Resetar v. State Bd. of Ed.

• Citation: 399 A.2d 225,284 Md. 537
• Decision Date: 08 March 1979
• Docket Number: No. 62,62
• Parties: John RESETAR, Jr. v. STATE BOARD OF EDUCATION of Maryland et al.
• Court: Court of Appeals of Maryland

Page 537

284 Md. 537

399 A.2d 225

John RESETAR, Jr. v. STATE BOARD OF EDUCATION of Maryland et al.

No. 62.

Court of Appeals of Maryland.

March 8, 1979.

Josiah J. Lyman, Washington, D. C. (Simon Tucker, Washington, D. C. and Earl H. Davis, Bethesda, on brief), for appellant.

Robert S. Bourbon, Rockville, for Board of Education of Montgomery County.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, ORTH and COLE, JJ.

SMITH, Judge.

We are here concerned with whether use of the racially derogatory term "jungle bunnies" by a teacher in referring to certain junior high school pupils amounts to misconduct in office within the meaning of then Maryland Code (1957, 1969 Repl. Vol.) Art. 77, § 114. ¹ We shall here hold that there was sufficient evidence to warrant the conclusions drawn by the administrative agency, that the agency made no error of law in determining that the statements made constituted misconduct in office, and that under the facts and circumstances of this case appellant, John Resetar, Jr. (Resetar), was properly discharged as a teacher by the Board of Education of Montgomery County (the County Board).

Resetar was advised by the Superintendent of Schools of Montgomery County (the County Superintendent) that a remark made by him to a group of junior high school students "might be interpreted as being intemperate under the circumstances and might be interpreted as having a racial connotation." The County Superintendent said he considered Resetar's conduct to be contrary to the County Board's "Policy Statement on Human Relations," as "educationally unsound and unprofessional, and (as such could) not be accepted by (the Montgomery County) school system as proper behavior by an employee." He told Resetar that, since he regarded the conduct in question to be contrary to Art. 77, § 114, he would recommend to the County Board that Resetar be dismissed. In his letter to Resetar the County Superintendent referred to the fact that Resetar had "been warned both formally and informally, while a staff member at (three different junior high schools) about making remarks to students and/or fellow staff members which were not only intemperate and overreactive, but which also, in some instances, had derogatory, racial, or ethnic connotations." The County Superintendent said that in making his recommendation for dismissal he took into consideration "the cumulative effect of (Resetar's) behavior in (his) previous assignments despite earlier warnings that this type language and behavior was inappropriate and could not be condoned . . .." He told Resetar of his right to request a hearing before the County Board, which hearing was requested.

Art. 77, § 114 then provided for suspension or dismissal of a teacher by a county board on the recommendation of its county superintendent of schools on the grounds of "immorality, misconduct in office, insubordination, incompetency, or wilful neglect of duty . . .." Code (1957, 1969 Repl. Vol., 1974 Cum.Supp.) Art. 77, § 114A, as then in effect, authorized the County Board to have a hearing examiner for the taking of testimony under § 114. A hearing was duly held. The hearing examiner said in pertinent part in his findings of fact:

The event giving rise to the charges occurred on June 18, 1974. During the school year 1973-1974 Mr. Resetar was a seventh grade science teacher . . .. June 18th was the last day of school. Mr. Reseter closed the windows in the classroom to which he was assigned to make the room secure for the summer, after all the students were out of the building. Another teacher . . . used the same classroom and was present in it at the time. Also present was . . . (the) secretary to the principal. A group of perhaps 15 to 25 students was standing on the school grounds outside. While some of the students were directing insulting and obscene remarks to Mr. Resetar, Randolph Tootle, an assistant principal of the school, came along. The testimony of Mr. Resetar, (the other teacher), (the secretary), and Mr. Tootle is essentially the same, except for the opened or closed state of the windows and the audibility of what Mr. Resetar said.

Mr. Resetar testified that he opened a window as Mr. Tootle came along and said, as closely as he can remember it:

"Mr. Tootle this is what I have reference to. This is what I mean when I have been coming to you for some aid for both the students and myself."

This remark relates back to the fact that Mr. Reseter on a number of occasions during the year had referred disciplinary problems involving some of the same students to Mr. Tootle. Mr. Resetar then said to himself, as closely as he can remember it:

"Look at those jungle bunnies. Somebody ought to feed them bananas."

Mr. Resetar testified that he closed the window immediately after speaking to Mr. Tootle, so that all the windows were closed before he made the jungle bunny remark. He believed that it was "humanly impossible" for anyone outside the window to hear him. He was speaking only to himself, and did not intend for (the other teacher) and (the secretary) to hear him either. He characterized his remark as a "mumble," reflecting his disgust and frustration with the attitude of these students throughout the year.

As it turned out, however, Mr. Tootle and some of the students did hear the jungle bunny remark. Mr. Tootle testified that he heard it, and that several girls asked him if he was going to do anything about it. Further, one of the students called back to Mr. Resetar something to the effect of, "Go ahead on big head." It was also Mr. Tootle's recollection that two of the classroom windows were opened, while others were closed. With respect to Mr. Resetar's tone of voice, Mr. Tootle's recollection was:

"A little louder than a conversational tone because he had to get my attention from where I was over some of the noise that was being made by the students out there."

He was not shouting, and his tone of voice did not indicate that he was particularly angry or upset. On cross-examination, Mr. Tootle agreed that Mr. Resetar's tone of voice could be characterized as "bantering."

(The other teacher) testified that there were students in the hallways as well as outdoors, fairly noisy as they called their good-byes. She thought all of the windows were opened. She was unable to characterize Mr. Resetar's tone of voice as conversational or louder, because "Mr. Resetar speaks louder than most of us and it would be difficult to say." She did not know whether anybody heard the jungle bunny comment or not, but thought that there were students who could have heard it if they were paying attention.

(The secretary) testified that at least one window in the room was opened, and that Mr. Resetar was leaning toward it and speaking through the opened window. Following the jungle bunny remark, she testified that Mr. Tootle looked up and that at least two of the students called back some retaliatory remarks.

The evidence adduced before the County Board's examiner included the bases for the earlier warnings to Resetar. This hearing examiner discussed those situations in his conclusions:

I conclude that the other episodes that are the subject of the charges also reflect varying degrees of intemperate conduct. I consider the lunchroom conversation to be on the trivial side. Of course, casting aspersions on school staff members is not to be encouraged; but then, supposedly private lunch table conversation among men should not be too closely scrutinized. Mr. Resetar appears to have been careless on this occasion, and probably habitually so, as to who might be listening to his disparaging comments. But the incident, standing by itself, would not, in my opinion, constitute misconduct. Calling the guidance counselor a "God damned liar" must be classified as intemperate and overreactive to the counselor's sarcastic remark. This unfortunately turned a minor annoyance into a serious conflict. But the fault was not entirely Mr. Resetar's. The superintendent determined that one or both of these incidents constituted misconduct, and issued a letter of reprimand in 1972. I conclude the lunchroom comments should not be classed as misconduct, but I am inclined to agree with the superintendent to the extent that the liar accusation barely goes across the misconduct threshold.

In telling the student she was dirty, or words to that effect, Mr. Resetar was intemperate. There may be occasions when a teacher would consider it to be beneficial to suggest to a child improved habits of personal care, but this does not appear to have been such a case. Mr. Resetar initially spoke sarcastically to a noisy student, and then responded to the impertinence of the accompanying student with a personal affront. I conclude that this was misconduct, but not aggravated. Mr. Resetar's tirade against the disruptive boys in the presence of the office staff and the school visitor was intemperate, but, in my opinion, would not by itself amount to misconduct.

The hearing examiner discussed the "jungle bunny" incident in his conclusions, saying, "[T]here was misbehavior on the part of a group of students, directed toward Mr. Resetar. However, I conclude it was intemperance, rising to the level of misconduct, for Mr. Resetar to respond with a racial epithet." In his recommendation the examiner pointed to his conclusion "that three instances of intemperate conduct amounting to misconduct ha(d) been shown," said that one of the incidents also "constitute(d) misconduct in violation of the Human Relations Policy," and then said:

I believe that no one of these cases, standing by itself, is sufficiently extreme to warrant dismissal of the teacher. It is necessary, therefore, to consider whether such a pattern of inappropriate behavior exists as to aggravate the particular offenses to the point where the sanction of dismissal is warranted. From the standpoint of racial bias, I have concluded that no such pattern has been...