12-002080TTS Duval County School Board vs. Kristopher J. Hunter Status: Closed Recommended Order on Wednesday, October 3, 2012.

Summary: Acts taken in frustration and anger to shove ESE middle-school student, lift him off the ground, and slam him against a wall were misconduct in office constituting just cause for termination of employment contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 12 - 2080TTS

)

KRISTOPHER J. HUNTER, )

)

Respondent. )

)

RECOMMENDED ORDER

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 D ivision of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen Joseph Powell, Esquire

City of Jacksonville

Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville , Florida 32 202

For Respondent: David A. Hertz , Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 3 2207

STATEMENT OF THE ISSUE

W hether Respondent ' s employment as a teacher by the Duval

County School Board should be term inated for the reasons

specified in the Notice of Termination of Employment Contract

dated May 8, 2012 .

PRELIMINARY STATEMENT

Petitioner sent a Notice of Termination of Employment

Contract and Immediate Suspension w ithout Pay to Respondent,

ad vising him of the alleged grounds for termination , and of his

right to an administrative hearing. On June 4, 2012, Respondent

requested an administrative hearing . T he matter was referred to

the Division of Administrative Hearings ( " DOAH " ) for the

assignm ent of an a dministrative l aw j udge on June 14, 2012. The

case was scheduled for final hearing on A ugust 14, 2012 .

The parties entered into a stipulation, which was accepted

at hearing. Petitioner presented the testimony of three

witnesses: Mr. Gary Meri cle, 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. Petition er 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 clas sroom, 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 deadli ne 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 u ndersigned,

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.

FINDINGS OF FACT

1. The Duval County School Board is charged with the

responsib i l ity to operate, control, and supervise all free

public schools within the School District of Duval County,

Florida.

2 . Mr. Kristopher J. Hunter has been employed by th e Duval

County School Board as a n E xceptional S tudent E ducation (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

Colle ctive 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.

3 . Mr. Hunter was born in Florida in 1977. He attende d

college at the University of Virginia, graduating in three years

with a degree in Geography. He played professional b asketball

for about six years. He then returned to school and received a

teaching degree from the University of North F lorida. He bega n

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 .

4 . 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 Scho ol 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 .

5 . The DTP teachers have access to an " intervention room "

and four " time out " rooms cont ained 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.

6 . Mr. Gary Mericle is the S ite D irector for DTP ,

responsible for the overall administration of the program . He

ha s taught P hysical Education for about 12 years and is also the

Athletic Director . He is not ESE certified, but ha s

administered the DTP for t hree 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 Î 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 result s in the

student being immobilized in a pro ne position, and so is

appropriate for the most violent situations.

7 . E ach ESE teacher in DTP ha s a para - professional

assistant in the ir classroom . Ms. Edna Lee is assigned as

Mr. Hunter ' s assistant. Ms. Lee ha s 14 years of experience in

ESE a nd ha s been working with the most severely disabled

students for the last six or seven years. She ha s experienced

highly disruptive behavior and violence on numerous occasions

and ha s been trained in PCM .

8 . R.J. is an ESE student who was transferred int o 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 engage s in violent behaviors, throwing any items within his

reach in a room. Mr. Hunter was aware of these behavior s in

R.J. , but had never experienced them in his own classroom ,

although R.J. did " act out " in other ways " every single day. "

9. 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. H unter had had occasion to use

both the " wrist - triceps " and " Sunday stroll " techniques.

Mr. Mericle was aware that Mr. H unter had completed this

training and had seen Mr. H unter employ those tactics to manage

disorderly student s .

10 . In the early afternoon of April 2, 2012, R.J. , who had

be en released from a voluntary " time out " in the intervention

room, entered Mr. Hunter ' s classroom through the door at the

lower - right corner 1/ of the room. When he entered, Mr. Hunter

was seated at his desk in the upper - left corner of the

classroom, diagon ally 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.

11 . Ms. Lee tes tified that as soon as R.J. entered the

room, she could see that he was in an agitated state. A nother

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. bega n 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 .

12 . 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 u sed his walkie - talkie

to call Mr. Mericle in intervention and ask ed him to come to the

classroom.

13 . 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 roo m. 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 magnitud e 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. Hun ter ' s desk, and some of these

pencils had bounced off the windows and had hit Mr. Hunter.

14 . Mr. Mericle had responded alone because they were

short - handed in intervention. Mr. Mericle w ent to Mr. H unter ' 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 fro m each side, securing the student ' s wrist wit h 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

f eet , eight inches tall, and weighing about 140 pounds.

Mr. Hunter i s a big man, about six feet, 10 inches tall, and

weig hing about 290 pounds. Mr. Mericle believed that R.J. could

easily be restrained.

15 . 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

contain ed the door where he had originally entered. As h e

reached the counter against this base wall, he began to r un 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 s oap

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 .

16 . Just as Mr. Mericle was about to dr a w 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 slamm ed 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

voi ce, " 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 acti ons to be " very shocking. "

17 . 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 t he softball field .

He asked R.J. to return to the DTP building with him. R.J. went

calmly, without any use of PCM.

18 . R.J. was subsequently transported by Jacksonville Fire

Rescue to Shands Medical Center. There was no evidence at

hearing of any ser ious injury.

1 9. 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. Hunte r 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 h e was just trying to get control of the situation.

Mr. H unter 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.

20 . Ms. Lee was a credible w itness 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 th e wall is

credited. Ms. Lee ' s conclu sion 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 student s or lift them off the ground and slam them

aga inst a wall to " get their attention . "

21 . 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 watch ing 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 th is 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 mag nitude 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.

22 . M s . 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 A greement. 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.

23 . On May 8, 2012, a Notice of Termination of Employment

Contract and Immediate Suspension W ithout Pay was sent to

Mr. Hunter.

24 . On May 9, 2012, Mr. Hunter was arrested on felony

child abuse charges based on th e 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.

25 . 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.

26 . Prior to the incident described in the May 8, 2012 ,

termination letter, Mr. Hunter had been informed and was aware

that the S tate Educator ' s Code of Ethics and Principles of

Professional Conduct of the Education Profession prohibited the

conduct described therein .

27 . Respondent ' s demonstrated inability to follow

prescribed protocols and his resort to physical force in dealing

with an ESE s tudent in frustration and anger impairs his

effectiveness in the school system.

28. Respondent ' s misconduct in office constitutes just

cause to terminate his employment as a teacher.

CONCLUSIONS OF LAW

2 9 . The Division of Administrative Hea rings (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 . Con sistent with

the Tenure Act , and p ursuant to section 120.65(11) , Florida

Statutes (2012), the Duval County School Board has contracted

with DOAH to conduct these hearings .

30 . 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.

31 . 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).

Ap plicable Law

32 . 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. B d. of

Pub . Inst . , 103 So. 2d 111, 1 12 (Fla. 1958) .

33 . 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.

34 . 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 princip als (particu larly

including grounds for dismissal) apply to all subsequent ly 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. Howev er,

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.

35 . The referenced provisions of sections 231.29 and

231.36 , Florid a 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 cha p . 2002 - 387 , Laws of Fl a .

36 . However, these subsequent amendments and repeal s d id

not affect the interpretation of chapter 98 - 468 . When a special

act adopts the whole or part of statute s by specific reference,

such adoption takes th e referenced statute s 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 th ose 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

p urposes 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 ref erenced 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

statu t e 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. " ).

37 . In applying the terms of the 1998 special act to th e

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

Re spondent began employment with the Duval County School Board

in about 2006 . Since he was not employed continuously by the

Duval County S chool B oard 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 .

38 . Second, the 1998 special act contains its own

definition of " just cause " for dismissal of a teacher. In

pertinent part, s ection 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, g ross insubordination, willful

neglect of duty, or conviction of a crime

involving moral turpitude.

3 9. Th ese provisions , setting forth the grounds of

dismissal applicable to Mr. Hunter, differ slightly from

both the grounds set forth in the Tenure Ac t 3/ and from the

grounds set forth in section 1012.33(1)(a), Florida

Statutes (201 1 ). 4/

Charges and Specifications

40 . The Notice of Termination, however, a lleg es that

Respondent ' s conduct violat ed the definition of " just

cause " contained in section 1 012.33(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 Administr ative Code R ule 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 c ontained in the

1998 special act , paralleling section 321.36 (1997) .

41 . The Notice of Termination also allege s that

Respondent violated two statutes, sections 1012.795(1)(g)

and (1)(j), Florida Statutes, which set forth grounds for

the Educational Prac tices 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 .

42 . Respondent was not technically charged with a

violation of c ha pter 98 - 468, Laws of Florida or the 1997

statutes it incorporates by reference.

43 . Although the specifications in the Notice of

Termination are technically deficient for this reason, i t is

well settled that an administrative complaint need not be cast

wi th that degree of technical nicety required in a criminal

prosecution. Libby Investigations v. Dep ' t of State , 685 S o . 2d

69 (Fla. 1st DCA 1996). An administrative complaint must only

state the acts complained of with sufficient specificity to

allow an a pplicant 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

constitute d 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 a lleged in the charges and

specifications .

Misconduct in Office

44 . 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 i ncompetency, gross

insubordination, or willful neglect of duty, or that Respondent

was convicted of a crime involving moral turpitude .

45 . Further, the specific pr ovisions 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 abov e. 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.

46 . The issue, then, is whether or not Respondent ' s

conduct is " miscondu ct in office " constituting just cause to

terminate his employment under the 1998 special act .

47 . 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, Flor ida 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

ter m 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 teacher s

holding a professional services contract.

48 . Perhaps partially in response to the concerns

expressed by Judge Blue, the Florida Legislature amended section

231.36 a few years later. See c hap . 99 - 398, Laws of Fl a. " The

1999 amendment took from loc al 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 r ule what constitutes

just cause. " Manatee Cnty. Sch . Bd. v. Wampole , Case No. 12 -

0801TTS (Fla. DOAH Aug. 16, 2012).

4 9. Incorporating the 1997 version of section 231.36 as it

does, the 1998 special act does not legally re quire the Duval

County School B oard 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 offi ce. " While not directly

applicable, the standards governing most teachers similarly

situated throughout the state may be persuasive to the County.

50 . State Board of Education R ule 6A - 5.056(3) provides,

" Misconduct in office is defined as a violation of the Code of

Ethics of the Educ ation Profession as adopted in r ule 6B - 1.001,

F.A.C., and the Principles of Professional Conduct for the

Education Profession in Florida as adopted in r ule 6B - 1.006,

F.A.C., which is so serious as to impair the individual ' s

ef fectiveness in the school system. "

51 . Rule 6B - 1.001 is entitled Code of Ethics of the

Education Profession in Florida, and 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 res pect 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.

52 . Rule 6B - 1.006 is entitled Principles of Professional

Conduct f or the Education Profession in Florida, and provides 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.

53 . While by its terms rule 6A - 5.056(3) r equires 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 C ode 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.

54 . It is axiomatic that the duty of a teacher to protect

student s 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 sh oulders , shaking him,

and slamming him against the wall are actions which clearly

violate this Principle of Professional Conduct for the Education

Profession in Florida. Nu merous 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. O ct. 6, 1995)(teacher ' s act of

grabbing student by the feet and pulling him f rom under the

teacher ' s desk that resulted in injury violated r ule 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)( str iking student wit h

piece of wood on buttocks in forceful manner in anger and

frustration violat ed rule 6B - 1.006(3)(a) ) .

55 . 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) ;

M a cMillan v. Nassau Cnty. Sch. Bd. , 629 So. 2d 226, 2 30 (Fla.

1 st DCA 1993).

56 . 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. 5 th DCA

2000)(lying under oath and resisting arrest w as 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 impai red

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

57 . 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 A pr. 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 Î 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. Sc h. 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

1 993 )( 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.

Rodger s , 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 terminat ion of professional services

contract ).

P rogressive Discipline

58 . 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.

5 9. Article V. D. 1 of the Collective Bargain ing 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

se vere acts of misconduct may warrant

circumventing the established procedure:

a. Verbal Reprimand

1. No written conference summary

is placed in personnel file

2. Employees must be told that a

verbal reprimand initiates the

discipline process

b. Writte n Reprimand

c. Suspension without Pay

d. Termination

60 . 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 miscon duct, " and that termination is therefore

justified.

61 . 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 th e Collective Bargaining Agreement .

62 . 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 p rior to July 1, 1998 .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED

T hat the D uval 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.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of October, 2012.

ENDNOT ES

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

t he time of Mr. Hunter's actions.

3/ Section 4 of the Tenure Act provides in relevant part that

discharge may be impose d 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,

miscondu ct 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 applicabl e to contracts entered into,

extended, or readopted on or after July 1, 2011, that

address annual performance evaluation ratings are not

involved here.

COPIES FURNISHED:

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville , Florida 32207

[e-mail]

Stephen Joseph Powell, Esquire

City of Jacksonville

Office of General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

[e-mail]

William E. Pratt - Dannals

Superintendent of Schools

Duval County Public Schools

1701 Prudential Drive

Jacksonville, Florida 3 2207 - 8182

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 ex ceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.