01-002822 Palm Beach County School Board vs. Dennis W. Hurst Status: Closed Recommended Order on Wednesday, December 31, 2003.

Summary: Respondent was charged with misconduct and lack of good moral character. Progressive discipline is involved. Petitioner sought suspension and dismissal from employment. Respondent committed misconduct only. Recommend suspension and dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2822

)

DENNIS W. HURST, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on April 15, 2003 , in West Palm Beach, Florida, before Errol H.

Powell, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Jean Marie Nelson, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

For Respondent: Thomas L. Johnson, Esquire

Chamblee, Johnson, Haynes

& Martinelli, P.A.

The Barristers Buildin g, Suite 500

1615 Forum Place

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent should be

suspended without pay and dismissed from employment with

Petitioner.

PRELIM INARY STATEMENT

On June 29, 2001, the Superintendent of the Palm Beach

County School Board (School Board) issued a Petition for

Suspension Without Pay and Dismissal from Employment (Petition)

regarding the employment of Dennis W. Hurst with the School

Boar d. The Petition sought Mr. Hurst's suspension and dismissal

from employment for "using profanity towards students, making

inappropriate comments to students, refusing to allow students

to go to the bathroom and for disciplining students without

merit." T he Petition further alleged that such actions by

Mr. Hurst were in violation of "Rules 6B - 1.001(2), 6B -

1.006(3)(a)(e) and (g), Florida Administrative Code;

alternatively, 6B - 4.009, School Board Policy 1.012, Section

231.02, Florida Statutes, for behavior e xhibiting less than

minimum standards for good moral character, thereby precluding

Respondent from meeting the School Board's minimum standards for

continuing employment in the Palm Beach County School District."

Mr. Hurst contested the allegations of the Petition and

requested a hearing. This matter was referred to the Division

of Administrative Hearings on July 17, 2001.

The hearing in this matter was originally scheduled for

October 16 and 17, 2001. Several continuances of the hearing

were granted to the parties.

At hearing, the School Board presented the testimony of

four witnesses (Susan St. John, principal at Starlight Cove

Elementary School; Raymond Miller, Office of Professional

Standards; Mr. Hurst; and Sue Slone, supervisor of Mr. Hurst at

Cryst al Lakes Elementary School), and entered four exhibits

(Petitioner's Exhibits numbered 36, 38, 42, and 43) into

evidence. Mr. Hurst did not present the testimony of any

witnesses in his case - in - chief and entered no exhibits into

evidence. One joint exhib it (Joint Exhibit numbered 1) was

entered into evidence. Official recognition was taken of

Florida Administrative Code Rules 6B - 1.006, 6B - 4.009, and

6B - 1.001,.

Further, at the hearing, the School Board offered into

evidence Petitioner's Exhibit 44, which consisted of statements

of students (A. K., B. W., D. G., K. J., M. S., and N. P.) taken

by the School Board and to which Mr. Hurst objected. 1 The ruling

on the admission of Petitioner's Exhibit 44 was reserved, and

the parties were permitted to file pos t - hearing memoranda of law

regarding its admissibility. The parties filed memoranda of law

on the admissibility of the exhibit. The undersigned ruled that

Petitioner's Exhibit 44 was admitted into evidence for the

limited purpose of showing one group of documents that the

School Board considered in making its decision to suspend

Mr. Hurst and initiate dismissal proceedings against him.

Additionally, at hearing, Mr. Hurst offered into evidence

Respondent's Exhibit 54, which was a summary of the statement o f

Kristi Tone, a teacher at Starlight Cove Elementary School, and

to which the School Board objected. The parties were permitted

to submit post - hearing memoranda of law regarding the

admissibility of Respondent's Exhibit 54. Subsequent to the

submission of Mr. Hurst's memorandum of law, the School Board

withdrew its objection, and Respondent's Exhibit 54 is,

therefore, admitted into evidence.

A transcript of the hearing was ordered. At the request of

the parties, the time for filing post - hearing submissi ons was

set for more than ten days following the filing of the

transcript. The Transcript, consisting of two volumes, was

filed on May 12, 2003. As previously indicated, the parties

filed memoranda of law subsequent to the filing of the

Transcript regard ing the admissibility of two exhibits. Both

parties filed post - hearing submissions, however, the School

Board's post - hearing submission was untimely filed. Mr. Hurst

filed a Motion to Strike the School Board's post - hearing

submission, and the School Boar d filed a response. The

undersigned denied Mr. Hurst's motion.

The parties' post - hearing submissions were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Hurst holds a Florida teaching certificate.

2. Mr. Hurst was emplo yed as a teacher with the School

Board. He has been employed with the School Board since 1984.

Mr. Hurst taught at Poinciana Elementary School, Citrus Cove

Elementary School, Crystal Lakes Elementary School, and Lake

Worth Middle School. At each of thes e schools, Mr. Hurst

received disciplinary actions.

3. No dispute exists as to paragraph numbered 7 of the

Petition, which states: "On or about September 3, 1996,

Respondent [Mr. Hurst] received a written reprimand from his

principal for failing to allow a child to use the restroom

causing her to wet her pants and, as a result, incur public

humiliation; failing to use good judgment by going to a

student's house unannounced, at a time when parents are not

normally at home, for the purpose of informing the parents that

the child had not turned in a math paper; and for his continued

use of sarcastic comments towards parents. Respondent

[Mr. Hurst] did not grieve or otherwise appeal the imposition of

this discipline."

4. No dispute exists as to paragraph num bered 8 of the

Petition, which states: "On or about March 10, 1998, Respondent

[Mr. Hurst] received a formal written reprimand for

inappropriate behavior because of his use of offensive nicknames

towards students, including the use of phrases such as "shu t - up"

and "hiney," and for not reporting a child who had left

Respondent's [Mr. Hurst's] class to go to his school's front

office. Respondent [Mr. Hurst] was advised that his use of

sarcasm and teasing of students must stop immediately, or he

would be con sidered grossly insubordinate and more serious

disciplinary action would be taken. Respondent [Mr. Hurst] did

not grieve or otherwise appeal the imposition of the

discipline."

5. No dispute exists as to paragraph numbered 9 of the

Petition, which states: "Between February 4, 1999 through

February 10, 1999, Respondent [Mr. Hurst] served a five (5) day

suspension without pay for pushing a student and using profane

language towards the student. Respondent [Mr. Hurst] did not

grieve or otherwise appeal the imposition of the discipline."

6. No dispute exists as to paragraph numbered 10 of the

Petition, which states: "On or about February 1, 2001,

Respondent [Mr. Hurst] began serving, and did serve, a ten (10)

day suspension without pay for inappropriately t ouching a

student and for making inappropriate romantic/sexual comments

towards a co - worker while working as a teacher at Crystal Lakes

Elementary School. Respondent [Mr. Hurst] did not grieve or

otherwise appeal the imposition of the discipline."

7. N o dispute exists as to paragraph numbered 11 of the

Petition, which states: "Subsequent to the aforementioned

suspension, Respondent [Mr. Hurst] was transferred to Starlight

Cove Elementary School. His first day of work was on or about

February 15, 2001. "

8. At each disciplinary action, Mr. Hurst was advised and

directed that any future inappropriate conduct would result in

further disciplinary action, up to and including dismissal.

9. During the 2001 - 2002 school year, Mr. Hurst was

employed with the Sc hool Board pursuant to a professional

services contract.

10. At hearing, Mr. Hurst did not deny the previous

disciplinary actions. Furthermore, he agreed that the pertinent

time period for proving the allegations of fact of the Petition

was February 15, 2001 through March 16, 2001.

11. Mr. Hurst is a member of the collective bargaining

unit represented by the Palm Beach County Classroom Teachers

Association (PBCTA).

12. Mr. Hurst was aware that the School Board engages in

progressive discipline. Furthe rmore, he was aware that the use

of profanity and other inappropriate conduct for which he was

previously disciplined was not allowed and violated the laws and

rules under which the School Board operated.

13. At Starlight Cove Elementary School (Starlig ht Cove),

Mr. Hurst was to assist where needed. He was eventually

assigned to assist another teacher, Mr. Barrett, with his fifth

grade class. Mr. Hurst's assignment with Mr. Barrett's fifth

grade class was to be a temporary assignment.

14. Mr. Barrett' s class was one of the most challenging

classes at Starlight Cove. The students needed structure and a

disciplinarian. Mr. Barrett had no problems with his class.

15. In the beginning, Mr. Hurst and Mr. Barrett were in

the classroom together. Some time later, Mr. Barrett took leave

for the birth of his child, which resulted in Mr. Hurst's being

in the classroom alone, as the sole teacher.

16. Temporary and substitute teachers usually have a

difficult time with students in the area of discipline.

Stude nts, recognizing that a teacher is temporary or a

substitute, generally become discipline problems.

17. On or about March 2, 2001, Mr. Hurst was the sole

teacher. One of the students in the fifth grade class

complained to Mr. Hurst that another student h ad used profanity.

Mr. Hurst gave the class, what he considers his routine lecture

on the use of profanity, giving them examples as to what may be

accepted language and as to what may be unacceptable language

for which the students could be disciplined.

18. On or about March 2, 2001, after school, the principal

of Starlight Cove, Susan Saint John, inquired of Mr. Hurst about

his routine lecture on profanity because she had received

several written communications from the students in his class,

complaini ng that he had used profanity. At hearing, Ms. Saint

John testified that Mr. Hurst informed her that he used both a

profane word and alphabet substitutes for profane words in his

examples during his routine lecture. Moreover, Ms. Saint John

testified tha t her notes of the incident, which were made at the

time of her conversation with Mr. Hurst and which showed that he

used the word "ass," were accurate. Mr. Hurst denies that he

used profanity but insists that he used only alphabet

substitutes for the pro fane words.

19. The more credible evidence is that Mr. Hurst used both

alphabet substitutes for profane words and used the profane word

"ass" in his routine lecture. 2 The evidence also shows that

students complained of Mr. Hurst using profane language al though

the evidence is insufficient to show that he used all the

profane words, other than "ass," complained of by the students.

20. The evidence is insufficient to show that Mr. Hurst

used profanity other than in the routine lecture and that he

used any other profane word than "ass."

21. The evidence is insufficient to show that Mr. Hurst

was advised that the use of alphabet substitutes for profane

words was unacceptable and would be contrary to the directive

for him not to use profane words.

22. The us e of profanity, whether by words or alphabet

substitutes, by teachers with students constitutes unethical

conduct.

23. Ms. Saint John reported the incident to the School

Board's Professional Standards department on or about March 2,

2001, but the intake s heet for Professional Standards was not

completed until about a week later.

24. Since 1996, Starlight Cove has used a system of

discipline for students that uses color codes from green to red.

The color of green is the beginning point and indicates that a

student is following the rules. If a student fails to follow

the rules, the colors progress from green to yellow (a warning)

to red. The color code system is posted in classrooms and in

the teachers' faculty handbook.

25. Mr. Barrett used the color co de system of discipline,

and it was posted in his classroom.

26. On March 2, 2001, Ms. Saint John was frequently called

to the classroom at which Mr. Hurst was substituting for

Mr. Barrett for discipline reasons. Her prior experience with

the class was t hat Mr. Barrett had control of the class and that

she had not been called into the classroom for discipline

problems. Furthermore, previously, when persons, other than

Mr. Barrett, were in charge of the class, she had been

infrequently called to the class for discipline reasons.

27. When Ms. Saint John entered the classroom on March 2,

2001, one of the things that she noticed was the color code had

been changed from green to yellow and red. Based upon her prior

experience with the class, she assumed that Mr. Hurst was

incorrectly utilizing the color code system of discipline since

the color had changed to yellow for the entire class. At no

time did she discuss her assumption with Mr. Hurst.

28. Mr. Hurst denied incorrectly using the color code

system. However, he admitted that he "bluffed" the students

into behaving appropriately by telling them that he would change

the color code for the entire class from green to yellow.

29. Because the students were well - behaved when

Mr. Barrett was in the classroo m, Mr. Hurst had no opportunity

to observe Mr. Barrett using the color code system.

30. Ms. Saint John does not recall specifically advising

or training Mr. Hurst on the use of the color code system. The

color code system is reviewed at faculty meetings. Mr. Hurst

attended the faculty meetings.

31. Mr. Hurst was aware of the color code system and of

how to use the system.

32. The evidence is insufficient to demonstrate that

Mr. Hurst incorrectly or inappropriately used the color code

system.

33. On Ma rch 16, 2001, Mr. Hurst was transferred to Lake

Worth Middle School.

34. On June 29, 2001, the Petition was executed by the

Superintendent of the School Board. An investigation was

performed before the determination was made to seek suspension

and termin ation of Mr. Hurst from employment with the School

Board. As part of the investigation, statements from some of

the students in Mr. Hurst's class were taken. These statements

by the students, as well as the previously indicated

disciplinary actions again st Mr. Hurst, were some of the

documents relied upon by the School Board for the determination

to seek suspension and termination of Mr. Hurst. After the

determination to suspend and terminate was made, the statements

were sworn to by the students. 3

35. The evidence at hearing shows that, based upon the

evidence before the School Board at its meeting, the School

Board's action to suspend and dismiss Mr. Hurst was reasonable.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto, pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2003).

37. The School Board sets forth in the first paragraph of

the Petition, in pertinent part, that the Petition is file d for

Mr. Hurst "using profanity towards students, making

inappropriate comments to students, refusing to allow students

to go to the bathroom and for disciplining students without

merit; in violation of Rules 6B - 1.001(2), 6B - 1.006(3)(a)(e) and

(g), Florid a Administrative Code; alternatively, 6B - 4.009,

School Board Policy 1.013, Section 231.02, Florida Statutes, for

behavior exhibiting less than minimum standards for good moral

character, thereby precluding Respondent [Mr. Hurst] from

meeting the School Boa rd's minimum standards for continuing

employment . . . . "

38. Section 231.36, Florida Statutes (2001), provides in

pertinent part:

(4)(c) Any member of the district

administrative or supervisory staff and any

member of the instructional staff,. . . who

is under continuing contract may be

suspended or dismissed at any time during

the school year; however, the charges

against him or her must be based on

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, drunkenn ess, or conviction

of a crime involving moral turpitude, as

these terms are defined by rule of the State

Board of Education. . . .

39. The Collective Bargaining Agreement between the School

Board and the PBCTA provides at Section M, Discipline of

Employ ees (Progressive Discipline) in pertinent part:

1. Without consent of the employee and the

Association [PBCTA], disciplinary action may

not be taken against an employee except for

just cause, and this must be substantiated

by clear and convincing evidence which

supports the recommended disciplinary

action.

* * *

5. Only previous disciplinary actions . . .

as provided in paragraph #7 below may be

cited.

* * *

7. Except in cases which clearly constitute

a real and immediate danger to the Distric t

or the actions/inactions of the employee

constitute such clearly flagrant and

purposeful violations of reasonable school

rules and regulations, progressive

discipline shall be administered as follows:

* * *

c. Suspension Without Pay. A suspension

without pay may be issued to an employee,

when appropriate, in keeping with provisions

of this Section, including just cause and

applicable laws. . . .

d. Dismissal. An employee may be dismissed

(employment contract terminated or non -

renewed) when appr opriate in keeping with

provisions of this Section, including just

cause and applicable laws.

40. The School Board has the burden to prove by clear and

convincing evidence that Mr. Hurst committed the actions

complained of and the violations in the Peti tion.

41. Mr. Hurst does not refute the prior disciplinary

actions. He takes the position that, if the School Board proves

the actions complained of regarding the use of profanity and the

inappropriate use of the color code system for discipline, the

Sch ool Board can discipline him with suspension and dismissal.

However, Mr. Hurst contends that the School Board failed to

prove the he committed the actions complained of.

42. Because no dispute exists, regarding the prior

disciplinary actions, the School Board demonstrated that

Mr. Hurst had committed the actions and been disciplined for the

actions set forth in paragraphs numbered 7 through 11 of the

Petition. See Findings of Fact numbered 3 through 7.

43. The School Board also demonstrated that Mr. Hu rst was

disciplined previously for using profane words and was directed

not to use profane words. Further, the School Board

demonstrated that, on or about March 2, 2001, Mr. Hurst used the

profane word "ass," albeit , in what he categorizes as his

routine lecture on profanity to the fifth grade students at

Starlight Cove.

44. Florida Administrative Code Rule 6B - 4.009, Criteria

for Suspension and Dismissal, provides in pertinent part:

(2) Immorality is defined as conduct that

is inconsistent with the stand ards 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 offi ce 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 t o

impair the individual's effectiveness in the

school system.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted standards

of the tim e a man owes to his or her fellow

man or to society in general, and the doing

of the act itself and not its prohibition by

statute fixes the moral turpitude.

45. Florida Administrative Code Rule 6B - 1.001, Code of

Ethics of the Education Profession in Flo rida, provides:

(1) 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 free dom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) 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 professio nal growth and will seek

to exercise the best professional judgment

and integrity.

(3) 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

str ives to achieve and sustain the highest

degree of ethical conduct.

46. Florida Administrative Code Rule 6B - 1.006, Principles

of Professional Conduct for the Education Profession in Florida,

provides in pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

* * *

(3) Obligation to the student requires that

the individual:

(a) 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.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student's legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall m ake reasonable effort to assure

that each student is protected from

harassment or discrimination.

47. The School Board argues that Mr. Hurst has committed

misconduct in office through his actions complained of and,

therefore, should be suspended and dism issed.

48. Mr. Hurst was previously disciplined for using profane

language and was counseled and directed not to again use profane

language. The School Board demonstrated that, on or about

March 2, 2001, Mr. Hurst used profane language, the profane word

"ass," and alphabet substitutes for other profane words in his

lecture with students. He was aware that, because of his prior

discipline, involving the use of profane language, he should not

be using profane language under any circumstances with students.

Using the profane word "ass" in a lecture as to what was or was

not acceptable profane language by the students is of no

consequence. Under usual circumstances, such action may be

acceptable but Mr. Hurst's circumstances were not usual because

he was di sciplined and counseled and directed not to use profane

language with students.

49. Mr. Hurst was subject to progressive discipline. The

prior disciplinary actions should be considered along with this

action by Mr. Hurst.

50. The School Board demonstrat ed that Mr. Hurst committed

misconduct in office as defined by Florida Administrative Code

Rule 6B - 4.009(3). Just cause exists for the School Board

suspending and terminating Mr. Hurst.

51. The School Board did not pursue its position that

Mr. Hurst fail ed to exhibit good moral character. The School

Board is, therefore, considered to have abandoned such position.

Furthermore, the evidence fails to demonstrate that Mr. Hurst

failed to exhibit good moral character as defined.

RECOMMENDATION

Based on the f oregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Palm Beach County School Board enter a

final order:

1. Suspending Dennis W. Hurst as a teacher.

2. Dismissing Dennis W. Hurst from employment.

DONE AND ENTERED this 31st day of December, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

ERROL H. POWELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCO M 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of December, 2003.

ENDNOTES

1/ None of the students testified at hearing. Three of the

statements involve Mr. Hurst's behavior at Starlight Cove. The

remaining three statements involve his behavior for the ten - day

susp ension at Crystal Lakes Elementary School. The students

names are redacted for this hearing.

2/ Mr. Hurst made an admission that he used the word "ass" when

Ms. Saint John questioned him after school regarding his routine

profanity lecture to the studen ts.

3/ The statements of the students comprise Petitioner's

Exhibit 44.

COPIES FURNISHED:

Jean Marie Nelson, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

Thomas L. Johnson, Esquire

Ch amblee, Johnson, Haynes

& Martinelli, P.A.

The Barristers Building, Suite 500

1615 Forum Place

West Palm Beach, Florida 33401

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 316

West Palm Beach, Florida 33406 - 5869

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 da ys 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.