STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BETTY CASTOR, as Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 91-6822
)
WILLIAM DEAN LONG, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter was heard by William R. Dorsey, Jr., the Hearing Officer assigned by the Division of Administrative Hearings, on May 21, 1992, in Miami, Florida.
APPEARANCES
For Petitioner: Margaret O'Sullivan, Esquire
Department of Education
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
For Respondent: William Du Fresne, Esquire
2929 S.W. 3rd Avenue Suite One
Miami, Florida 33129 STATEMENT OF THE ISSUES
Whether the Education Practices Commission should discipline the Respondent's Florida teaching certificate for the violations alleged in the Administrative Complaint.
PRELIMINARY STATEMENT
On October 8, 1991, the Petitioner, Betty Castor, as Commissioner of Education, filed an Administrative Complaint against the Respondent, William Long, alleging that he had violated provisions of Section 231.28, Florida Statutes, and Rule 6B-1.006, Florida Administrative Code. 1/ The complaint alleges that Mr. Long had been guilty of gross immorality or an act involving moral turpitude; had been found guilty of personal conduct which seriously reduced his effectiveness as an employee of the School Board of Dade County; violated the provisions of law or rules of the State Board of Education, the penalties for which are the revocation of his teaching certificate; and failed to make a reasonable effort to protect students from conditions harmful to learning or to health or safety.
Mr. Long denied the allegations and requested a formal hearing. The case was forwarded to the Division of Administrative Hearings on October 23, 1991.
At the final hearing, the Commissioner submitted six exhibits which were admitted into evidence. By agreement, the Commissioner introduced three volumes of transcripts and exhibits from the matter of The School Board of Dade County vs. William D. Long (DOAH Case No. 91-1978), which were admitted and labeled Petitioner's Exhibits 1 through 3. The Commissioner presented the testimony of Dr. Joyce Annunziata, Director of the Office of Professional Standards for the School Board of Dade County.
The Respondent offered a lab report and two T.A.D.S. evaluations which were admitted and labeled Respondent's Exhibits 1 through 3. The Respondent testified on his own behalf. Both parties filed Proposed Recommended Orders.
Rulings on proposed findings are made in the appendix this Recommended Order.
FINDINGS OF FACT
1. William Long holds Florida Teaching Certificate number 241743, covering the area of elementary education; it is valid through June 30, 1993.
2. During the 1987-88, 1988-89, 1989-90, and 1990-1991 school years, Mr. Long was employed as a teacher at Highland Oaks Elementary School by the School Board of Dade County.
Mr. Long taught fifth grade with a team of four other teachers. The teachers worked together closely, as the team concept required them to teach their classes in a single large classroom and to instruct certain subjects to all of the students at the fifth grade level.
The early portion of Mr. Long's employment at Highland Oaks was unmarkable. Beginning in the 1989-1990 school year, and continuing through the 1990-1991 school year, Mr. Long engaged in unprofessional behavior which was noticed by his fifth grade team members and by the administrative staff of Highland Oaks.
Mr. Long was often absent from work. He also frequently arrived late for work in the morning and left school before the dismissal time for teachers. Although Mr. Long was advised by his principal to be punctual, he continued to arrive late to school.
Mr. Long missed or was late for parent-teacher conferences because of his tardiness.
Absenteeism prevented him from participating in several fifth grade team conferences and planning sessions.
Mr. Long did not prepare adequate lesson plans. The absence of proper lesson plans caused difficulties for substitute teachers during his many absences.
Mr. Long consistently neglected to maintain student records and student assignments, and failed to record grades in his grade book. He did not properly issue progress reports and report cards. Team members often had to evaluate his students in his absence, based upon inadequate information.
Mr. Long's lack of record keeping violated Date County School Board Rule 6Gx13-4A-1.21.
Mr. Long left his class unattended and unsupervised on an almost daily basis. He usually failed to follow the procedure of notifying another teacher before leaving his class. As a result, his unsupervised students became noisy and disruptive to other classes.
Mr. Long frequently fell asleep during the school day in his classroom. On occasions, his own students had to wake him up.
Mr. Long fell asleep during staff meetings, most notably during a meeting concerning the district's Drug-Free Work Place policies on December 6, 1989.
Parents made numerous complaints to teachers and administrators about Mr. Long. Parents often asked to have their children transferred out of his class. Mr. Long's behavior became widely known and was a serious cause for concern among parents.
Mr. Long also engaged in bizarre and unusual conduct in front of his students. This conduct included: making guttural sounds and dancing in front of the class, putting a box over his head, hanging a lunch bag on his ear, "moonwalking" and singing in the cafeteria, putting a straw in his nose as if inhaling cocaine, and eating a candy cane with exaggerated movements.
Student response to such actions caused a distraction to other classes and teachers.
As a result of these deficiencies, members of the fifth grade teaching team frequently had to fulfill Mr. Long's duties, such as conducting parent conferences, planning, and evaluating and grading student work.
Mr. Long's difficulties were first reported to the district on December 1, 1989, when Virginia Boone, Principal of Highland Oaks, referred him to the Employee Assistance Program. Ms. Boone's referral followed several conferences with Mr. Long about his deficiencies.
On January 18, 1990, James E. Monroe, Director for the Office of Professional Standards, held a conference for the record with Mr. Long. Mr. Long was told to submit his grade book with up-to-date student grades, report for a medical evaluation and drug screening, and to remain at home and be accessible by telephone.
On January 19, 1990, Mr. Long tested positive for the presence of cocaine in his system. The test results were subsequently reported to the school district.
The positive cocaine test constituted violation of the Dade County School Board's Drug Free Work Place policy in that test results, coupled with his behavior, show that he was under the influence of cocaine while on duty.
Mr. Long did not report for his medical evaluation on two occasions, and did not remain at home in order to be reached by district personnel. On January 31, 1990, the Respondent was reassigned to the School Board's Region II Office.
Mr. Long received a memorandum on February 5, 1990, from his principal and assistant principal which detailed his non-compliance with their directives concerning grading of his students, lesson plans, supervision of students, and participation in parent conferences.
On February 5, 1990, district personnel met with Mr. Long in another conference for the record. He was placed upon medical leave to undergo substance abuse counseling. He was also warned of his violation of district policies and state rules, and was advised that failure to improve could lead to termination.
Mr. Long first attended a 28 day inpatient drug abuse program at Mt. Sinai Hospital. Beginning April 26, 1990, he participated in the Concept House drug and rehabilitation program as a resident, and was subsequently transferred to an outpatient program.
In August of 1990, Mr. Long was cleared to return to work and was assigned back to Highland Oaks Elementary. As a condition of his return, he was required to continue his participation in the after care portion of his drug treatment program.
Upon his return to Highland Oaks, his unprofessional and inappropriate behavior became worse. He engaged in the same conduct as the previous school year and parents continued to complain about him and request transfers of their children from his class.
On September 5, 1990, Mr. Long was arrested by police officers in Opa Locka, Florida, and charged with possession and purchase of cocaine.
Mr. Long failed to follow administrative directives by not participating appropriately in his aftercare program. On December 3, 1990, the Concept House terminated him from its program and subsequently notified the district of its action on December 5 or 6, 1990.
On December 17, 1990, Mr. Long fell asleep during class. At one point during the day, he was physically unable to stand to conduct his class.
On that same day, a teacher observed Mr. Long eating a candy can in a strange and exaggerated manner, and believed that he was "out of it." The teacher called Assistant Principal Barbara Cobb to come to the classroom.
Barbara Cobb observed the same behavior, and after watching Mr. Long for several minutes, asked him to accompany her to the school office. Mr. Long told Ms. Cobb a bizarre story about activities at his house. He repeated the story for the principal, who sent Mr. Long home for the day.
On December 29, 1990, Mr. Long again was arrested by police officers in Miami upon suspicion of possession of cocaine. He was incarcerated in the Dade County Jail until January 17, 1991, in part due to a bench warrant issued as a result of his September 5, 1990 arrest. No adjudication was ever entered as to the charges resulting from the September 1990 or December 1990 arrests.
On January 6, 1991, near the end of the winter vacation, Mr. Long telephoned Assistant Principal Cobb and informed her that he would be absent for an unspecified period of time because of his father-in-law's death.
When Mr. Long placed the call to Ms. Cobb, he was still incarcerated in the Dade County Jail.
District policy authorizes the use of sick leave in the event of the death of a relative, but not if an employee is in jail. Mr. Long's false statement concerning the purpose of his absence violated School Board Rule 6Gx13-4E-1.02, and was a ruse to attempt to be paid using sick leave benefits, to which he was not entitled.
On January 11, 1991, Mr. Long was assigned to the Region II Office. He returned to work on January 22, 1991. While at that location, he failed to follow directives concerning signing in and out and reporting absences. The district penalized Mr. Long a day and a half's pay for his unauthorized absences.
Mr. Long did not receive an annual teaching evaluation for the 1989- 1990 and 1990-1991 school years, primarily because he was absent from classroom duty during the portion of the year when the evaluations were conducted.
On March 20, 1991, the School Board of Dade County suspended Mr. Long from his position and initiated dismissal proceedings against him pursuant to Section 231.36(4)(c), Florida Statutes. At Mr. Long's election, a formal Division of Administrative Hearings hearing was held before Hearing Officer Stuart M. Lerner on September 12, 1991, and October 6, 1992.
On February 11, 1991, Hearing Officer Lerner issued a Recommended Order which found that Mr. Long should be dismissed from the school system on the grounds of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency.
On March 18, 1992, the School Board of Dade County adopted the Recommended Order and dismissed Mr. Long from his employment with the school system upon the grounds set forth in the Recommended Order.
Mr. Long failed to provide a proper or even minimal education to his students during the 1989-1990 and 1990-1991 school years.
School staff and parents in the community were well aware of Mr. Long's poor performance as a teacher.
All of Mr. Long's fifth grade team members had little confidence in his performance, and did not want to work with him again.
The School Board gave Mr. Long an opportunity for rehabilitation and a chance to return to the classroom, upon his return Mr. Long continued to engage in inappropriate behavior.
Dr. Patrick Gray is qualified as an expert in performance appraisal, personnel management and professional ethics in the field of education.
Based upon his experience, knowledge of Education Practices Commission precedent, and evaluation of the facts of the case, Dr. Gray recommended that Mr. Long's teaching certificate be suspended or revoked for a minimum of three years, followed by a probationary period with quarterly reporting, random drug testing, and coursework in the area of his deficiencies.
The recommendation of revocation was supported by Dr. Joyce Annunziata, Director for the Office of Professional Standards for the School Board of Dade County.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties pursuant to Section 120.57(1), Florida Statutes (1991).
The Commissioner of Education has the burden of proof in this proceeding. Where an agency seeks to revoke a professional license, the evidence must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). See also, Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983); and Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988).
The School Board of Dade County was only required to prove its case for dismissal by a preponderance of the evidence. See Ferris v. Austin, 487 So.2d 1163 (Fla. 1986). Based upon testimony, exhibits, and transcripts of the district termination hearing, the Commissioner's burden of clear and convincing evidence has also been met. Mr. Long is guilty of the misconduct alleged in the Administrative Complaint. The testimony of individuals who were in the best position to observe his behavior, the members of the fifth grade teaching team, has proved that Mr. Long exhibited a consistent pattern of unprofessionalism. Administrators at his school and on the district level also provided sufficient and compelling evidence about Mr. Long's conduct and its effect upon the district.
The Education Practices Commission has final order authority in all cases involving the revocation and suspension of certificates of teachers and school administrators. Section 231.261(8)(b), Florida Statutes. See also, Section 120.52(1)(c), Florida Statutes.
Section 231.28, Florida Statutes, provides, in pertinent part:
The Education Practices Commission shall have authority to suspend the teaching certificate of any person as defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke the teaching certificate of any person, thereby denying that person the right to teach for a period of time not to exceed
10 years, with reinstatement subject to the provisions of subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:
* * *
(c) Has been guilty of gross immorality or an act involving moral turpitude;
* * *
(f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the school board;
* * *
(h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.
Rule 6B-1.006(3)(a), Florida Administrative Code, provides, in pertinent part:
Obligation to the student requires that the individual:
shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
The Commissioner has proven that William Long has been guilty of gross immorality or an act involving moral turpitude, in violation of Section 231.28(1)(c), Florida Statutes. "Immorality" and "moral turpitude" are defined in the following manner in Rule 6B-4.009(2)(6), Florida Administrative Code:
(2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education professional into public disgrace or disrespect and impair the individual's service to the community.
* * *
(6) Moral turpitude is a crime that is evidences by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
Rule 6B-4.009, Florida Administrative Code, was promulgated under Section 231.36, Florida Statutes, as a guideline to a district dismissal proceeding. Even though the rule is not binding here, it does provide guidance as to the meaning of immorality and moral turpitude.
The public expects an educator to perform his duties in a competent and professional manner. Mr. Long did not. He failed to provide his students an adequate education and was a detriment to his team colleagues. He lied to school administrators when he was in jail in an attempt to use such leave to which he was not entitled. His lack of professionalism was a serious violation of community standards. His conduct brought both himself and the teaching profession into disrespect, as evidenced by the concerns expressed by parents.
"[T]eachers are charged by Sections 231.09 and 231.28(1), Florida Statutes, with providing leadership and maintaining effectiveness as teachers. By virtue of their leadership capacity, teachers are traditionally held to a high moral standard in the community." Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA, 1981). Mr. Long's lack of effectiveness and professionalism fell below those expectations.
The Commissioner has proven by clear and convincing evidence that Mr. Long is guilty of personal conduct which seriously reduced his effectiveness as
an employee of the school board, in violation of Section 231.28(1)(f), Florida Statutes.
Mr. Long persistently failed to fulfill his duties as a teacher, in the classroom and as a member of the teaching profession. He failed to teach, was often absent or late, fell asleep in class, engaged in antics in front of students, disrupted other classes, and failed to supervise his classes. He did not keep adequate records of student progress or make appropriate lesson plans despite repeated instructions to do so, which created serious problems for the other teachers in the fifth grade team and for substitutes.
Mr. Long's behavior resulted in considerable parental concern about his fitness as a teacher. His fellow teachers and supervisors received frequent complaints and requests for transfers.
Mr. Long was initially warned of the inappropriateness of his behavior, removed form the classroom setting, and given the opportunity to rehabilitate himself. Upon his return to the classroom, he engaged in the same behavior, and after four months of unimproved conduct, was removed again. Such conduct, after a specific warning and chance to improve, shows a serious breach of responsibility to his students and to the School Board.
Mr. Long's failure to follow numerous administrative directives, his positive test for cocaine while on duty, and his lie that he had to attend a funeral when in fact he was in jail, all demonstrate further damage to his effectiveness as an employee. He was guilty of both insubordination and dishonesty.
Termination of an employee is the most serious action a district can take against an employee. Mr. Long's loss of effectiveness is best illustrate by the dismissal action filed by the School Board of Dade County. The School Board charged Mr. Long with gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency, and a Hearing Officer upheld those charges. The district fired Mr. Long, and will not hire him back. His effectiveness in that community has been permanently lost.
The Commissioner has proven by clear and convincing evidence that William Long has violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate, in violation of Section 231.28(1)(h), Florida Statutes.
The Commissioner has proven by clear and convincing evidence that William Long has failed to make a reasonable effort to protect students from conditions harmful to learning or to health or safety, in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code. Essentially, he paid little attention to the education and care of his students.
Mr. Long's misconduct clearly harmed his students' learning opportunities. His unusual and distracting behavior and tendency to fall asleep set a poor example. Perhaps the poorest example of all was his using a straw in front of students as if inhaling cocaine. His lack of supervision led to disruptive behavior. His failure to make lesson plans, attend parent conferences, keep record of student work and record grades put students at a disadvantage in that their progress and abilities were not properly assessed.
He did not teach.
Mr. Long's actions also theatened students' health and safety.
Leaving a class unsupervised could have led to an injury or other incident which can happen quickly without a responsible adult present. That no unfortunate incidents occurred does not excuse his actions.
The Commissioner has proven by clear and convincing evidence that Mr. Long has breached several of the statutory duties required of educators. Revocation of his certificate is an appropriate penalty. Over two school years, Mr. Long's performance was unacceptable and seriously detrimental to his students and coworkers. His employer gave him the chance to rehabilitate himself and he failed. His misconduct was so severe that he was ultimately terminated from his position. The seriousness of the misconduct also warrants a period of revocation.
If Mr. Long does re-enter the teaching profession, he should be placed on probation for a period in order to ensure that he is able to perform the duties of a classroom teacher. College course work in the areas of classroom management and teaching methods should also be required to improve Mr. Long's teaching performance. Random drug testing throughout probation is appropriate given his substance abuse problem.
Based upon the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent, William Long, be found guilty of violating Sections 231.28(1)(c) and 231.28(1)(e), Florida Statutes. It is further recommended that the Education Practices Commission revoke Mr. Long's teaching certificate for three (3) years, and that if he does re-enter the teaching profession as a licensed educator, that he shall be placed on an additional three (3) years of probation with the Education Practices Commission. The terms of the probation shall include the requirement that Mr. Long:
shall make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of his performance, including, but not limited to, compliance with school district rules and other policies governing teacher conduct and of any disciplinary actions imposed upon him by the district;
shall make arrangements for his immediate supervisor to provide the Education Practices Commission with an accurate copy of each written performance evaluation prepared by his supervisor, within ten (10) days of its issuance;
shall perform his assigned duties in a competent professional manner;
shall violate no law and shall fully comply with all school board rules and State Board of Education Rule 6B-1.006; and
shall successfully complete two (2) college level courses, each course being three (3) credit hours, in the areas of classroom management and teaching methods.
During the probationary period, Mr. Long shall submit to random drug testing.
RECOMMENDED in Tallahassee, Leon County, Florida, this 29th day of June 1992.
WILLIAM R. DORSEY, JR.
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 29th day of June 1992.
ENDNOTES
1/ All references to chapters, sections and subsections are to Florida Statutes (1991), unless otherwise stated. All rule references are to Florida Administrative Code (1990).
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-6822
Rulings on Findings proposed by the Department.
With appropriate editing, the Findings of Fact proposed by the Department have been adopted.
Rulings on Findings proposed by Mr. Long.
Adopted in Findings of Fact 1 and 2.
No findings have been made on the truth of these allegations, but the arrests did occur.
Rejected based upon the testimony of other staff members.
Rejected as unnecessary. Although Mr. Long never received an unsatisfactory evaluation, he was not evaluated for 1989-90 and 1990-91 school years because of his frequent absences, not because his performance was good. It is true that Mr. Long was never convicted of a crime. There is proof in the record to establish that he used illegal drugs in the form of the positive test for cocaine and his strange behavior at class. See Finding 21.
While Mr. Long may be attending meetings of Narcotics Anonymous he has had difficulty in following the after care portion of his drug treatment program. See Finding 29.
It is true and that last test Mr. Long had for drug abuse was in January 1990 and is thus more than two years old. Whether he is presently drug free is a more difficult question. I accept that he was drug free at the time of the hearing. He certainly engaged in no bizarre conduct. This does not, however, provide an adequate basis to make a finding, through inference, that if reemployed as a teacher, he would not have a drug problem. But the question here is not whether to anticipate good conduct on Mr. Long's part, but what an appropriate penalty for past misconduct is.
COPIES FURNISHED:
Margaret O'Sullivan, Esquire Department of Education
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
William Du Fresne, Esquire 2929 S.W. 3rd Avenue Suite One
Miami, Florida 33129
Karen Barr Wilde Executive Director
301 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08
Tallahassee, Florida 32399-0400
Jerry Moore, Administrator Professional Practices Services
352 Florida Education Center,
325 West Gaines Street Tallahassee, Florida 32399-0400
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.
| Issue Date | Proceedings |
|---|---|
| Sep. 15, 1992 | Final Order filed. |
| Jun. 29, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 5-21-92. |
| Jun. 25, 1992 | Respondent's Proposed Recommended Order filed. |
| Jun. 18, 1992 | (Petitioner) Proposed Recommended Order (unsigned) filed. |
| Jun. 08, 1992 | Transcript of Proceedings filed. |
| May 29, 1992 | CC Exhibits filed. (From Margaret E. O`Sullivan) |
| May 21, 1992 | CASE STATUS: Hearing Held. |
| Apr. 21, 1992 | Respondent's Answers to Request for Admissions; Response to Request for Production filed. |
| Apr. 09, 1992 | (Petitioner) Request for Production; Notice of Service of Interrogatories; Petitioner`s First Request for Admissions by Respondent filed. |
| Apr. 08, 1992 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 5-21-92; 12:00pm (noon); Miami) |
| Apr. 07, 1992 | (Petitioner) Motion to Continue filed. |
| Feb. 07, 1992 | Re-Notice of Hearing sent out. (hearing set for April 14, 1992; 1:00pm; Miami). |
| Jan. 22, 1992 | (Joint) Conflict in Stipulation for Resetting the Final Hearing filed. |
| Dec. 11, 1991 | Notice of Hearing sent out. (hearing set for March 4, 1992; 12:00 noon; Miami). |
| Nov. 13, 1991 | (Petitioner) Response to Initial Order filed. |
| Oct. 31, 1991 | Initial Order issued. |
| Oct. 28, 1991 | Agency referral letter; Letter to EPC from W. Du Fresne (re: notice of counsel); Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 02, 1992 | Agency Final Order | |
| Jun. 29, 1992 | Recommended Order | Teaching certificate revoked for three years for cocaine use, absenteeism, failure to teach and engaging in bizarre behavior in class. |
