01-002354 Palm Beach County School Board vs. Anthony Howard Status: Closed Recommended Order on Monday, February 4, 2002.

Summary: Use of excessive force by an education support employee constituted misconduct and justified termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2354

)

ANTHONY HOWARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice , a final hearing was conducted on

October 25, 2001, at West Palm Beach, Florida, before Claude B.

Arrington, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alan M. Aronson, Esquir e

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

For Respondent: Jason Steven Dalley, Esquire

Anderson & Dalley, L.L.P.

Harvey Building, Suite 515

224 Datura Street

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Petitioner has just cause to terminate the

Respondent's employmen t as an educational support employee.

PRELIMINARY STATEMENT

Respondent was employed as a behavioral interventionist at

Forest Hill High School (Forest Hill) until Petitioner suspended

his employment without pay on May 16, 2001, and instituted this

pro ceeding to terminate his employment. Petitioner charged that

Respondent engaged in unprofessional conduct or, in the

alternative, committed acts that constitute misconduct or

engaged in behavior exhibiting less than minimum standards for

good moral charac ter. 1 The gravamen of Petitioner's charges is

that Respondent used inappropriate physical force on a student,

which constitutes misconduct and provides just cause to

terminate his employment. Respondent timely requested a formal

administrative hearing, t he matter was referred to the Division

of Administrative Hearings, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of

five witnesses: Student 1 (the student who is the alleged

victim), Student 2, Student 3, Marc Sago vac (an Assistant

Principal at Forest Hill), and Wilfred P. LaChance, (Director of

Petitioner's Office of Professional Standards). Petitioner

presented one composite Exhibit, which was admitted into

evidence as Petitioner's Composite Exhibit 1. Responden t

testified on his own behalf, but he presented no additional

witnesses. Respondent offered three sequentially numbered

exhibits, each of which was admitted into evidence as

Respondent's Exhibits 1 - 3.

A Transcript of the proceedings was filed on Novemb er 13,

2001. Each party filed a Proposed Recommended Order, which has

been duly considered by the undersigned in the preparation of

this Recommended Order. 2

FINDINGS OF FACT

1. Respondent was employed as a behavioral interventionist

with the Palm Beach County School District during the 2000 - 2001

school year. A behavioral interventionist is a non -

instructional employee who works primarily with students

receiving services through Petitioner's Exceptional Student

Education (ESE) Programs. In addition to monitoring performance

and behavior of ESE students, Respondent supervised regular

education students who were serving in - house suspensions,

performed bus and cafeteria duty, and helped maintain discipline

throughout the campus. Respondent also served as an assistant

football coach.

2. Respondent received specialized training in order to

perform his duties as a behavioral interventionist. He received

child development training and attended approximately 12 - 13

workshops dealing with physical restraint a nd conflict

resolution issues.

3. Respondent is not a member of a collective bargaining

unit.

4. At the times pertinent to this proceeding, Student 1, a

male, was 17 - years old and a junior at Forest Hill. Student 1

is 5'10" tall and weighs approxima tely 260 pounds. Respondent

is 6'3" tall and weighs approximately 250 pounds. Respondent is

a former professional football player who routinely lifts

weights.

5. On December 11, 2000, between 4:30 p.m. and 5:00 p.m.,

Student 1 was in the area of the o utdoor basketball court

watching a basketball game. Student 1 had permission to be on

the campus of Forest Hill, but he should not have been in the

area of the outdoor basketball court.

6. Respondent was in the weight room at Forrest Hill that

afternoo n demonstrating weight lifting techniques to a group of

his football players. After he completed his weight lifting

workout, Respondent went to the outdoor basketball court to play

basketball. Respondent began playing basketball with a group of

students, including students who did not play football. Student

1 could have played if he had wanted to do so.

7. Student 1 was not playing when the acts at issue in

this proceeding occurred. Shortly after the game began, Student

1 was standing off the basketb all court observing the game when

the basketball ball was thrown out of bounds near him.

Respondent walked up to Student 1 and said, "why don't you get

the ball fat boy?" In response, Student 1 used profane language

and was disrespectful towards Responde nt. Respondent reacted by

tapping Student 1 on the cheek with his open hand.

8. Student 1 asked Respondent why he hit him, but received

no response. As Student 1 attempted to walk away, Respondent

tapped him again on the back of the head and the two ex changed

words. Respondent was not justified in making physical contact

with Student 1.

9. Student 1 again addressed Respondent using profane

language. Respondent reacted by taking Student 1 to the ground

using a technique that he had been trained to u se to restrain

students. There was a conflict in the evidence as to whether

Respondent placed Student 1 in a chokehold when he took him to

the ground. The greater weight of the credible evidence

established that Respondent did not use a chokehold on

Stud ent 1.

10. There was also a conflict in the evidence as to

whether Student 1 had become aggressive and whether Respondent

was merely trying to restrain Student 1. The evidence is clear

that Respondent physically restrained Student 1 because Student

1 h ad been disrespectful towards him, not because Student 1 had

become combative. Respondent was not justified in physically

restraining Student 1.

11. Student 1 was on the ground when Respondent released

him from the restraining hold. As Student 1 was a ttempting to

rise, Respondent hit him with his forearm, which forced

Student 1 back to the ground. Witnesses at the basketball court

told Student 1 to stay down, but he attempted to rise and saw

Respondent in a three - point position typically assumed by

fo otball linemen. Almost immediately, Respondent came at

Student 1 again and forearmed him back to the ground.

12. Student 1 fell back to the ground, biting his tongue

as he went down. He then got up and began cursing.

13. After an interval of a few minu tes, Student 1 asked

Respondent why he had hit him and began to spit in the general

direction of Respondent. Respondent, believing that Student 1

was spitting at him, grabbed him in the area of the neck and

forced him against the fence surrounding the bas ketball court.

Respondent told Student 1, "Don't play with me boy, I'm not a

kid." Respondent was not justified in that use of force against

Student 1.

14. The incident lasted over a period of several minutes.

Student 2 was present during the entire incident and Student 3

was present during the latter part of the incident (when

Respondent grabbed Student 1 by the neck and forced him against

the fence). Both witnesses corroborated Student 1's version of

the events. No other student witnesses testifie d at the final

hearing.

15. Student 1 complained that afternoon to a coach named

Coleman about what had occurred and he also told his mother

later that evening when he got home. Student 1 complained to

his mother that his neck hurt and she took him to a hospital,

where he was diagnosed with a sprained neck.

16. On December 12, 2000, Student 1 and his mother

returned to the school and complained to Assistant Principal

Mark Sagovac, about what happened the afternoon before.

Mr. Sagovac thereafter spoke w ith Respondent, who did not deny

the incident had occurred.

17. Respondent admitted to Mr. Sagovac that he called

Student 1 a "fat boy" and asked him to get the ball, which had

rolled out of bounds. Respondent further told Mr. Sagovac that

he pushed Stud ent 1 to the ground with his forearm and forced

Student 1 up against the fence because he felt Student 1 was

threatening him.

18. After speaking with Respondent, Mr. Sagovac

interviewed Student 1 again and spoke to other witnesses. Some

time thereafter a meeting was held between Student 1, his

mother, Respondent, Mr. Sagovac, and Assistant Principal Green,

who is also an assistant principal assigned to Forest Hill. The

incident was discussed again and at one point, Respondent

apologized to Student 1 and his mother.

19. After the meeting concluded, Mr. Sagovac issued to

Respondent a verbal reprimand with written notation for the

actions he took on December 11, 2000. Prior to serving the

Respondent with the verbal reprimand with written notation,

Sagovac did not consult with his principal or anyone in the

Petitioner 's Personnel Office or Office of Professional

Standards to determine if he was complying with policy or if he

was following accepted personnel practice concerning the

contemplated discipline. Mr. Sagovac was not complying with

school policy when he issued the verbal reprimand with written

notation. Mr. Sagovac did not have the authority to discipline

Respondent.

20. Shortly after the conclusion of the meeting attended

by Student 1, his mo ther, Respondent, and Mr. Sagovac , a

complaint was made to the school district's police department

concerning the December 11, 2000, incident. Based upon the

complaint, a criminal investigation into Respondent's actions

was initiated. There was no eviden ce as to the status of any

criminal charges presented at the final hearing.

21. Petitioner's Office of Professional Standards received

information concerning the criminal investigation, which caused

it to open its own administrative investigation.

22. After the Office of Professional Standards received

the police report and the attached documents, the case was

assigned to an investigator.

23. During the Petitioner's investigation, Respondent was

placed on administrative leave with pay and assigned to duty at

his home. This assignment became effective February 1, 2001.

24. After Petitioner's Office of Professional Standards

completed its investigation, it prepared a report of the

incident and, consistent with its rules, submitted the case for

review to a case management committee. Case management review

is a process whereby approximately a dozen high level employees

working for the district meet at the direction of the

Superintendent to review pending personnel cases which may

result in the suspensio n of employment without pay or the

termination of employment.

25. Respondent's case management committee determined that

probable cause existed to sustain the allegation Respondent used

inappropriate physical force on the student in question. Once

prob able cause was found, it further determined that the level

of the force used warranted a recommendation that Respondent's

employment be terminated.

26. Based upon the case management committee's

recommendation to terminate Respondent for having engaged in

inappropriate physical force on a student, Superintendent of

Schools Arthur C. Johnson notified Respondent by letter dated

May 8, 2001, that he would recommend to the School Board at its

meeting to be held May 16, 2001, that Respondent's employment be

t erminated and that he be suspended without pay pending the

completion of the proceedings to terminate his employment. On

May 16, 2001, the School Board voted to accept the

Superintendent's recommendation.

27. It is the policy of the Petitioner that no employee is

to use physical force with a student unless the employee is

breaking up a fight, acting in self - defense, or protecting the

student from hurting him or herself.

CONCLUSIONS OF LAW

28. The Division of Administrative Hearings has

jurisdiction over the subject matter parties to this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

29. The Superintendent of Schools has the statutory

authority to recommend to the School Board that a school

district employee be dismissed from emp loyment pursuant to

Section 230.33(7)(e), Florida Statutes.

30. The School Board may suspend or dismiss its employees

for just cause pursuant to Sections 230.23(5)(f) and

231.3605(2)(b), Florida Statutes.

31. Section 231.3605(2)(b), Florida Statute prov ides, in

pertinent part, as follows:

. . . upon successful completion of

probationary period by the employee, the

employee's status shall continue from year

to year unless the superintendent terminates

the employee for reasons stated in the

collective ba rgaining agreement, or in

district school board rule in cases where a

collective bargaining agreement does not

exist. . . .

32. Petitioner has the burden of proving by a

preponderance of the evidence that it has cause to terminate

Respondent's employment . See Florida Dept. of Transportation v.

J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981); Allen v. School

Board of Palm County , 571 So. 2d 565 (Fla. 3d DCA 1990); Dileo

v. School Board of Dade County , 596 So. 2d 853 (Fla. 3d DCA

1990); and McNeil v. Pinell as County School Board , 678 So. 2d

476 (Fla. 2d DCA 1996).

33. Rule 6B - 1.001, Florida Administrative Code,

constitutes the Code of Ethics of the Education Profession in

Florida. Rule 6B - 1.006, Florida Administrative Code, sets forth

the Principles of Pr ofessional Conduct for the Education

Profession in Florida. Rule 6B - 4.009, Florida Administrative

Code, provides criteria for the suspension and dismissal of

instructional personnel. These rules pertain to members of the

instructional personnel who hold a valid teacher's certificate.

The application of the Code of Ethics and the Principals of

Professional Conduct may be applied to non - instructional

employees by analogy. See Smith v. School Board of Leon County ,

405 So. 2d 183 (Fla. 1st DCA 1981).

34. Pursuant to Rule 68 - 1.006(3)(a), Florida

Administrative Code, the educator must make reasonable efforts

to protect the student from conditions harmful to learning

and/or to the student's mental and physical health and/or

safety, and shall not intentionall y expose a student to

unnecessary embarrassment or disparagement.

35. Pursuant to Florida Administrative Code Rule 68 -

4.009(3), misconduct in office is defined as a violation of the

Code of Ethics of the Education Profession and the Principles of

Professi onal Conduct for the Education Profession in Florida

which is so serious as to impair the individual's effectiveness

in the School System.

36. Petitioner proved by a preponderance of the evidence

that Respondent used unjustified physical force against

Stu dent 1, thereby violating Petitioner's well - established

policy prohibiting an employee making physical contact with a

student except under limited circumstances. Respondent is

guilty of misconduct that justifies the termination of his

employment.

R ECOMMENDATION

Based on the foregoing findings of fact and conclusions of

Law, it is RECOMMENDED that the School Board enter a final order

terminating Respondent's employment.

DONE AND ENTERED this 4th day of February, 2002, in

Tallahassee, Leon County, Fl orida.

___________________________________

CLAUDE B. ARRINGTON

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 - 68 47

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of February, 2002.

ENDNOTES

1/ Petitioner abandoned its theory that Respondent lacks good

moral character.

2/ The deadline for the filing of Propo sed Recommended Orders

was extended to provide time for Respondent to make a public

records request of Petitioner for a copy of the transcript.

COPIES FURNISHED :

Alan M. Aronson, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

Jason Steven Dalley, Esquire

Anderson & Dalley, L.L.P.

Harvey Building, Suite 515

224 Datura Street

West Palm Beach, Florida 33401

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, Suite C - 316

West Palm Beach, Florida 33406 - 5869

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

James A. Robinson, General Counsel

Department of Educa tion

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0400

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.

1 Petitioner abandoned its theory that Respondent lacks good moral character.

2 The deadline for the filing of Proposed Recommended Orders was exte nded to provide time for Respondent make

a public records request of Petitioner for a copy of the transcript.