STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES )

COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-545

)

WALTER D. RUDINSKY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Okeechobee, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on October 6, 1979. The Division of Administrative Hearings received a transcript of proceedings on December 5, 1979. At the hearing, the parties were represented by counsel:

APPEARANCES

For Petitioner: Robert J. Vossler, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

For Respondent: Michael G. Canar, Esquire

609 South Andrews Avenue, Suite 2 Ft. Lauderdale, Florida 33301

By petition for the revocation of teacher's certificate, dated January 25, 1979, petitioner alleged that respondent "[o]n or about October 9, 1978, . . . failed to withhold and safeguard information acquired about colleagues in the course of employment, by showing the evaluations of his principal to Mr. Terry Cooper"; "failed to use time granted for the purpose for which it is intended by using his planning time to discuss and write grievances"; "used the grievance procedure, E.E.O.C. and the office of civil rights in a coercive manner in order to influence professional decisions of colleagues"; "made sexual advances to a teacher's aide while she was under his supervision"; "made numerous statements about having his principal fired"; "while acting in his capacity as supervisor, knowingly changes and distorted the evaluation of his teacher's aide after she refused his improper advances"; all "in violation of Section 231.28, Florida Statutes, and Section 6B-1, Rules of the state Board of Education. . . . " In his response filed March 2, 1979, respondent denied the material allegations of the petition; attacked Section 231.28, Florida Statutes, as overly broad and unconstitutionally vague; asserted that discipline on account of "the filing of an E.E.O.C. charge would clearly infringe upon the jurisdiction of [the Equal Employment Opportunity] Commission and, thus, be violative of the Federal Preemption Doctrine and the Supremacy Clause, ART. VI, cl. 2, of the Constitution of the United States of America"; asserted that the petition improperly embraces "matters covered by Art. I, Section 6, of the Constitution

of the State of Florida, the collective bargaining agreement between the State of Florida and Florida State Employees' Relations Act, Chapter 447 of the Florida Statutes"; asserts that "personnel records are public records under Chapter 119 of the Florida Statutes [whose] . . .dissemination or distribution is not prohibited . . . [but] is encouraged"; and asserts that most of the activities alleged in the petition are protected expressions under the First Amendment to the United States Constitution. At the hearing, respondent was given leave to amend the response to add: "The changes are discriminatory and violate 42 U.S.C. Section 2000(e)-3, which states that no person shall be discriminated against for filing charges with the E.E.O.C."

FINDINGS OF FACT

1. At all pertinent times, respondent Walter C. Rudinsky was employed as a teacher at the Florida School for Boys in Okeechobee. On October 9, 1978, respondent was under the supervision of Thomas V. Lunsford, for eight years an academic principal at the Florida School for Boys. During lunch break on October 9, 1978, respondent, another teacher named Terry Cooper, a teacher's aide named Patricia Morris, and possibly others were discussing grievance procedures, which had recently changed. When Mr. Cooper asked to see a grievance which respondent had prepared, so that Mr. Cooper could use it as a paradigm for a grievance that he wished to file, Mr. Cooper, Ms. Morris and respondent walked to respondent's classroom. There respondent showed Mr. Cooper a copy of a grievance form he planned to file. Attached to the grievance form were various documents, including an evaluation of Mr. Lunsford.

   
   

2. Respondent had obtained a copy of the evaluation of Mr. Lunsford from personnel records maintained under the supervision of the personnel manager, Paul S. Timko. Respondent had examined Mr. Lunsford's personnel file on several occasions. On all such occasions, Mr. Lunsford's file, like all personnel records at the school, was available for inspection by any member of the public. Personnel records were not treated as confidential, and it was common knowledge on the campus how various teachers and principals had been evaluated.

   
   

3. In all, respondent filed some nine grievances complaining of Mr. Lunsford's conduct over a period of approximately three years. Respondent also filed complaints with the Professional Practices Council, the Equal Employment Opportunity Commission and the Office of Civil Rights. The filing of these grievances caused additional work for the school's personnel office, and took up as much as a quarter of the personnel manager's time. Another person at the same school filed five grievances in one week, however. Many of the grievances respondent filed alleged harassment of respondent by Mr. Lunsford. Nor was respondent the only person who filed grievances complaining of Mr. Lunsford's conduct. Mr. Charles Coles filed such a grievance, and prevailed. Mr. Richard Rye resolved his complaint against Mr. Lunsford informally without filing. Ms. Elaine Beck filed a grievance protesting a suspension Mr. Lunsford recommended and the superintendent imposed. She won informally. Evaluations Mr. Lunsford had made of two employees other than respondent were expunged as a result of proceedings they instituted.

   
   

4. Respondent prevailed on the grievance he filed alleging that Mr. Lunsford had retaliated against him for the filing of previous grievances. The Department of Health and Rehabilitative Services decided that Mr. Lunsford had retaliated against respondent on more than one occasion. Respondent lost at least one grievance. The charges filed by respondent with the Equal Employment Opportunity Commission were determined to be well founded. As a result of

   grievance procedures initiated by respondent, an evaluation of him by Mr. Lunsford was expunged.

   
   

5. School policy at the Florida School for Boys permits the union steward to discuss grievances with employees during school time. This is in accordance with Art. 6, Section 1 of the contract between labor and management. Occasionally, the union steward was released to go talk to Mr. Rudinsky during feedback or planning time. Otherwise, respondent did not use his planning period for the preparation of grievances, although he often worked on grievances during his lunch hour. Whenever he left for participation in grievance proceedings, he always had leave to do so.

   
   

6. Mr. Lunsford and respondent have not been on friendly terms during their time together at the Florida School for Boys. Respondent said a number of uncomplimentary things about Mr. Lunsford and made no secret of the fact that he hoped Mr. Lunsford would leave the school one way or another. Fortunately for the school, the friction between respondent and Mr. Lunsford ceased to be the problem it once was, when Mr. Lunsford's direct supervision of respondent came to an end.

   
   

7. In the summer of 1978, respondent and another teacher, Mr. Hofstetter, were responsible for evaluating the work of Deborah A. Bourgault, a teacher's aide. In June of 1978, Ms. Bourgault saw an employee performance evaluation work sheet signed by respondent on which her overall performance was rated "outstanding." Even though the period for which Ms. Bourgault was to be evaluated did not end until August of 1978, this work sheet was submitted to the personnel office in June. From there, it made its way to the office of James A. Williams, educational supervisor at the Florida School for Boys. On June 29, 1978, respondent telephoned Mr. Williams and asked that the evaluation form be returned. The following morning, respondent retrieved the form. Later an evaluation, rating Ms. Bourgault's overall performance as "conditional," was submitted. At no time has respondent ever made any improper advances to Ms. Bourgault.

   
   

8. Both parties submitted proposed recommended orders which have been considered in preparation of the foregoing findings of fact. To the extent the proposed findings of fact conflict with the findings of fact recited in this recommended order, the same are hereby rejected.

   
   

   CONCLUSIONS OF LAW

   
   

9. The evidence failed to establish that respondent used "his planning time to discuss and write grievances," or that respondent "made sexual advances to a teacher's aide while she was under his supervision," as alleged in the petition for the revocation of teacher's certificate.

   
   

10. Petitioner contends that the facts that were proven show respondent guilty of violating Section 231.28(1), Florida Statutes (1977), by "refus[ing] to comply with the regulations of the State Board of Education." Section 231.28(1), Florida Statutes (1977). Specifically, petitioner maintains that respondent breached Rule 6B-1.04(1) and (2)(b), (c), and (d) Florida Administrative Code, which provides:

    
    

    1. The educator believes that the quality of the services of the education profession directly influences the nation and its citizens. He therefore

       exerts every effort to raise professional standards, to improve his service, to promote a climate in which the exercise of professional judgement is encouraged, and to achieve conditions which attract persons worthy of the trust to careers

       in education. Aware of the value of improved professional service, he contributes actively to the support, planning, and programs of professional organizations.

    2. In fulfilling his obligation to the profession, the educator-

       * * *

       1. Shall accord just and equitable treatment to all members of the profession in the exercise of their profession

          rights and responsibilities.

       2. Shall not use coercive means or promise special treatment in order to influence professional decisions of colleagues.

       3. Shall withhold and safeguard information acquired about colleagues in the course of employment, unless

       disclosure serves professional purposes.

       
       

       The evidence did not establish that respondent acted from any improper or unprofessional motive in filing grievances.

       
       

11. As for the disclosure to Mr. Cooper of Mr. Lunsford's evaluation, the evidence showed that respondent obtained the evaluation in the same manner any citizen was entitled to obtain it, and that he did so on his own time. It is impossible to say, moreover, that the disclosure to Mr. Cooper, which was incidental to the explanation of grievance procedures, did not serve professional purposes within the meaning of Rule 6B-1.04(2)(d), Florida Administrative Code.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That the petition for revocation of teacher's certificate be dismissed. DONE AND ENTERED this 3rd day of January, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

904/488-9675

COPIES FURNISHED:

Robert J. Vossler, Esquire

110 North Magnolia Drive Suite 224

Tallahassee, Florida 32301

Michael C. Canar, Esquire 609 South Andrews Avenue Suite 2

Ft. Lauderdale, Florida 33301

Docket for Case No: 79-000545

Orders for Case No: 79-000545