STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1026

)

JIMMY L. PARKER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before Delphene C. Strickland, Hearing Officer of the Division of Administrative Hearings, in Room 702, Division of Beverage Office, Park Trammel Building, 1313 Tampa Street in Tampa, Florida, commencing at 9:00 o'clock a.m. July 24, 1979. The Transcript of the proceedings was received September 12, 1979, and final response from the parties was received September 24, 1979.

APPEARANCES

For Petitioner: Robert J. Vossler, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

For Respondent: Lee S. Damsker, Esquire

2919 First Florida Tower Tampa, Florida 33602

ISSUE

Whether Respondent's teaching certificate should be suspended or revoked, or whether other appropriate action should be taken for alleged violations of Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code.

FINDINGS OF FACT

1. The Respondent, Jimmy L. Parker, holds Florida Teaching Certificate #165142, Graduate, Rank 3, valid through June 30, 1901, covering the area of music education. Respondent has been employed in the public schools of Polk County at Winter Haven High School as the band director. A petition for the revocation of teaching certificate was filed by the Chairman of the Petitioner Council on April 6, 1979. Homer K. Addair, the Superintendent of Schools, by letter dated May 21, 1979, advised Respondent Parker that he was "charged with falsifying an accident report and subsequently wrongfully collecting workmen's compensation funds, i.e. immorality," and that he was suspended from his employment effective May 23, 1979. Respondent has not been employed since that date by the School Board of Polk County, Florida.

2. Respondent Parker filed a response through his attorney on May 1, 1979, and the pleadings were filed with the Division of Administrative Hearings with a request that a hearing officer be assigned.

   
   

3. After the hearing was called to order, a stipulation as to some facts was filed by the parties:

   
   

4. On or about May 8, 1975, while returning home during the evening hours from a band meeting at the school and driving a 1975 Ford van leased to the Board of Public Instruction of Polk County, Florida, Respondent Parker pulled to the side of the road at a location approximately one house from his home at the signal of James A. Partain, an employee of the Board of Public Instruction of Polk County, Florida as a coach of Winter Haven High School. Partain got into the van with Respondent, wherein a discussion ensued concerning an illicit relationship occurring between Respondent and Partain's wife, also an employee of the Board of Public Instruction of Polk County. A fight ensued in the van wherein Respondent suffered physical injuries.

   
   

5. Respondent Parker drove himself home and told his sick wife that two black people had beaten him at the school. Respondent's wife called a neighbor, who came to Respondent's home and called the police. Respondent told the police that two black boys had beaten him.

   
   

6. On the morning of May 9, 1975, Respondent Parker reported to his supervisor, Principal Herman Lofton, that be was attacked by two youths while on the school grounds on official school business and beaten badly. The beating incident was investigated by the local police and later by William J. Duncan, Deputy Superintendent of Schools.

   
   

7. On June 3, 1975, Respondent Parker submitted a "claim of instructional personnel for illness in line of duty compensation" form to the principal, Herman Lofton. This claim stated that Respondent was beaten while on official school business with the band on the school grounds by two youths. Ultimately, the claim was approved, and Respondent received workmen's compensation payments of approximately $3,400.00 as a result of said claim.

   
   

8. The morning after the incident of the beating and the call to the police station, the headlines of an article in the Winter Haven newspaper noted that two black youths had beaten the band director, the Respondent, the night before. From that time to date of hearing there have been news items about the episode in the paper and on the radio.

   
   

9. William J. Duncan, Deputy Superintendent of Schools, talked to the police chief about the fighting incident. He received telephone calls from the black community informing him that some black people did not believe black youths were involved and wanted the investigation to continue. There was controversy within the black group, some believing Respondent Parker had not told the truth and some believing he had. Later, a dispute arose between two school employees as a result of the incident which created a disturbance in the lunchroom. The incident was reported to Duncan. Subsequently, the investigation was dropped by the police and the school authorities for the good of the school and the community.

   
   

10. Sometime later, however, Homer Addair, Superintendent of Schools, requested Duncan to make an investigation to determine whether students had been involved in the incident, whether the altercation had actually taken place on the school grounds, and whether records had been falsified. Duncan said that

    the investigation had been dropped to keep the peace between the black and the white communities and to further the interests of the school band. He had heard the incident mentioned occasionally from the time it occurred by people in the community, band members and Band Boosters, and read short reports about it in the newspapers.

    
    

11. Herman Lofton, Principal of Winter Haven High School, had been called by the police and questioned about the incident. Shortly thereafter, he received a written report from Respondent. He signed a county form for instructional personnel for illness and received an employee's accident and report claim. Lofton processed the claim in due course by sending the form to the county office. Subsequently, Lofton talked to the two employees, one black and one white, who had been creating a disturbance in the lunchroom, about the incident. Lofton has heard others mention the incident from time to time and occasionally read a short account regarding it in the newspaper.

    
    

12. Homer Addair, Superintendent of Schools, learned of the incident from the news media, from members of his staff, and from the community. He instructed Duncan, his deputy superintendent, to investigate. It was Addair's opinion that the Respondent is a good band director and is supported by the band students and Band Boosters, but that because of the altercation and falsification of records his effectiveness as a teacher in the school system as a whole has diminished. It is Addair's opinion that the conduct of Respondent Parker sets a bad example for the students. His opinion is based upon the conduct that led to the altercation and to Respondent's falsification of the workmen's compensation claim.

    
    

13. James R. Partain, Coach at Winter Haven High School, substantiated the facts relating to the fighting incident but stated he did not want Respondent Parker to lose his job and was sorry for his involvement in the fight. He said the fight began after he threatened to tell Respondent's wife about the affair, and that Respondent threatened him if he did tell her. Partain did not realize he had beaten Respondent to such an extent and later apologized to him.

    
    

14. James Ernest Reese, Assistant Band Director, stated that Respondent Parker is a hard-working and effective band director, and that it is his opinion that the altercation between the Respondent and Partain did not cause Respondent to lose his effectiveness as a teacher. When asked the question whether he felt "the receipt of money from the false claim as an act of morality for an educator, is that act a moral act or an immoral act?", he reluctantly stated, "I suppose it could be classified as an immoral act."

    
    

15. Roy V. Wood, a retired supervisor of music in Polk County schools and an investigator for the Petitioner Council, testified that the people of Polk County knew of the altercation and of the allegations of falsified reports, and that they still wanted Respondent as a band director.

    
    

16. Reverend D. Dewey Wise, Pastor of the First Church of the Nazarene, knew of the altercation and testified he could see no difference in the effectiveness of the Respondent as a teacher now as compared to before the subject problems. He testified that the majority of the people in the community support the Respondent. He also stated that falsification is not a good example and "anytime we commit wrong, it would be an immoral act."

    
    

17. Respondent Parker stated that he lied to his wife and to the police about the beating incident, stating that two black youths had beaten him, because he did not want his wife to know that he had had an illicit affair with

    the wife of another teacher in the school system. Respondent stated that he also did not want to embarrass the school, and that he was afraid of his paramour's husband, Partain. There was no explanation from Respondent as to why he falsely stated the incident took place on the school grounds while he was on official school business, whereas in fact the incident took place only a short distance from his home and inside the school van.

    
    

18. Respondent Parker filled out several forms after the first form for the workmen's compensation claim, and each time he made false statements as to whom he had been beaten by and where the incident had taken place.

    
    

19. Respondent Parker has the reputation of being an excellent band director and has brought honor to the school through his talent in directing the school band. His employment evaluations have been good. The band students and the parents and friends who comprise the Band Boosters admire his ability. The band students and many people in the community would not like to lose his services in the music department.

    
    

20. Both parties submitted proposed findings of fact, memoranda of law, and proposed recommended orders. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction of this cause pursuant to Section 120.57, Florida Statutes.

    
    

22. Section 231.28 Suspension or revocation of certificates. -- provides in part:

    
    

    The Department of Education shall have authority to suspend the teaching certificate of any person for a period of time not to exceed 3 years, thereby denying him the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying him the right to teach for a period of time not to exceed 10 years, with rein- statement subject to provisions of subsection (4); or to revoke permanently the teaching certificate of any person, provided:

    1. It can be shown that such person ... has been guilty of gross immorality or an act involving moral turpitude ... or upon investigation has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board, or has otherwise violated the pro- visions of law...

       
       

23. Section 231.09 Duties of instructional personnel. -- provides in part:

    
    

    Members of the instructional staff of the public schools, subject to the rules and regulations of the state board and of the school board, shall perform

    the following functions:

    (2) EXAMPLE FOR PUPILS. -- Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty and patriotism and the practice of every Christian virtue....

24. Section 231.57 Professional Practices Council. -- provides as follows: (1)(a) A Professional Practices Council is created

    consisting of 19 members appointed by the State Board of Education pursuant to s. 20.15(10)....

    (5)(a) The members of this profession shall develop and recommend to the department codes of ethics

    and professional performances

    1. Upon the adoption of such professional stan- dards as may be required, those who practice in this profession shall be obligated to abide by these standards.

       
       

       Rule 6B-1.01 Preamble to the Code. provides:

       1. The educator believes in the worth and dignity of man. He recognizes the supreme importance of the pur- suit of truth, devotion to excellence, and the nurture of democratic citizenship. He regards as essential to these goals the protection of freedom to learn and to teach and the guarantee of equal educational opportunity for all. The educator accepts his responsibility to practice his profession according

          to the highest ethical standards.

       2. The educator recognizes the magnitude of the responsibility he has accepted in choosing a career in education, and engages himself, individually and col- lectively with other educators, to judge his colleagues, and to be judged by them, in accordance with the provisions of this code.

    
    

25. Respondent Parker is guilty of violating the foregoing statutes and rules:

    
    

    1. By misrepresenting the facts to the police department and to the school authorities as to injuries for which he claimed compensation;

    2. By misrepresenting the facts regarding his injuries on school forms claiming workmen's compensation benefits;

    3. By causing racial unrest by falsely accusing black youths of beating him.

    
    

26. The foregoing are acts involving moral turpitude and gross immorality. Respondent Parker's actions were the subject of news media and talk among the student and in the community of sufficient notoriety to bring him into public disrespect. His report of a beating by black youths was not only untrue but a disparagement on the black youths in the school and the community inconsistent

    with the educators' declaration of belief in the worth and dignity of man and the nurture of democratic citizenship.

    
    

27. Respondent violated the educators' code of ethics and Section 231.09(2), supra, by failing to recognize "the supreme importance of the pursuit of truth," and he failed to set a good example for students by not laboring faithfully "to inculcate, by precept and example, the principles of truth, honesty ... and the practice of every Christian virtue."

    
    

28. Section 440.02 Definitions.-- provides as follows:

    
    

    (6) The term "injury" means personal injury or death

    by accident arising out of and in the course of employ- ment,...

    
    

29. Section 440.37 Misrepresentation; fraudulent activities; penalties.-- provides:

    
    

    1. Any person who willfully makes any false or mis- leading statement or representation for the purpose of obtaining or denying any benefit or payment under this chapter...

       (b) Who prepares or makes any written or oral statement that is intended to be presented to any employer, insurance company, or self-insured pro- gram in connection with, or in support of, any claim for payment or other benefit pursuant to any provision of this chapter, knowing that such statement contains any false or misleading infor- mation concerning any fact or thing material to such claim, shall be guilty of a felony of the third degree, punishable as provided in s.775.082, s.775.083, or s.775.084.

       
       

30. Respondent violated the foregoing statutes inasmuch as, contrary to his written claim for workmen's compensation benefits, his injury did not arise "out of and in the course of employment." His injuries were caused by a beating administered to him for reasons outside his employment and at a place that was not on school grounds.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the teaching certificate of the Respondent, Jimmy L. Parker, be revoked for a period of three (3) years.

DONE and ORDERED this 8th day of October, 1979, in Tallahassee, Leon County, Florida.

DELPHENE C. STRICKLAND

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Robert J. Vossler, Esquire

110 North Magnolia Drive, Suite 224 Tallahassee, Florida 32301

Lee S. Damsker, Esquire 2919 First Florida Tower Tampa, Florida 33602

================================================================= AGENCY FINAL ORDER

================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA

IN RE: JIMMY L. PARKER DOAH CASE NO. 79-1026

/

FINAL ORDER

THIS CAUSE came on to be heard before the State Board of Education, duly assembled, upon the Petition of Lynnl Guettler as Chairman of the Professional Practices Council for the revocation of the teacher's certificate of the Respondent, JIMMY L. PARKER, Department of Education Number 16514-2.

This Board having reviewed the findings and recommendation of the Hearing Officer of the Division of Administrative Hearings and the entire record including Exceptions to the Recommended Order; and

It appearing that the Respondent has been granted all procedural and other constitutional rights in the premises, and the Board having had due deliberation thereon, the Board makes the following findings of fact and conclusions of law:

JIMMY L. PARKER presently holds Teacher's Certificate Number 165142, valid until June 30, 1981. Respondent's Exceptions and the Recommended Order of the Hearing Officer for the Division of Administrative Hearings are made a part hereof by reference. The Board grants exceptions two, three, and four in Respondent's Exceptions to the recommendations of the Hearing Officer and adopt the remainder of the Hearing Officer's recommended order except for the penalty which is amended to suspension of the teacher's certificate for a period of one year to date from May 23, 1979.

ORDERED AND ADJUDGED pursuant to s231.28, Florida Statutes that the teacher's certificate of JIMMY L. PARKER, Department of Education Number 165142, is hereby suspended for a period of one year commencing May 23, 1979.

DONE at the State Board of Education meeting in open session at Tallahassee, Florida, on the 4th day of December, 1979.

EXECUTED AND RENDERED on this 18th day of December, 1979.

Bob Graham, Governor; Chairman

George Firestone, Secretary of State

Jim Smith, Attorney General

Gerald A. Lewis, Comptroller

Bill Gunter, Treasurer

Ralph D. Turlington, Commissioner of Education; Secretary-Executive Officer

Doyle Conner, Commissioner of Agriculture

As and constituting the State Board of Education of Florida as assembled for the purposes herein. Duly recorded in the official records of the State Board of Education of Florida.

I HEREBY CERTIFY that copies of the foregoing Order in this matter were mailed to Jimmy L. Parker, David A. Maney, Esquire, Mr. Homer Addair, Lee S. Damsker, Esquire, Robert J. Vossler, Esquire, and Ms. Delphene Strickland on this 18th day of December, 1979.

Hugh Ingram, Administrator

Docket for Case No: 79-001026

Orders for Case No: 79-001026