vs. ) CASE NO. 90-2918
PATRICK M. HILL, )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 1, 1990, at Bartow, Florida.
For Petitioner: Donald H. Wilson, Jr., Esquire
For Respondent: Arthur C. Fulmer, Esquire
Whether Patrick M. Hill, Respondent, is guilty of immorality and misconduct in office as more specifically alleged in letters of April 6, 1990 and May 18, 1990.
By letters dated April 6, 1990 and May 18, 1990, the superintendent, Polk County school Board, advised Patrick M. Hill, Respondent, that he would recommend to the School Board of Polk County that Hill be terminated from his employment as a professional services contract teacher with the Polk County School Board. As grounds therefor, it is alleged that Hill provided an alcoholic beverage to an 18 year old student and that he falsified his application for employment by answering "no" to a question asking if he had ever been convicted of a criminal offense other than a minor traffic violation.
At the hearing, Petitioner called three witnesses, including Respondent, and five exhibits were admitted into evidence. Proposed recommended orders have been submitted by the parties. There is no factual dispute regarding the allegation and the circumstances surrounding the offense complained of.
finding no. 14, of which all except the first sentence is rejected because it is based solely on hearsay evidence. Proposed findings submitted by Petitioner are accepted.
At all times relevant hereto, Patrick M. Hill held a professional services contract with the Polk County School Board as a remediation teacher at Lakeland High School. He also served as wrestling coach and cross country coach at Lakeland High School.
During the spring break of the 1989-90 school year, Respondent told some students they could earn some extra money if they helped him paint his house. Erik Greatens, an 18 1/2 year old senior, agreed to help, and he, with a
25 year old man, John, and Respondent, worked all day painting. Around noon that day when all were hot and thirsty, Respondent told them there was beer in his refrigerator. Both Erik and John accepted the offer. Erik had one beer. When they stopped painting around 5 p.m., Respondent told them he would order pizza if they wanted to return later.
Erik accepted and went home to shower and change clothes. He returned around 6:30 p.m. and shared pizza with Respondent. Erik testified that he had only the one beer that day at Respondent's home and that his father permitted him to drink an occasional glass of wine at home. He did not drink beer or any other alcoholic beverage while at Respondent's home that evening.
Around 8:30 p.m., Erik left Respondent's residence and went to the Publix parking lot to meet some friends. At the parking lot that evening with his friends, Erik consumed 11 or 12 cans of beer before driving the four or five blocks to his home. When he arrived, his mother was up and considered her son was inebriated and that he had received the beer at Respondent's home. At the time, Erik told her he had only the one beer at Respondent's home, but, from his condition, the mother was sure he had drunk more than one beer.
The following day, Mrs. Greatens called the Superintendent's office to complain about Respondent providing Erik with beer. Based upon that complaint, Respondent was suspended from his position as teacher at Lakeland High School.
The professional Practices Council of the State Department of Education was notified of the charge so they could institute an investigation to determine if Respondent's state certificate should be disciplined. To date, no charges have been brought by the Department of Education.
Subsequently, Petitioner learned that Respondent had pleaded guilty in New Jersey to a charge of contributing to the delinquency of a minor in 1973. A copy of this court record was admitted into evidence as Exhibit 3.
In 1973, Respondent was a tenured teacher in the school district of the Township of Pemberton, Burlington County, New Jersey. Charges were preferred against Respondent by the Board of Education, and an administrative hearing was held to determine if the charges and circumstances surrounding the charges warranted dismissal of Respondent from his position as a tenured teacher. Following that hearing, the hearing examiner submitted a report recommending the charge and evidence insufficient to warrant a dismissal or reduction in salary. The Commissioner of Education adopted the finding and recommendation of the hearing examiner.
In the instant proceedings, Respondent testified to the facts regarding the 1973 incident. That testimony is essentially the same as found by the hearing examiner in 1973 reported in Exhibit 4 as follows:
The testimony offered by the Superintendent
of Schools and respondent's building principal was that respondent is a good teacher, as evidenced by his past evaluations, and his record has been unblemished since his employ- ment by the Board.
This matter has been brought to the attention of the Commissioner solely because of an incident which occurred on March 8, 1972,
and that incident alone is the basis for the Board's action.
On the evening of March 8, 1972, respondent was returning to his home after working late at his school on some extra curricular project. The record shows that Respondent was very active in the school community, and that he coached sports activities, served on the executive board of the local P.T.A., and served as President of the Pemberton Township Police Athletic League, in addition to his regular teaching duties. Respondent testified that it was a rainy night. On his way home, he picked up a hitchhiker who told him that he had a job in north Jersey and was on his way to visit his father in the Tuckerton area (approxi- mately thirty miles away). Because of the late hour and the poor weather conditions, Respondent offered the hitchhiker a place to spend the night in his home and told
him he would drop him off at the inter- section of Routes #9 and #37 the next morning on his way to school.
The hitchhiker accepted the offer and spent the night in respondent's home. Respondent testified that he
also offered the use of his telephone
so the hitchhiker could call his father, but that he refused saying that he was not expected anyway. He testified fur- ther that nothing untoward happened that night and that he dropped the hitchhiker off at the named intersection the follow-
ing morning on his way to school. Respon- dent did not know that the hitchhiker was a minor; neither his appearance, nor his conversation about holding a job in north Jersey, nor having a drink and avoiding
the police, lead (sic.)Respondent to conclude that the hitchhiker was a minor. (Tr. 19-22)
None of this testimony is refuted by the Board, nor were any witnesses pre- sented by the Board to give any other
version about what allegedly occurred on the evening of March 8, 1972. The Board, however, grounds its action against Respondent on his subsequent arrest by the police and his later indictment by the Grand Jury of Ocean County. A change of plea to that indictment reads in pertinent part
as follows: (P-1)
The State moved under Rule 3:74 to amend the third count of the indictment
to read `did contribute to the delinquency of a
minor by permitting him to remain overnight without parental consent'. The Court so ordered. Patrick
Hill sworn. (sic.) As a result of plea bargaining, the Defendant retracted his
former plea of Not Guilty and entered a plea of Guilty to the amended third (3rd) count of [the Indictment).
* * *
In the hearing examiner's judgment, it would be wrong to speculate why
Patrick Hill made the plea (P-1) rather than pursue some other defense of the original charges made against him. He testified that he made the change of plea because he did allow the youth to stay in his home overnight. Suffice it to say that he was represented by counsel and the record must now speak for itself.
Respondent entered a plea of guilty
(P-1) which the Commissioner must con-
sider in making his determination. N.J.S.A. 2A:96-4 reads as follows:
A parent, legal guardian or person having the legal custody or control of a
child, who by any continued negligence or willful act, encourages, causes or con- tributes to the child's delinquency, or any other person who by any wilful act encourages, causes
or contributes to a child's delinquency, is guilty of a misdemeanor.
The hearing examiner found that the unrefuted testimony of respondent, and
the absence of any proof of conduct unbecoming a teacher by the Board, leads to the conclusion that the only fact before the Commissioner is that respondent knowingly permitted a minor to remain in his home overnight without the consent of the minor's parents.
Respondent testified without contradiction that he was told by his attorney that the conviction would be expunged and he could forget it. Accordingly, Respondent concluded, albeit erroneously, that he never would need to reveal this record.
Respondent moved to Florida and was employed as a junior high school teacher at St. Joseph's School, Lakeland, Florida, from 1979 to 1986 when he was employed by the Polk County School Board to teach at Lakeland High School.
While at St. Joseph's, Respondent continued his extracurricular activities similar to those in New Jersey coaching children in wrestling and track, and he was involved in national and statewide wrestling programs for children.
When he started teaching at Lakeland High School, Respondent continued his coaching activities and his work with children. He has been involved with helping troubled adolescents at the Polk Correctional Institute, served on the Governor's Council on Health, Physical Education and sports, was awarded man of the year honors for the AAU Wrestling Division, took a group of young wrestlers to Germany two years ago (1988) in a cultural exchange program and coordinated a return visit of German youth wrestlers to Florida in 1989.
Respondent has excellent rapport with his students and with the student's parents. The letters admitted into evidence in Exhibit 5 extolling the virtues of Respondent as a teacher, coach and individual are not the pro forma, perfunctory letters of recommendation usually presented, but clearly indicate heartfelt esteem, appreciation and admiration.
Respondent has had no prior disciplinary actions brought against him while teaching in Florida schools.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
School board employees holding a professional services contract shall be dismissed only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetence, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. Section 231.36(1)(a), Florida Statutes. From the charges contained in the school board's letter of April 6, 1990, of giving a beer to a student; and the supplemental letter dated May 6, 1990 which added the charge of falsifying his application, it is clear that the basis alleged for disciplinary action in these proceedings is immorality and misconduct in office.
Rule 6B-4.009, Florida Administrative Code, defines immorality and misconduct as follows:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is con-
duct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or dis- respect and impair the individual's service in the community.
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code,
and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Admin- istrative Code, which is so serious as to impair the individual's effectiveness in the school system.
Rule 6B-1.001, Florida Administrative Code, establishes general goals towards which educators should strive, while 6B-1.006, Florida Administrative Code, provides disciplinary rules applicable to those holding Florida teaching certificates, the violation of which subjects the individual to disciplinary action. Included in these obligations are the educator:
(3)(a) Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
(5)(a) Shall maintain honesty in all professional dealings.
Shall not submit fraudulent information on any document in connection with professional activities.
Shall not make any fraudulent statement or fail to disclose a material fact in one's
own or another's application for a pro- fessional position.
Section 562.111, Florida Statutes makes it illegal for any person under the age of 21 to have in his possession alcoholic beverages except under circumstances not applicable here. Accordingly, Respondent facilitated Erik's violation of this statutory provision and thereby violated Rule 6B-1.006(3)(a), above quoted.
However, to be guilty of misconduct in office, the violation of Rule 6B-1.006 must be so serious as to impair the individual's effectiveness in the school system. No evidence was submitted to indicate Respondent's effectiveness has been impaired by reason of him allowing Erik to have one beer at Respondent's home. To the contrary, numerous people submitting letters in behalf of Respondent in exhibit 5 did not consider this transgression by Respondent to be serious at all, let alone so serious as to impair his effectiveness in the school system.
Petitioner cites Section 556.015, Florida Statutes, for the proposition that it is a second degree misdemeanor for an adult having control of any residence to permit a minor to possess or consume alcoholic beverages at said residence. Since there is no Section 556.015, Florida Statutes, it is apparent that the correct citation is Section 856.015 which makes it a misdemeanor for any adult having control of any residence to allow an open house party to take place at the residence. The three man painting crew at Respondent's residence did not constitute a social gathering as contemplated by Section 856.015.
To determine whether giving one beer to a minor constitutes immorality, we go back to the definition of immorality as contained in Rule 6B- 4.009, Florida Administrative Code, above quoted. "Immoral" is contrary to good morals; inconsistent with the rules and the principles of morality; inimical to public welfare according to the standards of a given community, as expressed in law or otherwise. Black's Law Dictionary, Third Edition.
Although illegal, it is widely recognized that many people below the age of 21 consume alcoholic beverages and the closer the individual is to 21 the greater acceptance such behavior receives. In other words, it is less heinous for a 20 year old to consume alcoholic beverages than for a 10 year old to do so. Here Erik was 18 1/2 years old when he was allowed to drink one beer at Respondent's residence. While the act of Respondent in allowing Erik to drink a beer in Respondent's home was clearly improper, such conduct does not rise to the stature of immoral and prove Respondent guilty of immorality.
As a minor, it was illegal for Erik to possess an alcoholic beverage. However, this transgression by Respondent was not so serious as to substantially impair Respondent's effectiveness in the school system.
The issue respecting Respondent providing a false answer on his application presents a more serious matter.
Submitting false information on an application for employment or licensure is generally considered adequate grounds for dismissal or revocation of a license, particularly if the individual would not have been employed or licensed if he had supplied correct information.
Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. Black's, supra. Thus, fraud involves a specific intent to misrepresent. The explanation provided by Respondent for failure to list the New Jersey conviction on his application is reasonable and credible and militates against a finding that Respondent intentionally failed to list this conviction on his application and thereby to deceive the school board. There is thus the lack of intent required to prove fraud. Respondent's explanation that he thought the record had been expunged, which his lawyer had told him to be the case, was not an irrational one. However, had the record in fact been expunged, Respondent would still be required to list this conviction on his application pursuant to Section 943.058(6)(e), Florida Statutes.
It is significant that Respondent pled guilty to what few people would recognize as a crime, to wit: allowing a minor to spend the night in his home without first obtaining parental consent. Since Respondent had committed just such an act, albeit it without knowledge that the individual was a minor he pleaded guilty to that charge. That such an act is stigmatized by labeling it contributing to the delinquency of a minor is somewhat surprising, but that
apparently is the manner selected by New Jersey to deter adults from taking advantage of minors.
Had respondent disclosed this crime on his application and explained the factual circumstances surrounding his plea of guilty, this would not likely have disqualified him from employment by the Polk County School Board.
From the evidence presented, it is clear that Patrick Hill is a teacher who, over many years, has significantly contributed to helping young people develop into responsible adults and has acquired the respect and admiration of his peers, cohorts and the children with whom he has worked. While no specific evidence was presented, such as performance evaluations, regarding his performance as a teacher, no evidence was submitted to indicate that his teaching ability was in any way lacking.
From the foregoing, it is concluded that Respondent gave one beer to Erik Greatens, a high school senior who was 18 1/2 years old at the time; and the consumption of this one beer was totally removed from any school related event. This was an error on the part of Respondent, but this error does not rise to the category of immorality but does constitute a minor infraction of misconduct in office. Likewise, his failure to indicate the 1972 conviction in New Jersey on his application for employment by the school board does not rise to the category of immorality, but is an infraction of the Principles of Professional Conduct in that he failed to disclose a material fact on his application for employment, to wit: his prior conviction in New Jersey. Since this disclosure would not have constituted a disqualifying factor in his employment, under the circumstances involving Respondent's intent, it should not now be grounds for dismissal.
Considering the reputation of Respondent, his rapport with students and peers, the time he has devoted to developing children into responsible adults and the conclusions that the acts complained of do not constitute immorality but are minor infractions coming under the definition of misconduct in office, it is recommended that Patrick M. Hill be found guilty of misconduct in office and suspended without pay for four months.
RECOMMENDED this 20th day of August, 1990, in Tallahassee, Florida.
K. N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990.
Donald H. Wilson, Jr., Esquire Post Office Box 391
Arthur C. Fulmer, Esquire Post Office Box 2958 Lakeland, FL 33806
John A. Stewart Superintendent of Schools Post Office Box 391 Bartow, FL 33830
Martin B. Schapp, Administrator Professional Practices Services
325 W. Gaines Street Tallahassee, FL 32399-0400
