STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF LAKE COUNTY, ) FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 89-5247
)
SARAH I. CLARK, )
)
Respondent. )
) BETTY CASTOR, AS COMMISSIONER OF ) EDUCATION, )
)
Petitioner, )
)
vs. ) CASE NO. 90-4382
)
SARAH I. CLARK, )
)
Respondent. )
)
RECOMMENDED ORDER
The final hearing in the above-styled consolidated cases was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on October 30 and 31, 1991, in Leesburg, Florida.
APPEARANCES
FOR PETITIONER, SCHOOL BOARD OF LAKE COUNTY, FLORIDA:
Stephen W. Johnson, Esq. MCLIN, BURNSED, ET AL.
1000 West Main Street
P.O. Box 491357 Leesburg, FL 34749-1357
FOR PETITIONER, BETTY CASTOR, AS COMMISSIONER OF EDUCATION:
Stephen C. Willis, Esq. BROOKS & LEBOEUF
863 East Park Avenue Tallahassee, FL 32301
FOR RESPONDENT, SARAH I. CLARK:
Sally C. Gertz, Esq.
Florida Education Association/United
118 North Monroe Street Tallahassee, FL 32399-1700
STATEMENT OF THE ISSUES Case No. 89-5247
Whether the Respondent should be dismissed from employment as an instructional employee of the Respondent, School Board of Lake County, Florida ("School Board"), or, to otherwise determine the terms under which the Respondent may be reinstated as an instructional employee by the School Board. The charges are based upon the acts and violations alleged in the Superintendent's letter of August 21, 1989 and Amendment to Charges dated July 12, 1990.
Case No. 90-4382
Whether the Respondent's teaching certificate should be revoked or otherwise disciplined for violation of Section 231.28(1)(c) and (f), Florida Statutes.
PRELIMINARY STATEMENT
Case No. 89-5247 began when Dr. Thomas E. Sanders, Superintendent of Schools for Lake County, Florida, advised the Respondent, by letter dated August 21, 1989, that she was being suspended with pay, effective August 21, 1989, until the next regular scheduled School Board meeting to be held August 22, 1989, at which time Dr. Sanders would recommend to the School Board that the Respondent be dismissed. Dr. Sanders advised the Respondent that she had a right to request a hearing.
At the School Board meeting on August 22, 1989, Dr. Sanders recommended that the School Board continue the Respondent's suspension without pay, effective August 23, 1989, pending the outcome of the due process procedures. The School Board approved the recommendation of Dr. Sanders, and the Respondent was advised of her suspension by letter dated August 23, 1989 from Dr. Sanders and of her right to request a hearing prior to 9:00 a.m. on September 5, 1989. Gail B. Burry, President of the Lake County Education Association, notified Dr. Sanders, in writing on August 31, 1989, that the Respondent requested a hearing before a Hearing Officer of the Division of Administrative Hearings. The case was referred to the Division of Administrative Hearings for appointment of a Hearing Officer.
Case No. 90-4382 was commenced by the filing of an Administrative Complaint by the Petitioner, Betty Castor ("Castor"), against the Respondent. The Administrative Complaint alleges that during the year 1989, the Respondent was guilty of acts involving immorality and moral turpitude, said acts resulting in her loss of effectiveness as an employee of the School Board in Lake County, Florida. Additionally, the Administrative Complaint alleges that during the months of July and August of 1989, the Respondent engaged in abusive conduct toward her disabled former husband, who was confined to a wheelchair as a result of a stroke. On or about December 18, 1989, the Respondent pled nolo contendere to the first degree misdemeanor offense of abusing an aged or disabled person.
The court withheld adjudication of guilt, fined the Respondent in the amount of
$500.00 and placed the Respondent on probation for a period of twelve (12) months.
As a result of the allegations of misconduct, the Administrative Complaint alleges that the Respondent's teaching certificate should be disciplined, pursuant to the provisions of Section 231.28(1)(c) and (f), Florida Statutes.
The two cases against the Respondent were consolidated for hearing and for entry of this Recommended Order.
The Petitioners presented the testimony of fourteen (14) witnesses in their case in chief. The Petitioners offered twelve (12) exhibits, which included the deposition testimony of the Respondent and two doctors. All twelve (12) exhibits were admitted into evidence. The Respondent presented the testimony of nine (9) witnesses in her case. The Respondent offered three (3) exhibits, which were admitted into evidence.
The transcript of the hearing was completed on November 15, 1990. The Hearing Officer granted a Motion to Extend the Time for Filing Proposed Recommended Orders until December 10, 1990. The Appendix attached hereto and incorporated by reference herein states which findings were adopted and which were rejected and why.
FINDINGS OF FACT
The Respondent holds Florida Teaching Certificate No. 453831, issued by the Florida Department of Education, covering the area of fifth-grade teaching.
The Respondent was originally employed as a full-time teacher by the School Board in January of 1979 (p. 440) and was under a continuing contract.
During the 1988-1989 school year, the Respondent was employed as a fifth-grade teacher at Beverly Shores Elementary School (p. 443).
On June 13, 1989, after the end of the school year, the Respondent called the dispatcher at the Lake County Sheriff's Office. Officer Dale Swanton with the Umatilla Police Department was dispatched to the home of the Respondent upon a report by the Respondent of a prowler or trespasser on her property (T- 38). Officer Swanton reported to the address, checked the surrounding area, and found no one. He then met with the Respondent to receive a report from her (T- 38-39; Board's Exhibit 4).
Based upon his meeting with the Respondent, Officer Swanton felt the Respondent had been drinking alcoholic beverages because she would drift from one subject to another, and she had the heater on in the house, and it was exceptionally hot. Swanton concluded the Respondent's behavior was erratic.
Officer Swanton was unable to obtain a clear explanation of what the Respondent's concern was or why she had called him to the home. The Respondent told Swanton that she wanted the police to know who had killed her if they found her dead (T-43). As Swanton prepared to leave, the Respondent offered to him a roll of bills, which contained a One Hundred Dollar ($100.00) bill on top (T- 44).
Deputy L.T. Brown of the Lake County Sheriff's Department was also dispatched to the home of the Respondent on June 13, 1989 on a report of a possible burglary (T-62). Upon arrival at the house, the Respondent explained her fears to Deputy Brown and expressed concern that a person by the name of Doug Arnette might have called and filed a complaint about her for "running him off her property" (T-64).
While in the home, the Respondent showed him a collection of handguns, rifles, and shotguns, which were kept under the Respondent's bed. The Respondent expressed the fear that a friend of her son might have stolen or in the future, might steal, one of the guns. Deputy Brown assisted the Respondent in making a list of these guns, some of which he found to be loaded. The Respondent was said by other witnesses to be a good shot and knowledgeable of firearms.
While Deputy Brown was talking with the Respondent, the Respondent came up next to him, reached down, and grabbed him in the crotch. (T-68). Due to conduct of the Respondent toward Deputy Brown on June 13, 1989, the Sheriff's Department determined not to send deputies alone to her home in the future (T- 69).
The Respondent called the police department and/or sheriff's department approximately 24 times on June 13, 1989, and approximately 12 times on June 14, 1989 (during a four-hour period of time)(T-60).
Lt. John M. Burrow from the Lake County Sheriff's Department received reports from his communications center supervisor that the Respondent had called the communications center numerous times for no apparent reason and that they were having difficulty getting her off of the telephone in order to open the emergency lines (T-143-144).
Lt. Burrow spoke with the Respondent on June 13, 1989, after she had called the Department approximately 10 to 15 times (T-144-145). Lt. Burrow tried to determine why the Respondent was calling, and he explained to her that she was tying up the emergency telephone lines and harassing the employees at the communications center. He also told her that she was preventing them from conducting their regular duties (T- 145). He instructed her to cease harassing his employees if she wished to avoid criminal ramifications (T-145, 481).
After approximately one hour, the Respondent began calling the emergency line at the communications center of the Lake County Sheriff's Department once again (T-145). She stayed on the telephone for approximately 10 minutes to one-half hour each time she called, disrupting the office and forcing the dispatchers to eventually hang up on her (T-145).
On June 14, 1989, the Respondent again made numerous calls to the Lake County Sheriff's Department on the emergency line. She called approximately 10 times within the first hour and a half (T-146).
Lt. Burrow spoke with the son of the Respondent, who indicated that the Respondent was calling him in Virginia. Respondent's son was concerned about his mother. Respondent's son wished to know what could be done about her continual calls (T-148).
On the evening of June 14, 1989, after the Respondent had called the Lake County Sheriff's Department numerous times, the shift commander, Lt. John Burrow, decided to involuntarily take the Respondent to a mental health
facility, pursuant to the provisions of the Baker Act, Chapter 394, Florida Statutes. At approximately 8:00 p.m., on June 24, 1989, two hours into the night shift, Deputy Brown, Lt. Burrow, Deputy Thompson and Officer Holder proceeded to the Respondent's home and used physical force to remove her and take her to the Lake Sumter Mental Health Center, where she was kept against her will (TR 50, 69, 146-49).
On June 15, 1989, at Lake Sumter Mental Health Center, the Respondent was given a saliva test which indicated that she had consumed a moderate amount of alcohol probably enough to intoxicate her. Dr. Perez, a psychiatrist, saw her for 15-30 minutes on June 15th, and 15-30 minutes on June 16th. Dr. Perez did not see the Respondent when she was admitted. He diagnosed her suffering from `alcohol abuse,' and having "atypical psychosis" based upon reports he received that she was intoxicated and confused when admitted. The Respondent was discharged from Lake Sumter Mental Health Center on June 16, 1989 (P EX 1, 4, 6, 19).
The Respondent had an alcohol abuse problem and was suffering from this problem in June, July and August of 1989 (Deposition of Maximo Perez, with all attachments; Deposition of John Cooke; report from Laura Webber, M.S., as an attachment to the deposition). She was not incompetent. Her drinking was at her home. Her alcohol abuse was adversely impacted by an injury to her neck and her fear of an acquaintance of her son.
James Greager is a 67-year-old, reiired foreman from the Chrysler Motor Corp. with two children. On June 12, 1987, Mr. Greager married the Respondent and lived with her in her house on Brainard Street in Umatilla, Florida. The following year, in July of 1988, Mr. Greager suffered a stroke, which left him weak and unable to use his left arm and leg, confined to a wheelchair due to his inability to walk, and suffering from a flat affect and speaking deficit (TR 399-402; P EX 3 at 4, 5).
Mr. Greager, once he was dismissed from the hospital, was placed in several convalescent homes. In November of 1988, Mr. Greager and the Respondent were divorced. In December of 1988, Mr. Greager went to live in a convalescent home in Sarasota, which his daughter, who lives in Sarasota, had selected. Mr. Greager was very unhappy at the Sarasota home and referred to it as a "hell hole" (TR 412, 413; P EX 2 at 40).
On June 11, 1989, the Respondent went to the Sarasota Convalescent Home and went through rehabilitation training with Mr. Greager. On June 12, 1989, Mr. Greager returned with the Respondent to her home in Umatilla, Florida. From June 12th to August 12th, Mr. Greager was in the Respondent's home (TR 402, 412, 459).
During this period at the Respondent's home, Mr. Greager fell out of his wheelchair several times while attempting to maneuver from one place to another. Each time, the Respondent asked Jerome Reid, a neighbor, to come and help get him up. During this period, Mr. Greager also suffered several minor injuries: he bruised his cheekbone below his right eye, when a bowl of ice in the freezer he was trying to grasp fell on him; and he cut his right palm on a knife while washing dishes (TR 349, 371-73, 406-08, 412-13, 472).
The Respondent was preparing most of Mr. Greager's food during this time since she was on summer vacation from her teaching job. In the kitchen, there is a refrigerator/freezer and a separate freezer. There is also a separate freezer in one of the extra bedrooms. Mr. Greager was regularly eating breakfast, lunch and dinner during this period and never found himself hungry and unable to eat (TR 348, 409-10, 464).
Mr. Greager, at this time, was able to use the bathroom by himself, prepare TV dinners, and wash dishes, but could barely walk and required the Respondent's assistance to bathe and dress. In an attempt to increase Mr. Greager's mobility in his wheelchair while outdoors, the Respondent considered putting a cement walk around the house. The Respondent was referred to William Rutland, who gave her an estimate on the job (TR 403-405, 413, 463; P EX 2 at 43-45). Mr. Rutland gave the Respondent the estimate, and she determined that the construction was not economically feasible. In the course of conversing with Mr. Rutland, the Respondent discovered that he had experience in giving home care. Because the Respondent needed someone to help Mr. Greager when she returned to her teaching job, she engaged Mr. Rutland to assist Mr. Greager while she was at school. Mr. Rutland was to move in and be paid $500.00 per month (TR 403-405; P EX 2 at 43-45).
During this period, the Respondent took Mr. Greager to physical therapy sessions three times per week and had a physical therapist come to the house. Mr. Greager was still taking medication which had been prescribed by physicians at the Sarasota Convalescent Center. He knew what medication to take and either took it himself or with the Respondent's or Mr. Rutland's assistance (TR 412-415, 466).
Mr. Rutland stayed with the Respondent and Mr. Greager for approximately seven (7) days, although he was in and out during this period as he attended to personal business (TR 273-75). He was eventually fired, or quit, after the police came to the house on August 2, 1989.
In the early morning of August 2, 1989, at 3:11 a.m., Officer Phelps, of the Umatilla Police Department, and Deputy Brown, from the Lake County Sheriff's Department, were dispatched to the Respondent's home in response to a telephone call from Roger Smith, Mr. Greager's son-in-law, requesting that the police department check on Mr. Greager's welfare (TR 99).
When the officers arrived, the Respondent was dressed and up, Mr. Rutland was dressed and sitting at the dining room table, and Mr. Greager was sitting in his wheelchair in pajamas or underpants. The Respondent had been drinking alcohol and was very talkative (TR 75, 93, 100).
The Respondent and Mr. Greager told the officers, in response to the officers' questions, that Mr. Greager was all right. Mr. Rutland also told the officers that everything was fine.
The Respondent began discussing Mr. Greager's rehabilitation and in the course of that discussion, told the police about an incident in which she had urinatted on Mr. Greager. Mr. Greager, while in bed with the Respondent in their bedroom, asked the Respondent to sit on his chest while he attempted to perform oral sex on her. In the midst of this act, the Respondent coughed and, due to a weak bladder condition, urine was expelled onto Mr. Greager's face. Mr. Rutland, who had assisted in cleaning the urine from Mr. Greager and changing the sheets, confirmed the incident.
Mr. Greager confirmed that the urination incident had happened as described in Paragraph 29, above. (TR 72-74, 101, 110).
The events of June, July and August related above occurred during the summer recess when school was not in session.
Judy Tolver, an HRS investigator, accompanied by uniformed Officer Doug Foster of the Umatilla Police Department, went to the Respondent's home at approximately 2:41 p.m. on the afternoon of August 2, 1989, to investigate allegations that the Respondent might be abusing Mr. Greager.
When Ms. Tolver arrived at the Respondent's home, Mr. Greager, who had gotten up a short time before their arrival, was sitting in his wheelchair with a towel over his lap and had just finished eating a bowl of cereal and a banana. He was not cold or uncomfortable. The Respondent, who was also home, was asked to go in the bedroom while Ms. Tolver questioned Mr. Greager (TR 127-36, 159-63, 167, 414).
After pressing Mr. Greager numerous times, Ms. Tolver convinced him that he should leave with her for a medical checkup at Waterman Hospital. Mr. Greager did, and the emergency medical exam showed no evidence of abuse (TR 139, 417; P EX 3 at 19).
After a week at Waterman Hospital, Mr. Greager was released; and HRS arranged to place him in Mt. Dora Health Care Center, where he remained for a month. The Respondent visited Mr. Greager everyday at the Mt. Dora Health Care Center. From October 13-20, 1989, Mr. Greager went back to Waterman Hospital for a problem with blood clots in his legs (TR 417-19).
While Mr. Greager was in Waterman Hospital in October of 1989, the Respondent visited him everyday. She assisted in the care of Mr. Greager and also helped Mr. Greager's roommate, Rev. William Hill. When Mr. Greager was released from Waterman on October 29, 1989, the Respondent went to get him and they were remarried. Mr. Greager was living with the Respondent at the time of the hearing (TR 385-88, 425).
Based upon Ms. Tolver's investigation, HRS classified the abuse report of Mr. Greager as a confirmed case of abuse; and pursuant to Chapter 415, Florida Statutes, HRS placed the Respondent's name on the abuse registry. At a subsequent hearing, as required, the Hearing Officer recommended that the Respondent's name be expunged from the registry. See HRS v. S.C., DOAH Case No. 89-67l7C.
As a result of Ms. Tolver's investigation, the Respondent was criminally charged with the misdemeanor of abuse of an aged or disabled person. She pled nolo contendere to this criminal charge, adjudication was withheld; and she was placed on probation for a period of twelve (12) months (P EX 8(b), P EX 12).
The initial allegations of abuse in the HRS report and the result of the criminal charge were reported in the Daily Commercial, a newspaper distributed in Lake County, on May 2, 1990. The Lake Sentinel, another newspaper distributed in Lake County, on August 21, 1989, reported that the Respondent had been suspended based upon the allegations in the HRS report and had been criminally charged. On December 20, 1989, the Sentinel reported the result of the criminal charge.
There are 39 schools in Lake County, which serve seven different townships and approximately 21,000 students. There are 14 or 15 elementary schools in Lake County. The population of Lake County is approximately 150,000 people. There is no Employee Assistance Program for employees who have a substance abuse problems in the Lake County District (TR 224, 239, 255).
Mr. Greager has been seeing his physician, Dr. John Cooke, regularly, while living with the Respondent. As of July 17, 1990, Mr. Greager had a much- improved affect, was alert and oriented, able to have clear, normal exchanges, was stronger, tanner, and walking some with a four-prong cane. He appeared to be taking his medication properly; and his weight was good, as was his hygiene and grooming (P EX 3 at 6-9).
The Respondent, who was placed on probation for twelve (12) months, beginning December 18, 1989, as a result of the criminal charge, completed all of the terms of her probation early; and the court entered an order terminating probation on September 7, 1990. As part of her probation, the Respondent was required by TASC (Treatment Alternatives to Street Crime) to attend AA (Alcoholics Anonymous) meetings twice per week and to submit to a urine analysis twice per week. All the urine tests were negative. The Respondent was released from this six-month regimen in March, after only three months (TR 314-18, 472- 74).
The Respondent continues to attend AA meetings on her own initiative. She attended 45 AA meetings between March and October of 1990 (TR 474-77).
As part of her probation, the Respondent was referred to forensic services at Lake Sumter Mental Health Center for standard mental health evaluation to determine whether the Respondent required mental health services. Steven Dollar, a forensic services supervisor and therapist, conducted a clinical interview with the Respondent on March 15, 1990 and administered an MMPI on March 22, 1990. Ms. Tolver found that the Respondent was properly oriented, was logical, lucid and coherent, functioned within normal limits, functioned in an appropriate manner, and had intact judgment. Because Mr. Dollar found the Respondent to be functioning within normal limits, he did not recommend continuing therapy (TR 323-31).
Rev. Hill, since being discharged from Waterman Hospital in October of 1989, has regularly visited with the Respondent and Mr. Greager at their home and has ministered to them. Rev. Hill has never observed the Respondent drinking or seen any dangerous or unhealthful conditions in the home (TR 383- 90).
Based upon the charges in the complaint, the School Board suspended the Respondent with pay on August 21, 1989 and suspended her without pay from August 23, 1989 to the present. The Respondent waives any back pay which may be due for the period April 11, 1990 through June 3, 1990 (TR24; P EX 10).
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and parties pursuant to Chapters 120 and 231, Florida Statutes.
The Board charges the Respondent with violation of Section 231.36(4)(c), Florida Statutes, which provides that the Board can discharge a teacher on continuing contract only for immorality, misconduct in office, inocompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.
Immorality is defined by Rule 6B-4.009(2), Florida Administrative Code, as:
Conduct that is inconsistent with the standards of public conscience and good morals;
Conduct that is 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.
Clearly, the facts surrounding the events of June were not sufficiently "notorious" to come within the definition above. The Respondent's calling of the police, private drinking, groping of a police officer, and evaluation upon an involuntary commitment were not publicly known, notwithstanding whether they were inconsistent with good morals or the public conscience.
Incompetency is defined by Rule 6B-4.009(1), supra, as inability or lack of fitness to discharge the required duty as a result or insufficiency or incapacity. Incapacity is defined as a lack of emotional stability.
The facts reveal that all of the events which from the basis of this Administrative Complaint occurred during the summer school recess when the Respondent was not teaching. Therefore, none of these events could have impacted her "competency" unless they persisted into the new school year which started in mid to late August. More importantly, the facts reveal that in June the Respondent was evaluated in a mental health facility and released. At the time of the August incident, there were no questions raised regarding the competency of the Respondent. The Respondent was evaluated in March 1990 as part of her probation by the court. It was determined that she was "normal." Clearly, the Respondent was evaluated in June 1989 and March 1990, and determined to be mentally and emotionally stable both times. There were no allegations that she could not teach effectively. It is concluded the Respondent is competent.
Misconduct in office is defined by Rule 6B-4.009(3), Florida Administrative Code, as a violation of the code of ethics of the education profession as adopted in Rule 6B-1.001, Florida Administrative Code, and principles of professional conduct for the educational profession in Florida as adopted in Rule 6B- 1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system. The Board argues that the Respondent's alleged mistreatment of her disabled ex-husband is a violation of this provision. This stretches the application of misconduct in
office beyond any reasonable limit. None of the allegations involving the Respondent's conduct towards her ex-husband involved teaching, school, or her duties as a teacher.
Drunkenness is defined by Rule 6B-4.009(5), Florida Administrative Code, as "that condition which exist's when an individual publicly is under the influence of alcoholic beverages or drugs to such an extent that his or her normal facilities are impaired." The facts do not reveal that the Respondent was ever seen under the influence of alcoholic beverages at any place, except in her home. That which one does in one's home is not public.
The only portion of the Board's charges which remain are based upon the alleged mistreatment of James Greager. These charges will be discussed in detail below in conjunction with the allegations brought by the Petitioner Castor.
The Petitioner Castor and the EPC charge the Respondent with violation of Sections 231.28(1)(c) and (f), Florida Statutes, by committing the following acts:
Calling the Lake County Sheriff's, Department emergency line 36 times.
Sheriff's officers finding that she had been drinking, and was in possession of loaded firearms.
The Respondent was transported to a mental health facility where pursuant to the Baker Act she was evaluated and released.
During the months of July and August 1989, abusing her disabled ex-husband by
striking him on the head,
shouting at him,
Urinating on him, and
defecating on the phone to keep him for using it.
Pleading nolo contendere to a charge of abusing an aged or disabled person where adjudication was withheld and Respondent was placed on l2 months probation and ordered to undergo substance abuse counseling.
Section 23128(1)(c), Florida Statutes, provides that the EPC is authorized to suspend or revoke a teacher's certificate provided it is shown that the teacher "has been guilty of gross immorality or an act involving moral turpitude." Clearly, calling the sheriff's department 36 times; drinking and merely possessing loaded firearms; and being transported, evaluated for involuntary commitment and released are not gross immorality and do not involve moral turpitude.
The same acts are alleged to be a violation of Section 231.28(1)(f), Florida Statutes. The effectivenessof the Respondent was not impacted by calling the sheriff's department, drinking and possessing firearms, and being hospitalized, evaluated, and released because (1) she was not teaching when these events occurred, and because (2) these acts were not generally known.
It is alleged that pleading nolo contendere to the charge of abusing an elderly or disabled person violates Sections 231.28(1)(c) and (f), supra. However, in the recent case of Ayala v. Department of Professional Regulation,
478 So.2d 1116 (1st DCA 1985), the First District Court of Appeal held that the mere plea of a charge is not proof of moral turpitude. It follows that such a plea may not constitute guilt of personal conduct which seriously reduces that person's effectiveness. The court in Ayala, supra, holds that the agency must prove the facts underlying the allegations to which the plea of nolo contendere is entered.
This leaves the allegations that the Respondent committed the following acts upon James Greager, her ex-husband who is disabled:
Struck him on the head,
shouted at him,
urinated upon him,
defecated on a phone to keep him from using it.
The only witness to the allegations that the Respondent shouted at and struck Greager and defecated on the phone was William Rutland. I concluded that Rutland's testimony is unreliable. Both the Respondent and Greager testified that these events did not occur, and their testimony is more credible.
There was testimony from the Respondent that she urinated upon Greager accidently during sexual foreplay. This was confirmed by Greager. They were the only witnesses to the actual incident although Rutland assisted them in cleaning up the bed and Greager.
Greager was removed from the home by HRS and hospitalized. The examination at the hospital did not reveal any evidence of malnutrition or abuse. Greager testified that he had cut his hand while washing dishes, and had been hit in the face by a bowl of ice which he dislodged and dropped from the freezer while fixing himself something to drink.
The Petitioners failed to prove any abusive conduct by Respondent against Greager, the same result reached in the case of HRS v. S.C., DOAH Case No. 89-67l7C.
Although the record supports a conclusion that the Respondent had a drinking problem in the summer of 1989, there is no evidence of public drunkenness or incompetence. There was no public knowledge of her drinking or the conduct to which the various public officers testified. The public was aware of the allegation of abuse to which the Respondent pled nolo contendere. However, such a plea is not proof of the alleged conduct, and the Petitioners were unable to prove that the Respondent actually abused Greager. Therefore, public knowledge of the allegations of the Respondent's plea and any reduction in public confidence and Respondent's efficiency in performing her duties as a result of the knowledge is immaterial.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore
RECOMMENDED that:
The Board take no action to discharge Respondent and condition her employment upon regular continued participation in Alcoholics Anonymous; and
The EPC drop its charges against the Respondent and dismiss this case.
DONE AND ENTERED this 6th day of February, 1991, in Tallahassee, Leon County, Florida.
STEPHEN F. DEAN
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, FL 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 1991.
APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 89-5247 AND 90-4382
Petitioner, Betty Castor's Proposed Findings of Fact: 1-6. Adopted.
7. Irrelevant.
8-9. Adopted but restated. 10-23. Adopted.
24. Rejected. See paragraph 20(FA) of Respondent's Proposed Recommended Order.
25-32. Restated in Respondent's Proposed Recommended Order, paragraph 20(B)-40. 33-37. Rejected, credibility of Rutland.
38-40. Adopted but restated as in Respondent's Proposed Recommended Order, paragraphs 33-37.
41-48. Rejected, as contrary to the more credible testimony. 49-52. Irrelevant.
53-56. Rejected, as contrary to the more credible testimony.
Adopted.
Adopted in part, rejected in part, as irrelevant. 59-61. Deleted from Proposed Recommended Order.
62-67. Adopted and rewritten, see Respondent's Proposed Recommended Order, paragraphs 41-43.
68-70. Irrelevant.
Petitioner, School Board's Proposed Findings of Fact:
1-3. Adopted.
4-18. Adopted, generally, but restated as proposed in Petitioner, Castor's Proposed Recommended Order, paragraphs 3-23.
19-23. Adopted, generally, but restated as proposed by Respondent in the two paragraphs 20 on page 8 of Respondent's Proposed Recommended Order and paragraph
25 of Petitioner, Castor's Proposed Recommended Order.
24-58. The facts based upon Rutland's testimony are rejected. The facts as restated in Respondent's proposed Recommended Order, paragraphs 21-40 are accepted as being a more accurate statement of the facts revealed in the record. 59-70. Rejected, as contrary to the more credible evidence in the record.
Respondent's Proposed Findings of Fact:
1-2. Irrelevant.
Irrelevant.
Added to Conclusions of Law as last paragraph.
5-50. Adopted, generally, and summarized. Those findings which were deleted were deemed irrelevant.
COPIES FURNISHED:
Thomas E. Sanders, Superintendent Lake County School Board
201 W. Burleigh Boulevard Tavares, FL 32778
Martin B. Schapp, Administrator Professional Practices Services
352 Florida Education Center
325 W. Gaines Street Tallahassee, FL 32399-0400
Ms. Karen Barr Wilde Executive Director
301 Florida Education Center
325 W. Gaines Street Tallahassee, FL 32399-0400
Stephen W. Johnson, Esq. MCLIN, BUPNSED, ET AL.
1000 West Main Street
P.O. Box 491357 Leesburg, FL 34749-1357
Stephen C. Willis, Esq. BROOKS & LEBOEUF
863 East Park Avenue Tallahassee, FL 32301
Sally C. Gertz, Esq.
Florida Education Association/United
118 North Monroe Street Tallahassee, FL 32399-1700
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
================================================================= AGENCY FINAL ORDERS
=================================================================
STATE OF FLORIDA
SCHOOL BOARD OF LAKE COUNTY, FLORIDA
SCHOOL BOARD OF
LAKE COUNTY, FLORIDA
Petitioner, CASE NO. 89-5247
vs.
SARA I. CLARK,
Respondent.
/
FINAL ORDER
The School Board of Lake county, Florida enter its Final order in the above styled cause pursuant to Sect. 120.59, Fla. Stat.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The School Board of Lake county, Florida pursuant to Sect. 120.57(1)(b)10, Fla. Stat., which precludes the agency from rejecting or modifying the Findings of Fact made by the Hearing officer, unless the agency finds that the Findings of Fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law, adopts the findings of fact made by the Hearing Officer.
The School Board of Lake County, Florida hereby rejects the Hearing Officer's Conclusions of Law that the petitioner was not guilty of immorality, was not incompetent by reason of incapacity and did not commit misconduct in office. The School Board of Lake County, Florida finds that although the Findings of Fact support a conclusion of drunkenness, the findings do not rise to the level of public drunkenness as is required for termination under Sect. 231.36, Fla. Stat. The School Board of Lake County, Florida therefore substitutes its conclusions of law as follows:
That the respondent, Sarah I. Clark, giving con- sideration to Fla. Admin. Code Rule 6B-1.001(3) and Rule 6B-4.009(1)(b)(1) is incompetent due to incapacity, due to lack of emotional stability.
That the respondent, Sarah I. Clark, has engaged im- morality in that respondent's conduct in urinating on her husband in the course of performance of a sexual act involves a sexual act which is deemed a violation of the law of Florida, notwithstanding the fact that the act was engaged in by the mutual consent of the parties thereto; and that the respondent's publication of that event to members of the Lake County Sheriff's Department and a resident in her home, Mr. William Rutland, and the resulting investigation by the Department of Health and Rehabilitative Services constitutes conduct sufficiently notorious to bring the individual concern or the education profession into public disgrace or disrespect to the end that the individual's service in the community is impaired.
That the respondent, Sarah I. Clark, is guilty of misconduct in office for violation of the code of Ethics of the Education Profession as adopted in Fla. Admin. Code Rule 6B-1.001(3). For reference a copy of the Hearing Officer's Recommended Order is attached hereto.
RULING ON EXCEPTIONS TO THE HEARING OFFICER'S RECOMMENDED ORDER
Upon consideration of petitioner's exceptions to Hearing Officer's Recommended Order as served on March 1, 1991 and respondent's exceptions to the Recommended Order as served February 22, 1991, said exceptions be and the same are hereby denied.
ORDER
Upon the findings of fact and conclusions of law, the School Board of Lake County, Florida hereby terminates the respondent's continuing contract with the School Board of Lake County, Florida, pursuant to the provisions of Sect.
231.36(4), Fla. Stat., for immorality, misconduct in office, and incompetency.
DONE AND ORDERED this 7 day of May, A.D., 1991 at Tavares, Lake County, Florida.
THE SCHOOL BOARD OF LAKE COUNTY, FLORIDA
By: Dr. R. Jerry Smith, Chairman
Copies to:
Stephen W. Johnson, Esquire, Atty. for Petitioner. Sally Gertz, Esquire, Atty. for Respondent.
Ned N. Julian, Jr., Esquire, Special Counsel for Petitioner. Dr. Thomas E. Sanders, Superintendent
Steven C. Willis, Esquire, Atty. for Betty Castor, Comm. of Ed. Clerk, Division of Administrative Hearings
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF LAKE COUNTY, FLORIDA,
Petitioner,
v. CASE NO. 89-5247
SARAH I. CLARK,
Respondent.
/
BETTY CASTOR, AS COMMISSIONER OF EDUCATION,
Petitioner,
CASE NO. 90-4382
SARAH I. CLARK,
Respondent.
/
AMENDED FINAL ORDER
The School Board of Lake County, Florida entered its Final Order in the above styled case on May 17, 1991. An appeal was taken from the Final Order of the School Board to the District Court of Appeal, State of Florida, Fifth District. The appellate court filed its opinion in this matter on March 27, 1992. In its opinion the Fifth District Court of Appeal mandates that the School Board vacate the substituted conclusions of law of the School Board, reinstate the hearing officer's conclusions that Sarah I. Clark (hereafter "Clark") was not guilty of the charges and direct that Clark receive back pay for the period of suspension except for that period for which she waived back pay.
In compliance with the opinion of the Fifth District Court of Appeal and based upon the recommendation by the Board's attorney that further appeals would most likely be futile, the School Board of Lake County adopts the findings of fact made by the hearing officer in his Recommended Order entered February 6, 1991. Upon remand from the Fifth District Court of Appeal the School Board of Lake County reinstates the hearing officer's conclusions of law that Clark was not guilty of the charges and that Clark is entitled to be reinstated; that Clark receive back pay for the period of suspension except for that period for which she waived back pay; and that Clark's employment is conditioned upon regular, continued participation in Alcoholics Anonymous.
DONE AND ORDERED this 28 day of April , 1992 at Tavares, Lake County, Florida.
THE SCHOOL BOARD OF LAKE COUNTY, FLORIDA
By: Timothy L. Sullivan, Chairman
Copies to:
Thomas Young, Esquire, Attorney for Respondent Dr. Thomas E. Sanders, Superintendent
Steven C. Willis, Esquire,
Attorney for Betty Castor, Comm. of Ed. Clerk, Division of Administrative Hearings
Office of Superintendent of Schools June 25, 1991 Board Meeting of June 26, 1991
Office of School Board Attorney Frank A. Howard, Jr., Board Attorney
SUBJECT: SCHOOL BOARD OF DADE COUNTY v. PAUL N. FJELL DOAH Case No. 90-7847
On December 5, 1990, the School Board suspended teacher Paul N. Fjell from his employment with The School Board of Dade County, Florida, and instituted dismissal proceedings against him. A hearing was requested and the case was tried on April 2, 1991, before DOAH Hearing Officer Linda M. Rigot in Miami, Florida. By recommended order entered May 24, 1991, the Hearing Officer sustained the School Board's charges of incompetency, drunkeness, gross insubordination, and immorality and recommended that the School Board enter a final order upholding the suspension of Paul N. Fjell and terminating the employment of Paul N. Fjell.
The matter was placed on the School Board agenda as L-1 for the meeting of June 26, 1991, for adoption of the recommended order as the School Board's final order. On June 25, 1991, the teacher tendered his resignation. It is recommended that the resignation be accepted in lieu of entry of a final order dismissing the teacher. Acceptance of the resignation will achieve the Board's objective, will obviate the requirement of further legal actions by the School Board, and does not alter the following effects of the employment termination:
Formal notification to the Educational Practices Commission for licensure investigation;
Prevention of future employment in any capacity by the Dade County Public Schools;
Retention of the information regarding the dismissal action by the Superintendent of Schools as a matter of official records; and
Non-entitlement to accrued sick leave, if any.
It is imperative that the School Board act today because the employee may withdraw his letter of resignation at any time prior to the Board's acceptance.
RECOMMENDED: That The School Board of Dade County, Florida, accept the resignation of Paul N. Fjell, teacher, effective June 26, 1991, at the close of the workday.
BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
BETTY CASTOR, as
Commissioner of Education,
Petitioner, DOAH CASE NO. 90-4382
Lowest Consolidated No. 89-5247
vs. EPC CASE NO. 90-089-RT
SARAH I. CLARK,
Respondent.
/
FINAL ORDER
Respondent, SARAH I. CLARK, holds Florida educator's certificate no. 453831. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.
This cause having been referred to the Division of Administrative Hearings for hearing on disputed issues of fact, a recommended order was issued on February 6, 1991. Thereafter, Petitioner and Respondent agreed to the stipulation in settlement of this cause; the Stipulation and the Administrative Complaint are attached to and made a part of this Final Order.
A teacher's panel of the Education Practices Commission met on June 6, 1991 in Tampa, Florida. The Commission accepts the Settlement Agreement as the appropriate resolution of this cause.
It is, therefore, ORDERED that the Settlement Agreement is hereby ACCEPTED and Respondent shall comply with its terms and conditions.
This Order, unless otherwise waived, may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.
DONE AND ORDERED, this 25 day of June , 1991.
COPIES FURNISHED TO: KEITH YARBROUGH; Presiding Officer
Jerry Moore, Program Director Professional Practices Services
Virginia Daire, Esquire I HEREBY CERTIFY that a copy of the Attorney General's Office foregoing Order in the matter of
BC vs. Sarah I. Clark was mailed to Sydney McKenzie, III Sally C. Gertz, Esquire, 118 North General Counsel Monroe Street, Tallahassee Florida
32399-1700, this 28 day of
Florida Admin. Law Reports
Thomas E. Sanders, Supt. Lake County schools
JUNE , 1991, by U.S. Mail.
201 W. Burleigh Boulevard Tavares, Florida 32778 GEORGE BOWEN, Clerk
Robert Boyd, Esquire Department of Education
325 W. Gaines Street, Room 352 Tallahassee, Florida 32399
Stephen F. Dean, Hearing Officer Division of Admin. Hearings
The DeSoto Building 1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
STATE OF FLORIDA EDUCATION PRACTICES COMMISSION
BETTY CASTOR, as Commissioner of Education,
Petitioner, SARAH I. CLARK.
Respondent.
/
CASE NO. 89228-D
SETTLEMENT AGREEMENT
COME NOW the Petitioner and Respondent who hereby stipulate and agree as follows:
The Respondent holds Florida teaching certificate 453831, covering the area of elementary education, which is valid through June 30, 1993.
At all times pertinent hereto, the Respondent was employed as a teacher at Beverly Shores Elementary School in the Lake County School District.
The Respondent elects not to contest the allegations set forth in the Petitioner's Administrative Complaint, which is incorporated herein and made a part of this agreement.
The Respondent agrees to accept a written reprimand from the Education Practices Commission (EPC) for the conduct described in the Administrative Complaint. A copy of the reprimand shall be placed in the Respondent's certification file with the Department of Education and in her personnel file with the Lake County School District.
5 The parties accept as valid the psychological evaluation of the Respondent performed by Steven Dolliver, MA., mental health counselor. However, prior to reemployment in the teaching profession within the State of Florida, the Respondent must obtain and submit to the EPC an unconditional letter from Steven Dolliver certifying that from his examination of the Respondent, she does not represent a threat to the safety or well-being of students under her supervision or care, and is able to perform her educational and administrative duties in an acceptable and satisfactory manner. Steven Dolliver shall be apprised of the allegations of the administrative complaint and consider those circumstances when making the professional determination regarding the Respondent's threat to students and her ability to teach. Should Mr. Dolliver determine that the Respondent is in need of continuing mental health counseling, the Respondent shall continue such counseling until such time as the counselor determines that the Respondent is no longer in need of professional assistance. All expenses incurred in connection with Mr. Dolliver's evaluation of the Respondent and the Respondent's treatment will be borne by the Respondent.
Prior to her reentry in any classroom setting or as an instructor, the Respondent agrees to submit drug and alcohol testing proving that she is drug and alcohol free.
The Respondent agree that she shall submit to random drug and alcohol testing if and as directed by the EPC, or by her employer, during the probationary period. The applicant shall bare all expenses incurred in connection with such testing. In the event that any such test is positive for the presence of alcohol or contraband drugs such test results upon confirmation shall be conclusive proof of violation of the terms of this agreement.
The Respondent agrees to continue participation in Alcoholics Anonymous throughout the three (3) year probationary period set forth below. All expenses incurred in connection with the counseling program shall be borne by the Respondent.
The Respondent agrees that she shall be placed on probation for a period of three (3) years, Commencing on the issuance of the Final Order by the EPC accepting this Settlement Agreement if the Respondent is employed as an educator, or if the Respondent is not employed as an educator, upon her reemployment as an educator in the profession. In the event that the Respondent's employment in the teaching profession is interrupted for any reason prior to the expiration of the probationary period, the probationary period shall be tolled until such time as the applicant resumes employment as an educator. As conditions of the probation, the Respondent:
shall immediately contact the EPC upon any reemployment in the teaching profession within the State of Florida, indicating the name and address of the school at which she is employed, as well as the name, address & and telephone number of her immediate supervisor;
shall make arrangements for her immediate supervisor to provide the Education Practices Commission with quarterly reports of the Respondent's performance, including but not limited to, compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent by her immediate supervisor or by the school district;
shall make arrangements for her immediate supervisor to provide the Education Practices Commission with a true and accurate copy of each written performance evaluation or assessment prepared by his supervisor within ten (10) days of its issuance;
shall satisfactorily perform her assigned duties in a competent, professional manner; and
shall violate no law and shall fully comply with all district and school board regulations, school rules, and State Board of Education Rule 6B3- 1.006;
In the event that the Respondent fails to comply with any term or condition of this agreement, the Petitioner will be authorized to file an administrative complaint seeking further sanctions or revocation of the Respondent's certificate, based upon violation of the terms of probation set forth herein.
The parties acknowledge and the Respondent agrees that any costs associated with the fulfillment of the terms of this agreement and the terms of the Respondent's probation shall be the sole responsibility of the Respondent.
This agreement shall be void and shall have no force or effect unless it is signed by all parties or their designated representatives, and accepted by the Education Practices Commission.
The Respondent acknowledges that she understands the provisions of this agreement, their legal effect, and her rights under Florida law to have the Education Practices Commission take final agency action on the Hearing Officers Recommended Order. The Respondent specifically waives her right to have the Education Practices Commission take final agency action on the Hearing Officer's Recommended Order, with the exception that the Respondent may appear before the Education Practices Commission in order to urge its adoption of this agreement. The Respondent further acknowledges that she is under no duress, coercion, or undue influence in the signing of this agreement, and that she has the opportunity to receive the advice of legal counsel prior to signing this agreement.
14 The parties agree that this agreement shall be submitted to the Education Practices Commission upon the parties' request that it be adopted as the Commission's final disposition of the charges set out in the Administrative Complaint filed against the Respondent in this proceeding. The Respondent understands that the Education Practices Commission has the discretion to reject this agreement and take final agency action on the Hearing Officer's Recommended Order if, in the exercise of its discretion, it deems such an action to be necessary and appropriate. The Respondent waives all statutes and regulatory
provisions concerning notice of hearing, and agrees that this Settlement Agreement may be presented to the Education Practices Commission for consideration at its next regularly scheduled meeting, provided that the Respondent received legal notice of said meeting.
IN WITNESS WHEREOF, the parties have executed this Settlement Agreement on this 5 day of June , 1991.
Robert J. Boyd, Esq. Sara I. Clark Florida Department of Education Respondent
352 Florida Education Center Tallahassee, FL 32399
(904) 488-2481
Attorney for the Petitioner
Sally C. Gertz, Esq. Notary Public Attorney for the Respondent
Florida Education Association/United
118 North Monroe Street Tallahassee, FL 32399-1700 (904) 244-7818
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Settlement Agreement has been furnished to Sally C. Gertz, 118 North Monroe Street, Tallahassee Florida, 32399-1700, by U.S. Mail on this 4 day of June , 1991.
Robert J. Boyd, Esq. Attorney for the Petitioner
| Issue Date | Proceedings |
|---|---|
| Feb. 06, 1991 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 07, 1991 | Agency Final Order | |
| Feb. 06, 1991 | Recommended Order | Teacher misconduct. Drinking and sex not proven. Upheld on Appeal; 17 FLW D804. |
