STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BROWARD COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2220

)

JOSEPH BREHMER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on March 10, 1983, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: James A. Brown, Esquire

200 South East 6th Street Courthouse Building, Suite 600A Fort Lauderdale, Florida 33301

For Respondent: No Appearance

This proceeding was initiated on a petition for dismissal filed by William

1. McFatter, Superintendent of Schools for the Broward County School System, on August 5, 1982. In that petition it is alleged that the Respondent, Joseph J. Brehmer, an instructional employee of the School Board of Broward County, is guilty of misconduct in office and immorality. Specifically, it is alleged that on July 22, 1982, the Respondent lied to a police officer regarding his status as a continuing contract teacher; that he kidnapped one Terry Lynn Shoemaker, a minor, drove him to his home for the purpose of engaging in one or more sexual acts with that minor; and that, upon arriving at the home of Terry Lynn Shoemaker, did engage in various homosexual acts with him, as more particularly alleged in Counts I through VI of the Administrative Complaint and based upon which the Petitioner seeks the dismissal of the Respondent from employment with the Broward County School System.

   
   

   At the hearing the Petitioner presented two witnesses and four exhibits. Petitioner's Exhibit 1 consists of a capias for the arrest of the Respondent, issued by the Circuit Court in and for Broward County, regarding charges of kidnapping and sexual battery. Petitioner's Exhibit 2 is a probable cause affidavit signed by one Leslie H. Chapman, apparently an officer of the Fort Lauderdale Police Department or Broward County Sheriff's Office who did not appear at the hearing. Petitioner's Exhibit 3 is a Criminal Information issued by the State Attorney for the Seventeenth Judicial Circuit, wherein the Respondent is charged with kidnapping and sexual battery and on which it is indicated that the Respondent pled not guilty. Petitioner's Exhibit 4 consists of a copy of what is apparently an arrest report, dated July 22, 1982, and on

   which is indicated the offenses of sexual battery, "no driver's license" and improper u-turn. That report is unsigned, unauthenticated and the author of that report did not appear at the hearing for direct or cross-examination.

   Petitioner's Exhibit 4 is not admitted into evidence. For similar reasons, Petitioner Exhibit 2, the unauthenticated hearsay probable cause affidavit cannot be admitted into evidence.

   
   

   The Respondent failed to appear at the hearing. His attorney of record, Terrence J. McWilliams of 1999 Southwest 27th Avenue, Miami, Florida 33145, was served a copy of the Notice of Hearing on or about February 2, 1983. Neither the Respondent nor his counsel of record appeared at the hearing. After waiting approximately one-half hour before proceeding, the Petitioner was allowed to go forward with its case. At the conclusion of the Petitioner's case, the Respondent had still not appeared and the hearing was adjourned. The Petitioner moved at the close of the hearing for the record to remain open for a short period of time in order for the Petitioner to attempt to secure a witness not in attendance at the hearing. After a substantial period of time, the Petitioner has not moved for the presentation of additional evidence. Inasmuch as no motion has been forthcoming and further since the Petitioner has had ample opportunity at the hearing as noticed to nut on its evidence against the Respondent, this Recommended Order is not entered on the evidence heretofore presented.

   
   

   The issue to be resolved in this proceeding concerns whether the Respondent committed the acts charged in the petition and whether, if so, disciplinary action is warranted.

   
   

   FINDINGS OF FACT

   
   

   1. The Respondent is a teacher licensed in the State of Florida, holding a continuing contract of employment as a classroom teacher and assigned as a teacher at Boyd Anderson High School at times pertinent hereto. The Petitioner is the School Board of Broward County, a local school district charged with employing teachers for instruction of students and regulating the conduct and practices of those teachers in the course and scope of their employment with authority to impose disciplinary action on those instructional employees who have been found to have engaged in various forms of misconduct in office within the mandates of Chapter 231, Florida Statutes, and Chapter 6B, Florida Administrative Code.

      
      

   2. On July 21, 1982, an Information was filed by the State Attorney for the Seventeenth Judicial Circuit in and for Broward County, Florida, charging the Respondent with kidnapping and sexual battery. On August 25, 1982, a capias was issued by the Circuit Court for the Seventeenth Judicial Circuit for the arrest of the Respondent for those charges. The Respondent has never been tried and no adjudication has been entered in that criminal proceeding as of the time of the hearing and the close of the evidence herein. The Respondent pled not guilty to those charges.

      
      

   3. John E. Aycock is the principal of Boyd Anderson High School. The Respondent was employed as one of his math teachers, having been so employed for two years at Boyd Anderson High School. He had a discussion with the Respondent concerning these charges and the Respondent acknowledged that he was charged with sexual battery and informed Mr. Aycock that he was innocent of those charges. The Respondent's evaluations as to his effectiveness as a teacher had all been satisfactory prior to the subject incident.

   4. Thomas J. Patterson is the Chief of the Internal Affairs Division of the Broward County School System and was so employed in July of 1982, at times pertinent hereto. The Respondent contacted him in a similar fashion regarding the subject charges and repeatedly denied them. Upon his recommendation, the Respondent was suspended from employment with the School Board, with pay, pending the outcome of the investigation of the subject charges. The remainder of Witness Patterson's testimony consisted totally of uncorroborated hearsay liened from prior police reports and what "others told him" regarding the Respondent's whereabouts on the date the conduct charged allegedly occurred and hearsay reports he received of the specifics of that conduct. No factual findings can be made herein regarding that hearsay testimony.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction over the subject matter of the parties to this proceeding, pursuant to Section 120.57(1), Florida Statutes (1981).

      
      

   6. The evidence in the record does not substantiate the charges against the Respondent. The evidence at best establishes that the Respondent was charged in the Circuit Court with the crimes of kidnapping and sexual battery, but that no adjudication on those charges has as yet been entered and that the Respondent pled not guilty to them. The evidence further establishes that the Respondent discussed the charges with the Petitioner's two witnesses but consistently and repeatedly denied them. The apparent arresting officer's probable cause affidavit is total hearsay, the author of it was not subjected to cross-examination and it is not authenticated. As such uncorroborated and unauthenticated hearsay, it could not be the basis for a finding of fact, nor could the remaining portions of the two Petitioner's witnesses' testimony as uncorroborated hearsay be the basis for a finding of fact herein, inasmuch as that testimony is simply secondhand and thirdhand hearsay which these witnesses gleaned and reported from persons unknown and apparently from an arresting officer's report. Since such hearsay testimony and evidence cannot be the basis of findings of fact, it must be concluded that the conduct in which the Respondent is alleged to have engaged in the petition herein has not been established, and therefore it has not been established that the Respondent is guilty of misconduct in office or immorality for purposes of Section 231.36, Florida Statutes. Accordingly, it must be concluded that, in view of the dearth of the evidence that acts charged were actually committed by the Respondent, that the Respondent must be concluded to be not guilty.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the party, it is

RECOMMENDED:

That the petition filed against Joseph Brehmer in this proceeding be dismissed in its entirety and that his suspension be terminated.

DONE and ENTERED this 30th day of June, 1983, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1983.

COPIES FURNISHED:

James A. Brown, Esquire

200 South East 6th Street Courthouse Building

Suite 600A

Fort Lauderdale, Florida 33301

Terrence J. McWilliams, Esquire 1999 South West 27th Avenue Miami, Florida 33145

Joseph J. Brehmer

7824 North West 70th Court Tamarac, Florida

William T. McFatter, Superintendent Broward County School Board

1320 Southwest Fourth Street Fort Lauderdale, Florida 33338

Docket for Case No: 82-002220

Orders for Case No: 82-002220