STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAY COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2084

)

STEVEN T. GEORGE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Panama City, Florida.

APPEARANCES

FOR PETITIONER: Franklin R. Harrison, Esq.

HARRISON, SALE, ET AL.

304 Magnolia Avenue

P.O. Drawer 1579

Panama City, Florida 32401

FOR RESPONDENT: David Brooks Kundin, Esq.

DOBSON & KUNDIN, P.A.

210 South Monroe Street

P.O. Box 430

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding involve the determination of whether the Respondent has been guilty of misconduct in office so serious so as to impair his effectiveness in the Bay County school system and whether he is incompetent to be employed as an instructional employee in that school system by reason of incapacity involving alleged emotional instability.

PRELIMINARY STATEMENT

This proceeding arose upon the filing of an Administrative Complaint by the Petitioner, Jack W. Simonson, the Superintendent of Schools for the School District of Bay County, Florida. The Administrative Complaint was duly transmitted to the Division of Administrative Hearings for the conduct of a formal proceeding, pursuant to Section 120.57(1), Florida Statutes. That Administrative Complaint was superseded by an Amended Administrative Complaint filed on or about July 29, 1991 and which sought to impose disciplinary sanctions against the Respondent's employment status as a tenured teacher based upon allegations that the Respondent was suspended from his employment position for allegedly having committed gross insubordination, willful neglect of duty, and misconduct in office. Specifically, the Amended Administrative Complaint

charges that the Respondent was abusive and repeatedly berated students and teachers; that he repeatedly turned in paperwork late and failed to follow directions for school activities; that he failed to develop a plan to supervise students while they were dressing out for physical education classes as directed by his Principal; that he was repeatedly tardy to class, to school, and left his classes unsupervised; that he exhibited bizarre and irrational behavior, which required his Principal to remove him from teaching assignments and send him home; that he had previously exhibited the same types of behavior when employed at a different school, and that, several months subsequent to his suspension, he again exhibited bizarre behavior and an alleged severe lack of emotional stability by threatening to kill his parents and engaging in an armed confrontation with the Bay County Sheriff's Department "swat team". Based upon these factual allegations, the Amended Administrative Complaint charged that he was "guilty of misconduct in office which is so serious as to impair his effectiveness in the school system" and that the allegations of misconduct in office and incapacity set forth in the Amended Administrative Complaint are violations of Rules 6B-1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code.

The cause came on for hearing as noticed. The Petitioner presented eight witnesses and five exhibits. The Petitioner's five exhibits were admitted into evidence. The Respondent presented five witnesses and two exhibits, both of which were admitted into evidence. During the course of the hearing, the parties were accorded the opportunity to brief the following issues in their post-hearing submittals: (1) whether the evidence submitted by the Petitioner is sufficient to sustain a charge of incapacity in the absence of expert testimony by the Petitioner that the Respondent lacks the capacity to perform as a teacher and (2) whether the Respondent is entitled to an award of attorney's fees, pursuant to Section 448.08, Florida Statutes, if he prevails and is reinstated with back pay as an employee of the Bay County School Board.

Upon conclusion of the hearing, the parties elected to have the proceedings transcribed and to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The parties requested an extended briefing schedule in which to submit those post-hearing pleadings and during the course of that time period, stipulated to an extension of the due date for submitting Proposed Recommended Orders, which was granted. Subsequently, the Proposed Recommended Orders were timely filed and have been addressed in this Recommended Order. Additionally, the proposed findings of fact contained therein are again ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Respondent, Steven T. George, began teaching in the Bay County school system in the fall of 1977. He was employed as a physical education teacher and as a coach. The Respondent has had an exemplary record as an instructional employee of the Bay County School Board until he encountered personal problems during the 1988-89 school year.

   
   

2. During the 1988-89 school year, he was employed as a physical education teacher and assistant football coach at Mosley High School. During that school year, his supervisor, Assistant Principal Sarah Cooper, observed his performance deteriorate unexpectedly and in a way which was out of character from his previous level of performance and demeanor. She found occasions when he was not properly supervising his class and when he had not done lesson plans, as required by the school administration. Ms. Cooper had to assist the Respondent

   in developing a semester examination, however, he ultimately used an examination given to him by another teacher. Thereafter, he administered the examination but did not complete the grading of it and failed to complete his grade book, which responsibility was ultimately performed by Ms. Cooper. Additionally, during the 1988-89 school year, the Respondent was observed to become increasingly isolated from other members of the faculty. His behavior became characterized by unpredictability, excessive arrogance, argumentativeness, anger and verbal aggression, which was entirely different from the personality traits which he had exhibited and which his co-workers and supervisors had observed since he had been with the school system. Indeed, female teachers in the physical education department were reluctant to be alone in the workroom with him because of the advent of these objectionable personality traits.

   
   

3. The Respondent, during this period of time, was undergoing a divorce, or the aftermath of one, which involved a very emotional custody dispute with his former wife concerning custody of their daughter. During the 1988-89 school year, he was observed to repeatedly burden his co-workers and school administrators with the details of his personal problems and to exhibit uncharacteristic and rather severe emotional outbursts of both anger and grief. After being counseled by his supervisors concerning what they believed to be rather bizarre behavior, when measured against his prior performance and demeanor in other school years, the Respondent ultimately voluntarily admitted himself to Charter Woods, a psychiatric treatment and evaluation facility. The Respondent spent approximately 5-1/2 months in that facility, underwent treatment in response to his supervisor's advice to "get some help", and returned to Mosley High School to complete the 1988-89 school year. For the remainder of that school year, the Respondent satisfactorily assumed and carried out all of his responsibilities and performed his work as a teacher in good fashion. His temperament and demeanor had returned to that of the friendly and caring teacher and co-worker which he had formerly been before his personal problems developed. His supervisor, Ms. Cooper, gave him a satisfactory annual evaluation at the conclusion of the 1988-89 school year.

   
   

4. The Respondent's emotional difficulties and related performance difficulties as a teacher reappeared in the 1989-90 school year. During the pre-planning phase of his teaching and coaching duties for the 1989-90 school year, in August of 1989, the Respondent was observed to be very disruptive, argumentative, and, indeed, hostile to a visiting speaker at a seminar for instructional personnel. He was observed to repeatedly interrupt the speaker with arrogant, argumentative questions and comments, during the course of which behavior he was observed to be pacing back and forth at the rear of the room where the seminar was conducted while all other attendees at the seminar were seated and listening to the speaker. This arrogant, argumentative behavior was so apparent and so inappropriate for the seminar-type setting in which it occurred that his supervisor felt it necessary to apologize to the speaker at the lunch break on that day. Additionally, during this pre-planning phase of the school year, which is before the children arrive for the school year, the Respondent was observed to have difficulties in his dealings and relationships with other coaches arising out of his increasingly arrogant, argumentative attitude and behavior. Because of this and, inferentially, because his supervisors were aware of his emotional difficulties with which they had had experience the previous school year, the decision was made to relieve him as assistant football coach at Mosley High School.

   
   

5. A meeting was held with the Respondent, Mr. Tucker, the Principal, and Mr. Cochran, the head coach, to explain that action to the Respondent and to explain to him that he would still continue as a physical education instructor.

   In the course of that meeting, the Respondent became very emotional, hostile, and argumentative. He exhibited frequent angry outbursts to the extent that he would not allow Mr. Tucker or Mr. Cochran to adequately explain the basis of the personnel action directed at him. The Respondent ultimately, angrily departed from the meeting before it was completed. On that same day, he left Mosley High School without administrative permission and went to Cherry Street Elementary School on some mission related to his daughter, who was a student at that school. She had been the subject of a bitter custody dispute between the Respondent and his former wife. He is accused of interfering with the operation of Cherry Street Elementary School on that occasion, although the record does not reflect what his conduct was at Cherry Street Elementary School that day.

   
   

6. The 1989-90 school year then commenced at Mosley High School with the arrival of the students. The Respondent assumed his regular duties as a physical education instructor. He was observed, early in that school year, on a number of occasions, to fail to control behavior of students in his gym class and to fail to be in his gym class at appropriate times which amounted to inadequate supervision of his students on those occasions. His planning for his classes was observed to become sporadic, with repeated occasions when he failed to have lesson plans prepared. Also, in the fall of the 1989-90 school year, he was observed to forget his keys to the physical education area on a number of occasions. He would, on repeated occasions, forget, from one period in a school day to the next, what he was to teach that following period. He would have to be reminded by his colleagues. He would also forget to call his students in adequate time at the end of the physical education period for them to dress for their next classes. He had to be reminded by his colleagues to do this. He would also repeatedly forget when he had extra duty, such as "door duty" and locker room assignments. His general level of cooperativeness with his colleagues declined markedly.

   
   

7. His behavior became harsh and rude to his colleagues and to students. He was observed to be very harsh and rude to a new student coming into his physical education class and spoke loudly, in an abrasive manner to the student in front of the class, embarrassing that student.

   
   

8. These problems occurred repetitively and in rapid succession during the first month of the school year in September of 1989. Because of the nature of the problems, the past history of the Respondent's emotional instability whereby he had lost his ability to be a caring, productive, well-performing teacher (which had been his unblemished record of behavior and performance for all the years he taught prior to the 1988-89 school year), Mr. Tucker, the Principal, felt that he had to act quickly to prevent an even worse situation occurring in the 1989-90 school year when he observed that the Respondent's emotional instability of the year before was recurring. Consequently, Mr. Tucker requested that the superintendent, Mr. Simonson, meet with the Respondent in an effort to resolve his difficulties in the matter of his perceived emotional instability and resulting declining performance. Accordingly, a meeting was held with the Respondent, Mr. Simonson, and Mr. Tucker on September 30th. At the meeting, the Respondent was confronted with the fact of his displayed emotional instability and related declining teaching performance, at which point he became very belligerent and hostile. He was, alternatively, on the verge of tears and shouting in anger. Because of the above-stated reasons for the meeting and because of the emotional instability which was so apparently displayed by the Respondent during the meeting, Mr. Simonson gave the Respondent three days of sick leave to allow him to remain at home and get some professional attention to try to regain his emotional stability before returning to the classroom. The Respondent's problems persisted, however.

9. Although the precise date is uncertain, at approximately this time, the Respondent announced that he was going to seek election as Superintendent of the Bay County school system in opposition to Mr. Simonson. The Respondent testified himself that he elected to run for this office while he was still a teacher at Mosley High School in part, at least, to save his job because he believed that the Bay County school administration and particularly, Mr. Simonson, would be reluctant to discharge him while he was a political candidate in opposition to Mr. Simonson because of the bad impression that might make on the electorate. Shortly after he made this announcement, again on an undetermined date in the fall of 1989, the Respondent was involuntarily hospitalized pursuant to the "Baker Act", Section 394.467, Florida Statutes. Apparently, the Respondent's family members had him committed although the precise reasons are not of record. The Respondent expressed the belief at hearing that his family members had him committed because of his announcement to run for Superintendent, although that is not established to be the case. The Respondent, at the time he was committed, believed that he did not suffer from a mental condition justifying his commitment pursuant to the Baker Act. The Respondent has since come to understand that he suffered from a manic-depressive condition, also known as a "bi-polar disorder".

   
   

10. As a result of this eventuality, Mr. Simonson determined that the Respondent should not be teaching in the school system during such a period of emotional instability. In order to be fair to the Respondent, he did not want to actually suspend him from his duties. Accordingly, Mr. Simonson elected to place the Respondent in the status known as "overused sick leave", which means that the Respondent, although he had used up all of his annual and sick leave, could still be carried on the personnel records as an employee in terms of retaining his retirement and insurance benefits, although he was not paid for the time he was absent from his duties as a result of this decision and as a result of his emotional condition. Accordingly, the Respondent was, in this fashion, removed from his instructional duties and from his job site in the fall of 1989, after his involuntary commitment, pursuant to the Baker Act.

    
    

11. Thereafter, in the fall of 1989, the Respondent obtained treatment at the "Life Management Center" in Bay County under the care of Dr. Nellis. Dr. Nellis diagnosed the Respondent as suffering from manic-depression and prescribed Lithium to treat his manic condition. The Respondent responded well to treatment, such that Dr. Nellis, late in the fall of 1989, opined that he was fit to return to work as a teacher. The Respondent apparently accepted the fact of his illness, continued taking his medication after being released by Dr. Nellis, and was returned to his duties with the Bay County school system at Rosenwald Middle School in late January or early February of 1990. Once again, he returned to his "old self", in terms of his adequate performance as a teacher, his emotional stability, good relationships with colleagues and students, and his prior demeanor as a genuinely caring teacher. His performance for the remainder of 1990 through the end of classes in June was good. He worked for the remainder of that school year as a physical education instructor, which is the field in which he is certified as a teacher.

    
    

12. The Respondent had also been seen by Dr. Zumarraga beginning in November of 1989, who also found him to be manic-depressive, and who informed Mr. Simonson, by letter presented to Mr. Simonson by the Respondent, that the Respondent was taking medication for his illness and had exhibited acceptable behavior. As a result of those assurances by the Respondent's psychiatrist, Mr. Simonson had allowed the Respondent to return to work at Rosenwald Middle School in approximately early February of 1990.

13. Apparently, sometime in late spring or early summer of 1990, the Respondent had doubts that he was still suffering from his condition and consulted another physician for an additional opinion. Apparently, he quit taking his medication sometime during the summer of 1990 as a result of that consultation.

    
    

14. In late August of 1990, the Respondent returned to Rosenwald Middle School as a physical education instructor. Ms. Love, who had been Assistant Principal at the school, had moved up to the position of Principal. In the spring of 1990, the Respondent had been quiet and cooperative, had gotten along well with colleagues and students, and had performed his duties well, after undergoing treatment and being placed on a program of medication for his manic- depressive disorder. In the fall, however, he was immediately observed by Ms. Love and others of his colleagues and supervisors to have reverted to the arrogant, abrasive and extremely assertive attitudes and behavior, which he had exhibited in the fall of 1989, prior to securing treatment.

    
    

15. Before these attitudes and behavior had manifested themselves, however, and immediately upon the start of the 1990-91 school year, given his long and worthwhile experience in the physical education field in the county system, Ms. Love asked the Respondent if he would work on a plan for a "middle school olympics" athletic event. The Respondent agreed to do this and immediately began setting about the formulation of a plan whereby all of the middle schools in the county would participate in the olympics athletic event on a given day at Tommy Oliver Stadium. He arrived at a plan to accomplish this and drafted it in memorandum form. Instead of sharing it with Ms. Love, however, he transmitted it directly to the Superintendent, Mr. Simonson. This was a departure from appropriate procedures for the planning of such events because the Respondent did not transmit his plan to Ms. Love for her initial approval before its being communicated to supervisory personnel at the county district level. The Respondent became somewhat obsessed with the idea of planning and conducting the olympics event, devoting an inordinate amount of time and energy to it.

    
    

16. In early September, the Respondent brought a student to the office for disciplinary reasons asserting that he had caught the student stealing or "going through the lockers". Upon questioning of the Respondent by Ms. Love, it was learned that he did not find the child in the locker room or dressing room actually invading lockers, but found him in the locker room area where he was not supposed to be. He accused the child of stealing or attempting to steal when he had not actually observed him do this. The Respondent was criticized in this action for not having actually observed the child stealing and yet accusing him of it and for having brought prior behavior of the child up in his disciplining of the child, which Ms. Love felt to be inappropriate. In fact, the Respondent had some justification for suspecting this particular child of wrongful conduct or illegal activity because of past disciplinary violations committed by the child of a similar nature. At approximately the same period of time, in early September, the Respondent was observed to have grabbed a child by the arm in the act of admonishing the child for some alleged miscreant behavior and stating that "I am going to break your little arm". Ms. Love counseled the Respondent about these two instances and gave him an "improvement notice" on September 7, 1990 concerning them. An improvement notice is a disciplinary memorandum or report to a teacher such as the Respondent by which the Principal admonishes a teacher for inappropriate behavior and directs steps for improvement of the situation which led to that criticized behavior.

17. On September 14, 1990, Ms. Love had another formal conference with the Respondent, since she had seen his arrogant, abrasive, overly-assertive behavior with colleagues and students continuing. She discussed with him his inappropriate behavior towards students and faculty and the matter of the Respondent's disciplinary referral of a student to the guidance counselor. He had referred a student to the guidance counselor for discipline and had been overbearing and abusive to the guidance counselor in his communication with her concerning the disciplinary referral. Ms. Love counseled him about the basic procedures involved in referring students for discipline, which specifically do not involve the guidance counselor. Rather, disciplinary referrals should appropriately go to the administration of the school, as delineated in the teacher's handbook, which the Respondent had previously been provided. Additionally, Ms. Love felt that the Respondent had exhibited a pattern of not turning in required documents in a timely manner; therefore, she gave him an improvement notice for these matters dated September 28, 1990. In fact, however, it was not established by the Petitioner that the Respondent had been untimely in turning in any required documents, reports, and the like, other than one report which had been due on a Friday, when he was absent due to illness and which he promptly turned in on the following Monday.

    
    

18. During the fall of 1990, the Respondent was observed to frequently share details of his custody dispute and problems concerning his child and problems with his wife or former wife through notes, letters and conversations with other members of the staff in an inappropriate manner. He appeared to be emotionally preoccupied with these personal problems while on duty.

    
    

19. On the third day of school in the fall of 1990, Mr. Simonson located his office temporarily at Rosenwald Middle School. He had done the same thing at other schools in the county that were having disruptions caused by on-going construction during the fall. Rosenwald Middle School at this time was undergoing construction work, including work on its air-conditioning system, such that many of the students and teachers did not have the benefit of air- conditioning. Mr. Simonson, therefore, elected to spend a day or so at Rosenwald Middle School on a sort of "Bob Graham Work Day". Ms. Love announced that fact over the public address system during the morning announcements on that day. The Respondent came to Ms. Love's office a short time later carrying the school's daily bulletin in his hand. He seemed hostile and agitated, leaned over her desk and shook the bulletin in her face, stating to her that he wanted her to sign on the bulletin her name and the statement she had made about the reason the Superintendent was at the school on that day. He further stated to her, in effect, that he was "fixing to be fired" and that he wanted Ms. Love to admit and put in writing on the face of the morning school bulletin the real reason, as he felt it, why the Superintendent was at the school that day. Ms. Love refused to do this and considered this behavior to be bizarre and threatening, given that the Respondent obviously felt that the Superintendent had been on campus that day to "spy on him".

    
    

20. During late September of 1990, the school embarked, at the behest of Ms. Love and other administrators and teachers, on a "school spirit week" contest. The contest involved decorating the doors of the classrooms by the students, using as themes for the decorations certain words which denoted various aspects of "school spirit". The doors were to be decorated during "trust class time". "Trust classes" are classes which meet for approximately fifteen minutes or so at the outset of the school day, somewhat analogous to what is commonly known as "homeroom classes". The students were allowed to decorate the doors during their trust class time. Ms. Love accused the Respondent of keeping students overtime in their trust class, which required

    them to miss part of their next class and be tardy to that class in order to decorate his room door. In fact, she gave him an "improvement notice" in the nature of a reprimand for this on September 28, 1990. It was not proven, however, that the Respondent had actually kept students late at his behest for this purpose. In fact, his testimony is that he required no students to stay in his trust class working on door decorations after the time for the trust class to be over and instructed them to obtain permission from their other teachers should they elect to stay overtime to decorate the doors. The Hearing Officer having weighed the testimony, candor and credibility of the witnesses on this issue, including the ability of the witnesses to have knowledge of the facts concerning the time and methods employed to accomplish the door decoration effort, this violation of school procedures was not proven.

    
    

21. The door decoration contest was judged on September 28, 1990 and the Respondent's class did not win. The Respondent became very agitated and angry at this result to the point of requesting and obtaining a meeting with Ms. Love concerning it. His temper and emotions were out of control on this occasion. He behaved in a loud, abrasive, and angry manner, even to the point of alternately crying, shaking, and shouting. He accused Ms. Love of penalizing his children by denigrating their efforts in the door decoration contest in order to hurt him, claiming that her actions really were a personal vendetta against him in the course of which the children were victimized. In the midst of his emotional outburst concerning this matter, he refused to listen to any explanation which Ms. Love attempted to give him but repeatedly interrupted her efforts to explain how the contest was judged and its rules. He even attempted to call a newspaper concerning the incident. He was inordinately obsessed with the conduct of the contest and with the result.

    
    

22. As this incident with Ms. Love was progressing, Corporal Lassiter, the school Resource Officer, observed and heard part of it. In his view, having observed the behavior of the Respondent on this occasion and being aware of the Respondent's past history, Mr. Lassiter considered the possibility of initiating an involuntary Baker Act hospitalization at that moment, because of the Respondent's behavior.

    
    

23. During the course of this confrontation with Ms. Love, Mr. Lassiter or others persuaded the Respondent to step across the hall to a different office to calm down. After he went into the other office with Mr. Lassiter and another administrator, Mr. Barnes, the Respondent's behavior continued to be somewhat bizarre. His demeanor toward Mr. Lassiter and Mr. Barnes alternated from being very angry and upset with them to calling them, and acting toward them, as though they were good friends. At one point, he told Mr. Lassiter that when he got elected Superintendent, all would hear about this incident in the newspaper and the reasons for it all "would become very clear". He stated then that Mr. Lassiter and Mr. Barnes would have good employment positions with him when he became Superintendent. Alternatively, before making these statements and also after making these statements, he became angry and hostile to both men, saying, in essence, that they were "all against me", becoming accusatory toward them and asserting, in essence, that Mr. Lassiter, Mr. Barnes, Ms. Love, and others in the administration were seeking to do him harm. Partly at the instance of Mr. Lassiter, the Respondent finally calmed down sufficiently to accede to Mr. Lassiter's recommendation that he call a substitute to take over his classes for the remainder of the day. A substitute was called and Mr. Lassiter then escorted the Respondent to his truck in order to see that he was removed safely from the campus without further incident with colleagues or students. As the Respondent was getting into his truck, preparing to leave the campus, he told Mr. Lassiter to "tell Ms. Love that she can kiss my ass".

24. Teachers are required to be at Rosenwald Middle School by 7:30 a.m. The first bell rings at 7:37 a.m., and the "trust class" begins at 7:45 a.m. On approximately six occasions during September of 1990, Ms. Love had to sit in on the Respondent's trust class because he was late arriving at his class. She gave him an improvement notice concerning this deficiency on September 28, 1990. Additionally, on two separate occasions, Mr. Lassiter handled the Respondent's trust classes when he was late.

    
    

25. The next school day after the incident concerning the door decoration contest on September 28, 1990 was October 1, 1990, a Monday. The Respondent was approximately 20 minutes late to school that day. Ms. Love, being concerned about the ramifications of the behavior she had witnessed in the Respondent the preceding Friday, met with the Respondent when he arrived at school for purposes of determining his state of mind and to talk to him about his tardiness. She found him still agitated, although not as much as he had been on Friday, the 28th. He continued to accept no responsibility for those actions and for his tardiness. He denied even being late, and as a result, Ms. Love assigned the school Resource Officer, Corporal Lassiter, to accompany the Respondent whenever he had students with him for the remainder of the day. It should be pointed out, however, that on most of the occasions when the Respondent was tardy to his first class during September of 1990, it was because he did not have a key to fit his office and would have to look for another co-worker to let him in. He was given a key at the outset of the school year which did not fit. Consequently, he disposed of it, ordering another key, the provision of which to him was delayed for unknown reasons.

    
    

26. Later that same day, the Respondent brought between 20 and 30 students to the office for being tardy to class. The procedure for handling tardies at Rosenwald Middle School is that if a child is tardy, a teacher counsels with the child at first. The parents are contacted, the child is assigned to "team detention", and a student misconduct form is forwarded to the appropriate administrator upon tardies becoming repetitive. It is unusual to bring a student to the Principal's office for tardiness. The Respondent explained when they arrived at the Principal's office that all of the students were late to class and that Ms. Love should do something about it. This was a departure from normal procedures in dealing with tardy students. It should also be pointed out, however, that the school administration had recently issued a memorandum admonishing teachers that they should deal more severely with tardy students. When this entire group of students proved to be tardy on the day in question, the Respondent volunteered, with the agreement of the other physical education teachers/coaches, to escort the students to the Principal's office for disciplinary reasons concerning their tardiness. The other teachers involved agreed.

    
    

27. On that same occasion, on October 1, 1990, when the Respondent had the group of students waiting outside the Principal's office, he apparently had some sort of confrontation with a student named Malackai. Apparently, the student was arguing with him and denying being tardy, which was the reason he was brought to the office. The Respondent offered to wrestle the student after school and "tear him limb from limb". This action caused Mr. Lassiter to step between the Respondent and the student and to send the student to Ms. Love's office to prevent any further such confrontation. Although the student was large for his age, these actions by the Respondent intimidated the student.

    
    

28. On that same day, the Respondent was giving a lesson in softball on the softball field. He was being observed by Mr. Lassiter at the time at the

    behest of Ms. Love, who was concerned about his emotional stability. During this lesson, the Respondent, for unknown reasons, began rather randomly talking about accidents, lions, the dangers of eating red meat, and some sort of discussion of suicide. When he observed a student not paying attention to him, he hit the student on the head with a clipboard. He then continued his rambling discussion. A few minutes later, the same child asked when they would be allowed to play softball; and the Respondent hit him with the clipboard again.

    The student got tears in his eyes and was intimidated by the Respondent's conduct. When Mr. Lassiter observed that the Respondent might be about to commit the same act for a third time, he stepped between the student and the Respondent in order to prevent this from happening again.

    
    

29. Physical education teachers are required to supervise students by direct observation in their locker room where they dress out for physical education classes and then dress in their regular clothes again at the end of classes. This is necessary in order to prevent fights and horseplay in the locker room, which can be dangerous. On October 1, 1990, during the Respondent's period to supervise the boys' locker room, he attempted to telephone Mr. Tucker, the Principal at Mosley High School. While he was on the telephone, he left the locker room class unsupervised and was unable to observe and supervise the locker room from the location of the telephone in the coach's office. On October 2, 1990, the Respondent again left his physical education class unsupervised while he was talking on the telephone for some 15-20 minutes. During the month that the Respondent had worked with Mr. Kent in the physical education department, Mr. Kent felt that although the Respondent generally had handled his duties well, he had spent an excessive amount of time on the telephone, rather than being in his assigned area.

    
    

30. October 2, 1990 was the Respondent's last day of employment with the Petitioner. He was suspended with pay and shortly thereafter, the School Board met and accepted the Superintendent's recommendation to suspend the Respondent without pay based upon the conduct described in the above Findings of Fact occurring in August and September of 1990. The Board took the positions that this conduct amounted to gross insubordination, willful neglect of duty, and misconduct in office. In the Amended Administrative Complaint, on which this matter proceeded to hearing, which was filed on July 30, 1991, the factual allegations of the Complaint assert that the suspension action was taken based upon "alleged gross insubordination, willful neglect of duty, and misconduct in office"; however, the Amended Complaint actually charges that the factual allegations set forth in the Amended Complaint violate Section 231.36, Florida Statutes, and Rule 6B-4.009(3), Florida Administrative Code, concerning misconduct in office allegedly so serious as to impair the Respondent's effectiveness in the school system and charges incapacity (as a subset of incompetency) alleging violations of Rules 6B-1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code.

    
    

31. Thereafter, after the suspension occurred, the Respondent was involuntarily hospitalized pursuant to the Baker Act on the day following an apparent arrest for DUI, fleeing or attempting to elude a police officer, and having a concealed firearm. The Respondent was convicted of none of these charges but, rather, pled nolo contendere to a reduced charge of reckless driving and to a misdemeanor weapons charge. Adjudication of guilt was withheld. In fact, the weapon which the Respondent had in his car was believed by him to be legally possessed since it was merely the 22 pistol with which he used blanks for training his bird dogs. The pistol happened to be on the floorboard of his car when he was arrested by the officer. The Respondent spent a short period of time at Bay Medical Center, pursuant to involuntary Baker Act

    commitment on this occasion. Also, in 1990, at an undetermined time in the fall, he voluntarily admitted himself to the Rivendell Psychiatric Center for approximately 2-1/2 weeks in order to receive additional evaluation because he was unsure whether he was actually manic-depressive or not.

    
    

32. Thereafter, while still suspended from his employment, in May of 1991, the Respondent apparently had an argument with his parents at their home in Bonifay and then left their home to return to his own home in the vicinity of Panama City in Bay County, Florida. Rumors apparently were communicated to law enforcement officials to the effect that the Respondent had threatened to kill his parents and had left their home with a high-powered rifle and was journeying to Panama City to his own home. Apparently, as a result of such reports, after the Respondent was at his own home, to his surprise, law enforcement vehicles and numerous law enforcement personnel, especially the Bay County Sheriff Department Swat Team, arrived in his yard, and, by megaphone, demanded his surrender. A television news crew was present at the scene and filmed the incident, which may have received billing as an "armed confrontation" between the swat team and the Respondent. In fact, this is untrue. When the Respondent observed the law enforcement officers arriving on his premises in a number of vehicles, he telephoned his attorney to inform him of the situation and then went to the door in response to the directive that he come outside. When he went to the door to ascertain why the law enforcement officers were at his residence, he was armed with a fork and a hamburger. He was charged with no crime in connection with this incident, although, apparently, he was involuntarily committed under the Baker Act once again for a brief period of time. The incident was disseminated to the public on the electronic media. However, no armed confrontation was proven to have occurred, nor was there any proof that the Respondent ever threatened to kill his parents.

    
    

33. Although Mr. Simonson testified that there would be a great public outcry if he reinstated the Respondent because of this incident and the other incidents, there was no showing by the Petitioner that the incidents occurring at Rosenwald Middle School leading to the Respondent's suspension nor the incidents involving the alleged high-speed chase were ever communicated to the public generally or to parents of students of the Bay County school system or the students themselves. It was not shown by the Petitioner that the Superintendent or other officials of the Petitioner received any complaints from parents or members of the general public concerning the Respondent, his behavior, or his teaching performance. The incidents involving the alleged

    high-speed chase and the swat team confrontation, delineated in the above Findings of Fact, did not occur while the Respondent was on school premises nor while he was engaged in his duties as a teacher or coach. With regard to either incident, he was not shown to have committed any crime or conduct which can constitute misconduct in office. Both incidents occurred in the Respondent's private life, away from his employment and away from the School Board premises. The only conduct shown to have been disseminated in the public media involved the Respondent being taken into custody at his home by the Sheriff's swat team because the television news crew was there filming the incident. He was charged with no crime on that occasion and was shown to have committed no form of reprehensible conduct. He was merely involuntarily committed shortly thereafter, pursuant to the Baker Act. None of that can constitute misconduct in office, much less misconduct in office which in any way abrogates his effectiveness as a teacher in the school system involved.

    
    

34. The Respondent has been taking Lithium and Prozac for his manic- depressive condition since 1989. He is presently under the treatment of Dr. David Smith, a licensed psychologist; and Dr. Ben Pimentel, a licensed

    psychiatrist, at a facility known as the "Life Management Center", as an outpatient. Both of these professionals opined that if the Respondent continues to take his medication, the symptoms of mania and depression will remain in remission, as they are at the present time. Indeed, in the past, since he first began taking medication for his condition in 1989 after being diagnosed as

    manic-depressive, at those times when the Respondent was taking his medication, his behavior and his teaching performance was up to the good and satisfactory standard which he had consistently exhibited from 1977 through the 1987-88 school year.

    
    

35. It is only on those occasions when he has ceased taking his medication, in the apparent belief that his problem was not a chronic one, that he has exhibited the emotional instability, such as that displayed at Rosenwald Middle School in August and September of 1990, which is the subject of this proceeding. Indeed, both Drs. Smith and Pimentel, the only experts testifying in this proceeding, who testified for the Respondent, established that if the Respondent continues to take his medication, his symptoms of mania and depression will remain in remission and he will be competent to teach in terms of both his emotional stability and his ability to perform his duties as a teacher.

    
    

36. Although Dr. Smith acknowledged that the rudeness exhibited by the Respondent on the occasions at issue in this case and his behavior involving striking a student and offering to wrestle a student might be behavior unrelated to the bi-polar disorder, the totality of the evidence supports the finding that, in the Respondent's case, given the many years of his teaching experience when he was a calm, caring, competently-performing instructional employee with behavior not characterized by such outbursts and aggressiveness, such conduct is, indeed, directly related to the present, active nature of his disorder on those occasions. On those occasions, he was not taking his medication.

    
    

37. Dr. Pimentel believes that the Respondent needs to continue his medication. If he does continue his medication, he will be competent to continue teaching or to once again teach because his symptoms will remain in remission. Dr. Pimentel believes that the Respondent may need the motivation of a court order or employment directive or condition to insure that he continues his medication because if he obtains a medical opinion that he is no longer sick, he may not take the medication and stop the treatment. Additionally, Dr. Pimentel finds that the Respondent will require monthly counselling sessions and monitoring of his medication level to make sure it remains at a therapeutic level. Under those conditions, however, he would be capable of resuming his teaching duties. The Respondent, in his testimony, expressed the wish to obtain another medical opinion to make sure, in his view, that he is still manic- depressive, although he accepts the diagnosis that he is manic-depressive and is willing to continue his medication and to submit to monthly monitoring of his medication and monthly treatment by his presently-treating professionals.

    
    

    CONCLUSIONS OF LAW

    
    

38. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1991).

    
    

39. Section 231.36, Florida Statutes, provides, in pertinent part, that a school board may suspend or dismiss a tenured teacher if it is established that the teacher is guilty of "misconduct in office" or "incompetence". Parenthetically, it should be noted that the Amended Administrative Complaint

    indicates that the suspension was taken initially by the School Board because of the Respondent's "gross insubordination, willful neglect of duty, and misconduct in office". In fact, however, the School Board proceeded to hearing on the issues of misconduct in office and incapacity, as a subset of incompetence and did not actually seek to prove gross insubordination or willful neglect of duty.

    
    

40. In point of fact, the evidence of record, as supportive of the above Findings of Fact, shows that the Respondent was not guilty of gross insubordination or willful neglect of duty. Any neglect of duty was the result of his emotional malady and not a willful, intentional disregard of his job requirements. There has been no showing by the Petitioner of a constant or continuing, intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority by the Respondent's superiors, as gross insubordination is defined in Rule 6B-4.009(4) Florida Administrative Code. Thus, it must be determined whether the Respondent has committed any acts which meet the definition of "misconduct in office" or whether he has been guilty of incompetency by reason of "incapacity". The definition of misconduct in office is set forth at Rule 6B-4.009, Florida Administrative Code, as follows:

    
    

    Misconduct in office is defined as a violation of the code of ethics of the education profession as adopted in 6B-1.001, F.A.C., and the principals 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 system.

    
    

41. In seeking to dismiss the Respondent from employment upon the basis of misconduct in office, the School Board must establish each element of that charge. See, Jenkins v. State Board of Education, 399 So.2d 103, 105 (Fla. 1st DCA 1981); Smith v. School Board of Leon County, 405 So.2d 183, 185 (Fla. 1st DCA 1981); Boyett v. State Professional Practices Council, 346 So.2d 598, 600 (Fla. 1st DCA 1977). In the Boyett case, the court made it clear that each element of the charge concerning misconduct in office requires independent proof. In other words, in addition to requiring adequate proof of the conduct being charged, the court opined that Section 231.28(91), at issue in the Boyett case, also required proof that the conduct committed, if proven, also could be proven to seriously reduce the teacher's effectiveness as an employee of the school system. Id., at page 600.

    
    

42. The Amended Administrative Complaint first charges, in terms of factual conduct, that the Respondent repeatedly berated students and teachers and was abusive. The conduct found to have been committed in the above Findings of Fact shows that the Respondent did not repeatedly berate students and teachers. His conduct was emotionally unstable at times; and on one or two occasions, he spoke harshly or threateningly to students but did not engage in a repeated pattern of berating students. There is no evidence that he conducted himself in such a way to teachers, with the exception of the instance when he acted in a rude manner toward the guidance counselor when he sent a student mistakenly to the guidance counselor for discipline. The Respondent was shown to have been abusive to students on those occasions when he asked a student if the student wanted him to "break his little arm", and when he offered to wrestle with a student and "tear him limb from limb", and when he struck a student with the clipboard. That is abusive of students, should not have been engaged in and is the type of conduct upon which a charge of misconduct in office can be based if the remaining element of the charge is proven.

43. It was not established, regarding paragraph four of the Amended Administrative Complaint, that the Respondent repeatedly turned required paperwork in late and would not follow directions for school activities. Although it was shown that the Respondent occasionally failed to follow directions correctly, such as taking a student to the guidance counselor for discipline and taking students to the Principal's office for disciplinary reasons for tardiness, it was not shown that he repeatedly and intentionally failed to follow directions for school activities. The entire testimony of Ms. Love reveals that the required paperwork he is charged with turning in late really only amounted to one document which he was supposed to have turned in on Friday, when he was out sick. When he returned to work on Monday, he promptly turned the document in to the school office. Consequently, the conduct charged in paragraph four of the Amended Administrative Complaint has not been sufficiently established to support a charge of misconduct in office with regard thereto.

    
    

44. The Respondent is charged, in paragraph five of the Amended Administrative Complaint, with failing to develop a plan to supervise students while they were dressing out for physical education, as directed to by the Principal. This charge has clearly not been proven because Principal Love's own testimony reveals that she did not actually direct him to formulate such a plan. The evidence reveals that the Respondent was following the plan already adopted for this purpose by his physical education department.

    
    

45. Concerning paragraph six of the Amended Administrative Complaint, it was established that the Respondent was tardy to his classes on a number of occasions and tardy in arriving at school on one occasion. The one occasion he was shown to be tardy arriving at school was when he mistakenly slept through his alarm clock. He promptly called the office and informed them of why he would be late that day and that type of incident was shown to have occurred only once. The other instances of tardiness to classes was shown to result, in part, from the fact that the school administration failed, for a substantial period of time, to provide him with a key which would fit the office where he kept his class materials. This caused delays on occasion in his arrival to his classes, which were not his fault, although that was not shown to be the basis for his tardiness on all occasions. It was also demonstrated that, on at least on two occasions, he did leave his physical education classes unsupervised while he was talking on the telephone to Principal Tucker at Mosley High School on one occasion and probably to his attorney on the other occasion shortly before his suspension on October 2, 1990.

    
    

46. Concerning paragraph seven of the Amended Administrative Complaint, it is true that the Respondent, on a number of occasions during August and September of 1990, exhibited somewhat bizarre and less than rational behavior in the manner depicted in the above Findings of Fact, and that he exhibited this pattern previously while a teacher at Mosley High School, although he is not charged in this Complaint for the behavior exhibited at Mosley High School.

    That evidence was merely taken on that subject so that the continuing nature of those episodes of behavior could be shown by the Petitioner. Thus, the factual allegations of paragraph seven and eight of the Amended Administrative Complaint have been established, with the exception that the Respondent was not actually suspended as a teacher from his duties at Mosley High School when he exhibited bizarre, unstable or irrational behavior, rather he was accorded "overused sick leave" time off from work.

    
    

47. Concerning paragraph nine of the Amended Administrative Complaint, it is charged that several months after his suspension from Rosenwald Middle

    School, he again exhibited bizarre behavior and a severe lack of emotional stability by threatening to kill his parents and by having an armed confrontation with the Bay County Sheriff's Department Swat Team, for which he was committed to the mental health unit of Bay Medical Center. These charges have not been proven. It was not established that he ever threatened to kill his parents, and it was not established that he had any armed confrontation with the Bay County Sheriff's Department Swat Team. Personnel of that law enforcement agency did take the Respondent into custody at his home on the day in question for commission to the mental health unit at Bay Medical Center (probably at the behest of his parents); however, he was not shown to have been charged or convicted of any crime related to that episode.

    
    

48. The principles of professional conduct for the education profession, Rule 6B-1.006(3), Florida Administrative Code, the violation of which is one of the elements in proving misconduct in office, as stated in the above-quoted Rule, require teachers to: (1) make ever reasonable effort to protect a student from conditions harmful to learning or to health and safety; (2) not intentionally expose a student to unnecessary embarrassment or disparagement;

    (3) not intentionally make false or malicious statements about a colleague. In addition, the Code of Ethics of the education profession, pursuant to Rule 6B- 1.001(3), Florida Administrative Code, the violation of which is a necessary element to prove misconduct in office, provides:

    
    

    Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

    
    

49. It has been established that the Respondent is guilty of violating that code of professional conduct to the extent that he stated a threat to break a child's arm (even if he did not seriously mean he would actually carry out that threat), when he prematurely accused a student of stealing; when he accused Ms. Love of having a personal vendetta against him; when he frightened a student or exposed him to embarrassment by offering to wrestle him after school for disputing his assertion that the student was tardy; and when he repeatedly struck a child with a clipboard to the point of bringing the child to tears. Thus, in a number of particulars, the conduct which the Respondent was found to have committed in the above Findings of Fact can be deemed to constitute violations of the principles of professional conduct, as enumerated above.

    
    

50. It must now be determined whether those violations are "so serious as to impair the Respondent's effectiveness in the school system". The Petitioner did not establish any loss of effectiveness in the school system, much less a serious loss of effectiveness caused by the incidents enumerated above, which might constitute, in terms of factual conduct, a basis for misconduct in office. There was no showing that the incidents involving students or teachers or administrative personnel were so egregious or so repeated or of such long standing as to cause the Respondent to lose the respect and confidence of his colleagues and students, when the incidents are viewed in the context of the Respondent suffering emotional difficulties during the times the acts were committed. Because of the Respondent's emotional illness, which was the catalyst causing him to act in a manner possibly exposing students to embarrassment or disparagement and which caused him to conduct himself unprofessionally toward his colleagues on a very limited number of occasions, and because of his long history of effective, caring work as a teacher, which students and his colleagues are doubtless aware of also, it is unlikely that his

    conduct on the few isolated occasions when he was suffering emotional difficulties will cause him any serious loss of effectiveness in the minds of his students, their parents and his professional colleagues.

    
    

51. It is noteworthy in this regard that the Petitioner did not produce the testimony of any teachers or students who could establish any loss of effectiveness. The only teachers testifying, Mr. Kent and Mr. Harrell, testified for the Respondent and supported in general his effectiveness as a teacher. They found no fault with his performance save the relatively minor instances of spending too much time on the telephone during duty hours. The Petitioner also did not adduce evidence to establish that the Respondent has lost any effectiveness as a teacher in the school system with parents and members of the community in general. No members of the community testified, no parents of students testified, and the Superintendent's testimony, that of Mr. Simonson, acknowledges that he had received no complaints from parents regarding the Respondent's behavior or performance. The only public dissemination proven in this case concerning the Respondent's behavior, which was placed of evidence in this record, was that the news reporting team from the local television station had "covered" and reported the incident involving the Respondent's apprehension by the Bay County Sheriff's Department Swat Team. That was not even conduct while he was performing as a school teacher but, rather, occurred some months after he was suspended and bore no relationship to his duties as a teacher. Further, he was neither charged with nor convicted of any crime with regard to that occasion. He was merely involuntarily committed, pursuant to the Baker Act, for a short period of time because of his emotional illness. The only testimony concerning his loss of effectiveness in the school system was that of Mr. Simonson to the effect that he could not rehire him because of the great public outcry which that could cause in the community because, as Mr. Simonson put it, "I know Bay County".

    
    

52. That statement is totally uncorroborated. Mr. Simonson could point to no complaints by members of the community at large, by parents, or by students, which could establish that the Respondent had lost his effectiveness as a teacher, and no non-hearsay testimony to that effect was offered by witnesses who could attest to such a loss of effectiveness. The Superintendent's testimony in this regard is unsupported, uncorroborated, and does not serve as preponderant evidence supportive of a finding of fact nor a conclusion of law that the Respondent has lost his effectiveness as a teacher in the Bay County school system.

    
    

53. The evidence clearly reveals that the Respondent's difficulties with the school administration and his failure to follow the rules of conduct referenced above on a limited number of occasions was due directly to his mental illness. This is especially true when one considers the unrefuted evidence of record that in all his time as an instructional employee in Bay County since 1977, he had never encountered such difficulties and problems in his behavior, emotional stability, and teaching performance until those times when his mental illness became manifest due to his, at first, not being diagnosed or being aware of it, and later, because of his failure to take the medication which alleviates it. If his misconduct is directly related to his mental illness, which it is, and if his mental illness is in remission, which it is, he should not continue to be penalized for it nor deemed to have suffered a permanent loss of effectiveness as a teacher in the school system.

    
    

54. The Petitioner has established, however, that the Respondent, at the time he was suspended in early October of 1990, was incompetent to continue to practice as a teacher because of incapacity. That incapacity was due to

    emotional instability as codified and envisioned in the above-referenced Rule. That is, incompetency can be proven by a showing of incapacity on the part of a teacher and incapacity can be established by a showing of emotional instability. Emotional instability was proven in this case in the particulars delineated in detail in the above Findings of Fact. During the times the Respondent committed the conduct charged, which was proven to have occurred, in August, September and October of 1990, the Respondent was, indeed, so emotionally unstable due to his manic-depressive condition that he was incompetent to continue to function as a teacher. Consequently, his suspension, which was instituted with the knowledge on the part of school administration that the Respondent had suffered such difficulties in the past and had been accorded opportunities to get help, was appropriate.

    
    

55. The only expert testimony offered on the issue of incapacity and emotional instability was that of the psychologist and psychiatrist, Drs. Smith and Pimentel, who actually testified for the Respondent. Their testimony, nonetheless, establishes, as the Respondent, indeed, acknowledges, that the Respondent is properly diagnosed as suffering from a bi-polar disorder, commonly called manic-depression. The overt manifestation of that condition resulted in his miscreant behavior occurring in August, September and October of 1990 and because it rendered him incompetent to teach at that time, he should have been suspended. That testimony also establishes, in an unrefuted way, however, that the Respondent is now in remission, is taking appropriate medication, and no longer suffers from the overt manifestation of his illness. The experts named above established, without refutation, that if the Respondent is monitored monthly to ascertain that his medication level is a therapeutic one and continues to receive monthly counselling, he will stay in remission and, therefore, will be thoroughly competent to resume his teaching duties. That expert testimony is accepted, and it is concluded that the Respondent is now competent to resume his duties as a teacher and should be reinstated. He is not, however, entitled to back pay because it was likewise established that at the time he was suspended, the suspension was justified for the above-stated reasons.

    
    

56. Thus, it is concluded that the Respondent is not guilty of misconduct in office because the misconduct he did commit was not shown to have been so serious as to cause him a loss of effectiveness in the school system for the reasons delineated above. The Respondent, likewise, for the above reasons, was not established to have committed insubordination or willful neglect of duty. However, he was established to have been incompetent by reason of incapacity due to emotional instability at the time he was suspended; and consequently, the suspension was proper. At that time, when he was suspended without pay, he was not on his prescribed medication; and according to Dr. Pimentel, was not able to teach. It has only been within the last six (6) months of 1991 that his mental condition has stabilized. This is because he has, under court order, received psychiatric treatment, including the taking of Lithium and Prozac medications for his manic-depressive condition. The Respondent currently undergoes monthly monitoring of his medication blood level and monthly counselling which has rendered him competent to return to his duties as a teacher under those conditions. The Respondent has agreed to his reinstatement as an instructional employee under those conditions.

    
    

57. The Respondent has requested the award of attorney's fees, based upon Section 448.08, Florida Statute, which allows for award of attorney's fees in actions by employees for unpaid wages and based upon Sulcer v. McFatter and the School Board of Broward County, 497 So.2d 1349 (Fla. 4th DCA 1986), and other related cases cited in the Respondent's proposed conclusions of law.

58. The employment of Section 448.08, Florida Statutes, for award of fees would appear inapposite, however, because this is really a proceeding involving the issue of the Respondent's right to employment or continued employment. The issue of wages, here "back wages", is only tangentially involved and it is deemed that this statute does not apply. See, Werthman v. School Board of Seminole County, Florida, 17 FLWD 1245 (Fla. 5th DCA, opinion filed May 15, 1992; Case Number 91-1831). Although the cases cited by the Respondent appear to show a discretionary authority to award fees in such proceedings by school boards and to afford a respondent a hearing opportunity for such to be considered, the Werthman decision, supra, appears to be contra.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the Respondent, Steven T. George, be suspended for a period of two years, but that the suspension be abated and the Respondent immediately reinstated to his duties as an instructional employee of the Bay County school district, with all of the rights of a tenured teacher, under the following circumstances which should remain in effect for a probationary period of two (2) years:

1. His psychiatrist shall file monthly with the School Board a detailed report of his attendance at counselling sessions and the result of his monthly blood tests to ascertain if his medication remains at therapeutic levels.

   
   

2. He is required to maintain the therapeutic levels of Lithium and Prozac or such medication as his physician and psychiatrist deem medically appropriate.

   
   

3. If he fails to attend counselling sessions or to maintain therapeutic blood levels of his appropriate medication for any two (2) consecutive months, then this should be determined to be, at law, willful neglect of duty, subjecting him to dismissal as a teacher with the Bay County school district subject to the Respondent's right to contest such an employment action, pursuant to Section 120.57, Florida Statutes, in this forum.

   
   

4. There should be no award of back pay in light of the above Findings of Fact and Conclusions of Law. There should be no award of attorney's fees in light of the above Findings of Facts and Conclusions of Law , and the opinion in Werthman v. School Board of Seminole County, Florida, 17 FLWD 1245 (Fla. 5th DCA, opinion filed May 15, 1992; Case Number 91-1831). The cases cited by the Respondent seem to accord the Respondent a hearing opportunity on the issue, with award of fees being discretionary. The Werthman decision appears contra in termination proceedings, however.

DONE AND ENTERED this 31st day of May, 1992, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF 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 1st day of June, 1992.

APPENDIX TO RECOMMENDED ORDER

Petitioner's Proposed Findings of Fact 1-23. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record evidence.

   
   

2. Accepted.

   
   

3. Accepted, except that it was not proven that he had "gone through Ms. Love's mailbox".

   
   

4. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence.

28-29. Accepted.

1. Rejected, as not supported by preponderant, competent evidence.

   
   

2. Rejected, as not supported by preponderant, competent evidence.

   
   

3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely supported by preponderant evidence.

33-35. Accepted.

36. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

37-39. Accepted.

40. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

41-47. Accepted.

48. Rejected, as not, in its entirety, being in accordance with the preponderant, competent evidence of record.

49-56. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter.

57-61. Accepted.

62. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

Respondent's Proposed Findings of Fact 1-13. Accepted.

14. Rejected, as not supported by preponderant evidence.

15-22. Accepted.

23. Rejected, as not entirely in accordance with the preponderant evidence.

24-30. Accepted.

31-36. Accepted.

37. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely in accordance with the preponderant evidence.

38-41. Accepted.

42-48. Accepted.

49-51. Accepted.

52. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

53-54. Accepted.

1. Rejected, as not in accordance with the evidence of record.

   
   

2. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not in accordance with the preponderant evidence of record.

   
   

3. Accepted.

   
   

4. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not being entirely in accordance with the preponderant evidence of record.

   
   

5. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

6. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

61-63. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

64-72. Accepted.

1. Rejected, as not in accordance with the preponderant evidence of record.

   
   

2. Rejected, as not in accordance with the preponderant evidence of record.

(Second No. 74). Accepted. 75-78. Accepted.

79. Rejected in the sense that it was proven by the Petitioner that at the time he was suspended, the Respondent was incompetent to teach due to incapacity related to his emotional instability.

80-85. Accepted.

COPIES FURNISHED:

Jack W. Simonson, Superintendent

P.O. Drawer 820

Panama City, FL 32402

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Franklin R. Harrison, Esq. HARRISON, SALE, ET AL.

304 Magnolia Avenue

P.O. Drawer 1579 Panama City, FL 32401

David Brooks Kundin, Esq. DOBSON & KUNDIN, P.A.

210 South Monroe Street

P.O. Box 430 Tallahassee, FL 32302

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.

Docket for Case No: 91-002084

Orders for Case No: 91-002084