STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF EDUCATION, ) EDUCATION PRACTICES COMMISSION, )
)
Petitioner, )
)
vs. ) CASE NO. 83-3423
)
ROBERT LEE WHEELER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on March 13, 14 and 15, 1984, in Daytona Beach, Florida.
APPEARANCES
For Petitioner: J. David Holder, Esquire
Post Office Box 1694 Tallahassee, Florida 32302
For Respondent: John W. Tanner, Esquire
630 North Wild Olive Ave., Suite A Daytona Beach, Florida 32018
BACKGROUND
This proceeding was initiated when petitioner, Department of Education, Education Practices Commission, filed an administrative complaint on October 10, 1983, against Respondent, Robert Lee Wheeler, alleging that wheeler was guilty of personal conduct which seriously reduced his effectiveness as an employee of the Volusia County School Board, and that such conduct was in violation of Rule 6B-1.06(3)(a), (e), (f),(5)(a), and (e), Florida Administrative Code, in that Wheeler failed to make reasonable efforts to protect students from conditions harmful to learning or to health or safety, intentionally violated or denied a student's legal rights, and failed to maintain honesty in all professional dealings and used coercive means to influence professional judgments from his colleagues. For this, petitioner sought to discipline his state teaching certificate.
Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the charges. The matter was referred by petitioner to the Division of Administrative Hearings on November 3, 1983, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated December 13, 1983, a final hearing was scheduled for March 13, 14 and 15, 1984, in Daytona Beach, Florida. Two requests for a continuance by petitioner were denied on February 16 and March 12, 1984.
A motion for statement of particulars, motion to dismiss and motion for protective order filed by respondent were denied by the undersigned by order dated January 26, 1984.
At the final hearing petitioner presented the testimony of Gwendolyn Biddle, principal of Seabreeze High School, Marion Monaghan, Edie Ruth Browning, Kay Kosco, Billie Wisniewski and Delores Merritt, all teachers at Seabreeze, Betty L. Thomas and Grant Tolliver, former students at Seabreeze, Jeannette Perry, a former switchboard operator at Seabreeze, Joe Nelson, associate principal at Seabreeze, and Elizabeth McGhee, former assistant principal at Seabreeze. Petitioner also offered petitioner's exhibits 1-24; all were received except exhibits 17 and 20 upon which rulings were reserved. Respondent testified on his own behalf and presented the testimony of Joanne Powell, guidance counselor at Seabreeze, Deena Lyle, Bill Shoep, Urania John, Zachary Strombous, Allison Dohrman Osteen, Matt Merrell, Michael L. Vann, Judy Wildfong and Frank Dunn, all present or former students at Seabreeze, Florence Lyle, Delores Boyce, Gary Dorhman, and George Dunn, all parents of Seabreeze students, Gerald R. Chandler, athletic director at Seabreeze, Rocky Yocam, head football coach at Seabreeze, Leonard Grasso, Philip J. Walser, Jim Moore, James Foye, John Hossfield, Jeffery J. Boyle, Daniel Loyden and Billie Wisniewski, all teachers at Seabreeze, Dr. Alvin E. Smith, a former football team physician at Seabreeze, Arthur Bates and James L. Whitaker, both retired teachers, Lemul Summerlin, director of school plant management for Volusia County, William A. Stevens, a former Seabreeze teacher, Doris Klindt, a secretary at Seabreeze, Betty Bates, affirmative action Title IX officer for the Volusia County School Board, Elizabeth Sterling, a clerk at Seabreeze, Harold D. Gold, an education consultant, Myrtice Bryant, dean of students at Seabreeze, Alfred A. Green, a former Volusia School Board member, and Jack Surrette, principal at Mainland High School in Daytona Beach. He also offered respondent's exhibits 1-23; all were received except exhibits 10 and 16.
The transcripts of hearing (four volumes) were filed on April 19, 1984. Proposed findings of fact and conclusions of law were originally due from the parties on May 9, 1984. However, the parties requested an extension of time to and including June 1 in which to file the same. Respondent's counsel thereafter requested a second extension to June 8, and such were eventually filed by petitioner and respondent on May 31 and June 11, 1984, respectively, and have been considered by the undersigned in the preparation of this order. Findings of fact not included in this order were considered irrelevant to the issues, immaterial to the results reached, or were not supported by competent and substantial evidence.
The issue herein is whether respondent's teaching certificate should be disciplined for the alleged violations set forth in the Administrative Complaint.
Based upon all of the evidence the following findings of fact are determined:
FINDINGS OF FACT
INTRODUCTION
Respondent, Robert Lee Wheeler, holds state teaching certificate number 251404 issued by the State Department of Education covering the areas of administration and supervision, mathematics, science and junior college.
This complaint arose out of a student walk-out and demonstration by some sixty-five students at Seabreeze High School (Seabreeze) in Daytona Beach, Florida, in the late spring of 1983. The walk-out apparently was directed primarily at the principal, Gwendolyn Biddle, and respondent, who was an assistant principal at the school. The local school board refused to take disciplinary action against either person, but after receiving certain unidentified "complaints" against various "staff members", it referred the matter to petitioner, Department of Education, Education Practices Commission (EPC), by letter dated June 28, 1983. Petitioner then conducted an investigation which culminated in the filing of an administrative complaint against respondent on October 23, 1983. The filing of the complaint prompted the instant proceeding.
At all times relevant hereto respondent was employed as an assistant principal at Seabreeze by the Volusia County School Board. He was assigned to Seabreeze in 1976 as assistant principal and continued in that position until August, 1983. At that time he was transferred to Mainland High School (Mainland) in Daytona Beach as an assistant principal because of the charges surrounding this proceeding. Prior to 1976 Wheeler had been in the teaching profession in other Daytona Beach area schools for a number of years. His most recent position prior to 1976 had been dean of students at Mainland. He has never been disciplined in any respect by EPC, the school board, or his principal during his 16 year tenure with the county.
When Wheeler came to Seabreeze in 1976, the school was in a state of disarray in terms of both student discipline and physical plant. 1/ Wheeler was given instructions by both the local school board and the principal to "clean up" the situation by reinstilling discipline, eliminating the "drug problems", improving the physical plant, and otherwise making the school a place for learning. Indeed, without such changes, the school was in danger of losing its accreditation.
Wheeler undertook the task with great devotion and zeal, and although not officially assigned to Seabreeze until August, 1976, he began working without pay 18 hour days per day at the school some six weeks early in an effort to improve its physical condition.
With the help of other faculty members, but primarily through Wheeler's own personal efforts, the school plant was vastly improved. For example, the school was repainted, sod laid where no grass had grown, a sprinkler system was installed, school lockers painted and repaired, fences erected, sidewalks built, restrooms modernized, locks placed on teachers' doors, parking stripes painted onto the parking area, the science lab secured, and a myriad of other improvements made. Wheeler was also given the duty of handling discipline problems. Among other things, he installed panic buttons in all rooms for teachers to use, established a referral center for students to report to if they created disciplinary problems in the classroom, had the positions of outside campus supervisor and administrative assistant created, and provided beepers to key personnel. The evidence clearly supports a finding that the apparent prior drug problem was eliminated at the school and discipline was "improved immeasurably" as a result of Wheeler's personal efforts and dedication. This was corroborated by virtually every witness who testified on the subject.
These changes in school plant and discipline did not occur immediately, but rather took place over a period of several years.
In school years 1981-82 and 1982-83, the organizational chart for Seabreeze provided for a principal, associate principal and two assistant principals. Wheeler occupied one of the assistant principal slots whose duties included cafeteria supervision, campus supervision, custodial services, emergency procedures, school plant facilities, student attendance and student control. Wheeler was also in charge of the referral center which dealt with student control, conduct, discipline and attendance, had complete supervision of all disciplinary matters, was in charge of all work details on the school premises, and had the final say-so on student suspensions. Additionally, he was in charge of student-teacher conferences, and acted as liaison to all teachers regarding the "referral" of students. Further, he was responsible for school maintenance and repair, as well as the safety and security of the grounds. A more complete list of his specific responsibilities is found in Petitioner's Exhibit 4.
Elizabeth McGhee occupied the other assistant principal slot. Her duties included data processing, FTE reports, grade reporting, graduation, guidance, master schedule, student records and student schedules.
Student schedule changes originated primarily through the school's guidance department. They were then forwarded to data processing for recording in the computer system. Where a discipline problem was involved, Wheeler had the authority to initiate a schedule change in the referral center, and then route it to guidance and on to data processing. Therefore, in those types of situations, Wheeler had the authority, with the principal's knowledge and approval, to change a student's schedule whenever he believed it to be in the best interests of the student and school.
Grades were generally given by teachers the week before the end of each nine week grading period, and were noted on a grade sheet which was then forwarded to data processing for entry into the computer system. Whenever a student disputed a grade, it was the accepted procedure for the student to initially meet with his or her teacher. If that meeting was unsuccessful, the student could then appeal to the guidance department. If the contested grade was the result of tardiness, absences or discipline, the appeal went directly from the teacher to Wheeler.
Once a grade was determined to be in error or needed to be changed, that information was forwarded to McGhee who then advised the registrar's office to make the actual change on the computer. Administrators were generally not authorized to override a grade issued by a teacher to a student. However, in the case of mathematical errors, Wheeler had the authority to override a teacher and award a different grade. This was confirmed by the school principal.
Seabreeze has a faculty handbook containing the school's procedures and policies. It has been received in evidence as Petitioner's Exhibit 3. The guidelines contained therein are drawn from State law, and state and county policies and procedures. The book contains approximately 100 pages of regulations.
ALLOWING STUDENTS TO LEAVE SCHOOL GROUNDS DURING THE DAY
The administrative complaint filed herein charges that Wheeler "has, on numerous occasions, permitted students to leave the school grounds during the school day without proper explanation and without consulting the students' parents." (Paragraph 3 of administrative complaint.)
In December, 1974, Seabreeze adopted Pupil Policy No. 206 which related to student attendance regulations. Minor amendments to the policy were made in August, 1982. It has been received in evidence as Petitioner's Exhibit
The policy actually implemented County School Board Policy and provided inter alia, that attendance regulations were established by Chapter 232, Florida Statutes, and that "no pupil may leave the school grounds during school hours without the approval of the principal or his designated representative."
Wheeler was the designated representative at Seabreeze. It also provided that "no pupil may be permitted to leave school prior to dismissal except by permission of the parent(s) or legal guardian, unless in the company of school employees designated by the principal or teacher in charge." Normally, students give telephone numbers where parents or guardians could be reached in order to contact them in case of emergencies or if they needed to leave campus. In many cases, the students had no telephone numbers where parents or guardians could be reached, and some did not live at home.
It was the practice of Wheeler that those students over 18 years of age were adults, and if they gave a reason which justified leaving campus, he authorized them to do so without calling their parents or guardians. This practice is also followed by the long-time principal at Mainland High School in Daytona Beach. It was also Wheeler's practice that if a legitimate reason for leaving campus was given by a younger student, and the parent and guardian could not be reached, he considered himself to have the authority to excuse that student.
Grant Tolliver was a student at Seabreeze in the 1982-83 school year. He graduated in May, 1983. According to Tolliver, he and three other seniors, all varsity athletes and eighteen years of age or older, approached Wheeler one morning in the spring of 1983 and asked permission to leave campus. In actuality, they intended to go to a "skip party." Although Tolliver contended that Wheeler knew they were going to a skip party and nonetheless let them leave campus, such is not deemed to be credible. In fact, Wheeler believed the students were going to the registrar's office at Bethune-Cookman College where they were seeking athletic scholarships, and if true, this constituted sufficient explanation to leave campus. It was not disclosed whether the three colleagues of Tolliver had parents or guardians to contact or lived alone. Therefore, it was not shown whether Wheeler should have contacted another person before their departure. In the case of Tolliver, he apparently lived with his parents, but because he was of majority age, Wheeler did not contact them.
Tolliver also related a story of other absences from campus during 1982-83, but this testimony is not deemed to be credible, and accordingly has been disregarded.
According to the Seabreeze principal, it made no difference if a student had attained the age of eighteen as far as the policy for leaving the school grounds was concerned. She stated that it was still necessary to call a student's parent or guardian if able to do so before allowing a student to leave campus.
In the spring of 1980, or some four years prior to the hearing, one Betty Thomas approached Wheeler during second period and, according to Thomas, asked to leave campus "for personal reasons". Thomas was in the company of another student, Rose Askew, who was then visiting a doctor off-campus for certain injuries previously received. Wheeler had arranged for this medical treatment free of charge since Askew could not afford to see a doctor. Wheeler was under the impression Thomas was going with Askew to see a doctor, and
allowed her to go. Wheeler denied that he allowed Thomas to leave campus by simply saying she had "personal problems," and his testimony is deemed to be the more credible of the two. He did not contact Thomas' parents to obtain their permission for her to leave campus. Without Wheeler's knowledge, Thomas went to a junior high school in Holly Hill, Florida, some five to six miles away, to assist her cousin, Jewel, who had been threatened by other students at that school. She returned to school at fifth period, or around 1:30 p.m. that day.
When Wheeler later found out that Thomas had lied, and had gone to another school to intercede in a fight on her cousin's behalf, he gave her an unexcused absence.
IMPROPER ALTERATION OF STUDENTS' GRADES
The administrative complaint alleges that respondent "improperly altered student's grades, assigning students grades higher than that which were originally assigned by students' teachers."
The above allegation stems primarily from a grade change made for Billy Schoep, a student in the 81-82 school year. At that time Schoep was a student in Delores Merritt's American Literature class. According to the testimony of Wheeler, Schoep, and Schoep's father, and which is accepted as being more persuasive and credible than testimony to the contrary, Schoep questioned the grade of D given by Merritt during the third nine week period of the school year. Because Billy had been suspended for five days during that period, a teacher-parent conference was held and attended by Wheeler, Billy, his father, and Merritt. Such a conference was within Wheeler's job responsibilities. Before the conference, Wheeler told Merritt he had found a mathematical error in her computations which would have raised Billy's grade from a D to a C, and Merritt agreed that such a revision was appropriate. These calculations are reflected on respondent's exhibit 5. At the conference itself, Merritt again agreed in front of all three that she had erred and would raise his grade. At no time did Wheeler threaten Merritt or otherwise seek to induce her to change the grade by virtue of his authority and position. Sometime later, Billy's father called Wheeler to state that Billy had still been given a
Wheeler again contacted Merritt about the grade, and Merritt sent a memorandum to him on April 2, 1982, stating she would not change the grade. Wheeler then prepared a form changing the grade but it was "lost" by data processing. He sent the change a second time and assumed the change had been made. After Billy's father complained again that the grade had never been changed Wheeler manually changed the grade that fall and advised all parties, including the principal, that he had done so. No one, including the principal, told Wheeler that he had exceeded his authority, or that the action was wrong, or that the grade should not have been changed. Since the grade change was based upon a mathematical error by Merritt, and such a change was agreed to by Merritt, Wheeler's actions were appropriate and not contrary to school regulations. This was confirmed by the school principal.
D. ATTEMPTS TO INDUCE TEACHERS TO CHANGE GRADES
According to the administrative complaint, Wheeler "induced or attempted to induce teachers. . . to change student grades to grades higher than that to which they were entitled." (Paragraph 5 of administrative complaint.)
Deena Lyle was a student in Edie Browning's business math and typing classes in 1982-83. During the third nine week grading period she received an F in typing and a D in business math. Deena had been absent for seven class days because of influenza in February, 1983. Students were normally given five days
to make up missed classroom work. However, because of the number of days missed, Deena was having some difficulty in making up her work on a timely basis, particularly since she was taking six courses at the time. Deena's mother contacted Browning and was told her typing was "fine", and that she would be permitted to make-up her missed classwork. When Deena received an F and D in her two classes for that period, the mother contacted Browning who told her the typing work had not been successfully made up, and it was now too late to do so. The mother contacted various administrators and was told to see Wheeler and arrange a parent-teacher conference. Wheeler was finally contacted and arranged a teacher-parent conference where he asked Browning if Deena could make-up her typing work because of her lengthy absence, and then reassess her grade.
Browning agreed to do so and later raised Deena's grade in typing from an F to a
Browning testified she did so because she felt "threatened", and did not wish to "rock the boat". However, she acknowledged that the "threats" were in the form of a "polite request", and that Wheeler never demanded or threatened that she change the grade. Wheeler denied using any improper leverage or threats and it is found that Wheeler made no threats, and did not improperly induce Browning to make a grade change as alleged in the administrative complaint.
Browning also taught Brian Boice business math in 1982-83. At the end of the first grading period Boice received a D. Because Boice was contemplating dropping out of school, and Wheeler was concerned with keeping him in school, Wheeler approached Browning at that time and asked about Boice's grade. He asked if she would agree to reevaluate Boice's first nine week's work at the end of the second nine week period if he improved during the latter period. She agreed to do so. Boice did not improve his work and accordingly was given a D for both the first and second grading periods. Wheeler never approached Browning again about Boice's grades, and did not question the grades given. Moreover, he did nothing improper as to Boice's grades, and in no way sought to influence or induce her to change the grade.
TRANSFER OF STUDENTS DURING YEAR
The next allegation involves a charge that Wheeler "transferred students from one class to another during the course of the school year, with the result that the students failed the course in which they were originally enrolled." (Paragraph 6 of administrative complaint.)
Although not identified in the administrative complaint, this charge apparently involved a student named George King, who was enrolled in intermediate typing in school year 1982-83. The class was taught by Edie Browning and was a full year course, which means that if the course is dropped at any time during the school year, the student receives no credit. During the last nine-week grading period King dropped the typing course and added a varsity sports class in its place. The change was made after King had approached Wheeler asking to drop Browning's class. Wheeler fully explained to him that he could lose the entire year's credit if he dropped the course, but King still insisted that he drop the course. There is no evidence to show whether King's parents were contacted or not regarding the change, but Wheeler believed they were contacted since a permission slip would be needed from King's parents to participate in varsity sports. Wheeler late wrote a memorandum on behalf of King to his guidance counselor requesting that King be changed from typing to varsity sports. There was nothing improper in Wheeler's actions, and he felt such a change was consistent with King's wishes, and in his best interests. Contrary to the assertions in the complaint, King did not receive a failing grade. As a matter of fact, he was already enrolled in five other classes, and did not need a sixth period class to graduate.
In the 1981-82 school year, Browning also taught a student named Zachary Strombous in her business math course. This too was a full year course which required that the student complete the entire year to receive course credit. Strombous came to Wheeler at the beginning of the second semester and asked permission to drop the course since he had a continuing conflict with his teacher. Biddle, the principal, had given Wheeler permission to transfer students out of a class who were having a conflict with a teacher, and Wheeler accordingly authorized Strombous to drop the class and be an office aide for the remainder of the year during that period. Strombous realized that by doing so, he lost credit for the entire course, but was not concerned since he did not need the credit to graduate. He subsequently graduated with his class and now attends junior college. Wheeler's actions were consistent with his authority, were not improper, and were authorized by the principal.
USING STUDENTS FOR PHYSICAL LABOR
This allegation involves a charge that Wheeler "on numerous occasions.
. . removed students from their assigned classes to perform physical labor on the school grounds, including, but not limited to installing sidewalks, paving cement, installing television cable and installing water sprinkling systems." (Paragraph 7 of administrative complaint.)
Marion Monaghan, a twelfth grade English teacher at Seabreeze for many years, testified that during the 1982-83 school year three students were absent from her English class on various occasions (up to six or seven times during the entire year) to "pour sidewalks" for Wheeler. 2/ However, respondent generally consulted with Monaghan prior to their being absent and therefore she knew when and whom would be absent on a particular day. She recalled similar absences in prior years, but could give no names, dates, or activities being engaged in. In the 1981-82 school year, she had complained about this practice to Wheeler and he promised to get her prior consent in the future. Therefore, any relevant absences were with the consent of the teacher.
All students were given the opportunity to make up their work, none failed their courses as a result of the isolated absences, and the students had volunteered for such assignments.
Kay Kosco, also an English teacher at Seabreeze, stated that one student had missed her class in the spring of 1980 to work in the library, and that another missed classes in 1981 or 1982 to do "work." However, she could not recall the circumstances of their absences or attribute such absences to Wheeler.
A third teacher, Billie Wisniewski, who teaches science courses at Seabreeze, recalled that some "six or seven years ago" Wheeler took students out of her classes for work projects. However, she gave no names or dates to corrobate this allegation. She also testified that in school year 1982-83 another student missed class but could not state whether it was due to illness or because Wheeler had excused the student.
A fourth teacher, Edie Browning, testified that a student (John Peck) missed classes in 1981-82 to do manual labor but could not recall whether such work was performed for Wheeler. She did recall that Wheeler signed the excused absence slip for Peck. She also related that on one occasion during school year 1982-83, she saw another of her students during class doing "manual labor." However, she could not recall what type of labor was being performed, the exact
date, or whether Wheeler was the person responsible for his absence. She also stated a third student missed class twice in 1982-83 while either "pouring concrete or laying soil." Again, she could not attribute the absences directly to Wheeler, although he signed the admittance slip to allow the student back in class.
According to the director of school plant management for the School Board of Volusia County, the County could not lay sod, dig drainage ditches, install sprinkler systems, or do sidewalks because of fiscal and manpower constraints. It was also unable to respond to requests for routine maintenance within a short period of time. He stated that, absent the efforts of Wheeler, there was no way the school would be in its present condition.
Seabreeze is one of the few high schools of its size in the State without a vocational program for its students. In other words, the school has no programs where vocational skills can be taught to the students. Because of this, Biddle authorized Wheeler to allow interested students to assist in projects that would not otherwise be provided by the county. For example, the county would provide new carpet to the school if Wheeler would install it, or purchase cement if the school would assume the obligation of pouring the same. Students sent to the referral center for disciplinary problems were not used on these types of projects unless they volunteered, and in all cases volunteer students were not allowed to miss an academic class unless a project could not be accomplished after hours or on weekends, but only when it was absolutely necessary to do the work during the school hours. For example, it was necessary to pour cement if a cement truck arrived during school hours, or to remove thousands of books from the library to meet a contractor's deadline for renovating the same. In all cases, the work projects were performed with the full knowledge and consent of Seabreeze's principal and with the consent of the teachers in question.
Testimony from the principal of Mainland High School indicates a similar policy relative to work projects being in effect at that school as well. According to the principal, student volunteers are allowed to do school maintenance work projects where the teacher agreed to the absence and the student had the opportunity to make up his missed classroom work.
GIVING PREFERENTIAL TREATMENT TO STUDENT ATHLETES
The final allegation in the complaints contends that Wheeler "has given preferential treatment to male students participating in varsity athletes." (Paragraph 8 of administrative complaint.)
Part of the above charge is attributable to testimony given by the former switchboard operator at Seabreeze who observed Grant Tolliver and two other students on the basketball squad coming to school late one morning on an undisclosed date. The remainder of her testimony concerning their tardiness was hearsay, was not supplemented by other competent evidence, and has been disregarded. She also stated that she saw two student athletes eating in the cafeteria early one day, and that Wheeler had given them permission to do so. There was no other evidence to explain the circumstances or whether such activity was authorized or not, and such has accordingly been disregarded.
While not so stated in the complaint, EPC apparently contends preferential treatment was given by Wheeler to Grant Tolliver, a substitute football player, on an undisclosed date after Tolliver and Frank Moreland, a non-athlete student, became involved in a fight one Friday morning. Both
students were brought to Wheeler's office where, in the presence of the football coach, they were questioned about the altercation and admonished by Wheeler.
Because he had insufficient facts to make a decision, Wheeler called both boys back to his office the following Monday. He made them resolve their differences, shake hands, and promise that no further trouble between the two would occur. He did not give preferential treatment to Tolliver.
In the 1980-81 school year, Edie Browning, a business math teacher, testified that Wheeler approached her about one of her students, Lorenzo Strickland, also a varsity football player. He wished to know about Strickland's academic standing and whether he would pass the course for the fourth nine-week period. She replied he would not. Browning was under the impression, albeit incorrect, that a student failing a course during a given nine-week period could not participate in varsity sports. She therefore suspected that someone (Wheeler she thought) had given Strickland preferential treatment after he played in the football jamboree several weeks later.
However, her knowledge of eligibility requirements was incorrect, for Strickland had only to pass four courses to be eligible for varsity athletics. Since he was passing four classes at the time he played the game, he was eligible to play football even though he was failing business math. He was given no preferential treatment by anyone, including Wheeler.
MISCELLANEOUS CHARGES
Petitioner has also alleged that Wheeler "intentionally exposed students to unnecessary embarrassment or disparagement." This charge is apparently grounded, at least in part, upon a claim that Wheeler wrote a memorandum on February 9, 1983, to student George King's guidance counselor in which Wheeler stated, inter alia, that King's brother had committed murder. The reference to the murder was a mistake based upon erroneous information received by Wheeler and was not written with the intention of embarrassing George.
I. LOSS OF EFFECTIVENESS
Only the principal of Seabreeze expressed an opinion about whether respondent's effectiveness as an employee was seriously reduced as charged in the administrative complaint. Her opinion was expressed after "briefly" reviewing the complaint, and she concluded that if the charges therein here true, his effectiveness would be "diminished". This opinion differed from one given earlier to an EPC investigator that Wheeler's effectiveness was diminished by the student walk-out in the spring of 1983 rather than the EPC charges. She also stated that, although she was Wheeler's direct supervisor, she was unaware of Wheeler doing any of the illicit acts which are described in the administrative complaint.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.
According to the administrative complaint, the allegations in paragraphs 3-8 constituted misconduct within the meaning of Subsection 231.28(1), Florida Statutes, in that respondent "is guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board." The complaint goes on to state that the allegations of misconduct constitute a violation of Rules 6B-1.06(3)(a), (e), (f), and (5)(a) and (e), Florida
Administrative Code. These rules oblige a teacher to make reasonable efforts to protect students from conditions harmful to learning or to health or safety [6B- l.06(3)(a)], prohibit a teacher from intentionally exposing students to unnecessary embarrassment or disparagement [6B-1.06(3)(e)], prohibit a teacher from intentionally violating or denying a student's legal rights [6B- 1.06(3)(f)], require a teacher to maintain honesty in all professional dealings [6B-1.06 (5)(a)], and prohibit him from using coercive means to influence professional judgments of colleagues [6B-1.06(5)(e)].
This proceeding is clearly penal in nature, for it may result in the loss of respondent's valuable state teaching certificate. As such, the proceeding takes on added significance in terms of evidentiary requirements on the part of petitioner. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981). In other words, an "elevated standard of competent evidence" applies, Smith v. School Board of Leon County, 405 So.2d 183, 186 (Fla. 1st DCA 1981), and the proof must be commensurate with the potential penalty. Henderson Signs v. Department of Transportation, 397 So.2d 769, 773 (Fla. 1st DCA 1981); Bowling, 394 So.2d at 172.
Initially, certain aspects of the clarity of the administrative complaint should be discussed, and the problem of due process resolved. The complaint is drafted in very general terms, and does not state the individuals or dates or places which gave rise to the various charges. In this regard, respondent filed a pleading styled "motion for statement of particulars" on January 13, 1984, wherein he requested the entry of an order requiring petitioner to give specific information as to each broad charge. The motion was treated as a motion for more definite statement, and was denied because respondent had already filed his answer. However, the order of denial provided that respondent could obtain the requested information through discovery.
Later, by agreement of counsel, petitioner provided respondent's counsel with a list of witnesses and their statements which was intended to be all inclusive of the witnesses and specific incidents to be relied upon by EPC at the final hearing.
At the final hearing, petitioner attempted to raise new charges which fell within the broad allegations for the first time. These had apparently come to the attention of EPC after conducting interviews (not depositions) with the various witnesses just prior to the hearing. Petitioner did not advise respondent at any time that it intended to inject these new issues into the proceeding. It reasoned that respondent could have conducted its own interviews (or depositions) with these witnesses and presumably discovered other incidents not referred to in the earlier exchange of information by counsel. But this hardly squares with due process considerations for the respondent must be alerted to the charges relied upon by the state, and given the opportunity to defend and counter the same. To inject new allegations of misconduct into the proceeding at the final hearing without advance notice violates all concepts of due process, and the undersigned has accordingly disregarded any testimony allowed on a conditional basis where no prior notice was given, and reaffirmed all earlier rulings which sustained respondent's objections to newly raised charges.
It is first necessary to review the record to ascertain whether Wheeler did in fact engage in the conduct described in paragraphs 3-8 of the administrative complaint. Each allegation will be discussed separately.
The first charge centers around Wheeler allegedly permitting students "on numerous occasions" to leave the school grounds during the school day
without proper explanation and without consulting the students' parents. In reality, this did not happen on numerous occasions as charged, but only twice according to the evidence, and involved students Betty Thomas in 1980 (some four years ago), and Grant Tolliver and three other students one day in the spring of 1983. In both instances, a proper explanation was given, 3/ although the parents or guardians of Thomas and Tolliver were not contacted by Wheeler prior to their leaving campus. Because it was not shown by EPC that the three colleagues of Tolliver had parents or guardians to be contacted, it is unnecessary to reach the question of whether someone should have been called on their behalf. Therefore, it is concluded that Wheeler allowed one student in 1980 and one in 1983 to leave campus with a proper explanation, but without contacting their parents.
Next, it is alleged that Wheeler "improperly altered students' grades, assigning students grades higher than that which were originally assigned by the students' behavior." In supporting this charge, EPC relies solely upon contact by Wheeler with teacher Merritt concerning student Billy Schoep. The evidence reflects that Wheeler changed the grade of Schoep, but only after Merritt had acknowledged she made a mathematical error in calculating his grade in the presence of Wheeler, Schoep and his father, and then reneged on her word. This change by Wheeler was made with the principal's knowledge and consent and was within his defined authority. Therefore, no improper alteration of a grade occurred.
The next allegation involves a charge that Wheeler induced or attempted to induce teachers at Seabreeze. . .by his words and actions to change students' grades to grades higher than that to which they were entitled." EPC relies upon Wheeler's contact with teacher Browning concerning students Deena Lyle and Brian Boice in school year 1982-83 to support the charge. In the case of Lyle, Wheeler did in fact ask Browning if she would allow Lyle to make-up work missed due to illness, and Browning agreed. The meeting between Wheeler, Lyle and Browning occurred at the urging of other school administrators, and not Wheeler, and although Browning suggested she felt threatened by Wheeler, such a claim is not deemed to be credible. In the case of Boice, Wheeler, who was concerned that Boice might quit school, asked Browning to reevaluate his grade if he improved his work during the succeeding grading period. She did so, but when Boice's performance did not improve, she did not alter his grade in any respect. Wheeler said nothing further, and his actions did not constitute an improper attempt to induce Browning to change a grade to one higher than which Boice was entitled.
EPC has also alleged that Wheeler "transferred students from one class to another during the course of the school year, with the result that the students failed the course in which they were originally enrolled." This charge, according to EPC, is grounded upon schedule changes of students George King and Zachary Strombous in school year 1982-83. The evidence discloses that both changes were made at the students request, and only after it was fully explained to them by Wheeler that they would lose a full year's credit by dropping the class in the middle of the year. Of some significance is the fact that neither student needed the class to graduate, and both students graduated on time. Again, no improper conduct occurred, and the action of Wheeler was reasonable and proper.
Next, EPC charges that Wheeler removed students from their assigned classes on numerous occasions to perform physical labor on the school grounds. The allegation implies that such students were involuntarily pulled from academic classes and forced to perform manual labor, but the evidence belies
this suggestion. Indeed, the charge was grossly exaggerated, such work projects occurred infrequently, and only involved students who volunteered to work on school beautification and maintenance projects. The evidence reveals that all such students were allowed to make up their missed classroom work and none failed as a result of working on these vocational projects. In those instances where teachers related specific time periods and names of students who missed class rather than vague allegations, all students had the consent of the classroom teacher. 4/
Finally, EPC contends that "respondent has given preferential treatment to male students participating in varsity athletes." There is no evidence to support this allegation, and it is accordingly rejected. 5/
With the foregoing discussion of conduct in mind, it is next necessary to review this conduct in light of the disciplinary rules cited in the administrative complaint to determine whether any violation has occurred. 6/
Initially, it should be noted that the only allegations proven are that Wheeler allowed one student over four years ago to leave campus without contacting her parents, and another student over 18 years of age to leave campus in the spring of 1983. In both cases a proper explanation was given to justify their leaving, but Wheeler did not contact their parents. EPC contends in its proposed order that by allowing the students to leave campus, Wheeler did not make a "reasonable effort to protect the student(s) from conditions harmful to learning or to health or safety" in violation of Rule 6B- 1.06 (3)(a), Florida Administrative Code. But Wheeler did in fact require a justifiable reason for the two students to leave campus and, in so doing, acted in a reasonable fashion within the meaning of the rule. Given the quasi-penal nature of this proceeding, and the requirement that penal rules be strictly construed against the agency, it is concluded there is insufficient substantial evidence to support the allegation, and that no violation has occurred. Smith, 405 So.2d at 186; Bowling, 394 So.2d at 172.
The only testimony concerning Wheeler's effectiveness as a teacher was that of Biddle, who premised her conclusion on the suggested assumption that all charges against him were true. 7/ Because the premise was wrong, the conclusion must also fail, and it is concluded that Wheeler was not guilty of personal conduct which seriously reduced his effectiveness as an employee of the school board.
After conducting this proceeding, it appears to the undersigned that Wheeler is a dedicated, honest and sincere career public educator. He was the subject of an in-depth investigation for all of his activities between 1976 and 1983. It might well be difficult for any teacher or administrator to escape unscathed such an investigation given the multitude of technical regulations one must comply with, and the myriad of on-the-spot decisions one must make on a daily basis. In these circumstances, the commentary of the Court in Flaig v. Pest Control Commission, 213 So.2d 471 (Fla. 1st DCA 1968) seems appropriate. There the Court noted that:
. . it is not the function. . .of an administrative . . . to scan the seas of the industry it regulates and sink upon sighting a long-established business upon finding but a ripple of noncompliance with its reams of rules and regulations. Id. at 474.
Petitioner's motion to strike three letters offered by respondent after the record was closed in this proceeding is granted.
Respondent's objection to petitioner's exhibits 17 and 20 is sustained.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against Robert B. Wheeler be DISMISSED. DONE and ENTERED this 13th day of June, 1984, in Tallahassee, Florida.
DONALD R. ALEXANDER
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 13th day of June, 1984.
ENDNOTES
1/ When Wheeler first came to Seabreeze he found as many as 400 students skipping school on the same day. One prosecution witness characterized the school as being in "the final state of decay" with obscenities written on the walls, dirt parking lots, peeling paint on all walls, inoperative bathrooms, torn up lockers, unlocked classrooms, and the science lab being vandalized each summer by students.
2/ The extent of the so-called work projects was grossly exaggerated. For example, Monaghan testified the students had also built a spa and sauna for football players, but this proved to be a groundless rumor.
3/ The testimony of Thomas and Tolliver to the contrary is rejected as not being credible.
4/ In its proposed order, EPC states that Robert Peters, a marginal student, withdrew from school after missing three weeks of classes to work for Wheeler. However, the record reflects that the teacher who made that complaint did not know if Peters was working for Wheeler or if he was even absent with Wheeler's approval.
5/ This charge is based in part upon hearsay, complaining witnesses who saw something occur and then jumped to an improper conclusion, or who relied upon just plain erroneous facts.
6/ The charge that Wheeler intentionally exposed George King to embarrassment and disparagement is rejected since it was not shown that Wheeler drafted the memorandum concerning King with the intent of embarrassing the student.
7/ Even if the charges were true, it is debatable whether the single question posed to Biddle and her response thereto would constitute sufficient evidence to support the allegation. Smith, 405 So.2d at 186. This is particularly true since no other expert testimony concerning this charge was adduced, no explanation as to how his effectiveness was impaired was given, and the witness seemed reluctant to condemn Wheeler given his long history as an effective teacher and administrator.
COPIES FURNISHED:
David J. Holder, Esquire
P. O. Box 1694
Tallahassee, Florida 32302
John W. Tanner, Esquire
630 North Wild Olive Ave., Suite A Daytona Beach, Florida 32018
| Issue Date | Proceedings |
|---|---|
| Aug. 22, 1984 | Final Order filed. |
| Jun. 13, 1984 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 06, 1984 | Agency Final Order | |
| Jun. 13, 1984 | Recommended Order | Charges of misconduct was not sustained. |
