on August 19, 1976, in the Public Hearing Room of the Broward County School Board, 1327 S.W. 4th Street, Ft. Lauderdale, Florida.
For Petitioner: Mr. J. Leonard Fleet
For Respondent: Mr. Ronald G. Meyer
By letter dated June 10, 1976, signed by James E. Maurer, Broward County Superintendent of Schools, respondent was advised that he was suspended from his duties at Coconut Creek High School effective June 10, 1976. As grounds therefore, the Superintendent cited:
"This suspension is predicated upon the charge of misconduct in office, immorality, incompetency and willful neglect of duty in accordance with Florida Statute 231.36(6) in that during the period May 8, 1976 through
and including May 13, 1976 at the Chicago Convention of the Distributive Education Association, you slept in the same room with one or more female students attending the above described convention, condoned the consumption of alcoholic beverages by one or more students attending said convention, failed to adequately perform your duties
said convention, condoned violations of school policy concerning curfew, failed to keep an accurate check on the students assigned to you during their attendance at the convention and permitted students of one sex to entertain members of the opposite sex in their hotel bedroom.
The actions above described are in direct violation of Florida Statute 231.36(6) and of the Code of Ethics of the Education Profession in Florida as adopted by the Professional Practices Council of this state."
On June 18, 1976, the said Superintendent notified respondent by letter that "...on June 17, 1976, The School Board of
Broward County, Florida, suspended you with- out pay effective immediately from your duties as a teacher at Coconut Creek High School."
Respondent was formally charged by the School Board as set forth in the letter of June 10th and was advised of his right to a public hearing. The School Board requested the Division of Administrative Hearings to supply a Hearing Officer to conduct the hearing and make a recommendation to the Board, and the undersigned Hearing Officer was so assigned.
Based upon the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
At all times pertinent to these proceedings, respondent was employed as a distributive education teacher at Coconut Creek High School. Respondent was also a sponsor or teacher coordinator for DECA -- Distributive Education Clubs of America. As such he was appointed, with the approval of the School's principal, as a chaperone for the Coconut Creek High School students attending the DECA national convention in Chicago, Illinois, from May 8, 1976, through May 13, 1976.
Prior to attending said national convention, respondent was aware of those provisions of the Coconut Creek High School teachers' handbook pertaining to chaperones' and students' responsibilities on field trips. All distributive education teachers and students who were to attend the national conference in Chicago had a meeting on April 27, 1976, to discuss the rules and regulations which were to be followed at the conference.
While the curfew hour set in the teachers' handbook for students on field trips was midnight, the curfew at the national convention was set at 2:00
A.M. and this curfew was adopted by respondent for his students.
Among the students for whom respondent had responsibility as a chaperone were four females who were assigned a hotel room located across from respondent's room. At curfew time each evening, it was respondent's practice to check in on his students and then retire to his room, leaving his door ajar about six inches so as to be able to hear any disturbances.
On the morning in question, May 13, 1976, which followed the last night of the convention, respondent started his "rounds" to check on his students at approximately 1:45 a.m. Assured that his students were all in their respective rooms, at about 2:15 a.m. respondent went back to his hotel room and went to sleep, rather than attending a party or gathering which other teacher/chaperones attended.
At approximately 4:00 a.m., respondent was awakened by noises in the hall. He got up to see where the noises were coming from and found several teacher/chaperones from Broward County standing in the door way to his female students' room. It appeared to respondent and one of the female students who testified at the hearing that at least some of these teacher/chaperones had been drinking alcoholic beverages. Respondent considered some of these persons to be his immediate supervisors inasmuch as they were employed at the county and state levels.
In order to ascertain what was happening, respondent dressed and went over to the girls' room. He took no affirmative action to remove the teacher/chaperones from the room. He sat on the couch in the room and fell asleep. When he awoke between 5:00 and 6:00 a.m., the other chaperones had gone and he then left and returned to his room.
Prior to leaving for the convention, respondent instructed his students not to bring or consume any alcoholic beverages at the convention. While in the girls' room on the morning in question, respondent noticed a beer can in the trash receptacle. Having never seen any of his students consume alcoholic beverages at the convention and realizing that the other chaperones had been drinking on the morning in question, respondent did not make inquiry of his students as to the beer can. There was evidence that one of respondent's female students had consumed alcoholic beverages in her room while attending the convention. However, there was no evidence that respondent or any other chaperone attending the convention had any knowledge of or reason to suspect that this occurred.
No complaints were received by the school principal or the administration from either parents or students concerning activities at the convention.
CONCLUSIONS OF LAW
For his activities and behavior as a teacher/chaperone at the DECA national convention, respondent is charged with misconduct in office, immorality, incompetency and willful neglect of duty, all of which constitute grounds for suspension or dismissal under F.S. 23l.36(6). The facts alleged in support of such charges are that respondent:
slept in the same room with one or more female students;
condoned the consumption of alcoholic beverages by one or more students;
failed to adequately perform his duties' as teacher/chaperone of the students;
condoned violations of school policy concerning curfew;
failed to keep an accurate check on the students assigned to him; and
permitted students of one sex to entertain members of the opposite sex in their hotel bedroom.
There is no competent or substantial evidence developed in the record of these proceedings to support charges (2) or (5) listed above. Respondent was not aware that any of his students had consumed alcoholic beverages at the convention, nor did he have any reason to suspect that they had done so. The fact that respondent observed a beer can in the trash receptacle of his students' room at a time when other chaperones who had been drinking were in the room does not establish that he "condoned the consumption" of alcohol by his students. In order to "condone" an activity, one must be aware that it is occurring or at least have a reason to suspect the same. No such knowledge or reasonable grounds for suspicion was shown in this case. Nor was there any evidence that respondent failed to keep an accurate check on the students assigned to him. On the contrary, the evidence illustrates that respondent made a room check each evening at curfew time and even left his hotel room door ajar after curfew hours in order to detect any disturbance or sound of any student leaving their room.
As to charge (4) above relating to a violation of school policy concerning curfew, the undersigned Hearing Officer concludes that this does not amount to misconduct in office, immorality, incompetency or willful neglect of duty. The 2:00 a.m. curfew, as opposed to the midnight curfew set by Coconut Creek High School, was established at the national convention for students attending the convention. In allowing his students to observe the later curfew hour established for all other students attending the convention and thus participate in scheduled activities extending beyond midnight, respondent is not guilty of any offense listed in F.S. 231.36(6).
As charged in paragraphs (1) and (6) listed above, the evidence establishes that respondent did fall asleep in the female students' room and that the female students were permitted to "entertain" males in their hotel bedroom. The issue then becomes whether such action, under the circumstances involved in this case, constitutes misconduct in office, immorality, incompetency or willful neglect of duty so as to subject respondent to either suspension or dismissal.
Rule 6B-4.09 of the Florida Administrative Code defines the basis for charges upon which dismissal action against instructional personnel may be pursued as set forth in F.S. 231.36. "Misconduct in office" is defined in Rule 6B-4.09(3) as a violation of the Code of Ethics of the Education Profession so serious as to impair the individual's effectiveness in the school system. Thus, there are two elements to be shown in a charge of misconduct in office -- a violation of the Code and impairment of the teacher's effectiveness in the school system. Neither element has been shown in this case. The Code of Ethics is set forth in Ch. 6B-1 of the F.A.C. The undersigned Hearing Office can find no provision thereof, and the petitioner has cited no such provision, which was violated by respondent under the facts now under consideration. Even had a violation of the Code existed herein, there was absolutely no evidence that such a violation was so serious as to impair respondent's effectiveness in the school system. Indeed, the evidence was that no complaints from students or parents had been received concerning the activities at the DECA national convention
"Immorality" is defined in Rule 6B-4.09(2) as "conduct that is inconsistent with the stand
ards of public conscience and good morals.
It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community."
Again, no showing of "immorality "exists in this case. The facts show that respondent, after being awakened by noises in the hall and ascertaining that such noises were coming from other teacher/chaperones with whom he worked at both the county and state level and it appearing that some of these persons had been drinking, went into the girls' room; thus interceding himself, as the person responsible for the girls, between the other chaperones and his students. He then, between four and five o'clock in the morning, fell asleep on the couch. When he awoke and saw that the chaperones had left, he too left. While respondent did not take affirmative action to remove other chaperones from the girls' room, his conduct in this regard does not amount to immorality under F.S. 231.36(6). Nor does the fact that respondent fell asleep in the girls' room.
Rule 6C-4.09(1) defines "incompetency" as the inability or lack of fitness to discharge required duties as a result of inefficiency or incapacity. The rule further defines inefficiency and incapacity. Even the most rigid and narrow interpretation of this definition cannot apply to respondent's actions in the case presented herein.
Finally, "willful neglect of duty" is defined, along with "gross insubordination," as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority."
F.A.C. Rule 6B-4.09(4). There is no such showing herein. No evidence exists that the events in question occurred on other occasions during the week of the convention.
While it may have been more appropriate for respondent to have instructed the other chaperones (even though some were considered his superiors in the distributive education hierarchy) to leave the female students' room, it cannot be said that grounds for suspension or dismissal exists under 231.36(6) simply because respondent instead elected to remain in the room until the others left. Nor does the fact that respondent fell asleep after 4:00 a.m. bring his actions within the prohibitions of misconduct in office, immorality, incompetency or willful neglect of duty. Under the particular circumstances of this case, it simply cannot be concluded that respondent failed to adequately perform his duties as a teacher/chaperone at the convention.
