STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF PUTNAM COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0572
)
CARL G. BOTT, JR., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on July 12 and 13, 1989, in Palatka, Florida.
APPEARANCES
For Petitioner: Joe H. Pickens, Esquire
113 N. 14th Street Post Office Box 2128
Palatka, Florida 32078-2128
For Respondent: Lorene C. Powell, Esquire
Assistant General Counsel FEA/United
208 West Pensacola Street Tallahassee, Florida 32399-1700
STATEMENT OF THE ISSUES
Whether Carl G. Bott, Jr., is guilty of immorality, misconduct in office and/or gross insubordination?
PRELIMINARY STATEMENT
The Respondent, Carl G. Bott, Jr., was notified by the Superintendent of the Petitioner, the School Board of Putnam County, in a letter dated December 2, 1988, that he was being suspended with pay until the December 5, 1988, meeting of the Petitioner. In a letter dated December 5, 1988, Mr. Bott requested a formal hearing to contest his suspension. Mr. Bott's request for hearing was forwarded to the Division of Administrative Hearings by letter dated December 22, 1988.
The formal hearing of this case was scheduled to commence on May 16, 1989.
The hearing was continued, however, at the request of the parties and rescheduled to commence on July 12, 1989.
At the formal hearing the Petitioner presented the testimony of Julie Mathis, Paul Plymel, Jill Bracewell, Angela Jenkins, LaShoma Young, Vanessa
Armster, Jean Herring, Dana Hales, Tonnette Sanders, Diane Alred, Cynthia Bartrum Schmurmand (reported as "Schmermumm" by the Court Reporter), Beverly Emmons and Diane Wilkinson. The Petitioner offered three exhibits which were accepted into evidence. A fourth exhibit was marked as Petitioner's exhibit 4. This exhibit was not offered into evidence.
Mr. Bott testified on his own behalf and presented the testimony of Clint Eyke, Patricia Vincent, Stan McCollum, Larry Cromer, Dawn Marie Perez, Phyllis Lynes, Melissa Bennett, Vance Dampier, Gloria Trayband and Margie Bott. Two exhibits were offered by Mr. Bott and were accepted into evidence.
The parties have filed proposed recommended orders containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
During the period of time at issue in this proceeding, Carl G. Bott, Jr., was an employee of the School Board of Putnam County under a continuing contract. Mr. Bott has been employed as a teacher for approximately ten years.
Mr. Bott was a teacher and Dean in the County Alternative School Program during the 1984-1985 through 1988-1989 school years.
During the 1984-1985 and the 1985-1986 school years the County Alternative School Program was located on the second floor of the Campbell Administrative Building.
The County Alternative School Program was renamed the District Opportunity Center and was located on the Davis Lake Road side of the campus of
E. H. Miller School during the 1986-1987, school year. Mr. Bott continued to work at the District Opportunity Center during the 1987-1988 school year and part of the 1988-1989 school year.
During the 1984-1985 through 1988-1989 school years Diane Wilkinson was employed as a secretary for the County Alternative School Program and the District Opportunity Center. Mr. Bott was her immediate supervisor and prepared Ms. Wilkinson's evaluations during this period of time.
During the 1984-1985 and 1985-1986 school years Mr. Bott was in charge of the County Alternative School Program.
During the 1984-1985 and the 1985-1986 school years Mr. Bott made comments to Ms. Wilkinson of a sexual nature. In particular, Mr. Bott told Ms. Wilkinson that she had a nice ass, but that [her] stomach needed to be tightened up; and he also made statements in regard to women's nipples showing through their clothes, that's a real turn on to him, for women to get cold on for their nipples to show through their clothing.." Page 199, lines 113-17, Transcript of Administrative Hearing.
Sometime during the 1985-1986 school year Mr. Bott intentionally placed his hand on Ms. Wilkinson's right breast without permission, warning or provocation. Mr. Bott's act was a sexual advance toward Ms. Wilkinson. This incident occurred while Mr. Bott and Ms. Wilkinson were in Ms. Wilkinson's small office discussing business.
When Mr. Bott touched Ms. Wilkinson, she said nothing and looked at him with a shocked expression. When Ms. Wilkinson did not respond to his advance, Mr. Bott removed his hand and left the room.
Ms. Wilkinson did not report the incident to anyone. Nor was anything said about the incident by Ms. Wilkinson or Mr. Bott.
Approximately six to nine weeks before the County Alternative School Program was moved to Davis Lake Road, Mr. Bott came into Ms. Wilkinson's office where she was typing, walked up behind her and reached over her shoulders and intentionally touched her breast from behind without permission, warning or provocation.
Again, Ms. Wilkinson said nothing. She looked at him with a shocked expression and Mr. Bott then removed his hand and left the room.
On the same day that the second incident occurred, Ms. Wilkinson called Evie Shellenberger, the Director of Personnel for the Petitioner, and set up an appointment for the next day to report the incident.
The day after the second incident, Ms. Wilkinson told Mr. Bott that I can have your teaching certificate lifted for sexual harassment if you ever touch me again . Page 205, lines 9-10, Transcript of Administrative Hearing. Mr. Bott told Ms. Wilkinson that he realized that she was correct, he apologized to her and promised it would never happen again.
Ms. Wilkinson kept her appointment with Ms. Shellenberger and reported both incidents. She did not, however, file a sexual harassment charge against Mr. Bott. Ms. Wilkinson did not file charges because Mr. Bott had apologized and promised not to touch her again and she did not want to harm his family or his career. Ms. Wilkinson was concerned for Mr. Bott because he had a son who had been sick and Mrs. Bott had had cancer.
After moving to Davis Lake Road, Mr. Bott continued to make inappropriate comments to Ms. Wilkinson of a sexual nature. The frequency of the statements increased, especially during the 1987-1988 school year. In particular, Mr. Bott made the following statements to Ms. Wilkinson:
That he had been a virgin until he was 21 years old, and therefore "he needed to get all the sex he could possibly get to make up for lost time."
That he masturbated in the shower with hand cream.
That he had had a wet dream about her and he had to get up and clean himself up and clean the sheets up.
That "he had had a dream about [them] being in the back seat of a car and that [they] had made love, and that he had climaxed all over the bed, and that it seemed so real to him that he could even smell [her] cologne."
That he had calluses on the palms of his hands from masturbating.
That "he could really satisfy me [Ms. Wilkinson] sexually without his teeth, and that he knew how -- he could gum me [Ms. Wilkinson] to death, and that he really knew how to satisfy women without his teeth in."
That his wife "was so fat and so ugly that he had a hard time making love to her, and that he had to really fantasize when he was having sex with her, to pretend he was with someone else instead of her, because she had dimples in her ass and she was so fat and so overweight it was like she had two sets of breasts, one in the front and one in the back behind her armpit in regard to a fatty kind of area on her."
That "I intend to have you [Ms. Wilkinson] in bed before we go our separate ways."
That he had made love with a woman (not his wife) in his boat and he had been afraid that he was not going to be able to get his clothes on before the Florida Marine Patrol caught him.
That he needed "a piece of ass from someone 18 to 21 years old because he didn't want to get too old to go out and enjoy it."
The more explicit sexual statements Mr. Bott made to Ms. Wilkinson were not made continuously. There would be periods of time when he would not make such statements. There were, however, periods of time when the types of statements quoted above would be made and then he would be quiet again.
Ms. Wilkinson did not ask Mr. Bott to stop making the statements. She also did not tell anyone about the statements Mr. Bott was making to her. In approximately March, 1988, Ms. Wilkinson did talk to Rita Moody, president of the union to which Ms. Wilkinson belonged, about changing positions and informed her of Mr. Bott's behavior. There were not any positions available, however, and Ms. Moody suggested that Ms. Wilkinson should not "open a can of worms" by reporting the incidents.
Despite the incidents related above involving Mr. Bott and Ms. Wilkinson, Ms. Wilkinson and Mr. Bott were friendly to each other and discussed personal matters as well as matters related to their work. They ate lunch with each other on occasion and Mr. Bott gave Ms. Wilkinson rides to and from her home and the office on occasion. Ms. Wilkinson also actively assisted Mr. Bott in protecting the program they worked in and assisted him in remaining with the program because she considered him an asset to the program.
At the beginning of the 1986-1987 school year, Jean Herring was assigned as an Assistant Principal in charge of the District Opportunity Center.
Ms. Herring was Mr. Bott's immediate supervisor during the 1986-1987 school year. Because Mr. Bott had previously been in charge of the program, he had some resentment about Ms. Herring's position.
During the Spring of 1988, Ms. Herring received a complaint from Dana Hales, a female student at the District Opportunity Center. Ms. Hales alleged that Mr. Bott was using inappropriate language and discussing inappropriate topics with female students. (See findings of fact 23 and 24). Ms. Hales indicated that she felt uncomfortable in one-on-one counseling sessions with Mr. Bott. Based upon this complaint, Ms. Herring directed Mr. Bott not to conduct any one-on-one counseling sessions with female students without including Ms. Herring in the session. The next morning, Ms. Herring discovered Mr. Bott conducting a one-on-one counseling session with a female student in violation of her directive to him. Ms. Herring did not see Mr. Bott violate the directive again.
Dana Hales complained to Ms. Herring because of statements Mr. Bott made to her of a sexual nature. Those statements included a statement "that he had an affair with a young girl from where he came from before and that he wished he could find a young girl here that he could trust that ... would not tell anyone." Page 142, lines 5-8, Transcript of Administrative Hearing.
Mr. Bott also made comments to Ms. Hales concerning his wife. Mr. Bott told Ms. Hales that his wife "was ugly and that she was fat, and in the morning like in the daylight that she was very ugly and unattractive." Page 142, lines 15-17, Transcript of Administrative Hearing.
Tonnette Sanders moved to Putnam County after the 1987-1988 school year had begun. Therefore, she was placed in the District Opportunity Center. She was not placed there for disciplinary reasons. Ms. Sanders was approximately 17 or 18 years of age.
Mr. Bott was not one of Ms. Sanders' teachers. Mr. Bott and Ms. Sanders did become friends, however, and Mr. Bott provided counseling to Ms. Sanders.
While walking into an office together, Mr. Bott patted Ms. Sanders on her buttocks. Ms. Sanders believed that the touching was a sexual advance and it made her feel uncomfortable. Ms. Sanders did not return to school for several days after the incident because she was upset. When she did return, Mr. Bott apologized to her for his action.
Mr. Bott also told Ms. Sanders that she was the nicest looking black girl he had had ever seen."
Cynthia Bartrum Schmurmand attended the District Opportunity Center during the 1986-1987 school year. Ms. Schmurmand was 14 or 15 year of age at the time.
Mr. Bott provided GED preparation training approximately 45 minutes a day to Ms. Schmurmand and other female students. Initially there were four or five students who attended the sessions. Eventually, however, only Ms. Schmurmand and another student, Wendy Parker, attended the sessions.
Mr. Bott did not always provide instruction to Ms. Schmurmand and Ms. Parker. Instead, Mr. Bott, Ms. Schmurmand and Ms. Parker would just talk. During these conversations, Mr. Bott told Ms. Schmurmand and Ms. Parker that he had been out with girls their age. He also told Ms. Schmurmand and Ms. Parker that they could get older and more mature men.
Mr. Bott offered to take Ms. Schmurmand and Ms. Parker out on his fishing boat with the permission of their parents. Mr. Bott told them that "they would get some beer" even though Mr. Bott knew that they were not of legal drinking age.
Mr. Bott allowed Ms. Schmurmand and Ms. Parker to smoke cigarettes in his office during at least one of the sessions. Mr. Bott provided the cigarettes. The use or possession of tobacco or tobacco products on school grounds was prohibited. Mr. Bott warned the students that if they ever let anyone know that they had been allowed to smoke, he would get into trouble and so would they.
In addition to Mr. Bott's duties at the District Opportunity Center, he also taught health classes until December 1988 and for approximately three years preceding the 1988-1989 school year at the St. Johns River Community College. The courses taught by Mr. Bott were extra-credit classes taken by senior high students who needed additional credits to graduate from high school.
During the Fall of 1988, Mr. Bott's health class was first aid. The class met from 3:30 p.m. until 6:00 p.m. on Monday and Wednesday. The students who attended the class were from Palatka High School and were 17 years of age or older.
During the Fall of 1988, Mr. Bott made inappropriate statements to, or engaged in inappropriate conduct in front of, students in his first aid class as follows:
Mr. Bott told students that his wife used to have a "nice ass" and "boobs" or "big melons", and now she is "fat and ugly."
Mr. Bott wore a pin during class on his shirt which had the following words printed on it: "Sex Cures Headaches." Mr. Bott wore the pin for approximately thirty minutes. When a student asked about the pin, Mr. Bott took it off and indicated that he had forgotten he had it on.
While discussing body lice, Mr. Bott told the class that he had once had "crabs." He indicated that he did not know how he had gotten them, implying that he had been involved with several different women.
Mr. Bott cussed in front of the students. He used the words "dam", "ass", "bitch", "God damn" and "fuck."
On one occasion Mr. Bott, while waking a student up, told the class that males have sexual fantasies every eleven minutes.
Mr. Bott, while discussing the subject of drugs, told the class that marijuana makes women want to have sex or that smoking marijuana makes sex better.
Mr. Bott told the students a story about a boy and girl who were riding in an automobile with the gear shift located on the floor of the automobile between the two front seats. Mr. Bott indicated that the boy was driving and the girl was sitting on a pillow between the two front seats. Mr. Bott told the class that the automobile was involved in a wreck or stopped suddenly for some other reason and that the gearshift "went up the girl" or that the "gearshift jammed up in her" and that "she took it whole."
Mr. Bott also told the students a story about two couples who were riding in an automobile. Mr. Bott indicated that one couple was in the back seat of the car and they were "making out." Mr. Bott then told the class that the automobile was involved in a wreck and the boy "bit the girl's nipple off." He also said that the boy "swallowed it" and that the nipple was "a beautiful one." Mr. Bott also told this story during the 1987-1988 school year.
Mr. Bott, while discussing genital injuries, told the class that he knew of a man who had sustained a genital injury. Mr. Bott stated that "his balls swelled up" and that they "were the size of baseballs."
Mr. Bott told the class that "oysters put lead in the pencil."
During the 1987-1988 school year, Dana Hales attended Mr. Bott's health class. Ms. Hales was walking to her automobile after one class when Mr. Bott told her that she "had the [tits or breasts] of a 25 year old."
Mr. Bott also told Ms. Hales during the 1987-1988 school year that she would "stand out more" if she lost some weight. Mr. Bott was referring to Ms. Hales' chest when he made this statement.
Vanessa Armster was an eighteen-year-old student at Palatka High School during the Fall of 1988. Ms. Armster attended Mr. Bott's health class during the Fall of 1988.
In November, 1988, Ms. Armster missed four classes, in violation of Mr. Bott's policy that students could only miss three or less classes in order to pass the class.
Mr. Bott, in deviation from his policy concerning absences, told Ms. Armster that she could make up her fourth absence by coming to his classroom at the District Opportunity Center after school the day after her fourth absence.
Ms. Armster had a friend take her to the District Opportunity Center at 3:00 p.m. Mr. Bott gave her work to perform.
Most of the time that Ms. Armster was at the District Opportunity Center no one was present in the room with her except Mr. Bott.
While Ms. Armster was performing the work given to her by Mr. Bott, Mr. Bott made the following comments to her:
Mr. Bott told Ms. Armster that he was scared for her to come to the District Opportunity Center because "he didn't know how he was going to react."
Mr. Bott asked Ms. Armster "are those for real?" Mr. Bott was referring to Ms. Armster's breasts.
Ms. Armster took these comments to be sexual in nature. Ms. Armster, as a result of Mr. Bott's comments, felt uncomfortable and scared in a one-on-one situation with Mr. Bott.
The person who was suppose to give Ms. Armster a ride home did not arrive when she was ready to leave. Mr. Bott offered to give her a ride and Ms. Armster accepted.
As Mr. Bott and Ms. Armster left the building, Mr. Bott noticed a football team practicing nearby and said that "someone might think something."
Mr. Bott and Ms. Armster got into his pick-up truck. While in the truck Mr. Bott was telling Ms. Armster something about a heart attack and was referring to an area of his chest or side. While trying to indicate a location on his body, Mr. Bott moved his hand toward Ms. Armster. Ms. Armster jumped back when Mr. Bott moved his hand toward her. When Ms. Armster jumped, Mr. Bott said "oh, you just thought I was going to touch there" and intentionally put his hand on Ms. Armster's right breast.
When Mr. Bott touched Ms. Armster she jumped back and he laughed.
Following this incident, Mr. Bott dropped Ms. Armster off.
Mr. Bott's actions have affected the way in which students view him as a teacher. In addition to the effects of Mr. Bott's actions already noted, Mr. Bott's actions had the following effects:
At least two students perceived that Mr. Bott looked at Ms.
Armster differently than he looked at other students; and
Various students in Mr. Bott's health class found many of the sexual statements and incidents to be inappropriate and, in some cases, offensive and embarrassing.
Mr. Bott's preoccupation with sexual matters was further evidenced by the following incidents which occurred during the period of time at issue in this proceeding:
Mr. Bott told Beverly Emmons, a secretary at E. H. Miller School, that he like the blouses that Debbie Thomas, a teacher's aide, wore because her nipples stuck out.
Mr. Bott made a comment about Debbie Thomas nipples being hard while she was lifting weights. This comment was made in front of Ms. Thomas and Diane Alred, an adaptive physical education teacher. Mr. Bott also patted Ms. Thomas on the buttocks.
Mr. Bott was suspended with pay by the Superintendent of the Petitioner on December 2, 1988.
At a regularly scheduled meeting of the Petitioner on December 5, 1988, Mr. Bott was charged with immorality, misconduct in office and gross insubordination and was suspended without pay.
By letter dated December 5, 1988, Mr. Bott requested a formal administrative hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).
The burden of proof is on the party asserting the affirmative of an issue in an administrative proceeding. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977). Therefore, the burden of proof in this proceeding is on the Petitioner. Because Mr. Bott's continued employment is at stake, the evidence to support the charges against him must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). See also, Bach v. Florida Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980).
Pursuant to Section 230.33(7)(e), Florida Statutes, the superintendent of the Petitioner is given the duty and authority concerning the suspension and dismissal of teachers:
(e) Suspension and dismissal.--
Suspend members of the instructional staff and other school employees during emergencies for a period extending to and including the day of the next regular or special meeting of the school board and notify the school board immediately of such suspension. When authorized to do so, serve notice on the suspended member of the instructional staff of charges made against him and of the date of hearing. Recommend employees for dismissal under the terms prescribed herein.
The Superintendent of the Petitioner suspended Mr. Bott on December 2, 1988. This suspension was in effect until the next meeting of the Petitioner on December 5, 1988. This suspension was authorized by, and consistent with, the Superintendent's authority under Section 230.33(7)(e), Florida Statutes. See Strange v. School Board of Citrus County, 471 So.2d 90 (Fla. 5th DCA 1985).
Mr. Bott was suspended without pay effective December 5, 1988, and the Petitioner is seeking to dismiss him from his employment with the Petitioner, pursuant to the following provisions of Section 231.36(4)(c), Florida Statutes:
(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, ... insubordination
Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid.
The Petitioner charged Mr. Bott with immorality, misconduct in office and insubordination. Therefore, the Petitioner had the authority to suspend Mr. Bott without pay on December 5, 1988.
In order for a school board to dismiss a teacher, such as Mr. Bott, Section 231.36(4)(c), Florida Statutes, requires that the school board determine whether the charges against the member of the instructional staff are sustained by the evidence. If the school board concludes that the evidence sustains the charges, then the school board must determine whether the employee should be dismissed or the terms under which the employee may be reinstated. By stipulation of the parties, it was agreed that this decision would be made by the Petitioner after the formal hearing was conducted and would be based upon this Recommended Order.
The ultimate issue in this proceeding is whether Mr. Bott should be suspended or dismissed as a school teacher with the Petitioner. This decision
hinges largely on the veracity of the witnesses and the weight that the undersigned has given their testimony. The primary issue to be decided is generally whether the testimony of the students and employees of the Petitioner who testified on behalf of the Petitioner should be accepted. This issue in turn depends in part on whether the testimony of Mr. Bott should be accepted.
In making these decisions the discrepancies in the testimony of some of the witnesses, the maturity, or lack thereof, of some of the witnesses and the character of the witnesses has been considered. Because of the number of discrepancies and other problems with the testimony of various witnesses, most, if not all, of which was pointed out by counsel for Mr. Bott, the resolution of these issues is not an easy one. Ultimately, however, the testimony of the witnesses against Mr. Bott has been generally accepted because the testimony concerning the crucial facts in this case was consistent and because of the volume of testimony concerning the generally inappropriate sexual conduct of Mr. Bott since 1987.
As grounds for Mr. Bott's dismissal, he has been charged with immorality. "Immorality" is defined by Rule 6B-1.009(2), Florida Administrative Code, as:
conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
Based upon the evidence presented in this case it is concluded that Mr. Bott is guilty of immorality based upon his sexual comments to Ms. Armster, Ms. Wilkinson, Ms. Hales and Ms. Schmurmand and his touching of Ms. Armster, Ms. Wilkinson and Ms. Sanders.
The Petitioner has also charged Mr. Bott with misconduct in office. Section 6B-4.009(3), Florida Administrative Code, defines "misconduct in office" as:
a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles
of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, F.A.C., which is so serious as to impair the
individual's effectiveness in the school program.
The Petitioner has argued that the incidents involving the touching by Mr. Bott of, and his sexual comments to, Ms. Wilkinson, Ms. Armster and Ms. Sanders and the sexual comments Mr. Bott made to Ms. Hales, Ms. Schmurmand and his health class constitute misconduct in office. The Petitioner has not indicated what portions of the Code of Ethics of the Education Profession or the Principles of Professional Conduct for the Education Profession have been violated by Mr. Bott's conduct. Based upon a review by the undersigned of the Code and the Principles, it is concluded that Mr. Bott's comments to his health classes during the 1987-1988 school year and the Fall of 1988, his comments to
Ms. Armster and his touching of her during the Fall of 1988, his touching of Ms. Sanders and his comments to Ms. Hales and Ms. Schmurmand constituted misconduct in office. It is also concluded that Mr. Bott's sexual comments to Ms.
Wilkinson and his touching of her constituted misconduct in office.
Finally, the Petitioner has charged Mr. Bott with gross insubordination "Gross insubordination" is defined by Rule 6B-4.009(4), Florida Administrative Code, as "constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." [Emphasis added]. The Petitioner has argued that Mr. Bott is guilty of gross insubordination because he wilfully ignored Ms. Herring's directive to him that he not counsel female students without having Ms. Herring present. The Petitioner has also argued that Mr. Bott's failure to enforce the Petitioner's policy against the use and/or presence of tobacco products on campus constitutes gross insubordination.
The evidence presented in this case fails to support a conclusion that Mr. Bott is guilty of gross insubordination. In particular the evidence failed to prove that Mr. Bott's failure to follow Ms. Herring's instructions concerning her presence at counseling sessions and Mr. Bott's failure to enforce the Petitioner's tobacco products policy was "constant or continuing." The evidence presented only proved that Mr. Bott's failure to follow Ms. Herring's instructions to him occurred on one occasion and that he allowed the use of tobacco products on one or two occasions. Mr. Bott's actions, therefore, do not come within the definition of "gross insubordination" contained in Rule 6B- 4.009(4), Florida Administrative Code.
The Petitioner has also argued that Mr. Bott is guilty of gross insubordination because of his threats to commit suicide and his threats to kill various members of the administration. (The Petitioner's proposed finding of fact number 104, which concerns these incidents was accepted in the Appendix attached to this Recommended Order.) This conduct fails to come within the definition of "gross insubordination"; these acts were not "constant or continuing" and there was no proof of a violation of a "direct order." Based upon the foregoing, it is concluded that the Petitioner has failed to prove Mr. Bott is guilty of gross insubordination.
The Petitioner has contended in its proposed recommended order that the following issue should be decided in this proceeding:
Whether the District School Board of Putnam County may terminate Carl G. Bott, Jr.'s employment with the District in the event that his teaching certificate is suspended or revoked by the State Professional Practices Commission."
To address this issue would require speculation as to what action the Education Practices Commission might take to suspend or revoke Mr. Bott's Florida teaching certificate and what the ultimate outcome of such action might be. Such speculation by the undersigned or the Petitioner would not be proper.
Therefore, the Petitioner's argument concerning whether the issue quoted above should be addressed in this proceeding is rejected.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued in this case finding that Carl G.
Bott, Jr., is guilty of immorality and misconduct in office in violation of Section 231.36(4)(c), Florida Statutes, and dismissing him from his employment with the Petitioner.
DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida.
LARRY J. SARTIN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 21st day of November, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0572
The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Petitioner's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
1 1-4, 34.
2 39.
3 40.
4 41.
5 42. The last two sentences are cumulative and unnecessary.
6 See 42-44.
7 Hereby accepted.
8 44.
Not relevant to this proceeding.
See 50. The last sentence is not supported by the weight of the evidence.
11 45.
12 46.
13 47.
14 49.
15-27 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the
extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order.
28 Hereby accepted.
29a 36b.
29b 36f.
29c 36j. The last sentence is not supported by the weight of the evidence.
29d 36i.
29e 36a.
29f 36c.
29j 36g and h.
29h 36e.
29i Not supported by the weight of the evidence.
29j 36d.
30 50.
31-33 See 50. These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order.
36h, 37-38. The statements were made, however, in 1987 and not in 1988.
Not supported by the weight of the evidence.
Hereby accepted.
37 2 and 22.
38 22.
39 23.
40 22.
Hereby accepted.
22 and hereby accepted.
43 21-22.
44 22.
45 Hereby accepted.
46-49 Not relevant to this proceeding.
50 Hereby accepted.
51-54 Not relevant to this proceeding.
55-56 25.
57 26.
58-59 27-28.
60 29.
61 30.
62 29-30.
63 See 31.
64 32.
65-66 33.
67 Not relevant to this proceeding.
68 31.
69 50.
70 3-5.
71 2 and 5.
72 5.
73 7.
74 Hereby accepted.
75-77 8. Ms. Wilkinson did engage in personal and sexual conversations with Mr. Bott.
78 8-9.
79 10.
80 11.
81 11-12.
82 Hereby accepted.
83 13.
84 14.
85 15.
86 16.
87 16-17.
88 18.
89 19 and hereby accepted.
90-91 Hereby accepted.
92 51. The last two sentences of 92b are rejected as hearsay.
93-101 These proposed findings of fact are generally true. They are cumulative, however, and not necessary. To the extent that these proposed findings of fact are true, they have been taken into account in the weight that was given to the testimony which formed the basis for findings of fact concerning this incident included in the Recommended Order.
102-104 Hereby accepted.
Mr. Bott's Proposed Findings of Fact
Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection
See 50.
Not relevant to this proceeding.
34 and 36 c and f.
35 and hereby accepted.
See 36a.
Taken into account in the weight that was given to the testimony concerning the incidents they testified about.
7-9 See 50. The last sentence of proposed finding of fact 7 and all of proposed findings of fact 8 and 9 constitutes a summary of testimony. This testimony was considered in making relevant findings of fact.
10-11 Not relevant to this proceeding.
Not supported by the weight of the
evidence.
Hereby accepted.
Taken into account in the weight that was given to the testimony concerning this incident.
15-17 See 50.
18 Hereby accepted.
19-20 See 50.
Although it is true that Ms. Walker testified in this manner, the testimony was rejected.
Not relevant to this proceeding.
See 50.
24 2.
25 See 25-28 and 50.
26 Not supported by the weight of the testimony.
27-28 See 33.
29 37.
30 37-38.
31 Not relevant to this proceeding.
32-33 This testimony was rejected.
34-35 Hereby accepted.
36 22.
37-38 Hereby accepted.
Not relevant to this proceeding.
20. The last sentence is not relevant to this proceeding.
Not relevant to this proceeding.
42 5.
43-44 See 17-19. Ms. Wilkinson's testimony about not discussing personal matters with Mr. Bott was based upon her definition of "personal matters."
45 Not relevant to this proceeding.
46 19.
47-48 Not relevant to this proceeding.
Hereby accepted.
Not relevant to this proceeding.
COPIES FURNISHED:
Joe H. Pickens, Esquire Post Office Box 2128 Palatka, Florida 32078-2128
Lorene C. Powell, Esquire FEA/United
208 W. Pensacola Street Tallahassee, Florida 32399-1700
Mr. C. L. Overturf Superintendent
Putnam County School Board
200 South Seventh Street Palatka, Florida 32177
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32399-0400
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DISTRICT SCHOOL BOARD OF PUTNAM COUNTY,
Petitioner,
vs. CASE NO.: 89-0572
CARL G. BOTT, JR.,
Respondent.
/
FINAL ORDER
THIS CAUSE came on before the District School Board of Putnam County for the purpose of issuing a Final Order. The Hearing Officer assigned by the Division of Administrative Hearings in the above styled cause has submitted a Recommended Order, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference as if set out in full.
RESPONDENT'S EXCEPTIONS TO RECOMMENDED ORDER:
The District School Board of Putnam County considered each exception to the recommended order as filed by Respondent on December 2, 1989, as follows:
As to exception 1: the Board rejected the exception upon the grounds that it should not substitute its own judgment for that of Larry J. Sartin, Hearing Officer for the Division of Administrative Hearings.
As to exception 2: the Board allowed the exception upon the grounds that Finding of Fact number 51 concerns statements which are uncorroborated hearsay. Thereby, the Board agreed that the information contained in Finding of Fact number 51 does not constitute competent and substantial evidence as required to sustain a finding of fact.
As to exception 3: the Board rejected the exception upon the grounds that the information contained in Findings of Fact 7-19 did not indicate that the act of Mr. Bott intentionally placing his hand on Ms. Wilkinson's breast was done with her permission or due to her provocation.
As to exception 4: the Board rejected the exception upon the grounds that those Findings of Fact indicated in the exception which were, in fact, admitted by Mr. Bott, constituted more than poor judgment.
As to exception 5: the Board rejected the exception upon the grounds that the penalty recommended by Larry J. Sartin, Hearing Officer for the Division of Administrative Hearings, was warranted, that the allegations made against Mr.
Bott do constitute competent, substantial evidence and do rise to the level of clear and convincing proof such that Mr. Bott is no longer effective as a classroom teacher.
FINDINGS OF FACT:
The District School Board of Putnam County hereby adopts and incorporates by reference the Findings of Fact set forth in the Recommended Order with the exception that Finding of Fact number 51 should be considered as previously mentioned herein.
CONCLUSIONS OF LAW:
The District School Board of Putnam County hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order.
Based on the foregoing, and the recommendation made by the Hearing Officer in the above styled case, it is ADJUDGED that Carl G. Bott, Jr., is guilty of immorality and misconduct in office in violation of Florida Statutes Section 231.36(4)(c) and, accordingly, his suspension without pay from December 5, 1988 through January 5, 1990 is affirmed; it is further ADJUDGED that Carl G. Bott, Jr. is dismissed from his employment with the District School Board of Putnam County effective the date of this Order.
DONE AND ORDERED this 12th day of January, 1990, in Palatka, Florida.
District School Board of Putnam County
Elaine Murray, Chairman
| Issue Date | Proceedings |
|---|---|
| Nov. 21, 1989 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 23, 1990 | Agency Final Order | |
| Nov. 21, 1989 | Recommended Order | Teacher dismissed for immorality and misconduct in the office. |
