STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 81-1722
)
FRANCIS DeLAURIER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, R. L. Caleen, Jr., held a formal hearing in this case on October 28, 29, and 30, 1981, in Miami, Florida.
APPEARANCES
For Petitioner: Phyllis O. Douglas, Esquire, and
Madelyn P. Schere, Esquire Lindsey Hopkins Building 1410 Northwest Second Avenue Miami, Florida 33132
For Respondent: Alan D. Oppenheimer, Esquire
1515 Northwest Seventh Street Miami, Florida 33125
ISSUE
Whether respondent should be suspended or dismissed on grounds of immorality, misconduct in office, and incompetency.
BACKGROUND
Petitioner School Board of Dade County ("School Board") seeks to dismiss its employee, respondent Francis DeLaurier ("respondent"), on charges of immorality, misconduct in office, and incompetency. As grounds, the School Board alleges that:
During late September or early October, 1980, on at least one occasion,
. . . [respondent], then principal of Devon Aire Elementary School, intentionally par- ticipated in or permitted the showing of a film portraying nude bodies and explicit sexual activity at his office at Devon Aire Elementary School during school hours and while members of the school staff were present;
Sometime in late 1975 or early 1976, . . . [respondent], then principal of Key Biscayne Elementary School, inten- tionally participated in or permitted the showing of a film portraying nude bodies and explicit sexual activity in his office at Key Biscayne Elementary School during school hours and while members of the school staff were present;
Sometime in October or November, 1980, . . . [respondent], then principal of Devon Aire Elementary School, took mem- bers of the school staff, including Clarence Bennerman, Assistant Principal, Community Education, on a sailing trip. This was during Mr. Bennerman's work hours and Mr. Bennerman was therefore absent from his duties without appropriate leave with the knowledge of his superior, . . . [respondent];
During the Fall and Winter of 1980 . . . [respondent], while principal of Devon Aire Elementary School, permitted Steve Betolatti to he employed as a part- time school employee and to work hours in excess of those which a part-time School Board employee is permitted to work, in violation of the School Board Salary Hand- book, 1980-81, p. 5.
During the 1979-1980 school year,
. . . [respondent] assigned School Board personnel to type and copy materials for his private non-School Board business.
This was done during regular school work hours;
During the Summer of 1979 and the 1979-1980 school year . . . [respondent] conducted an unreasonable amount of personal business during the time he was being paid as a School Board employee, including plan- ning and supervising art festivals for private gain, . . . and visiting the con- struction site of his new home;
During the 1980-1981 school year,
. . . [respondent] , then principal of Devon Aire Elementary School, permitted members
of the school staff to enroll their chil- dren in the community school after school care program at that school without paying the fee required for that program;
During the school year 1980-1981,
. . . [respondent], then principal of Devon Aire Elementary School, authorized payment
of school employees notwithstanding the fact that the documentation (daily payroll atten- dance sheets) indicated that these employees had not worked the hours for which they were
paid. This is in violation of School Board payroll policies;
During the school year 1980-1981,
. . . [respondent] had supervision and con- trol over a community school at Devon Aire Elementary School, with a satellite program at Gloria Floyd Elementary School. There were no records kept of educational classes offered at the community school . . . and there were insufficient records of payments made to the after school care program within the community school. This was in violation of established School Board policy. 1/
Respondent disputes the charges.
At hearing, the School Board called the following witnesses: Sandra Block, Emma Mason, Edna Sinclaire, George Balsa, Joelia Good, Rosalie Luis, Mary Ann Hanks, Donald Burroughs, and Catherine Buchan. The School Board offered into evidence Petitioner's Exhibit 2/ Nos. 1 through 12, each of which was received.
Respondent testified in his own behalf and called the following witnesses: Frederic Wetmore, Russell Burnell, Mary Jane Travis, Maria Elena Angolo, James Joannides, Louis Tasse, Larry Peterson, Cecile Roussell, Evelyn Evans, Virginia Everhart, Elvira Dopico, Fred Schwartz, Denny Bileca, Judge Jon Gordon, Thomas Russell, Barbara Cotton, Adele Macon, John Rabun, Richard J. Greenberg, Dr.
Leonard Britton, and Donald Wieber. Respondent's Exhibit 2/ Nos. 1 through 18 were offered and received into evidence.
After hearing, the parties filed proposed findings of fact and conclusions of law by January 4, 1982.
FINDINGS OF FACT
Based upon the evidence presented at hearing, the following facts are determined:
I.
The Showing of an Explicit Sex Film at Devon Aire Elementary School
Ms. Block and Ms. Mason Invited to Principal's Office
At all times material to this proceeding, respondent was principal and Donald Wieber was assistant principal of Devon Aire Elementary School in Dade County, Florida. Sandra Block was the school librarian in charge of the videotape equipment; Emma Mason was the school secretary, and Rosalie Luis, a counselor. (Testimony of Wieber, Block, Luis, Mason.)
At approximately 9:00 a.m. on a school day at the end of September, 1980, Donald Wieber telephoned Librarian Block and asked her if she had a copy of "the Marshall tape," a videotape on individual educational plans ("IEPs"). 3/ She replied that she had the tape. (Tr. 37.) He then asked her what time she ate lunch; she said "about noon" (Tr. 38). At his request, she agreed to set up the videotape machine in the respondent's office at noontime so that the
Marshall tape could be shown 4/; she also agreed to join him for lunch in respondent's office. (Testimony of Block.)
At 11:55 am. that morning, Donald Wieber called Ms. Block again to check on when she would be coming to respondent's office. She replied that she couldn't come yet because her library clerk was not back from lunch. Donald Wieber then came to her office to get the film and videotape equipment. Just as he arrived, Ms. Block's clerk returned, so, together, they wheeled the videotape equipment to respondent's office. After setting up the equipment, she went to the teacher's lounge to get her lunch and a coke from the vending machine. She stopped at Emma Mason's desk where she learned that Ms. Mason had also been invited to watch the Marshall tape and have lunch in respondent's office. At the coke machine, respondent asked Ms. Block when she was coming to watch the tape; when she replied that she wasn't going to watch it, he encouraged her to come and watch it, saying it could be an interesting film. 5/ (Testimony of Block.)
At that time, it was not the habit of Ms. Block or Ms. Mason to eat lunch in respondent's office. However, in the past, teachers and staff, including Ms. Block and Ms. Mason, had frequently eaten lunch there; for the convenience of his staff, respondent had salt, pepper, catsup, and similar items available in his office. (Testimony of DeLaurier, Wieber, Block, Mason.)
The subject matter of the Marshall tape--education for exceptional children--was not directly related to the duties and responsibilities of Ms. Mason or Ms. Block at Devon Aire Elementary School. (Testimony of Mason, Block.)
Finding of Videotape Cassette Under a Portable Classroom
At approximately 11:00 a.m. that morning--prior to Ms. Block's and Ms. Mason's arrival in respondent's office--respondent sent Donald Wieber to investigate a bee problem; they had received complaints about children being stung by bees in the portable classroom area. While poking around under one of the portable buildings, Donald Wieber found a bag with a videotape inside. It was a black cassette, unlabeled except for a small white tab with a number on it. He returned to respondent's office and showed him the videotape. Respondent asked him what was on it; Wieber replied that he didn't know. Respondent then said, "Well, put it on the machine and [let's] see what is on it." (Tr. 683.)(Testimony of Wieber, DeLaurier; R-16.)
Showing of Sexually Explicit Tape Cassette
By this time, Ms. Block and Ms. Mason had entered respondent's office. Ms. Block had her lunch with her; Ms. Mason was busy assembling hers. Donald Wieber, pursuant to respondent's request, inserted the black cassette (which had been found under the portable classroom) and turned on the videotape machine. (Testimony of Wieber, Mason, Block, DeLaurier.)
What then appeared on the screen was undisputed. The videotape depicted sexual activities between nude men and women. 6/ (Testimony of Block, Mason, Wieber, DeLaurier.)
The videotape surprised and offended Ms. Block; she reacted immediately. Within 45 seconds from the film's inception, she asked Ms. Mason, who was absorbed in making a sandwich, "Are you sticking around for this?" (Tr. 42.) Ms. Mason, who had not yet looked up at the screen, answered, "Yes, why not?" (Tr. 42.) Ms. Block then walked out of the respondent's office. Approximately three minutes later, Ms. Mason, also offended by the film, exited the office and the two women went to a nearby office to finish their lunches. (Testimony of Mason, Block; P-1.)
When the videotape machine was turned on, respondent --who was at his desk -- could not see the screen. Wieber alerted him to what was being shown, after which respondent came over and joined Wieber. The two men then watched the sexually explicit film for approximately ten minutes. No one else was present during this interval. No children were in respondent's office at any time during which the sexually explicit videotape was played. (Testimony of DeLaurier, Wieber.)
The sexually explicit videotape was seen by at least one other person on that day -- Rosalie Luis, a school counselor. Respondent had asked her to come by his office after she finished lunch to see the Marshall tape. She complied. After watching the Marshall tape in respondent's office -- the sexually explicit videotape was shown. 7/ No warning was given or comments made prior to it being shown. Ms. Luis thought it humorous but left shortly after it began. Respondent was present at the time. (Testimony of Luis.)
Thereafter, respondent instructed Wieber to take the tape cassette and "Get rid of it fast." (Tr. 689.) Wieber complied, disposing of the cassette in a garbage chute behind the school cafeteria. (Testimony of Wieber.)
Respondent's Knowledge and Intent
Respondent did not know that the cassette portrayed explicit sexual activities when he asked Wieber to play it on the videotape machine in the presence of Ms. Block and Ms. Mason. 8/ (Testimony of Wieber, DeLaurier.)
When the offending videotape was shown in respondent's office, he was insensitive to Ms. Block's, Ms. Mason's, and Ms. Luis's presence and the possibility that such a film might upset or offend them; he was apparently oblivious to their presence. He did not, however, intend to offend them. The film did not offend him; after Ms. Block's and Ms. Mason's exit, he chose to continue watching the film for approximately ten more minutes. A little later, after playing the Marshall Tape, he chose to watch it again in the presence of Ms. Luis. (Testimony of Block, Mason, Wieber.)
The Aftermath
After the September incident involving the offending videotape, Ms. Block, Ms. Mason, and Ms. Luis continued to work at Devon Aire Elementary School. Respondent continued to perform his duties; there is no evidence that the film incident adversely affected his job performance or his relationship with the school staff and teachers. Indeed, between September, 1980, and January, 1981, the teachers offended by the film (Ms. Block and Ms. Mason) did
not report or complain about the incident to other school personnel. In January, 1981, Ms. Mason reported the incident to Renee Kachman, a person generally known to be critical of respondent; soon thereafter, the School Board launched an investigation. In May, 1981, the allegations against respondent and Donald Wieber became a matter of public interest because of a series of news articles published in The Miami Herald. (Testimony of Britton, Block, Mason, DeLaurier, Wieber.)
Most of the staff members and teachers at Devon Aire Elementary School
-- after reading a May 2, 1981, Miami Herald news article concerning the incident -- signed a petition requesting that respondent be reinstated as a principal. (R-2.)
In June, 1981, an investigative report and Superintendent Leonard Britton's recommendation for disciplinary action were presented to the School Board. Mr. Britton recommended that respondent be reprimanded, financially penalized, demoted, returned to a non-instructional position, and notification be given to the State Education Practices Commission. The School Board rejected the recommendation and voted to institute dismissal proceedings. (Testimony of Britton.)
There was a substantial but mixed public reaction to the allegations against respondent and Donald Wieber, and the disciplinary action recommended by the superintendent. Between 50-60 percent of the phone calls to the School Board's Office of Public Information agreed with the School Board's decision to dismiss respondent and Wieber 9/. Some parents would be angry if respondent is returned to the school system; others would not. (Testimony off Hanks, Everhart, Gordon, Travis, Britton, Block.)
II.
1976 Showing of Explicit Sex Film at Key Biscayne Elementary School
In 1976, respondent was principal of Key Biscayne Elementary School. On a school day--sometime between February and June--he invited Eleanor Neil, the school librarian, to his office to watch a film on Key West attractions. At approximately 1:00 p.m., the Key West film began to be shown. At least three persons were present: respondent, Ms. Neil, and Betty Shalley, respondent's secretary. It is uncertain whether other persons were also present. (P-4.)
The first 1 1/2 minutes of the film showed people enjoying the attractions of Key West. Then--inexplicably--an explicit sexual act between a man and woman was depicted on the screen. After five seconds, Ms. Neil and Ms. Shalley--offended by the explicit sexual act--left the office. (P-4.)
Except for mentioning the incidents to a friend, Edna Sinclaire, Ms. Neil said nothing about the incident to anyone. She never questioned respondent about it or filed any complaint. It was not until five years later--in connection with other allegations against respondent--that a School Board investigator questioned her about the incident. She was 68 years old in 1976 and is now retired.
Respondent denies any knowledge of or involvement in the showing of this five-second film clip of an explicit sexual act. Ms. Neil is unable to clearly recollect an incident which occurred five years earlier. She cannot recall if other people were in respondent's office at the time, what was
depicted immediately prior to the explicit sex act, or the specific Key West attractions shown on the film. Because of Ms. Neil's demonstrated lack of bias or motive to falsify, her testimony is considered persuasive. (P-4.)
However, the evidence does not establish that respondent was culpably responsible; that the sexually explicit film clip lasted more than five seconds, that he knew, in advance, that the five-second clip would he shown, that he watched it, or even knew it was being shown. 10/ (P-4.)
III.
Boat Trip With School Staff
During the beginning of the 1980 school year, Devon Aire Elementary School was still under construction. During September and October, respondent and his staff were faced with an unusually difficult task: they were responsible for a staff and student body which was temporarily housed (while Devon Aire was under construction) at schools located at three separate sites -- Howard Drive, Palmetto, and Colonial. (Testimony of DeLaurier, Evans.)
In October or November, 1980, Devon Aire Elementary School, Dade County's largest elementary school, was nearing completion; respondent and his staff were making elaborate preparations for a planned dedication. Various persons were assigned responsibilities for social activities, refreshments, decorations, and program planning. Respondent and others were trying to persuade Clarence Bennerman, assistant principal of Devon Aire Community School ("after-school care program"), to sing the National Anthem at the dedication. Respondent and his staff anticipated and looked forward to the coming dedication with nervous apprehension. (Testimony of DeLaurier, Angolo.)
Respondent, concerned about this nervousness, decided that it would be helpful to take his staff outside of the regular school setting to make final preparations for the dedication. He arranged for the appropriate staff members (including Mr. Bennerman) to join him on his sailboat on a late afternoon in October or November, 1980. He left school at approximately 3:30 p.m., and met five other staff members at his boat. They motored to the end of the channel and returned; the entire boat trip took approximately 45 minutes. When they returned to shore, he went home and the others returned to school. During the boat trip, respondent and his staff discussed the details of the dedication ceremony. 11/ (Testimony of DeLaurier, Angolo.)
While Mr. Bennerman was on the boat trip, Stephen Betolatti was placed in charge of the Devon Aire after-school care program. Mr. Betolatti was not a certified teacher; however, no evidence was presented showing that he failed to effectively carry out his temporary supervisory responsibilities. 12/ (Testimony of DeLaurier.)
At the time in question, school principals had been informed that they must notify their area supervisors if they were planning to be absent from school for more than two hours. In this instance, respondent did not notify his supervisor of the boat trip; however, he was absent from school for less then two hours. (Testimony of DeLaurier, Evans.)
Respondent now admits that the 45-minute boat trip with his staff "did not show the best judgment" (Tr. 738); that, in retrospect, he "could have exercised better judgment." (Testimony of DeLaurier.)
IV.
Part-Time Employee Who Worked in Excess of 50 Hours
It is uncontroverted that, during the fall and winter of 1980, respondent--while principal of Devon Aire Elementary School--permitted Stephen Betolatti to be employed on a part-time basis for more than 50 hours in a ten- day pay period. During some pay periods, Mr. Betolatti worked as much as 80 hours. (Testimony of DeLaurier, Mason.)
During the time in question, the School Board did not have a rule forbidding a part-time after-school care program employee from working more than
50 hours in a pay period. Subsequently, the School Board adopted a rule prohibiting part-time employment in excess of 50 hours unless special permission is obtained. (Testimony of Tasse.)
During 1980, numerous other schools employed part-time personnel for more than 50 hours in a pay period. If respondent's action violated the School Board's Salary Handbook, violations were frequent, widespread, and apparently tolerated by School Board administrators. (R-8, R-7, R-8, R-9.)
Respondent was never notified by School Board administrators that his action was improper or violated School Board rules. Neither was he given an opportunity to take remedial action. 13/
V.
Assigning Personal Work to School Board Employees
During the 1979-1980 school year, respondent occasionally asked Ms. Block if she would type personal documents for him, such as a letter of recommendation on behalf of a law school applicant and typing and xeroxing press releases, contracts, etc., in connection with local art festivals conducted by Artfest, Inc. a corporation owned by respondent. She willingly did so, frequently during school hours. At the time, the school library was not yet completed, so she had free time available. Indeed, she frequently used school xerox machines for her personal benefit--to complete work for her master's degree. (Testimony of DeLaurier, Block.)
Respondent did not explicitly direct or require Ms. Block or Ms. Mason (who occasionally did personal xeroxing for him) to do personal typing or xeroxing for him during school hours. However, he was frequently present when such work was done. He knew Ms. Block was doing work for her master's degree on school time. The evidence supports an inference that he knew that at least some of the personal work he occasionally requested would be done on school time. (Testimony of Block, Mason, DeLaurier.)
Most of the personal work during school hours was done in connection with Artfest, Inc.`s conducting of four local art festivals. The proceeds from one of these festivals went to Devon Aire Elementary School and its parent teacher organization. There is no evidence that respondent personally realized any economic gain from his art festival activities. (Testimony of DeLaurier.)
Conducting Personal Business on School Time
As already mentioned, during the 1979-1980 school year, respondent
xerox machines, typewriters--in connection with Inc.`s conducting of local art festivals. (Testimony of
During this same time period, respondent was having a house built in South Dade County. During the initial stages of construction, he would visit
lunch time--almost every day. During the nine-to-ten months he was principal at Aire Elementary School, he made approximately 12 ten-minute visits to the site during school hours. (Testimony of
Respondent sometimes did personal errands during school hours, such as making short trips to the bank or laundry. It is a common practice for
of DeLaurier.)
During the time in question, respondent effectively administered Devon short absences from the school did not impair the performance of his duties.
His supervisors found it no more difficult to contact him than any other
. (Testimony of Evans, Rousell, DeLaurier; R-
11.)
elementary school were unusually strenuous and time-consuming. To accomplish them, he devoted considerably more than 40 hours a week. (Testimony of Evans,
VII.
in After-School Care Program Without Charge
operation of an after-school care program at Devon Aire Elementary School. This program provided child-care services using the facilities of Devon Aire
(Testimony of Tasse, Balsa.)
Principals were authorized "to make exceptions to fee charges in the
Pursuant to this authority, respondent allowed his school staff to enroll their children in the after-school care program without paying a fee. His purpose was
hardship on school teachers operating their regular classes. His action achieved the desired effect: teacher morale improved. (Testimony of Angolo.)
Respondent did not intentionally violate the School Board fee
authorized to waive the fee for the reasons mentioned. His supervisors never told him it was improper or gave him an opportunity to take remedial action.
VIII.
Inadequate Payroll Records
Respondent was responsible for the administration of a satellite
after-school care program as well as the after-school care program at Devon Aire Elementary School. During the 1980-1981 school year, respondent signed after- school care program payroll attendance sheets which contained various discrepancies. For example, time worked by an employee was recorded for pay purposes in the following pay period. (Testimony of Balsa.)
Respondent signed the payroll sheets under time constraints. He did not check or add the hourly figures; he relied on Clarence Bennerman, administrator of the program, and his secretary, Ms. Mason, to properly complete the payroll. Such reliance and delegation of duties was a practical necessity in administering a large elementary school and two after-school care programs. (Testimony of DeLaurier.)
Other schools in the county had similar discrepancies in their payroll sheets. The evidence does not establish that there was any misappropriation of funds or that a single employee was overpaid. (Testimony of DeLaurier, Balsa;
R-3.)
These payroll discrepancies were not previously brought to his attention. Neither was he given an opportunity to take corrective action. (Testimony of Balsa.)
IX.
Inadequate Class Attendance and Fee Records for After-School Care Program
Devon Aire Elementary School's after-school care program opened in September, 1981, with Clarence Bennerman appointed as its administrator. The program was an Immediate success and received wide community support. (It became one of the county's largest after-school care programs.)(Testimony of Evans, Tasse.)
Respondent was then directed to begin a satellite after-school care program at Gloria Floyd Elementary School, approximately ten miles away. He ambitiously undertook such a task, even though he was--at the same time--opening the county's largest elementary and after-school care programs. (Testimony of DeLaurier, Tasse.)
Under such circumstances, he was forced to rely on his subordinates. He relied on Ms. Mason, the school secretary, and Mr. Bennerman to keep proper after-school care program records. When questioned, Ms. Mason would assure respondent that the records were being kept properly. (Testimony of DeLaurier.)
Upon her resignation, respondent discovered that the after-school care program attendance and fee records were in poor shape; he immediately requested help from supervising officials. A subsequent internal audit indicated that, while there were some errors, the after-school care program records were "by and large correct." (Tr. 455.) Later, after respondent was placed under investigation and removed from his position at Devon Aire Elementary School, a second, more thorough audit was conducted. It revealed numerous record-keeping
discrepancies. The author, George Balsa, was a new and inexperienced auditor, having never before audited a county school. He had the after-school care
conduct an on-site investigation or question respondent, although he knew where respondent could be located. As a result, his report contains numerous errors.
apparently unaware that it was acceptable practice to waive fees for Spanish classes. (P-5, p. 9; Testimony of Tasse.) He complained that after-school care
closed; he was apparently unaware that after-school care programs operated even when regular school programs were closed. (P-5, p. 4; Testimony of DeLaurier.)
signed in and out at the same time each day; he was unaware that this was not unusual at all--that it was a common practice in the school system. (Testimony
Although this audit contained discrepancies of its own, its conclusion that the after-school care program records were not kept completely or
As the administrator responsible for the program, I should have spent more of my
of the program.
As principal, I should have spent more time better fiscal control. (P-5, p. 28.)
X.
Respondent has a bachelor's degree, a master's degree from the University of Miami, and a doctorate from Nova University. He has been employed
never had a disciplinary action taken against him; until he was charged in this case, his record was unblemished. (Testimony of DeLaurier.)
until he was reassigned to Devon Aire Elementary School in 1978-1979. At Key Biscayne Elementary School, he consistently received excellent evaluations from
a possible 5.0. His supervising area director made the following comment on his evaluation:
cayne Elementary School with skill and a management style that produced highly
gram has received his major emphasis as he gave attention to the requirements of
nated the service of a very active cadre of volunteers, and continued to strengthen
activities through open communication and
his own involvement in their programs and activities.
Dr. DeLaurier ends his eighth and final year at this school with an excellent overall evaluation. He has been reas- signed for the 1979-80 school year. (Testimony of DeLaurier; R-17)
In his June, 1980, evaluation covering his job performance at Devon Aire Elementary School, his overall assessment was: "Demonstrates Exemplary Performance Standards." (R-11). He was recommended for reappointment. His level of achievement and performance was described on the evaluation:
Dr. Francis DeLaurier has led in the devel- opment of an instructional program which implements all aspects and requirements of the balanced curriculum, which has resulted in evidence of student achievement, which meets the requirements of the PREP program, and which has provided for the needs of low- achieveing [sic] students through compensa-
tory education. He has earned the cooperation and respect of diverse and contentions [sic] communities. Dr. DeLaurier has selected a fine teaching staff and has implemented
staff-development and staff building activ- ities which has made them a cohesive and cooperative staff. He moved into a new facility with minimum disruption in the instructional program and arranged the de- tails of the move in an efficient manner.
The circumstances at Devon Aire have been unique. Only a skilled and highly compe- tent administrator could have taken the various factors and organized them into an outstanding school program. Dr. DeLaurier has evidenced the skill, expertise,
and professional competence and leadership to meet this task. (R-11.)
As to his future job status and potential, his supervisor concluded: Dr. DeLaurier has the professional and per-
sonal characteristics to be considered for
a higher administrative position. However, the needs of Devon Aire Elementary School will require his leadership for the 1980-
81 school year. (R-11.)
Respondent has been an excellent principal and administrator of Devon Aire Elementary School. He capably opened and operated a new elementary school with a student population between 1,500 and 1,600--with hundreds of additional students in two satellite after-school care programs. He was a loyal, tireless, and dedicated employee: he greeted each new assignment as a challenge, an opportunity for achievement. In light of the unusual demands which were placed upon him, he performed his work competently. While it is clear that he
occasionally committed errors in judgment and relied too heavily on his subordinates, such errors pale when viewed in the context of his accomplishments (Testimony of Evans, DeLaurier.)
Respondent has earned the respect and friendship of many parents, teachers, and staff members; they petitioned and testified on his behalf, and asked that he be reinstated.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. s. 120.57(1), Fla. Stat. (1981).
The School Board seeks to dismiss respondent under the authority of Section 231.36(6), Florida Statutes (1981):
Any member of the district administra- tive or supervisory staff and any member of the instructional staff, including any prin- cipal, may be suspended or dismissed at any time during the school year; provided that the charges against him must be based on immorality, misconduct in office, [or] incom- petency . . . Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay, but if charges are not sustained, he shall be immediately rein- stated and his back salary shall be paid. (e.s.)
Rule 6B-4.08 prescribes dismissal procedures which school boards must follow:
When an action or other matter appears to exist which may possibly result in the future dismissal of any employee, the immediate supervisor of the individual should take appropriate action to advise the employee of the matter and the poten- tial consequence if not corrected.
Every possible helpful effort should be made by the immediate supervisor to aid the employee to correct the matter which could cause his dismissal if not cor- rected.
Except in extremely serious cir- cumstances, the employee should be given sufficient time, following notification, for improvement.
Although the terms "immorality," "misconduct in office," and "incompetency" are not statutorily defined, they have been given meaning by administrative rule and judicial decision.
I.
Immorality and Misconduct
Chapter 6B-4 14/, Florida Administrative Code, provides in relevant part:
6B-4.09 Criteria for Suspension and Dismissal.
Incompetency is defined as inabil- ity or lack of fitness to discharge the re-
quired duty as a result of inefficiency . . .
Inefficiency: [means] (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); . . . or
repeated failure on the part of an admin- istrator or supervisor to communicate with and relate to teachers under his supervision to such an extent that the educational pro- gram for which he is responsible is seriously impaired.
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education pro- fession into public disgrace or disrespect and impair the individual's service in the community.
Misconduct in office is defined
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. (e.s.)
In Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3rd DCA 1981), the court endorsed the following definitions of "moral turpitude," a term closely analogous to "immorality":
[Moral turpitude is a]n act of baseness, vileness, or depravity in the private and social duties which a man owes to his fel- low men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.
Moral turpitude involves the idea of inherent baseness or depravity in the pri- vate social relations or duties owed by man to men or by man to society. (cita- tions omitted). It has also been defined as anything done contrary to justice, hon- esty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not con- templated.
In Vernie M. Smith v. School Board of Leon County, 405 So.2d 183 (Fla.
231.36, supra. It held that the thrust of the Code of Ethics of the Education Profession "deals with a teacher's relationships with the public or with the
actions of a school administrative employee did not constitute "misconduct in office," the court observed, "This incident [involving the employee] -- as the
public." Id. at 185.
Generally, "misconduct" involves intentional wrongdoing; it is a Collegiate Dictionary, p. 734 (1973).
Measured by these standards, it is concluded that respondent's actions
By allowing a sexually explicit film to be played in the presence of female staff members -- after he became aware of the film's contents -- he made a
feelings 15/. However, the evidence does not show that he intended to offend or embarrass them. His conduct does not approach the level of inherent
charge of "immorality."
Neither has it been shown that respondent's viewing of sexually prohibited its employees from viewing sexually explicit material 16/.
precluded from doing so as long as there is a record foundation in support of that policy."
policy at hearing, it must sustain an elevated standard of proof:
[W
enforced are not explicitly fixed by statute or by rule, but depend on .
.; when the conduct to be assessed is past, beyond the
dards announced prospectively; and when the proceeding may result in the loss of a val-
the critical matters in issue must be shown by evidence which is indubitably as "sub-
Bowling v. Department of Insurance, 394 So.2d 165, 172 (Fla. 1st DCA 1981). Here, the School Board did not adequately sustain its burden.
of a five-second clip of an explicit sexual act, the evidence is insufficient to establish
testimony--by deposition--concerning the incident is sketchy; the extent of respondent's involvement is speculative.
Moreover, respondent's actions concerning the sexually explicit films at Devon Aire Elementary School and--five years earlier--at Key Biscayne Elementary School do not constitute "misconduct in office." It was not shown that he intentionally violated a standard of conduct, that his actions adversely affected the performance of his duties to the public, or seriously impaired his effectiveness in the school system. If his effectiveness was reduced at all, it resulted from publicity surrounding the School Board's own investigation of the Devon Aire Elementary School film-showing incident. Cf., Boyette v. State professional Practices Council, 346 So.2d 598, 601 (Fla. 1st DCA 1977)
Respondent's assignment of personal work to Ms. Block, however, does constitute "misconduct" within the meaning of Section 231.36(6), supra. He was aware that she was doing the Artfest, Inc., typing and xeroxing on school time, using school equipment. That such action was wrong, that it violated a known standard of conduct, cannot be seriously debated. It was more than an isolated error in judgment; it was a knowing, intentional violation. Respondent answers that Ms. Block had free time available, that her performance of his personal work did not affect the administration of the school. While this may provide extenuating circumstances, it does not excuse his actions.
II.
Incompetency
Respondent's actions in taking his staff on a 45- minute boat trip; in employing Stephen Betolatti more than 50 hours in a ten-day pay period; in occasionally performing personal errands during the day; in waiving the after- school care program fees for school staff; and in not more closely monitoring the record keeping of his subordinates do not constitute "incompetence" within the meaning of Section 231.36(6), supra, and Rule 6B-4.09(1). Consistently -- over the years -- respondent has performed his duties efficiently and effectively. Not once was he advised of a performance deficiency and given an opportunity to take corrective action; the procedure contemplated by Rule 6B-
4.08 was -- for no apparent reason -- disregarded.
This lends credence to respondent's claim, asserted throughout, that he is the victim of a vendetta by a few disgruntled individuals to remove him from his position. As the principal of one school candidly stated:
I think every principal in this county
--this is my own opinion--if someone wanted to find something wrong in their school, I think they could, and I think my school is one of them.
If someone wanted to--if someone had a vendetta on me, for whatever reason, and wanted to put me up on the cross--
If someone wanted to pick on you or find anything wrong with you, they could come into the school and they could find any number of little things.
How important they are to the total program that involves kids, I think, would not hold, but if someone wanted to strike you, they are -- it could be done.
If I had a vendetta against a teacher, I could go into that classroom and I could
If I had something that I wanted to do to that teacher, and I don't believe there
that that could not be done to. (Tr. 645-648.)
The conduct complained of by the School Board shows a need for some
cannot, or will not--if given the opportunity--overcome his deficiencies and become a more effective principal in the future. Section 231.36(6), supra, does
human beings and must be held accountable to human standards. See, Taylor v. State Beverage Department, 194 So.2d 321, 330 (Fla. 2d DCA 1967)
recommended order are adopted; otherwise, they are rejected as unsupported by the requisite quantum of evidence or immaterial to resolution of the issues
Based on the foregoing, it is
That respondent receive a written reprimand and forfeit one month's salary for his permitting school employees to perform personal work for him
That all other charges against respondent be dismissed; and
That he be reinstated to his former position or a comparable position month forfeiture) and related benefits.
DONE AND RECOMMENDED this 24th day of Florida.
R. L. CALEEN, JR. Hearing Officer
The Oakland Building 2009 Apalachee Parkway
Florida 32301
(904) 488-9675
Division of Administrative Hearings
ENDNOTES
1/ These are the charges which remain after the School Board's withdrawal--at hearing--of two of its original charges and modification of two others. See, Notice of Charges, dated July 2, 1981.
2/ Petitioner's and Respondent's Exhibits will be referred to as "P- ," and "R- ," respectively. Pages of the transcript of hearing will be referred to as "Tr.
3/ Previously, respondent had instructed Ms. Block to videotape a public-TV broadcast by Dr. Willamere Marshall on IEPs so that it could be shown later to teachers who missed the broadcast.
4/ Respondent had previously sent a memorandum to exceptional education teachers and counselors indicating that the Marshall tape would be shown in his office that day.
5/ Respondent denies inviting Ms. Block to his office. After considering the demeanor of the witnesses and their respective motives and interest in this proceeding, it is determined that Ms. Block's testimony is more credible.
6/ The parties stipulated that at least the first ten minutes of this videotape depicted such sexually explicit activities.
7/ There is conflicting testimony on when Ms. Luis viewed the sexually explicit videotape. She testified it was shown immediately after the Marshall tape, Wieber and respondent testified that she momentarily stepped into the office after Ms. Block and Ms. Mason had left, that she saw the sexually explicit film, made an exclamatory remark, and left. Ms. Luis's testimony was not impeached on cross-examination; she had no motive to falsify. Indeed, she spoke highly of respondent and evinced no ill-will toward him. Under such circumstances, her testimony is persuasive.
8/ The School Board's repeated argument that respondent and Wieber tricked Ms. Block and Ms. Mason into coming to the principal's office and observing the film was not substantiated by the evidence.
9/ Without knowing the allegations relied on by the callers and the facts which they assumed to be true, such figures are accorded little weight. (The petition of the school teachers and staff is treated similarly.)
10/ Ms. Neil qualified her statement that respondent inserted the Key West film in the machine. (P-4, p. 5.)
11/ No evidence was presented to establish that respondent and his staff discussed anything other than the impending dedication ceremony; or that the trip was then for other than school purposes.
12/ It was not uncommon for an unlicensed teacher to be temporarily placed in charge of a community school facility.
13/ Although Ms. Mason apparently complained to respondent about his action, there was increasing dissension between them; under such circumstances, respondent cannot be faulted for not reacting positively to her complaint.
14/ See, Vernie M. Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981). Copies of the pertinent provisions of Chapter 6B-4 wore accepted
submittals. However, those rules do not apply be non-instructional personnel (such as respondent) and there is some question as to whether they are not in
15/ Such insensitivity to the feelings of other persons is more properly dealt with in an employee's performance evaluation.
the offending videotape was obscene or pornographic. See, Golden Dolphin v. State Division of Alcoholic Beverages and Tobacco, 403 So.2d 1372 (Fla. 5th DCA
COPIES FURNISHED:
Phyllis O. Douglas, Esquire, and
Schere, Esquire Lindsey Hopkins Building
Miami, Florida 33132
Oppenheimer, Esquire 1515 Northwest Seventh Street
Florida 33125
Leonard Britton, Superintendent Lindsey Hopkins Building
1410 Northeast Second Avenue Florida 33132
=================================================================
================================================================= STATE OF FLORIDA
SCHOOL BOARD OF DADE COUNTY,
Petitioner,
FRANCIS DeLAURIER,
/
FINAL ORDER OF
THE SCHOOL BOARD OF DADE COUNTY
THIS CAUSE coming on to be heard before The School Board of Dade County, Florida at its regular meeting of April 28, 1982 and the Board having heard arguments on the exceptions filed by the Petitioner herein and response thereto by the attorney for the Respondent and having read the record in this case and being fully advised in the premises, it is therefore
ORDERED as follows:
The Findings of Fact made by the Hearing Officer, R. L. Caleen, in his Recommended Order signed February 24, 1902 are hereby accepted and made a part hereof with the following exception:
The Hearing Officer's finding that Mrs. Neil qualified her statement that the Respondent inserted the Key West film in the machine is not supported by competent substantial evidence. The portions of the transcript to which the Hearing Officer refers are as follows:
"Q Who placed the film on the machine that played it?
A As far as I remember, it was Doctor DeLaurier."
The School Board does not find this testimony to be at all qualified.
The School Board rejects the Conclusions of Law of the Hearing Officer except as indicated herein below:
The school Board accepts the findings in paragraphs 1 and 2 of the Hearing Officer's Conclusions of Law, that Fla. Admin. Code Rule 6B-4.08 does not appear to apply to administrative personnel as defined in s. 228.041(10) Fla.Stat. but only to "teaching personnel" as that term is defined in s.
228.041 (9), therefore, Fla. Admin. Code Rule 6B-4.08 does not prescribe procedures which the School Board must follow.
The School Board notes the obvious contradiction in the Hearing Officer's conclusions when, after advising that Fla. Admin. Code Rule 6B-4.08 applies to respondent, he by subsequent footnote 14 indicates that that particular chapter of the Florida Administrative Code does not apply to Respondent. The school Board finds that the definitions set forth in Fla. Admin. Code Rule 6B-4.08 are relevant in defining the terms here in issue, and accepts those definitions as set forth in paragraph 3 of the conclusions.
The school Board rejects the definition of immorality provided by the Hearing Officer in paragraph 4 of his conclusions. The case relied upon by the Hearing Officer for a definition of immorality is a case which defines instead the term "moral turpitude." Furthermore, it is a case involving a realtor, and not an educator. As stated in the recent Florida decision of Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981) when distinguishing the Pearl v. Florida Board of Real Estate, 394 So.2d 189, 191 (Fla. 3d DCA 1981) case relied upon by the Hearing Officer
In our view, however, the moral standard to he upheld by teachers Is different from that of realtors,
since teachers are charged by
s 231.09 and 231.28(1) with pro- viding leadership and maintaining effectiveness as teachers. By virtue of their leadership capac- ity, teachers are traditionally held to a high moral standard in a community. See Negrich v. Dade
County Board of Public Instruction, 143 so.2d 498 (Fla. 3d DCA 1982)
See also Pyle v. Washington County school Board, 239 So.2d 121, 123 (Fla. 1st DCA 1970)
Immorality in the context of a teacher dismissal case is better defined as ". . . a course of conduct as offending the morals of the community and is a bad example to the youth, whose ideals a teacher is supposed to foster and to elevate. Lesley v. Oxford Area Sch. Dist., 420 A.2d 764 (Pa. 1980)
The School Board also rejects the Hearing Officer'S definition of "misconduct in office" found in paragraph 4 of his Recommended Order and relies instead on the definition in the Florida Administrative Code Rule 6B-4.09.
The School Board rejects the Hearing Officer's conclusion in paragraph
that the Respondent's actions do not constitute immorality and specifically finds that the Respondent's act of watching a sexually explicit film for approximately ten minutes in his office at Devon Aire Elementary school during school hours was an immoral act, that allowing a sexually explicit film to he played in the presence of female staff members was an immoral act, and that Respondent's action in inviting a school counselor to his office to further observe this film was an immoral act.
The School Board specifically finds that it is not required to make a rule prohibiting the viewing of sexually explicit material on school grounds and that any responsible administrator should know better than to do such a thing. See Tomerlin v Dade County School Board, 318 So.2d 159, 160 (Fla. 1st DCA 1975)
The School Board rejects the Hearing Officer's implications to the contrary, and in any case finds that the evidence sustaining DeLaurier's dismissal is as substantial as the consequences.
The School Board rejects the Hearing Officer's conclusions in paragraph
of his Recommended Order and specifically finds that the Respondent's actions as set forth hereinabove do constitute "misconduct in office." The record indicates clearly that the Respondent's actions have adversely affected the performance of his duties to the public and seriously impaired his effectiveness in the school system. The School Board finds that the following language in the Adams decision is applicable in this case, to wit:
Further, the record contains sub- tantial evidence that appellant's possession of marijuana received widespread newspaper publicity
in the Lee County area and that many people were aware of the facts involved. The evidence indicates that possession of marijuana is
considered a very serious and morally wrong offense in the Lee County Com- munity and that appellant's involve- ment with marijuana had seriously impaired their abilities to remain effective teachers. 406 So.2d 1172 Sea also Tomerlin v. Dade County School Board. supra.
The School Board finds that showing explicit sex films in Dade County schools is a very serious and morally wrong offense. Further, whether the investigation by the School Board of Respondent's wrongdoing caused the publicity which destroyed Respondent's effectiveness is immaterial. Wishart v. McDonald, 367 F.Supp. 530 at 535 (D. Mass 1973) aff'd at 500 F.2d 1110.
The School Board accepts and adopts the Hearing Officer's Conclusion of Law, paragraph 7.
The School Board rejects the Hearing Officer's conclusion in paragraph
8 that the Respondent's actions in taking his staff on a 45 minute boat trip; in occasionally performing personal errands during the day; in waiving the after- school care program fees for school staff; and in not more closely monitoring the record keeping of his subordinates do not constitute "incompetence" within the meaning of s. 231.36(6) Fla. Stat. and Fla. Admin. Code Rule 6B-4.09(1).
The failure to keep adequate records is a direct violation of s. 231.09(7) Fla. Stat.
The School Board finds that while there was no evidence that the Respondent was previously advised of his performance deficiencies, the above listed deficiencies are cumulative and when this incompetency is considered in conjunction with the previously set forth immorality and misconduct, termination is appropriate at this time. The School Board is not required to adhere to Fla. Admin. Code Rule 6B-4.08.
The School Board specifically rejects the conclusions apparently adopting speculative testimony.
The School Board further finds that the Respondent's use of school time for personal errands constitutes misconduct in office. See Fla. Admin. Code Rule 6B-1.05 and 6B-1.04
The School Board rejects the Hearing Officer's conclusion in paragraph
8 that Respondent is the victim of a vendetta.
The School Board rejects the Hearing Officer's conclusion in paragraph
8 that school employees; like bar owners, cannot he held to too high a standard and relies instead upon the cases previously cited as to the standard to be expected of a Dade County school employee.
WHEREFORE, The School Board of Dade County, Florida rejects the Recommendation of the Hearing Officer in this case and orders that:
Francis DeLaurier be and is hereby dismissed from his employment with The School Board of Dade County, Florida, and
Francis DeLaurier shall receive no salary from June 4, 1981 from The School Board of Dade County, Florida.
Done and Ordered this 28th day of April, 1982.
PAUL CEJAS, Chairman
The School Board of Dade County, Florida
| Issue Date | Proceedings |
|---|---|
| May 10, 1982 | Final Order filed. |
| Feb. 24, 1982 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 28, 1982 | Agency Final Order | |
| Feb. 24, 1982 | Recommended Order | Recommend Respondent lose one month's salary for letting secretary do his private work. Incompetence/immorality were not proven. |
