STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF PINELLAS COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 85-2267
)
JAMES E. WILKINS, JR., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on October 17 and 18, 1985, at Clearwater, Florida.
APPEARANCES
For Petitioner: Usher L. Brown, Esquire
P. O. Box 1549
Orlando, Florida 32802
For Respondent: Marsha S. Cohen, Esquire
Robert F. McKee, Esquire
401 South Albany Avenue Tampa, Florida 33606
By letter dated June 25, 1985, the Superintendent, Pinellas County School System, suspended James E. Wilkins, Jr., Respondent, from his employment with the Pinellas County School
Board, Petitioner, and advised Respondent he would recommend to the School Board that Respondent be dismissed effective August 19, 1985. As grounds therefor it is alleged Respondent is guilty of misconduct in office and gross insubordination and consistently failed to exercise professional judgment and sustain the highest degree of ethical conduct. Specifically, Respondent is charged with a "continuing pattern of abusive and unprofessional language in your classes, including but not limited to 'fat ass', 'smart ass', 'stupid' and various curses such as 'damn' and 'hell'. Additionally, Respondent is alleged to have embarrassed one student by describing her as obese in front of her peers and another, by discussing her stomach cramps in front of the class. It is also alleged, Respondent sent students to teachers with unsealed notes regarding another student's alleged sexual difficulties. Further, Respondent is alleged to have improperly struck students, to have submitted to the district a transcript indicating a Ph.D. had been earned when no courses had been taken and, as counselor, secretly taped a counseling session with children regarding another teacher.
The gross insubordination charge stems from the allegation that on November 20, 1984, Respondent was issues a letter of reprimand in which he was advised that " . . . no swearing in classrooms is acceptable by teachers in our district and . . . you are not to control your classes by putting your hands on students. Further incidents of this or any other behavior that would indicate that you are not conducting yourself in a professional manner . . . will lead to recommendation that you be terminated as an employee of the Pinellas County School Board." Gross insubordination is alleged by reason of Respondent continuing to swear in classrooms and behave unprofessionally around students subsequent to receipt of the letter of reprimand.
At the hearing Petitioner called 19 witnesses during the presentation of its case in chief and 2 witnesses in rebuttal; Respondent called 9 witnesses, including Respondent, and 9
exhibits were offered into evidence. All exhibits were admitted except Exhibits 7 and 8 to which objections were sustained.
Proposed findings have been submitted by the parties.
Appendix A attached hereto and made a part hereof of shows those proposed findings accepted and rejected and the reasons therefor.
FINDINGS OF FACT
At all times relevant hereto James E. Wilkins, Jr. was a continuing contract teacher employed by the Pinellas County School Board. He has been employed in the field of education since 1950 and has been employed by the Pinellas County School Board since 1964.
During the school year 1983-84 Wilkins was employed as a guidance counselor at Tarpon Springs Middle School. During the school year 1984-85 Wilkins was employed as a biology teacher at Tarpon Springs High School.
While serving as counselor at Tarpon Springs Middle School several girls in the sixth grade came to Wilkins for assistance in deterring one of their classmates from pilfering makeup and shoes from their lockers. They had previously gone to another counselor for help in the matter but she had declined to intervene. They were sitting in Wilkins' office with the suspected culprit. After listening to part of the girl's complaints and in order to assure accuracy in recreating the proceedings, if necessary, Wilkins took out his tape recorder, placed it on his desk, asked the girls if they objected to having the conversation taped and after receiving no objection turned on the tape recorder. Wilkins testified that he asked the girls as a group if they objected to their statements being recorded and no one objected. One of the students present confirmed that Wilkins, during the course of their discussion, took his tape recorder out of his desk and asked them if they
had any objection to having their comments taped. All said no. Later the suspected culprit went to another counselor and complained that she was afraid she was going to get beat up and that Wilkins had tape recorded the meeting without her permission. During the investigation which followed Wilkins acknowledged that he had in fact tape recorded the session after asking them if anyone objected. He did not poll the students to ask each one individually if she objected to the tape recorder. All were aware the conversation was being taped. Harry Danielson, Supervisor of guidance, Pinellas County School System, also questioned Respondent regarding the taping incident. Danielson's testimony that Respondent admitted to him that he taped the girls without their permission was explained by Respondent as a misunderstanding on his part as he thought Danielson asked if he had obtained written permission to tape the conversation. Danielson testified that the code of ethics of the counseling profession proscribes taping students without their knowledge or permission and that counselors are usually advised to get permission in writing before taping students.
Danielson also opined that a counselor should not become involved in investigating a theft.
This incident constitutes a part of the letter of reprimand issued by the superintendent on November 20, 1984.
While at Tarpon Springs Middle School, Wilkins hung on the wall of his office a Ph.D. diploma from Loyola University of Paris, France. Earlier Wilkins had heard that he could perhaps obtain such a degree and did not see this university listed as a diploma mill and as not accredited. He forwarded to Loyola University transcripts of all courses he had taken including more than sixty hours of courses he had completed subsequent to completing his master's degree. These curricula were "evaluated" by Loyola University and Wilkins was issued a Ph.D. degree. He presented the information to the school board clerk handling post graduate records for Pinellas County teachers and requested the information be sent to the Department of Education
in Tallahassee for evaluation. The Department advised that Loyola was not recognized as an accredited school and the degree would not be recognized by the Department. Respondent took no further action but to ask the clerk if the transcripts submitted to Loyola should be removed from his personnel file. She told him that would not he necessary.
Subsequently the principal at Tarpon Springs Middle School saw the diploma on Mr. Wilkins' office, checked some information that he had that described Loyola University of Paris as a diploma mill and reported the "spurious" diploma to Nancy Zambito, Director of Personnel Services, Pinellas County School Board. Ms. Zambito questioned Respondent about the degree. He readily acknowledged that he had not taken any courses at Loyola and the degree was issued based on transcripts he had sent to Loyola for evaluation. Ms. Zambito on May 31, 1984, issued Wilkins a letter of reprimand (Exhibit 1) for unethical behavior and poor judgment. This incident also constituted a ground for the reprimand issued to Respondent by the Pinellas County Superintendent of Schools on November 20, 1984 (Exhibit 4), and as one of the charges in the suspension letter dated June 25, 1985.
James Gregory, principal at Tarpon Springs Middle School 1983-84, gave Respondent a less than satisfactory evaluation in two areas as a result of the taping of the meeting with the students and for obtaining the diploma from Loyola University. At the close of this school year Gregory recommended that Respondent be removed from a counseling position and returned to the classroom as a teacher. As a result of this recommendation Respondent was transferred to Tarpon Springs High School as a biology teacher for the 1984-85 school year. Gregory opined that investigating theft is not part of the duties of a counselor but belongs solely in the realm of the administrative assistants. (TR. p. 19 Vol. I)
During school year 1984-85 Leroy Birch was sitting next to the projector in Respondent's class when slides were being shown. Someone had smeared one of the slides and Birch and others were laughing. Birch was not sitting fully in his seat. Respondent thought Birch had smeared the slides and put his hand on Birch's shoulder to push him back down in his seat. Birch told Respondent to "take his god damn hand off my shoulder." Respondent, when questioned by administrative personnel about this incident, acknowledged that he had placed his hand on Birch's shoulder near a "pressure point" but that he did not squeeze the pressure point. Birch testified to no numbness or pain resulting from a squeezing of the pressure point. Birch further testified that Respondent had disciplined him and that he hated Wilkins when he was disciplined. Birch was one of many who testified Respondent used "damn" and "hell" in class more than other teachers.
Ann Marie Levy was a student in Respondent's class in 1984-85 school year. She was copying notes from the overhead as she was supposed to be doing when Respondent slapped her on the shoulder to get her attention when he thought she was writing a note to a classmate. Ann Marie was more surprised than hurt by this incident which was observed by others in the class. Respondent has no recollection of striking Ann Marie but, if he did, it was accidental when he was trying to get her attention and not as a punishment nor intended as a punishment. This incident was the other striking episode referred to in Exhibit
Ann Marie also testified that she never liked Respondent and that he expected a lot from his students.
Ronald Cohalla was in Respondent's class last year (1984-85) and testified that while he was talking to another student Respondent told him if he didn't be quiet he would "deck him". Ron also testified that Respondent threw an eraser at him twice and that Respondent used curse words more than other teachers. During both of these eraser "throws" Ron was sitting at his desk in the front row some four or five feet from
Respondent and talking to another student. On neither throw did the eraser get beyond Respondent's desk. Respondent denies ever telling Cohalla he would deck him if he didn't be quiet.
Respondent is 6'1" tall and weighs 350 pounds. He was once a wrestling coach and is obviously well coordinated for a man his size. Had he attempted to throw an eraser at Cohalla, it is quite certain he could have hit Cohalla from a distance of four feet. The same credence, none, is given to Cohalla's testimony that Respondent threatened to deck him as is given to the testimony that Respondent threw an eraser at Cohalla.
Several witnesses testified that Respondent had called them stupid. On cross examination these students testified that in response to a question Respondent frequently said "that's a stupid question." Respondent denies ever calling a student stupid.
Many of the witnesses called by Petitioner testified that Respondent used "damn" and "hell" more than other teachers in class, that he was short in patience and frequently raised his voice in class. Many considered him a strict and demanding teacher. Respondent acknowledged that he often raised his voice to quiet down an unruly or a noisy class but did not consider this to be different than other teacher's reactions to noisy classes. Amy Levinson, who thinks Respondent is not a good teacher acknowledged that when Respondent raised his voice in class it was because the class was unruly. Use of the words "hell" and "jackass" by Respondent in class was one of the charges in Exhibit 4. No evidence was presented that Respondent used the word "jackass" in class.
During the 1984-85 school year while Respondent was teaching biology at Tarpon Springs High School, Kirsten Kissinger testified she was embarrassed by Respondent once when she had stomach cramps. She asked Respondent if she could go to the bathroom then changed her mind and asked if she could go to the clinic. Respondent asked her why and she told him she had
cramps. Respondent asked her to repeat her reason which she did. Kristen felt embarrassed by having to repeat her reason and thought other students were laughing at her. Another student in the class with Kristen, Stephanie Salsgiven, has no recollection of the incident in which Kristen states she was embarrassed.
Respondent has been teaching middle grade and high school girls in Pinellas County Schools for more than twenty years. His testimony that anytime a girl tells him she has cramps she automatically gets permission to leave the class is more creditable than is testimony that Respondent would intentionally embarrass a female student.
During a biology class at Tarpon Springs High School a discussion about mammary glands was held and one girl asked what Respondent had said. Two witnesses testified they overheard Respondent reply to this question "mammary glands -- I hope you develop some soon." The student to whom this comment was allegedly made did not appear as a witness and Respondent denies ever making such a statement to one of his students. One of these accusing witnesses also testified that Respondent had responded to a black male in the class and in a remark to him Respondent referred to the black's flat nose. John Thompson, the person referred to, testified that no such incident occurred.
Once during one of Respondent's classes one student, apparently trying to be facetious, asked Respondent what obese meant. Respondent patted his stomach and replied that is what I am as are a few others in the class. Cynthia Shindler testified that Respondent specifically named her and John Thompson as obese people -- much to her embarrassment. John Thompson testified Respondent did not refer to him by name as obese. Respondent denies referring to anyone other than himself as being obese.
No evidence was submitted that Respondent ever sent students on errands with unopen notes about other students or
that the taping incident involved another teacher as alleged in the dismissal letter.
On one occasion while passing down the corridor at Tarpon Springs High School, as Respondent passed an area known as "Greek corner" he heard someone call out in a loud voice "fat ass." Respondent did not stop. When Respondent returned a few minutes later he stopped near Greek corner to talk to a student in one of his classes. He again heard someone call out "fat ass" and, from the tone of the voice suspected Philip Stavrakis who was in the group. When Respondent called Phillip aside to admonish him Philip became very abusive and disrespectful. Respondent took Philip to the office for discipline. When he arrived he was unable to find anyone in the Dean's office to take Philip. Respondent told Philip to sit down while he looked for a dean. Philip sat on a table instead of the chair indicated and continued his harangue with Respondent. Unfortunately Respondent had also become very angry at the disrespect and abuse he was receiving from Philip and also raised his voice trying to get Philip to do as he was told. Dr. Van Fleet heard the commotion outside and emerged from behind the closed door of her office to see Respondent and Philip facing each other near the table and yelling loudly. She moved between them and told Respondent she would take over and Respondent departed. Philip contended he was not the one who had called Respondent "fat ass" and resented being so accused. Philip Stavrakis told Respondent he would get Respondent in trouble.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Respondent is charged with violating Section 231.36, Florida Statutes which provides in pertinent part:
(4)(c) . . . any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination; willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.
Of the above Respondent is here charged with misconduct in office and gross insubordination. These offenses are defined in Rule 6B-4.09 Florida Administrative Code as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-
1.01 F.A.C. and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-
1.06 which is so serious as to impair the individual's effectiveness in the school system.
Gross insubordination or willful neglect of duties is defined as a constant or continuing refusal to obey a direct order, reasonable in nature, and given by one with proper authority.
Rules 6B-1.01 are not disciplinary rules but establish goals for the educator to try to achieve. This Rule provides:
6B-1.01 Code of Ethics of the Education Profession in Florida.
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Unless violation of these rules is so serious as to impair the individual's effectiveness in the school system the teacher may not be dismissed for such violation.
Except for the allegations regarding the diploma from Loyola University of Paris all of the charges preferred in this case involve Respondent's conduct with students.
Rule 6B-1.06 F.A.C. provides in pertinent part:
6B-1.06 Principles of Professional Conduct for the Education Profession in Florida.
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.
Violation of any of these principles shall subject the individual to revocation or suspension of the individual teacher's certificate, or the other penalties as provided by law.
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
Shall not unreasonably restrain a student from independent action in pursuit of learning.
Shall not unreasonably deny a student access to diverse points of view.
Shall not intentionally suppress or distort subject matter relevant to a student's academic program.
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student's legal rights.
Shall not on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition if otherwise qualified, or social and family background exclude a student from participation in a program; deny a student benefits, or grant a student advantages.
Shall not exploit a professional relationship with a student for personal gain or advantage.
Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.
These are disciplinary rules the violation of which by a continuing contract teacher constitute grounds for dismissal. With respect to the diploma allegation subparagraph (5) of 6B-
1.06 F.A.C. provides in pertinent part:
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
Shall not misrepresent one's own professional qualifications.
Shall not submit fraudulent information on any document in connection with professional activities.
Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.
Here the burden is on the Petitioner to prove the allegations made against Respondent. Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). The standard of evidence to be used in this type case is not definitively established. At first blush it would appear that the case of South Florida Water Management District v. Caluwe, 459 So. 2d 390 (Fla. 4th DCA 1984) in which the court held that the preponderance of the evidence is the standard to apply in reviewing the sufficiency of evidence proffered to support a state agency's discharge of employee, is controlling. Pinellas County School Board is clearly an agency subject to the Administrative Procedures Act. Section 120.52(1) Florida Statutes.
On the other hand a higher standard of proof is required to revoke a license. Bowling v. Department of Insurance, 394 So. 2d 165 (Fla. 1st DCA 1981). Bowling held that "when the proceedings 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." Teachers must be certified by the State Board of Education before they can be employed by a School Board. Section 231.28 Florida Statutes provides, inter alia, that the Education Practices Commission, the disciplinary arm of the Department of Education, may revoke a certificate of a teacher who "has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate". These rules are
those contained in Rule 6B-1.06, supra and form the principal basis for the charges here under consideration.
Generally when a county school board proposes to dismiss a teacher on continuing contract for cause the State Department of Education also files an administrative complaint seeking to revoke the certificate as the same conduct violates sections 231.28(1)(a) and 231.36(6)(a). If a violation of Rule 6B-1.06 is found in this case the State Department of Education has a prima facie violation of Section 231.28(1)(h). For this reason alone the same standard of proof should apply to evidence presented to justify a teacher's dismissal as is required to justify the revocation of a teacher's certificate.
A review of disciplinary cases involving teachers clearly indicates that teachers are held to a higher standard of conduct than any other profession. The higher the standard the easier to prove failure to adhere to this standard. This is another reason for concluding the Petitioner must prove the charges by clear and convincing evidence.
With respect to the allegations regarding the diploma from Loyola University of Paris, France, it is noted that Respondent has twice before been punished for this offense. Ms. Zambito specifically identified Exhibit 1 sent to Respondent on May 31, 1984 as a letter of reprimand which she had authority to issue. Superintendent Rose also cited this "offense" in the clearly identified reprimand he issued to Respondent on November 20, 1984; and it constitutes one of the allegations in the charging document which led to these proceedings.
While double jeopardy is not specifically applicable to administrative proceedings, the principles on which Article V of the U.S. Constitution and Section 9 of the Florida Constitution are based clearly preclude one receiving an administrative punishment twice for the same offense. Including this charge as grounds for dismissal constitutes the
administrative equivalent of triple jeopardy. For this reason alone this charge should be dismissed.
Even if this charge is subsequently found valid and not a violation of Respondent's constitutional rights the charge must be based on violation of Rule 6B-1.06(5)(a),(f),(g) or (h) Florida Administrative Code supra.
"Honest" is defined in Webster's New Collegiate Dictionary (1977) as "free from fraud or deception." Respondent asked the School Board employee who handled teacher's records involving advanced degrees if Loyola University was an accredited school and was told that it did not appear on a list she had of schools not accredited. After submitting transcripts to Loyola for evaluation" and obtaining the Ph.D. degree Respondent took all of the information he had submitted to Loyola to this same employee to have it forwarded to the State Department of Education for evaluation. When told by the State Department of Education that Loyola University was not an accredited school Respondent took no further action. This conduct does not constitute dishonesty, does not constitute misrepresentation of ones own professional qualifications, is not a submission of fraudulent information, nor does it constitute a fraudulent statement.
The next serious charge is that Respondent tape recorded conversations with students without their knowledge or consent. Other than Respondent, only one witness to that incident testified in these proceedings. That witness testified that Respondent took his tape recorder out of his desk, held it where all could see and asked them if they objected to having their discussion taped. None objected. Other witnesses testified that Respondent had admitted taping the conversation without the students' consent. Respondent explained that admission as a misunderstanding on his part in thinking he was told he needed the students written consent. This testimony is credible in the light of Dr. Danielson's testimony that people
are usually advised to get permission in writing to tape a student's conversation. Chapter 934 Florida Statutes makes it a felony of the third degree to intercept an oral communication except as authorized by other provisions of this chapter.
Section 934.02 defines "oral communications" to mean:
. . . Any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting.
This definition is generally construed to prohibit such interception without the speaker's knowledge or consent. Horn v. State, 298 So. 2d 194 (Fla. 1st DCA 1974). The evidence is clear that all students were aware their conversation was being intercepted by the recorder and the testimony is undisputed that no one objected when asked if the conversation could be recorded. Accordingly, the Petitioner has failed to prove Respondent violated Chapter 934 Florida Statutes and Rule 6B-1.06(3)(f) Florida Administrative Code.
These two charges constitute the basis for Principal Gregory, at Tarpon Springs Middle School, giving Respondent an unsatisfactory evaluation and recommending his transfer out of guidance counseling. The testimony of several School Board witnesses that it is not part of a counselor's job description to investigate thefts even when students ask for help in such matters is disconcerting. From the evidence presented these girls wanted someone in authority to tell the alleged culprit (who they apparently had clearly identified) to stop taking things from their lockers. If this could be accomplished without the intervention of the police it is expected all parties would benefit. Certainly no police record would result if the counselor could accomplish this worthwhile objective.
For Petitioner's witness to infer, if not directly testify, that it is wrong for a counselor to take any action to prevent future thefts, makes one wonder how schools once functioned without the daily presence of campus police. Perhaps teachers had more authority and commanded more respect in years past.
This concept is highlighted by the testimony of Philip Stavrakis when he told Respondent he (Philip) would get him fired and the testimony of Ronald Cohalla that he told Respondent to "get his Goddamn hand off me." The charges here preferred give credence to Philip's threat and should embolden other students to like conduct who encounter a tough teacher they don't like or one who requires them to do a lot of homework.
The allegations of striking students involved only the two students referred to in Superintendent Rose's letter of reprimand (Exhibit 4). No subsequent incidents were shown. The reprimand constituted punishment for those offenses and, unless repeated, they do not constitute grounds for dismissal.
Those incidents subsequent to the letter of reprimand dated November 20, 1984, include the two incidents where Respondent is alleged to have embarrassed two female students, one by having her repeat the reason for wanting to go to the clinic and the other who claims Respondent called her obese. From the foregoing findings it is concluded that Petitioner proved neither of these charges. This leaves the allegation of Respondent using "hell" and "damn" in class and the incident involving Philip Stavrakis. There is no question that it is improper to use words "hell" and "damn" in class. Such usage violates Rule 6B-1.01(3) Florida Administrative Code above quoted which exhorts the educator to "strive to achieve and sustain the highest degree of ethical conduct." To constitute an offense which can warrant dismissal under this charge it must be shown that the usage of these words, after being told to cease and desist, constitutes gross insubordination as that
phrase is defined in Rule 6B-1.06(4) Florida Administrative Code. In other words does an occasional use of these inappropriate words constitute a "constant and Continual refusal to obey a direct order." Insubordination has been defined as conduct which is "generally synonymous with contumacious, which indicates persistent, willful or overt defiance of authority and obedience, sometimes contemptuous of authority." Muldrow v.
Board of Public Instruction of Duval County, 189 So. 2d 414, 415 (Fla. 1st DCA 1966). No evidence was submitted to indicate that Respondent used these words in direct defiance of Superintendent Rose's exhortation for him to cease and desist. Accordingly, the evidence will not support the charge of gross insubordination. If this use of "hell" and "damn" is intended to show misconduct in office a second bridge must be crossed, viz. that such conduct seriously reduced Respondent's effectiveness in the school system. No evidence was submitted to show such loss of effectiveness resulted. Accordingly this does not constitute grounds for dismissal. Braddock v. School Board of Nassau County, 455 So. 2d 394 (Fla. 1st DCA 1984).
Finally, we come to the incident involving Philip Stavrakis where Respondent, after considerable provocation, failed to exercise the best professional judgment and integrity. This offense is also charged as either gross insubordination or misconduct in office. The gross insubordination apparently involves the admonishment in the November 20, 1984 reprimand that "further incidents of this or any other behavior that would indicate that you were not conducting yourself in a professional manner with regard to your responsibilities as a teacher will lead to a recommendation that you be terminated as an employee of the Pinellas County School Board."
As noted above gross insubordination involves "constant or continuing refusal to obey direct orders." One transgression does not constitute a continuing refusal to obey a direct order. Further the order to go and sin no more (any other behavior that would indicate that you are not conducting
yourself in a professional manner) is unduly broad to constitute a direct order which Respondent constantly or continually refused to obey. The evidence is far from clear and convincing that Respondent is guilty of gross insubordination.
Whether by allowing himself to get involved in a harangue with a student, Respondent is guilty of misconduct in office, is a more difficult question. While this conduct is in violation of Rule 6B-1.01(3) F.A.C. no evidence was submitted to show that this conduct is so serious as to impair the effectiveness of Respondent in the school system. Braddock supra.
From the foregoing it is concluded that Respondent inappropriately used "hell" or "damn" in class on several occasions and that he allowed himself to lose control of his temper involving the incident with Philip Stavrakis. The evidence will not support a finding of guilt of any other charge. It is further concluded that neither of the delicts above noted constitute conduct so serious as to impair the effectiveness of Respondent in the school system. It is
RECOMMENDED that all charges against James E. Wilkins, Jr. be dismissed, that Wilkins be restored to his position as a continuing contract employee of the Pinellas County School Board, and that he receive back pay for the entire period he has been in a nonpay status because of these charges.
ENTERED this 2nd day of December, 1985, at Tallahassee, Florida.
K. N. AYERS 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 2nd day of December, 1985.
APPENDIX
Petitioner's Proposed Findings of Fact
Included in Hearing Officer's Finding No. 1
Included in Hearing Officer's Finding No. 2
Included in Hearing Officer's Finding No. 2
No evidence was submitted to support this Finding.
Included in the Hearing Officer's procedural status of the case prior to Findings of Fact.
Accepted and included in the Hearing Officer's Finding No. 5.
Omitted as immaterial.
Included in Hearing Officer Finding No. 6.
Included in Hearing Officer Finding No. 6. No evidence that Wilkins submitted transcript to obtain an upgrade. Had degree been approved Wilkins would have been eligible for such upgrade.
Accepted except the finding that Respondent submitted only transcripts of courses he took to obtain his bachelors and
masters degrees. Wilkins also submitted transcripts of postmasters degree courses he took.
Insofar as this finding limits Wilkins submission of transcripts to those courses he took to obtain bachelors and masters degrees it is disapproved as not supported by the evidence.
Nowhere in Exhibit 2 does the transcript show credits were earned at Loyola. Balance of Finding 12 accepted.
Rejected as not supported by the evidence.
Accepted but immaterial to the results reached.
Included in Hearing Officer Finding No. 5
Included in Hearing Officer Finding No. 6
Rejected as a conclusion of law.
Included in Hearing Officer Finding No. 2.
Finding that Wilkins "investigated" an alleged theft rejected as not supported by the evidence. Wilkins, at the student's request, interrogated the students as reported in Hearing Officer Finding No. 3.
While investigating an alleged theft is not included in a guidance counselor's job description, the concept that a teacher should never inquire into a reported theft is rejected. No evidence was submitted that the campus police were investigating the reported theft of makeup from lockers.
Rejected as not supported by the evidence. Wilkins' explanation of his "admissions" was covered in Hearing Officer Finding 3.
Rejected as conclusion of law.
Included in Hearing Officer Finding No. 7.
Included in Hearing Officer Finding No. 8.
Finding that Respondent squeezed a "pressure point" not supported by credible evidence. Other portions of this finding are included in Hearing Officer's Findings Nos. 8 and 4.
Included in Hearing Officer's Finding No. 9.
Included in Hearing Officer's Findings 8 and 12.
Rejected as not supported by credible testimony.
Included in Hearing Officer's Finding No. 9.
Transfer from class accepted. Balance unsupported by credible evidence. See Hearing Officer Finding No. 10.
Same as 30.
Included in Hearing Officer Finding No. 10.
Included in Hearing Officer Finding No. 8.
Rejected as not supported by credible evidence. See Hearing Officer Finding No. 14.
Rejected as not supported by the evidence. See Hearing Officer Finding No. 14.
Accepted insofar as included in Hearing Officer Finding No. 12.
First paragraph rejected as conclusion of law. Balance of Finding 37 accepted.
Exhibit 3 was admitted in evidence. Other witnesses present testified to a different conversation.
Included in Hearing Officer's Finding No. 6. Exhibit speaks for itself.
Same as 39.
Included in Hearing Officer's Finding No. 7.
Included in Hearing Officer's Finding No. 17.
Same as 42.
Same as 42.
Rejected as a conclusion of law.
Included in Hearing Officer Finding No. 12.
Same as 46.
Rejected as not supported by credible evidence.
Accepted but not material to the issues or results.
Rejected as contrary to more credible evidence. See Hearing Officer Finding No. 15.
Accepted but not relevant to conclusions reached.
Rejected as not supported by credible evidence. See Hearing Officer Findings Nos. 3, 14, 15.
Rejected as unsupported by the evidence and conclusions of law. No testimony was presented that none of Petitioner's witnesses were close friends. See Hearing Officer's Findings No. 17.
Rejected as being conclusions of law.
Conclusions of law inconsistent with those contained in Hearing Officer's Recommended Order are rejected.
Respondent's Proposed Findings of Fact
Accepted as included in Hearing Officer's Findings No . 1,
Other portions of proposed Finding No. 1 are not disputed but were deemed immaterial to the issues involved.
Included in Hearing Officer Nos. 5, 6.
Accepted as included in Hearing Officer Findings Nos. 8, 9.
Included in Hearing Officer Finding No. 5.
Included in Hearing Officer Findings Nos. 13, 14, 15.
Included in Hearing Officer Findings Nos. 17, 10. Proposed Findings that Respondent didn't use the words "damn" and "hell" in classes is rejected as not supported by credible evidence.
COPIES FURNISHED:
Usher L. Brown, Esquire
P. O. Box 1549
Orlando, Florida 32802
Marsha S. Cohen, Esquire Robert F. McKee, Esquire
401 South Albany Avenue Tampa, Florida 33606
Scott N. Rose, Ed. D. Superintendent of Schools Pinellas County
1960 East Druid Road Post Office Box 6374
Clearwater, Florida 33518
| Issue Date | Proceedings |
|---|---|
| Dec. 02, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 12, 1986 | Agency Final Order | |
| Dec. 02, 1985 | Recommended Order | Offenses for which Respondent was earlier disciplined cannot be used for further discipline. Evidence failed to prove misconduct in office. |
PROFESSIONAL PRACTICES COUNCIL vs. JOHN A. LETTELLEIR, 85-002267 (1985)
PINELLAS COUNTY SCHOOL BOARD vs. CLARENCE DAVIS, 85-002267 (1985)
DEPARTMENT OF EDUCATION, EDUCATION PRACTICES COMMISSION vs. ALVIN H. DANA, 85-002267 (1985)
PINELLAS COUNTY SCHOOL BOARD vs. WALTER PHILLIPS, 85-002267 (1985)
PINELLAS COUNTY SCHOOL BOARD vs JOSEPH TOUMEY, 85-002267 (1985)
