02-000214 Orange County School Board vs. Nathaniel Packer Status: Closed Recommended Order on Monday, November 4, 2002.

Summary: Teacher who pushed disruptive student away used reasonable force for a lawful purpose and is not guilty of misconduct in office, gross insubordination, willful neglect of duty, or conduct unbecoming a public employee.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02 - 0214

)

NATHANIEL PACKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law J udge (ALJ) Daniel Manry conducted the

administrative hearing of this case on September 4, 2002, in

Orlando, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Amanda J. Green, Esquire

James G. Brown, Esq uire

Ford & Harrison, LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801

For Respondent: Toby Lev, Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

STATEMENT OF THE ISSUES

The issue s presented are whether Respondent's contact with

a student during a physical education class on November 14,

2001, violates the terms of previous directives and written

reprimands; and whether such conduct constitutes misconduct in

office, gross insubordi nation, willful neglect of duty, or

conduct unbecoming a public employee, within the meaning of

Florida Administrative Code Rule 6B - 4.009(3) and (4), for which

Petitioner has just cause under Section 231.36(1)(a), Florida

Statutes (2001), to dismiss Respon dent from his position as a

physical education teacher. (All references to statutes are to

Florida Statutes (2001) unless otherwise stated. Unless

otherwise stated, all references to rules are to rules

promulgated in the Florida Administrative Code in ef fect on the

date of this Recommended Order.)

PRELIMINARY STATEMENT

On December 17, 2001, Petitioner advised Respondent that

Petitioner intended to sever the Professional Services Contract

with Respondent and to terminate Respondent from his employment

with Petitioner. Respondent timely requested an administrative

hearing.

At the hearing, Petitioner presented the testimony of six

witnesses and submitted nine exhibits for admission into

evidence. Respondent testified in his own behalf and presented

the test imony of four witnesses. Respondent did not submit any

exhibits. Respondent also stipulated that he had been

disciplined previously over allegations that he confronted and

touched students. The identity of the witnesses and exhibits,

and any rulings reg arding each, are set forth in the Transcript

of the hearing filed on September 30, 2002. The parties timely

filed their respective Proposed Recommended Orders on

October 10, 2002.

FINDINGS OF FACT

1. The Orange County School Board (School Board) employed

Respondent during the 2001 - 2002 school year as a physical

education teacher, or "coach," at Westridge Middle School

(Westridge), pursuant to Section 231.36 and a collective

bargaining agreement between the School Board and the Orange

County Classroom Teac hers Association. Respondent had taught at

Westridge in a similar capacity for approximately four or five

years before the 2001 - 2002 school year.

2. On November 14, 2001, Respondent had finished roll call

for his physical education class, and students in the class were

"dressing out" inside the boys locker room. Another coach had

given candy to some students in his class for good behavior.

The coach gave Respondent some of the candy to reward students

in Respondent's class for their good behavior.

3. Respondent began passing out candy to students in

Respondent's class. R.S. was a student in the first coach’s

class. R.S. approached Respondent and tried to take some candy

from Respondent. Respondent refused to give any candy to R.S.,

explaining to R. S. that R.S. had already received candy from the

other coach.

4. R.S. ignored Respondent's instructions and persisted in

his attempt to take candy from Respondent. At that point, R.S.

was a disruptive student. Respondent told R.S. to "back off,"

but R.S . persisted. R.S. put his hands on Respondent's hands

and in the candy in an attempt to reach the candy. At the same

time, a group of students rushed toward Respondent to receive

candy. The group of students were also disruptive.

5. Respondent tried to separate himself from R.S. at the

same time that Respondent backed away from the onrushing group

of students. Respondent touched R.S. on the shoulder with an

open hand and pushed R.S. away from Respondent. Respondent was

neither angry nor agitated. The force that Respondent applied

to R.S. caused R.S. to take a step or two backward into the

adjacent lockers but did not injure R.S. or inflict pain on R.S.

R.S. did not fall down.

6. Other students began taunting R.S. They called R.S. a

"wussy" and ye lled that R.S. had been beaten up by Respondent.

R.S. began to cry and left the locker room to get Principal

Lorenzo Phillips.

7. The school administration investigated the matter and,

on November 27, 2001, relieved Respondent of his duties with

pay. On December 17, 2001, Petitioner filed an Administrative

Complaint seeking to dismiss Respondent from his teaching

position.

8. On November 14, 2001, Respondent faced a disruptive

situation. It is undisputed that the situation in the locker

room was a chao tic one that involved approximately 40 students

in a cramped space. The risk of injury from students falling

over each other or over benches in the locker room was great,

and Respondent needed to restore order to a disruptive

situation.

9. Section 232.27 authorizes Respondent to keep good order

in the classroom or other places in which the teacher is in

charge of students. Section 232.27(1)(i) authorizes Respondent

to use reasonable force to protect himself or others from

injury.

10. Respondent had st atutory authority to use reasonable

force to restore good order in the locker room on November 14,

2001, and to protect himself and others from injury during a

chaotic and disruptive situation. The primary factual issue is

whether the force used by Respon dent for those lawful purposes

was reasonable. Petitioner did not comply with the notice

requirements in Section 120.57(1)(d) for similar fact evidence

based on previous violations.

11. It is undisputed that the force employed by Respondent

did not inj ure R.S. The only evidence that the force used by

Respondent was excessive is the testimony of the eyewitness

students called by Petitioner. That testimony was inconsistent

and less than credible and persuasive.

12. E.S. testified that "everybody starte d jumping on

Coach Packer." E.S. did not see Respondent make contact with

R.S. because E.S. really wasn't paying attention.

13. L.P. is a good friend of R.S. L.P. testified that the

whole class crowded around Respondent and that Respondent jabbed

R.S. with a closed fist from a distance of approximately six

inches. However, R.S. did not lose his balance and was not in

pain. Respondent is significantly larger and stronger than R.S.

14. E.M. first testified that he did not see Respondent

make contact w ith R.S. but saw R.S. fall on the floor. E.M.

later testified that he saw Respondent push R.S. in the side.

E.M. testified that he was in the cafeteria at the time rather

than in the locker room.

15. F.D. testified that Respondent merely touched R.S. an d

tried to calm him down. F.D. testified that Respondent applied

no force to R.S.

16. R.S. testified that he had his hand in the candy held

by Respondent and that Respondent pushed R.S. back. R.S. fell

back into the locker behind him.

17. Respondent te stified that he put an open hand on R.S.

to separate from R.S. and that R.S. stepped back into the

locker. R.S. was approximately three feet away from the lockers

behind him.

18. As the trier of fact and arbiter of credibility, the

ALJ must resolve the e vidential conflict regarding the degree of

force employed by Respondent on November 14, 2001. Accordingly,

the trier has carefully considered the substance of the

testimony of the various witnesses, their respective demeanors,

their possible biases, and d etermined the appropriate weight to

be accorded to the testimony of each witness.

19. The force used by Respondent to gain control of the

situation was reasonable, within the meaning of Section 232.27,

and was not excessive. Respondent used reasonable force for a

lawful purpose under Section 232.27.

20. The use of reasonable force for a lawful purpose did

not violate Management Directive A - 4, entitled "Physical,

Emotional or Sexual Abuse of Students or Sexual Harassment of

Adults by Employees of the Sc hool Board of Orange County,

Florida." Management Directive A - 4 states in pertinent part:

No students of the Orange County Public

Schools should be subjected to physical,

emotional, or sexual abuse by an employee.

Therefore, any principal, administrator, or

work location supervisor who observes or

receives a complaint that a student has been

physically, emotionally, or sexually abused

by an employee of the School Board of Orange

County, Florida shall immediately notify the

Employee Relations Department . . . .

The force used by Respondent on November 14, 2001, was

not abusive.

21. Prior to November 14, 2001, Petitioner had issued

three directives and two written reprimands to Respondent for

touching students and failing to exercise reasonable care.

R espondent did not challenge any of those disciplinary actions.

Respondent's use of reasonable force for a lawful purpose on

November 14, 2001, does not violate the terms of the prior

directives and reprimands.

22. Petitioner issued the first written di rective to

Respondent on May 18, 1999. The directive instructs Respondent

to avoid touching students "except as absolutely necessary to

effect a reasonable and lawful purpose." The reasonable force

used by Respondent on November 14, 2001, for a lawful pu rpose

complied with the express requirements of Petitioner's

directive.

23. The written directive issued on May 18, 1999, also

prohibits Respondent from verbally intimidating a student.

Respondent's instruction for R.S. to "back off" did not verbally

i ntimidate R.S. R.S. ignored all verbal instructions from

Respondent and persisted in his physical pursuit of candy

leaving Respondent with little alternative but to physically

separate from R.S.

24. The written directive issued on May 18, 1999, also

req uires Respondent to report any incident immediately to the

administration. Respondent did not have time to report the

incident to the administration. R.S. reported the incident

immediately while Respondent was still responsible for his

class. The admini stration immediately investigated the report

from R.S.

25. On October 13, 1999, Petitioner issued another

directive to Respondent after a physical confrontation between

Respondent and two students. The directive was identical to the

first directive exc ept that it added:

Touching a student in a manner that serves

no educational or lawful purpose may

encourage the appearance or use of force.

On November 14, 2001, Respondent used reasonable force for a

lawful purpose and did not violate the directive iss ued on

October 13, 1999.

26. On October 13, 1999, Petitioner also issued a written

reprimand to Respondent, dated October 7, 1999. The written

reprimand is effective for five years and states in part:

On October 6, 1999, a meeting was held to

discuss al legations of misconduct on your

part. In that meeting we discussed two

physical confrontations that took place

between you and your students. In the first

case you admitted thumping a student's chest

in an incident. In the second incident you

admitted t o stepping on a student's foot to

stop him from running, but could not recall

how the student received a scratch on his

neck.

I am especially concerned about your conduct

because you were clearly in violation of

directives issued to you in the past. For

this reason, this written reprimand is being

issued along with a separate letter of

directives. I am advising that if there is

another confirmed complaint of a similar

nature, a recommendation may be made to

terminate your employment.

The use of reasonab le force on November 14, 2001, for a lawful

purpose is not a "confirmed complaint of similar nature" within

the meaning of the written reprimand dated October 7, 1999.

27. On May 19, 2000, Petitioner issued another directive

to Respondent dated May 18, 2 000. The directive addressed

negligent conduct by Respondent. The wording of the directive

was almost identical to the two previous directives issued to

Respondent. For reasons similar to those previously stated, the

use of reasonable force on November 14, 2001, for a lawful

purpose did not violate the directive dated May 18, 2000.

28. On May 19, 2000, Petitioner issued a written reprimand

to Respondent dated May 18, 2000. The written reprimand is

effective for five years and states in part:

This lette r shall serve as a summary of our

meeting on May 15, 2000, and as a letter of

reprimand. In that meeting we discussed an

incident in which two students fell to the

ground while participating in an activity.

You neglected those students in that you

failed to determine if they were injured.

Furthermore, your disregard was evident in a

statement you made to another student when

you told the student to "kick them up."

It is my conclusion that you were negligent

by failing to exercise reasonable care, and

th at you failed to appropriately perform

your duties. I am especially concerned

because this is not the first time I have

had to issue directives or a reprimand

regarding your conduct. I am now advising

you that if there is another incident that

rises to t he level of a discipline. I may

recommend your termination. . . .

The reasonable force used by Respondent on November 14, 2001,

for a lawful purpose was not an "incident that rises to the

level of a discipline."

29. The collective bargaining agreement between

Petitioner and the Orange County Classroom Teachers

Association applies in this case. Article XII of the

collective bargaining agreement, entitled

"Discipline," states at Section A1:

An employee may be disciplined only for just

cause, and discipl ine shall be imposed only

for a violation of an expressed rule, an

expressed order, an expressed policy or a

reasonable expectation of management which

should have been known to the employee.

30. The collective bargaining agreement at Article XII,

Sectio n A2, further states, in relevant part:

Any teacher may be suspended or dismissed

at any time during the year, provided the

charges brought against him are based

on . . . misconduct in office . . ., gross

insubordination, [and] willful neglect of

duty . . . in accordance with Florida

Statutes.

31. Section 231.36(1)(a) applies to this proceeding.

Section 231.36(1)(a) provides in part:

Each person employed as a member of the

instructional staff in any district school

system . . . shall be entitled to and shall

receive a written contract . . . [that]

contain provisions for dismissal during the

term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by the

rule of the State Board of Educatio n:

misconduct in office . . . gross

insubordination, [and] willful neglect of

duty. . . .

32. The allegations in the Administrative Complaint are

limited to misconduct in office, gross insubordination, willful

neglect of duty, and conduct unbecoming a p ublic employee.

Rule 6B - 4.009(3) defines misconduct in office, and Rule 6B -

4.009(4) defines gross insubordination and willful neglect of

duty. Case law is the only authority cited by Petitioner to

define conduct unbecoming a public employee.

33. Rule 6 B - 4.009(3) defines misconduct in office 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.

34. The Code of Ethics of the Education Profession, as set

forth in Rule 6B - 1.001, in relevant part, requires that:

[t]he educator values the worth and dignity

of e very person. . . [and] [t]he educator's

primary professional concern will always be

for the student.

35. The Principles of Professional Conduct for the

Education Profession are contained at Rule 6B - 1.006 and state in

relevant part:

(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

stud ent to unnecessary embarrassment or

disparagement. [and]

(f) Shall not intentionally violate or deny

a student's legal rights.

36. Rule 6B – 4.009(4) defines "gross insubordination" and

"willful neglect of duties" for instructional personnel. Gross

insu bordination and willful neglect of duty mean:

a constant or continuing intentional refusal

to obey a direct order, reasonable in

nature, and given by and with proper

authority.

37. The use of reasonable force on November 14, 2001, for

a lawful purpose di d not constitute misconduct in office within

the meaning of Rules 6B - 1.001, 6B - 1.006, and 6B - 4.009(3).

Respondent's primary concern was for the safety of other

students within the meaning of Rule 6B - 1.001. Respondent made a

reasonable effort to protect h is students from conditions

harmful to their physical health and safety within the meaning

of Rule 6B - 1.006. Respondent did not intentionally expose R.S.

to unnecessary embarrassment or disparagement or intentionally

violate the student's rights.

38. Th e use of reasonable force on November 14, 2001, for

a lawful purpose did not constitute gross insubordination or

willful neglect of duties within the meaning of Rule

6B - 4.009(4). The use of such force did not violate the terms of

any policy memorandum, p rior directive, or written reprimand.

39. Conduct unbecoming a public employee is conduct that

falls below a reasonable standard or conduct prescribed by the

employer. The use of reasonable force on November 14, 2001, for

a lawful purpose is not conduc t unbecoming a public employee.

If Petitioner were to have prohibited Respondent from using

reasonable force for a lawful purpose, it would have been an

unreasonable standard that violated Section 232.27.

40. The use of reasonable force on November 14, 2 001, for

a lawful purpose is not just cause within the meaning of Section

231.36(1)(a). The use of such force does not violate the terms

of the collective bargaining agreement.

41. Respondent arguably may have used poor judgment in

deciding to pass ou t candy in the locker room on November 14,

2001. His action may have precipitated the chaos in the locker

room. However, the Administrative Complaint does not charge

either Respondent or the other physical education teacher with

poor judgment in passing out candy. The Administrative

Complaint is limited to allegations that unreasonable force by

Respondent constituted just cause for dismissing Respondent.

CONCLUSIONS OF LAW

42. DOAH has jurisdiction over the parties and subject

matter of this case. Se ction 120.57(1) and 120.569. DOAH

provided the parties with adequate notice of the administrative

hearing.

43. Petitioner has the burden of proof in this proceeding.

Petitioner must show by a preponderance of the evidence that

Respondent committed the a cts alleged in the Administrative

Complaint and the reasonableness of any proposed disciplinary

action. McNeill v. Pinellas County School Board , 678 So. 2d

476, 477 (Fla. 2d DCA 1996); Allen v. School Board of Dade

County , 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School

Board of Dade County , 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

Similar fact evidence of the prior use of unreasonable force by

Respondent is not admissible to show Respondent's propensity to

use unreasonable force on November 14, 20 01. Section

120.57(1)(d).

44. Petitioner failed to show by a preponderance of the

evidence that the force used by Respondent on November 14, 2001,

was unreasonable and undertaken for an unlawful purpose. The

force used by Respondent was reasonable under the circumstances

and undertaken for the lawful purpose of maintaining order and

protecting the physical safety of other students. See School

Board of Dade County v. Gary Temple , Case No. 83 - 1946, 1983 Fla.

Div. Adm. Hear. LEXIS 6656 (DOAH 1983)(teacher has authority

under Section 232.27 to utilize moderate and reasonable force to

maintain control and order in the classroom); School Board of

Dade County v. Black , Case No. 81 - 554, 1981 Fla. Div. Adm. Hear.

LEXIS 4487 (DOAH 1981)(charges should be dismissed where

evidence fails to show teacher used unreasonable force in

dealing with disruptive student); Morgan v. Siebelts , Case No.

88 - 4697, 1989 Fla. Div. Adm. Hear. LEXIS 6366 (DOAH

1989)(grabbing a student's arm and tussling with him before

placing the stud ent in his seat was nothing more than use of

reasonable physical force needed to maintain control and order

in the classroom).

45. In the absence of a showing of unreasonable force and

unlawful purpose, the actions of Respondent did not constitute

mis conduct in office, gross insubordination, willful neglect of

duty, or conduct unbecoming a public employee. Respondent did

not violate the terms of the collective bargaining agreement,

and Petitioner does not have just cause, within the meaning of

Section 231.36(1)(a), to dismiss Respondent.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the School Board enter a Final Order

finding Respondent not guilty of the acts and omissions alleged

in the Admini strative Complaint and reinstating Respondent to

his teaching position.

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

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

Administrative Law Judge

Division of Administrat ive 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 4th day of Novemb er, 2002.

COPIES FURNISHED :

Amanda J. Green, Esquire

James G. Brown, Esquire

Ford & Harrison, LLP

300 South Orange Avenue, Suite 1300

Orlando, Florida 32801

Toby Lev, Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

Ron Blocker, Superintendent

Orange County School Board

Post Office Box 271

Orlando, Florida 32802 - 0271

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

Tallahassee, Florida 32399 - 0400

Honorabl e Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

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 t his Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.