08-005837TTS Indian River County School Board vs. Andrew Lewis Status: Closed Recommended Order on Wednesday, March 11, 2009.

Summary: Respondent failed to adequately supervise students on an athletic field trip. The failure allowed improper conduct on the bus and injury to a student.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INDIAN RIVER COUNTY SCHOOL )

BOARD )

)

Petitioner, )

)

vs. ) Case No. 08-5837

)

ANDREW LEWIS, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

January 7, 2009, in Vero Beach, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: G. Russell Petersen, Esquire

G. Russell Petersen, P.A.

21 Royal Palm Pointe, Suite 200

Vero Beach, Florida 32960

For Respondent: Patrick M. Muldowney, Esquire

Baker & Hostetler, LLP

Post Office Box 112

Orlando, Florida 32802-0112

STATEMENT OF THE ISSUE

Whether the Respondent, Andrew Lewis (Respondent), committed

the violation alleged, and, if so, what penalty should be

imposed.

PRELIMINARY STATEMENT

On October 22, 2008, the Petitioner, School District of

Indian River County (School Board or Petitioner) issued a letter

that charged the Respondent with acts or omissions that

constituted just cause for the Respondent's suspension without

pay. More specifically, the allegations contained in the letter

are:

(a) On September 15, 2008, you failed to

take reasonable efforts to chaperone and

supervise the students on a school bus

returning from an athletic event in

Okeechobee County. While you are a worthy

and respected educator in this District,

nonetheless, the efforts that you instituted

on the school bus on September 15, 2008, fell

below the standard of care that we expect of

our professional educations when they are

chaperoning students on the bus.

Unfortunately, during this bus ride there was

a serious assault committed by one or more

students against another student.

(b) This failure to properly supervise the

school bus on September 15, 2008 constitutes

misconduct in office as defined in Rule 6B-

4.009(3), Florida Administrative Code.

Misconduct in office is defined in this rule

as a violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B-

1.001, Florida Administrative Code, and the

Principles of Professional Conduct for the

Education Profession, which is so serious as

to impair the effectiveness in the school

system. Rule 6B-1.006(3)(a), Florida

Administrative Code requires that the teacher

has an obligation to the student to make

reasonable effort "to protect the student

from conditions harmful to . . . the

student's mental and/or physical health

and/or safety." As you know, the incident

has received substantial notoriety throughout

the community and tends to hold the education

profession in disrepute. Accordingly, I have

concluded that the failure to exercise due

care in the supervision warrants the

suspension without pay that I will be

recommending to the School Board.

By letter dated October 28, 2008, the Respondent, through

counsel, disputed the allegations and requested a hearing to

challenge the two-day suspension imposed by the School Board.

The Respondent served the suspension, without pay, prior to the

hearing in this cause. He seeks back pay and a clear performance

record as his remedy.

The case was forwarded to the Division of Administrative

Hearings for formal proceedings on November 21, 2008. In

accordance with the Order of Pre-Hearing Instructions, the

parties' Joint Pre-Hearing Stipulation was filed on December 31,

2008.

At the hearing, the following witnesses testified: B. E.

B., a student who was on a athletic bus trip supervised by the

Respondent on September 15, 2008; I. N., a student also on the

trip; M. L., a third student on the bus; M, L., a parent; Eileen

Shirah, principal at Sebastian River Middle School; Dr. Harry

Lacava, superintendent of the Indian River County School

District; Graziella Salemi, a bus driver employed by the Indian

River County School District; John Kebbel, a teacher at Sebastian

River Middle School; William McCarthy, athletic director at

Sebastian River Middle School; Julius Butch Teske, assistant

superintendent for personnel with the Indian River County School

District; and the Respondent, Andrew Lewis. The Petitioner's

Exhibits 1-3, 7, 12-14, and 17-19 were admitted into evidence.

The Respondent's Exhibit 1 was also received in evidence.

At the conclusion of the hearing, the parties were granted

twenty (20) days from the date of the filing of the transcript

within which to file their proposed recommended orders. On

February 10, 2009, the parties filed a Joint Stipulation and

Motion Requesting Extension of Time. By Order entered the same

date the parties were granted leave until February 20, 2009, to

filed their proposed orders. Both parties timely filed Proposed

Recommended Orders that have been fully considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner is a duly constituted entity charged with

the responsibility and authority to operate, control, and

supervise the public schools within the Indian River County

Public School District. As such, it has the authority to

regulate all personnel matters for the school district.

2. At all times material to the allegations of this case,

the Respondent, Andrew Lewis, was an employee of the School Board

and was subject to the disciplinary rules and regulations

pertinent to employees of the school district.

3. At all times material to this case, the Respondent was

employed by the Petitioner and was assigned to teach and coach at

Sebastian River Middle School. He has been employed at the

middle school for over seven years. The Respondent has coached

the boys' basketball team since his first year and has coached a

co-ed soccer team for the past three seasons.

4. All of the acts or omissions complained of in this

matter occurred on September 15, 2008, during an athletic bus

trip from the middle school to an athletic event in Okeechobee

County. More specifically, the incident occurred during the

return trip, a portion of which occurred after dark, when the bus

was occupied by approximately 40 students, two adult chaperones,

and the bus driver. The Respondent was one of the two coach

chaperones. The allegations stemmed from the Respondent's

failure to appropriately supervise the students on the bus.

During his tenure with the Petitioner the Respondent has

participated in dozens of bus trips with teams. This case is the

sole allegation of wrong-doing against the Respondent.

5. Prior to the allegations of the instant matter, the

Respondent maintained an impeccable record. He is well-respected

by his superiors. The Respondent is not charged with committing

the assault on the student. The Respondent was unaware that an

assault had occurred. The Respondent is charged with failure to

supervise the students who committed an assault on another

student.

6. The incident occurred at approximately 8:00 p.m. after

it was sufficiently dark on the bus to preclude a visual

inspection of the rear portion of the bus from the front. The

Respondent and another coach on the bus, John Kebbel, sat in the

front of the bus behind the bus driver. The Respondent sat

sideways in a seat directly behind the driver. Mr. Kebbel sat

across from the Respondent and the two observed the students in

the bus from their seats. Although Mr. Kebbel got up and walked

back to check on the female students seated in the front portion

of the bus on at least three occasions, the Respondent remained

seated.

7. Before leaving the Okeechobee site, the students were

separated into two groups. The male students sat in the rear

portion of the bus with the girls seated more toward the front of

the bus. The instructions from the athletic director required

that the Respondent and Mr. Kebbel keep the boys and girls

separated. Additionally, the coaches were to defer to the bus

driver regarding safety and conduct on the bus. Finally, the

students were to be counted to assure that the number returning

on the trip matched the number that traveled to the event with

the team. With a few exceptions not pertinent to this matter,

these instructions were followed.

8. Mr. Kebbel got up from his seat and walked back to check

on "his girls" to make sure they were not sitting with the males

in the rear portion of the bus. He was preoccupied with making

sure they did not fraternize during the trip. He was aware that

inappropriate contact between the boys and girls might occur.

9. The Respondent did not move to the rear of the bus to

check on the males there. The Respondent did not ask that the

lights be turned on in order to spot check what the males were

doing.

10. The Respondent did not ask the students to be more

quiet. It is undisputed that the students were very loud.

Additionally, the windows on the bus were open and presumably

there was road noise contributing to the din on the bus. The bus

driver did not require that the students be more quiet. Neither

the Respondent or Mr. Kebbel asked the students to be quiet.

11. The two teams on the bus, the Respondent's soccer team

and Mr. Kebbel's girls' volleyball team, were in good spirits.

The Respondent did not believe there was any reason for concern

regarding their behavior on the bus.

12. The bus stopped on the return trip at a McDonald's

restaurant where the students were permitted to purchase and

consume food. The students were instructed not to bring food

onto the bus. Rather, all food was to be consumed at the stop

with trash being put in its proper place (not brought onto the

bus).

13. Nevertheless, at least one student brought a pie box

onto the bus. There is no evidence that the Respondent checked

the students for food or trash when they re-entered the bus.

14. In fact, two eighth grade males had the pie box in

their possession in the rear portion of the bus. As part of some

hazing or bullying effort, the two male eighth grade students

held a sixth-grade male student down, pulled down his pants and

underwear, and inserted the box between his buttocks.

15. They attempted to pull the pants down on a second sixth

grade male student but that individual successfully fought them

off. The student and others cried for help during the assaults

but no one responded to their cries.

16. During these incidents, the noise on the bus was so

loud that the Respondent did not realize something was amiss

until the sixth grader on whom the assault was successful started

throwing up. The Respondent believed the student to be sick. He

did not know what had preceded the vomiting.

17. The Respondent claimed that he continuously looked to

the rear portion of the bus and listened for indications of

improper activity yet he never asked that the students be more

quiet, did not ask that the lights be turned on periodically, did

not walk to the rear of the bus, and did not hear the cries for

help from the students.

18. The Respondent claimed he chose to sit behind the bus

driver so that he could not be the subject of a false accusation

of impropriety.

19. There is no evidence that the bus was too full to allow

the coaches to sit on a row between the male and female students.

Clearly, they enjoyed a row to themselves in the front of the

bus.

20. It was too dark on the bus for the Respondent to see

the rear portion of the bus clearly after the McDonald's stop.

21. The Respondent and Mr. Kebbel were responsible for the

athletic trip and were to assure that the students were properly

chaperoned.

22. The failure to appropriately chaperone students

constitutes misconduct.

23. The School Board took action to discipline the

Respondent for failure to supervise the students on the trip and

suspended him for two days without pay. The Respondent served

that suspension but claims he did not fail to supervise the

students. The Respondent seeks restitution of his pay and a

clean performance record.

24. The Respondent claims that the conduct of the eighth-

grade students was an unfortunate incident that could not

reasonably be expected. He claims that had he thought that such

conduct were likely he would have taken immediate steps to

intercede on behalf of the sixth graders.

25. The Respondent's vantage point in the front of the bus

did not afford him a clear line of sight. He did not see the

students crawling over the tops of the seats in the rear of the

bus. Further, he did not see students getting out of their seats

and moving across the aisle in the rear portion of the bus.

26. The parties stipulated there are no procedural

challenges to the pre-suspension proceedings. See Joint Pre-

Hearing Stipulation.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

28. The Petitioner bears the burden of proof in this cause

to establish by a preponderance of the evidence that the

Respondent committed the violation alleged. See McNeil v.

Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996).

29. A “preponderance” of the evidence means the greater

weight of the evidence. See Fireman's Fund Indemnity Co. v.

Perry , 5 So. 2d 862 (Fla. 1942). As reviewed in this matter, the

Petitioner has established by a preponderance of the evidence

that the Respondent violated the rules and policies of the School

Board to support “just cause” for an unpaid two-day suspension.

In light of the severity of the matter, a two-day suspension is

more than reasonable. If the charges were not sustained, the

Respondent would be entitled to have his back salary paid. See §

1012.33(6)(a), Fla. Stat. (2008).

30. Section 1012.33, Florida Statutes (2008), provides, in

pertinent part:

. . . 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,

the following instances, as defined by rule

of the State Board of Education: misconduct

in office, incompetency, gross

insubordination, willful neglect of duty, or

conviction of a crime involving moral

turpitude.

31. In this case "just cause" clearly includes those items

specifically addressed by the statute but also includes other

conduct that may be denoted by the "not limited to" language of

the statute. See Dietz v. Lee County School Board , 647 So. 2d

217 (Fla. 2nd DCA 1994). Also, “misconduct in office” in the

instant matter must be considered in relation to the failure to

appropriately supervise the students on the athletic trip.

32. "Misconduct in office" is defined by Florida

Administrative Code Rule 6B-4.009, as:

. . . a violation of the Code of Ethics of

the Education Profession as adopted in Rule

6B-1.001, FAC,, and the Principals of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, FAC., which is so serious as to impair

the individual's effectiveness in the school

system.

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

strives to achieve and sustain the highest

degree of ethical conduct.

34. Florida Administrative Code Rule 6B-1.006 provides in

pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation or

suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

(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.

35. While it is undisputed the Respondent did not

intentionally fail to supervise the students, misconduct may

result when the conduct engaged in "speaks for itself" in terms

of its seriousness and its adverse impact on the teacher's

effectiveness. Proof of the conduct, or, as in this case, the

failure to act appropriately, may be considered proof of impaired

effectiveness. See Purvis v. Marion County School Board , 766 So.

2d 492 (Fla. 5th DCA 2000).

36. A portion of Petitioner's teacher handbook entitled

"Pupil Supervision" (Petitioner's Exhibit 17, paragraph 3.41)

provides that:

Proper supervision of a pupil shall be

provided while he/she is under the immediate

control of the school to which he/she is

assigned. Supervision of pupils shall be

maintained on the school grounds, in

classrooms, in pupil occupied areas in

buildings, on field trips, during any extra-

curricular activity, at school sponsored

functions, and at any other school related

and sponsored activity. Any member of the

administrative, supervisory, or instructional

staff who has responsibility for the

supervision of pupils who fails to provide

such supervision by failing to report to duty

or by leaving his post of duty, unless

properly relieved, may be deemed guilty of

neglect of duty unless absence was due to

emergency condition beyond the control of the

employee. Any person charged with such

neglect of duty shall be subject to

suspension from duty and termination of his

contract as provided by law. The principal

shall develop procedures for carrying out

this rule.

37. In this case, the Petitioner charged that the

Respondent failed to provide appropriate and adequate supervision

of the students on the athletic trip to Okeechobee. Common

sense, in addition to the foregoing provisions of law, requires

that students be supervised at all times. Teachers and coaches

are required to employ appropriate care to prevent harm to

students; care that is appropriate in hindsight only is not

acceptable. Some forethought must be used to anticipate student

conduct. Left to their own choices immature students will engage

in inappropriate and, as this case demonstrates, harmful conduct.

Using an ounce of prevention can avoid potentially dangerous and

hazardous situations. Had the Respondent positioned himself

between the groups of students, required the students to maintain

a reasonable sound level, or had he walked to the rear of the bus

periodically, the underlying conduct would likely not have been

possible. That he never imagined the students would perpetrate

such an act does not excuse inadequate care and supervision.

38. To evaluate the Respondent's conduct in this matter, a

prior incident, on a prior trip, has been considered. In that

instance the Respondent discovered a male and female student

sitting together in violation of the bus policy. Only when the

lights were turned on did the Respondent make that discovery. In

that situation, the Respondent was seated in the front of the bus

as he did in this case. From that incident, the Respondent knew

or should have known that the students were likely to disobey the

rules of bus travel. Nevertheless, the Respondent opted to sit

in the front of the bus. Further, the Respondent did not request

that the lights be turned on periodically to make visual checks

on the students. A simple flashlight might have prevented the

incident.

39. The Respondent does not acknowledge that he failed to

supervise the students. He maintained he did not have a "cue"

that something inappropriate was occurring. The Respondent did

not acknowledge that he could have prevented the activity by

changing his behavior on the bus.

40. In this case, the Respondent's failure to supervise the

students seriously affected his effectiveness and undermined the

confidence of the public in the school district. More troubling

to the undersigned, is the Respondent's indifference to the

severity of the matter. Going the extra mile to protect students

is expected of professional educators. To allow the bus to

become so loud that the cries of the sixth graders were unheard

is unconscionable. Additionally, to put one's own interest and

convenience (to remain seated in the front of the bus) over the

safety of the students also gives rise to grave concern.

41. In this state educators are held to a high standard of

ethical behavior. It is concluded that the Respondent’s behavior

violated that standard.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Indian River County School Board

enter a Final Order sustaining the imposition of the two-day

suspension.

DONE AND ENTERED this 11th day of March, 2009, in

Tallahassee, Leon County, Florida.

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of March, 2009.

COPIES FURNISHED :

Harry J. La Cava, Ed.D

Superintendent

Indian River County School Board

1900 25th Street

Vero Beach, Florida 32960-3395

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Usher Larry Brown, Esquire

Brown, Garganese, Weiss & D'Agresta, P.A.

Post Office Box 2873

Orlando, Florida 32802-2873

Patrick M. Muldowney, Esquire

Baker & Hostetler LLP

Post Office Box 112

Orlando, Florida 32802

G. Russell Petersen, Esquire

G. Russell Petersen, P.A.

21 Royal Palm Pointe, Suite 200

Vero Beach, Florida 32960

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.