of Schools Duval County Public Schools 1701 Prudential Drive
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.
