vs. ) CASE NO. 82-129
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on May 24, 1982, in Fort Lauderdale, Florida.
For Petitioner: Bruce E. Wagner, Esquire
For Respondent: W. George Allen, Esquire
On January 7, 1982, Petitioner, School Board of Broward County, Florida, authorized the filing of a Petition for Dismissal from Broward County School System against Respondent, Lillian McKahand. Count I of the Petition alleges that Respondent initiated a fight with another instructional employee of the Broward County School System during a basketball practice session in violation of Sections 231.36(6) and 231.09(2), Florida Statutes, and Rules 6B-4.09(2) and (3), 6B-5.07(4), 6B-5.10(4), and 6B-1, Florida Administrative Code. Count II of the Petition charges Respondent with misconduct in office and/or immorality, in that Respondent is alleged to have fought with another instructional employee of the school system in the presence of students, referred to that other employee as a "bitch", also in the presence of students, and that the fight involving Respondent and her fellow employee resulted in a gun being fired two or more times on school property in close proximity of students. The conduct referred to in Count II of the complaint is alleged to constitute a violation of Sections 231.36(6) and 231.09(2), Florida Statutes, and Rules 6B-4.09(2) and (3), 6B- 5.07(4), 6B-5.10(4) and 6B-1, Florida Administrative Code.
Respondent disputed the allegations contained in the Petition, requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, and Petitioner thereafter requested that a Hearing Officer from the Division of Administrative Hearings be assigned to conduct the final hearing in this cause.
The final hearing was scheduled for May 24, 1982, by Second Amended Notice of Hearing dated May 3, 1982. At the final hearing, Petitioner called Karen Farber, Barbara Hodges, Sharonda Lane, Peggy W. Freeman, Celia Hodges, Rachel Geathers, Angene Moss, Anita Bell, Valentina Lewis, Sylvia Woodard, Benjamin Stevenson, and Harold McKahand as its witnesses. Petitioner offered Exhibits 1 through 3, which were received into evidence. Respondent called Deloris B. Hardison, Gladys Greenblatt, and Eugene Freeman as her witnesses. In addition, Respondent testified in her own behalf. Respondent also offered Respondent's Exhibits 1 through 4, which were received into evidence.
Counsel for both parties in this proceeding have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this Recommended Order, they have been rejected as being either irrelevant to the issues involved in this cause, or as not having been supported by evidence of record.
Respondent has for twelve years been an instructional employee of the School Board of Broward County, Florida. She currently holds a continuing contract as a classroom teacher, and is assigned to Perry Elementary School in Miramar, Florida. During the same time period, Harold McKahand, Respondent's husband, and Peggy Freeman were instructional employees of the Broward County School Board assigned to Perry Middle School, adjacent to Perry Elementary where Respondent taught.
From as early as 1979, Respondent had suspected that her husband and Mrs. Freeman were having a love affair. These suspicions were a frequent topic of conversation between Respondent and her husband. In fact, Respondent had indicated to her husband her intention to seek a divorce. Notwithstanding Mr. McKahand's assurances that he did not want a divorce and would no longer see Mrs. Freeman, he continued to do so, and Mrs. Freeman on many occasions made telephone calls to the McKahand residence, which Respondent apparently considered harassing in nature. All of this culminated in a discussion between Respondent and Mrs. Freeman in August of 1981 in which Respondent requested that Mrs. Freeman cease making telephone calls to her home because they disturbed her and her two children. After this discussion between Respondent and Mrs. Freeman, there was little or no personal contact between them until the act which gave rise to this proceeding.
On December 12, 1981, Respondent, her husband and two children attended a racquetball tournament. After the tournament, they returned to their home and Respondent busied herself with work around the home. Respondent's husband, unbeknownst to Respondent, took the family car and proceeded to Perry Middle School to obtain some work folders from his office. Upon arriving at Perry Middle School, Mr. McKahand discovered Mrs. Freeman conducting a Saturday afternoon basketball practice with the school's girls basketball team, which she served as coach. Mr. McKahand and Mrs. Freeman conversed briefly, and Mr. McKahand departed the school and returned home.
Meanwhile, Respondent's oldest son had left the family home without performing certain chores which had been assigned to him by Respondent. Upon discovering her son's absence, Respondent took her bicycle and began to search the neighborhood for him. Her search carried her ultimately to the gymnasium at Perry Middle School. Respondent had no knowledge that her husband had gone to his office at Perry Middle School, nor did she know that Mrs. Freeman was conducting a basketball practice at the school. When Respondent arrived at the
school, she walked into the gymnasium to see if her son was there. Upon entering the gym, she saw the basketball practice in session, and noticed Mrs. Freeman. When she did not see her son, Respondent started walking from the gym. A member of the girls basketball team advised Mrs. Freeman that Mrs. McKahand was at the door. Although there is some conflict in the testimony on this point, it appears that Mrs. McKahand did not beckon to Mrs. Freeman to follow her outside the gym, but that one of the team players told Mrs. Freeman of Respondent's presence, and indicated to Mrs. Freeman that Respondent wanted to talk to her. Upon being advised of this, Mrs. Freeman walked across the basketball court, picked up her purse from a table, and proceeded to the gym door through which Respondent had exited.
By this time Respondent was outside the gym. Mrs. Freeman forcefully opened the gymnasium door behind which Respondent was standing, striking Respondent on the arm. As Mrs. Freeman exited the door, she and Respondent grabbed one another and a fight ensued.
The girls basketball team members were at various positions inside the gymnasium at the time the scuffle between Respondent and Mrs. Freeman started. It is clear from the record, however, that each of the students were located behind Mrs. Freeman and, therefore, were not in the best of positions to observe the precise manner in which the conflict started. It is also equally clear that the physical confrontation between Respondent and Mrs. Freeman occurred quickly and spontaneously, and, as a result, the various eye-witness accounts contained in this record predictably contain varying and conflicting versions of the events leading up to and culminating in the scuffle between Respondent and Mrs. Freeman.
During the course of their physical confrontation, Mrs. Freeman placed one of her hands on Respondent's throat and the other in Respondent's hair, and Respondent reciprocated, pushing Mrs. Freeman against the gymnasium wall. Several blows were exchanged between the two women. Although the gymnasium door had closed behind Mrs. Freeman, several of the basketball team members followed the two teachers out the door and attempted to separate them. After the fight began, there is no evidence that Respondent acted other than in defense of the actions of Mrs. Freeman. When the students were finally successful in separating the two combatants, Respondent began looking for her sunglasses, which had fallen off, and Mrs. Freeman retrieved her purse, which she had dropped during the altercation. Upon finding her purse, Mrs. Freeman called to several of the students to stand back, whereupon she removed a .22 calibre pistol from her purse, and fired at least two shots. Respondent, upon observing Mrs. Freeman to be armed, began to run from the school premises, retrieved her bicycle, and retreated to her home.
Apparently unsatisfied with these results, Mrs. Freeman incredibly loaded several of the team members, including some of the students who testified in this proceeding, into her car, where she reloaded her weapon. Mrs. Freeman then proceeded to drive in a reckless manner, including running several stop signs, to Respondent's home. Upon arriving at Respondent's home, Mrs. Freeman pulled her car into the driveway, took her pistol, got out of her car, and again confronted the Respondent who was standing in her driveway with her two children. Respondent picked up a broom in her garage and got her two children to stand behind her in an attempt to shield them from Mrs. Freeman. Mr. McKahand, who was inside the home during this time, came outside, and ultimately was able to get Respondent inside their home. Mrs. Freeman then departed the McKahand residence, but shortly thereafter began making harassing telephone calls to the McKahand home.
Later that afternoon, Mr. McKahand attempted to take Respondent to her part-time job in a local department store, but was prevented from doing so when Mrs. Freeman attempted to run the McKahand car off the street with her vehicle, and further fired upon the McKahands with her pistol.
As previously indicated, Petitioner has charged Respondent with referring to Mrs. Freeman as a "bitch" during the course of their fight. Respondent denies making such a statement, and the only testimony in the record which would establish a finding that such a statement was made is contained in the conflicting testimony of Mrs. Freeman and Rachel Geathers, one of the student basketball players. Mrs. Freeman's testimony in this regard, which the Hearing Officer hereby finds unworthy of belief, was that Respondent referred to her as a "filthy bitch" as Mrs. Freeman exited the gymnasium door. Ms. Geathers' testimony was that Respondent referred to Mrs. Freeman as a "bitch" after the two combatants had exited the gym and enough time had passed to allow all of the basketball players to run through the door and outside the gym. Ms. Geathers' testimony in this regard is also rejected, in that several of the other students who were in a better position to observe and hear Respondent and Mrs. Freeman testified that they heard no such statement made. Accordingly, it is specifically concluded that the evidence in this case fails to establish Respondent's use of profanity in the presence of students as alleged in the Petition.
There is no evidence in the record of this proceeding to indicate the Respondent's effectiveness as an employee of the Broward County School System has in any way been adversely affected by the above-described events. In fact, Respondent's principal and grade chairman both testified that Respondent is a good teacher, and they would welcome her back on the faculty of Perry Elementary School should she be absolved of the allegations involved in this proceeding.
Even a cursory review of the record in this case will reveal sharp divergencies and conflicts in the testimony of several witnesses. In attempting to resolve these conflicts, the Hearing officer has observed the demeanor of the witnesses while testifying, their interest, if any, in the outcome of this proceeding, together with any motive, bias or prejudice which might affect their credibility. Further, the Hearing Officer has also taken into account the conditions existing at the time of the incident observed by the witnesses in weighing the credibility to be attached to the various accounts contained in this record. In so doing, the Hearing Officer has concluded that Respondent did not go to the Perry Middle School gymnasium seeking a confrontation with Mrs. Freeman. Indeed, the record clearly establishes that Respondent did not know Mrs. Freeman was even at the gymnasium on the date in question. Further, it is concluded, despite some evidence to the contrary, that Respondent did not summon Mrs. Freeman to follow her outside the gymnasium, but that Mrs. Freeman was induced to do so as a result of a student telling her that someone was outside the gym to see her. Finally, the quality as opposed to the quantity of the evidence in this case does not support a factual conclusion that Respondent, in fact, initiated the physical confrontation with Mrs. Freeman. Because of her conduct at the time of the incident, and further because of the inaccuracies and inconsistencies in Mrs. Freeman's testimony at the final hearing in this cause, her testimony, in its entirety, is worthy of little credibility. Because of this, her testimony that Respondent initiated the fight has been found unworthy of belief. The testimony of Mrs. Freeman's students, several of whom testified that the first aggressive gesture they saw was made by Respondent, is tainted both by their admitted allegiance to their teacher, Mrs. Freeman, and by their
physical positioning which would not admit a particularly clear view of the incident.
Conversely, the factual version of this incident given by Respondent in her testimony was, in every particular, more plausible than that contained in the testimony of either the students or Mrs. Freeman. At the time of the above- described incident, almost three and one-half months had passed since Respondent had last spoken in person with Mrs. Freeman. The Respondent did not know that Mrs. Freeman was at the gymnasium when she arrived there looking for her son.
As a result, there could not have been any premeditated design on the part of Respondent to assault Mrs. Freeman and, due to the passage of time since her last contact with Mrs. Freeman, there is no apparent motive of record to explain a spontaneous assault. As a result, the only way to resolve the conflict in the testimony concerning how this altercation originated is to weigh the credibility of the various participants. Making such a choice is perhaps the most difficult task a finder of fact must face in a proceeding such as this, but by applying the aforementioned factors, the Hearing Officer has determined that in the areas of conflict, the testimony of the Respondent is more credible than that of either Mrs. Freeman or her students.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
Section 231.36(6), Florida Statutes, provides as follows:
Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, 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, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude. 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 reinstated, and his back salary shall be paid. In cases of suspension by the school board or by the superintendent, the school board shall determine upon the evidence submitted whether the charges have been sustained and, if said charges are sustained, either to dismiss said employee or fix the terms under which said employee may be reinstated. If such charges are sustained by a majority vote of the full membership of the school board and such employee is discharged, his contract of employment shall be thereby cancelled. If the employee is under continuing contract, any such decision adverse to him may be appealed by him in writing to the Department of
Education through the Commissioner, for review; provided such appeal is filed within 30 days after the decision of the school board, and provided further that the decision of the Department shall be final as to sufficiency of the grounds for dismissal.
Section 231.09, Florida Statutes, lists the functions to be performed by instructional staff of the public schools, subject to rules and regulations of the school board and the State Board of Education, and among these requirements is the following:
(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.
Rule 6B-4.09(2), Florida Administrative Code, provides that:
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 profession into public disgrace or disrespect and impair the individual's service in the community.
Rule 6B-4.09(3), Florida Administrative Code, defines "misconduct ift office" 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."
Rule 6B-5.07(4), Florida Administrative Code, requires educators to "[d]evelop and maintain standards of conduct."
Rule 6B-5.10(4), Florida Administrative Code, requires educators to ".
. .provide leadership and correction for others by appropriate example. . ."
In addition to the aforementioned provisions of Chapter 231, Florida Statutes, and Chapters 6B-4 and 6B-5, Florida Administrative Code, Respondent is charged generically with having violated Chapter 6B-1, Florida Administrative Code, which is too lengthy to be completely set forth herein, but the Hearing Officer hereby takes official notice of the provisions of that chapter.
To successfully withstand judicial review, an agency decision must be supported by a record foundation of substantial competent evidence. Section 120.68(10), Florida Statutes. Thus, in Bowling v. Department of Insurance, 394 So.2d 165, 171-172 (Fla. 1st DCA 1981) the court held that:
In a proceeding under a penal statute for suspension or revocation of a valuable. . . professional license, the term 'substantial competent evidence' takes on vigorous implications that are not so clearly present on other occasions for agency action under
Chapter 120. . .[W]e differentiate between evidence which 'substantially' supports conventional form of regulatory action and evidence which is required to support 'substantially' a retrospective characterization of conduct requiring suspension or revocation of the actor's license. Evidence which is 'substantial' for one purpose may be less so on another, graver occasion. . .
. . .Now we recognize also that in both form and persuasiveness evidence may 'substantially' support some types of agency action, yet be wanting as a record foundation for critical findings in license revocation. . .[W]e glean a requirement for more substantial evidence from the very nature of licensee discipline procedure. . .and when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences.
In anyone's judgment, a judge's no less than any other, certain factors present 'in the record' of penal proceedings fairly detract from the substantiality of evidence which is weighty enough for less consequential purposes. One such factor is a grave penalty. In determining 'the substantiality of evidence,' which is to say in ascertaining what we call the facts, a judge takes the penalty into account for the same reason that compels him, in ascertaining the law, to impose a 'strict' construction on the penal statute. . .
Respondent has been an employee of the Broward County School System for approximately twelve years. At the time of her suspension in December, 1981, she was making approximately $20,000 in annual salary. She is, therefore, obviously faced in this proceeding with the loss of a valuable right--her continuing contract of employment as a classroom teacher with the Broward County School System. The Bowling decision quoted above requires that this Hearing Officer, and ultimately the School Board and any reviewing court, weigh the substantial nature of this potential penalty against both the quality and quantity of evidence contained in this record to justify depriving Respondent of that right. After review of the testimonial and documentary evidence contained in this record, and based upon an evaluation of the demeanor of the witnesses who testified in this case, and further upon consideration of the quality of the witnesses' observations, including a consideration of their credibility, the Hearing Officer has concluded that Petitioner has failed to demonstrate by a preponderance of the evidence that Respondent has engaged in any conduct violative of those sections of the Florida Statutes and Florida Administrative Code alleged to have been violated in the Petition.
RECOMMENDED that a final order be entered by the School Board of Broward County, Florida, dismissing the charges against Respondent, and reinstating her as an instructional employee, with back pay.
DONE AND ENTERED this 26th day of July, 1981, in Tallahassee, Florida.
WILLIAM E. WILLIAMS
Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1981.
Bruce E. Wagner, Esquire 1520 South East Third Avenue
W. George Allen, Esquire
Dr. William T. McFatter Superintendent of Schools Broward County, Florida
