STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRADFORD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3643

)

DEWEY B. MCKINNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 15, 1992, in Starke, Florida.

APPEARANCES

For Petitioner: William P. Cervoe, Esquire

Jones, Carter & Singer 912 Northeast 2d Street

Gainesville, Florida 32602

For Respondent: Terence M. Brown, Esquire

Post Office Box 40

Starke, Florida 32091-0040 STATEMENT OF THE ISSUES

Whether the Petitioner, the Bradford County School Board, may terminate Respondent, Dewey McKinney, from employment with the Bradford County School Board?

PRELIMINARY STATEMENT

On or about April 6, 1992, the Superintendent of Bradford County Schools (hereinafter referred to as the "Superintendent"), notified the Respondent, Dewey McKinney, that the Superintendent was filing a Petition for Suspension with the Petitioner, the Bradford County School Board (hereinafter referred to as the "School Board"), seeking suspension of Mr. McKinney's employment with the School Board. On or about April 14, 1992, the School Board entered an Intermediate Order approving the Petition for Suspension.

On or about May 1, 1992, Mr. McKinney served Respondent's Answer, Affirmative Defenses, and Request for Administrative Hearing with the School Board contesting the School Board's actions. On June 10, 1992, the School Board entered an Amended Petition for Suspension and/or Dismissal. The request for administrative hearing was filed with the Division of Administrative Hearings by the Superintendent on June 19, 1992.

On or about August 6, 1992, Betty Castor, as Commissioner of Education, filed a request for an administrative hearing on an Administrative Complaint filed against Mr. McKinney seeking to discipline his Florida teaching certificate. That case was designated case number 92-4799.

The final hearing of this case was originally scheduled for August 18, 1992, by Notice of Hearing entered July 28, 1992. On September 18, 1992, an Order was entered denying a motion to consolidate this case with case number 92- 4799. Pursuant to the September 18, 1992, Order, the hearing of this case was to be conducted immediately before, and separately from, the hearing in case number 92-4799.

On December 11, 1992, the School Board filed a Pre-Hearing Stipulation entered into by the parties. To the extent that there are relevant stipulated facts in the stipulation, they have been incorporated into this Recommended Order.

At the final hearing the School Board presented the testimony of Lula M. Thornton, Edna Allen and Finley J. Duncan. No exhibits were offered by the School Board.

Mr. McKinney presented the testimony of Arthur R. Gaskins, Steven W. McLeod, David E. Tew, Finley J. Duncan, Benjamin P. Bryant and John A. Mazzella. Mr. McKinney also offered nine exhibits which were accepted into evidence.

At the final hearing the parties requested, and were given, permission to file their proposed recommended orders within twenty days after the transcript was filed. The transcript of the hearing was filed on January 26, 1993.

Therefore, proposed recommended orders were to be filed on or before February 10, 1993. On February 9, 1993, at the request of the Petitioner in case number 92-4799, an Order Extending Time to File Proposed Recommended Order was entered extending the time to file proposed recommended orders until February 25, 1993. On March 8, 1993, a Second Order Granting Motion to Extend Time to File Proposed Recommended Order was entered granting Mr. McKinney's request that the time for filing proposed recommended orders be extended until March 5, 1993.

On March 12, 1993, the School Board filed a proposed recommended order containing proposed findings of fact. On March 22, 1993, Mr. McKinney filed a proposed recommended order. Although both proposed recommended orders are late, in light of the fact that neither party has objected to the late filed proposed recommended order of the other, both proposed recommended orders have been considered in this case. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

approximately nineteen years, including the period from approximately November, 1988, to October 14, 1991. Mr. McKinney previously served as an assistant

principal for four years. Mr. McKinney was employed as "principal" pursuant to a Continuing Contract of Employment for Instructional Personnel of the Public Schools entered into between Mr. McKinney and the School Board on or about March 5, 1974. Respondent's exhibit 8.

1. At all times relevant to this proceeding, Mr. McKinney was employed by the School Board. The evidence failed to prove that the School Board has taken any other disciplinary action against Mr. McKinney.

   
   

   1. Mr. McKinney's Requests to Lula Marie Thornton for Prescription Drugs.

      
      

2. Lula Marie Thornton was hired in 1976 by Mr. McKinney as school secretary at Starke Elementary School. Ms. Thornton worked for Mr. McKinney from 1976 to 1977 and from 1988 until 1991.

   
   

3. In September or October, 1989, Ms. Thornton fractured her elbow.

   
   

4. Ms. Thornton's physician prescribed Tylenol III, which contains codeine, a controlled substance.

   
   

5. Ms. Thornton took the Tylenol III to school with her the day after injuring her arm in case the pain became severe.

   
   

6. Mr. McKinney noticed Ms. Thornton's injury and inquired about it. Mr. McKinney specifically asked Ms. Thornton what medications her physician had prescribed. Ms. Thornton told Mr. McKinney that she had been prescribed Tylenol III and showed him the prescription bottle.

   
   

7. Mr. McKinney told Ms. Thornton that he had been experiencing severe headaches at night. Mr. McKinney asked Ms. Thornton if he could take a couple of her Tylenol III pills so that he could take them at night to help him sleep. Mr. McKinney also told Ms. Thornton that he had taken Tylenol III for his headaches before. Ms. Thornton was aware that Mr. McKinney had a history of migraine headaches and that he took prescription medication.

   
   

8. Ms. Thornton acquiesced to Mr. McKinney's request and Mr. McKinney took a couple of the pills from the bottle. Ms. Thornton did not see Mr. McKinney take any of the pills she gave him.

   
   

9. Ms. Thornton was aware that it was improper to give the prescription medication to Mr. McKinney. Even so, she gave him the pills because he was her boss and she considered him a friend. Mr. McKinney was Ms. Thornton's immediate supervisor and Ms. Thornton knew he would have a great deal of influence in the decision of the Superintendent as to whether her annual employment contract was renewed. She also knew that Mr. McKinney signed her annual contract. Consequently, she did not refuse Mr. McKinney's request.

   
   

10. Because Ms. Thornton was aware that it was improper to give another person her prescription medications, Ms. Thornton felt very uncomfortable about Mr. McKinney's request and her acquiescence to his request. She did not take the medication back to school after this incident.

    
    

11. A couple of nights after Ms. Thornton allowed Mr. McKinney to take some of the Tylenol III, Mr. McKinney telephoned her at her home. This was the first time that Mr. McKinney had ever telephoned Ms. Thornton at her home.

12. Mr. McKinney informed Ms. Thornton that he was experiencing severe headaches, that Tylenol III helped him sleep and asked her whether she still had any of her Tylenol III left. Ms. Thornton told Mr. McKinney that she had some of the medication left.

    
    

13. Mr. McKinney then asked Ms. Thornton if she would bring him some of Tylenol III the next day. Despite the fact that Ms. Thornton believed that it was wrong to give anyone else her prescription medications, she told Mr. McKinney that she would bring him some of her Tylenol III.

    
    

14. Ms. Thornton again acquiesced to Mr. McKinney's request because he was her immediate supervisor. She felt very uncomfortable, however, with Mr. McKinney's request.

    
    

15. The next morning, Ms. Thornton intentionally left the Tylenol III at home and told Mr. McKinney that she had forgotten to bring it. Mr. McKinney replied, "okay." Lying to Mr. McKinney made her feel very uncomfortable.

    
    

16. In both incidents, Ms. Thornton was concerned about the possibility of losing her job if she refused Mr. McKinney's request. She was also aware that it was improper to give Mr. McKinney drugs that had been prescribed for her use. These mixed feelings, brought on by Mr. McKinney's requests, caused Ms. Thornton to feel uncomfortable, nervous and upset.

    
    

17. Mr. McKinney did not request medication from Ms. Thornton at any other time not reflected in the foregoing findings of fact. Nor did Mr. McKinney act aggravated or express any displeasure toward Ms. Thornton.

    
    

    1. Mr. McKinney's Requests to Edna Allen for Prescription Drugs.

       
       

18. Edna Allen has been employed at Starke Elementary School since 1970. She worked in the same general area as Ms. Thornton. During 1991, Ms. Allen's immediate supervisor was Mr. McKinney.

    
    

19. In April or May, 1991, Ms. Allen went to the dentist because of an abscessed tooth. The dentist prescribed a controlled substance, hydrocodone, to relieve Ms. Allen's pain.

    
    

20. After receiving the pain medication, Ms. Allen was explaining her dental problem to Ms. Thornton and Geraldine Tomlinson, a clerical employee at Starke Elementary School. Ms. Allen told Ms. Thornton and Ms. Tomlinson what medication she had been given and showed them the bottle. Mr. McKinney was in the same room at the time that Ms. Allen was talking to Ms. Thornton and Ms. Tomlinson.

    
    

21. After returning to her desk, Ms. Allen noticed Mr. McKinney come into her area and go into a closet where student awards were kept. Mr. McKinney made several trips in and out of the area. Ms. Allen had not seen Mr. McKinney go into the closet before and she became nervous.

    
    

22. After making several trips into the closet, Mr. McKinney stopped at Ms. Allen's desk. He began to tell her that he had a severe headache and asked her for some of her pain pills. Ms. Allen acquiesced and gave him four pills.

    
    

23. Ms. Allen felt very nervous and upset over Mr. McKinney's request for her prescription medication. She knew that it was wrong to give him the pills

    but she also knew that he was her boss. Ms. Allen was worried about the possible adverse consequences to her employment and her evaluations if she declined to give Mr. McKinney the pills.

    
    

24. Ms. Allen told Ms. Thornton and Ms. Tomlinson about the incident. They told Ms. Allen that she should not bring prescription pain medication to the office because of Mr. McKinney. Therefore, Ms. Allen only brought one pill with her the next day in her purse.

    
    

25. The next morning, Mr. McKinney again asked Ms. Allen for some of her pain pills. Ms. Allen lied to Mr. McKinney and told him that she had not brought any medication with her. Ms. Allen felt very upset and nervous as a result of Mr. McKinney's request.

    
    

26. The foregoing events caused Ms. Allen to be distracted from performing her job fully for a day or two.

    
    

27. Other than the incidents described in the foregoing findings of fact, Mr. McKinney did not ask Ms. Allen for any medications.

    
    

    1. Mr. McKinney's Removal as Principal of Starke Elementary School.

       
       

28. In the fall of 1991, medications maintained for students at Starke Elementary School were tampered with. As a result of this incident, and the fact that Mr. McKinney was the Principal, Finley J. Duncan, Superintendent of Bradford County Schools from January, 1985, until November, 1992, recommended to the School Board that Mr. McKinney be transferred to Bradford High School as Assistant Principal. At the time of this recommendation, Mr. Duncan believed that Mr. McKinney could meet the responsibilities of assistant principal.

    
    

29. Mr. Duncan's recommendation to the School Board was rejected. Mr. Duncan then decided, and Mr. McKinney agreed, that Mr. McKinney should be transferred to the position of Director of General Services, the position that Mr. Duncan currently holds. This agreement between Mr. Duncan and Mr. McKinney was intended to resolve the matter involving the missing medications. It was not intended, however, to resolve any of the charges which are the subject of this proceeding.

    
    

30. At the time of Mr. Duncan's recommendation to the School Board that Mr. McKinney be assigned as an assistant principal, Mr. Duncan had been told of accusations against Mr. McKinney concerning requests for medications from coworkers. Assistant Superintendent of Bradford County Schools, Wayne McLeod, had reported to Mr. Duncan that he had been hearing comments concerning Mr. McKinney requesting medications from coworkers. Mr. Duncan, however, took the position that he had no direct evidence that Mr. McKinney had requested medications from coworkers, i.e., no person told him that they had been asked for medications. Consequently, Mr. Duncan did not take any action against Mr. McKinney.

    
    

31. While the information that Mr. Duncan had received concerning Mr. McKinney may have been sufficient to warrant further investigation, the evidence failed to prove that any information concerning Mr. McKinney's possible solicitation of medications should have been relied upon by Mr. Duncan to take any action against Mr. McKinney. Nor did the evidence prove that Mr. Duncan, in deciding that Mr. McKinney could effectively fulfill the responsibilities of the

    position of Director of General Services in the fall of 1991, should have considered the rumors concerning Mr. McKinney.

    
    

    1. Mr. McKinney's Arrest and Suspension by the School Board.

       
       

32. In March, 1992, Mr. Duncan learned from the State Attorney's Office of an investigation of Mr. McKinney. This was the first time that Mr. Duncan learned of the requests for medications from Mr. McKinney to Ms. Thornton and Ms. Allen.

    
    

33. On or about April 1, 1992, Mr. McKinney was arrested and charged by information in the Circuit Court for Bradford County with twelve felony counts. Two of those counts involved Mr. McKinney's request for prescription drugs from Ms. Thornton and Ms. Allen. The other counts related to alleged incidents which are not a part of the School Board's charges in this case.

    
    

34. As a result of the charges against Mr. McKinney, and in particular, the two counts involving Ms. Thornton and Ms. Allen, Mr. Duncan filed a petition in April, 1992, with the School Board seeking to suspend Mr. McKinney as an employee of the School Board. The petition was amended in June, 1992, to seek Mr. McKinney's dismissal from employment with the School Board.

    
    

35. In particular, Mr. Duncan recommended Mr. McKinney's dismissal due to events described in findings of fact 4-20 and 21-30.

    
    

    1. The Impact of Mr. McKinney's Actions on His Ability to Perform His Duties Effectively.

    
    

36. While serving as Principal and as Director of General Services, Mr. McKinney received relatively high ratings for his performance. Those ratings, however, did not take into account the specific actions which are the subject of this proceeding.

    
    

37. Mr. Duncan made several statements during his testimony which, if considered alone, may indicate that his recommendation that Mr. McKinney be dismissed and his opinion's concerning whether Mr. McKinney can effectively continue to work for the School Board, is based upon the total number of felony counts Mr. McKinney has been charged with. Mr. Duncan's testimony must be considered as a whole, however. A consideration of all of Mr. Duncan's testimony does not support a finding that his opinions concerning Mr. McKinney's effectiveness are based upon the total number of felony counts Mr. McKinney was charged with. Based upon all of Mr. Duncan's testimony, Mr. Duncan has recommended Mr. McKinney's dismissal, and has concluded that Mr. McKinney can no longer effectively carry out his responsibilities with the School Board because of the events involving Ms. Thornton and Ms. Allen, as described in the amended petition.

    
    

38. Mr. McKinney's actions, as described in findings of fact 4-30, involve improper solicitation of controlled substances, placed subordinate employees in an untenable position and constitute the improper use of Mr. McKinney's position and power for his own personal gain.

    
    

39. Based upon the nature of the events described in findings of fact 4- 30, Mr. McKinney requested that Ms. Thornton and Ms. Allen, persons under his immediate supervision, provide him with controlled substances in possible violation of criminal laws of the State of Florida. These actions have

    detrimentally impacted Mr. McKinney's ability to have effective working relationships with persons under his supervision.

    
    

40. The community's awareness of Mr. McKinney's actions with Ms. Thornton and Ms. Allen as a result of the smallness of the community, has detrimentally impacted Mr. McKinney's ability to effectively work for the School Board. Mr. McKinney has caused public disrespect for himself and the education profession.

    
    

41. Mr. McKinney's effectiveness as a principal and administrator for the School Board has been impaired as a result of the acts described in findings of fact 4-30.

    
    

    CONCLUSIONS OF LAW

    
    

    1. Jurisdiction.

       
       

42. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1992 Supp.).

    
    

    1. The School Board's Charges.

       
       

43. The School Board has alleged that Mr. McKinney has violated Section 231.36(4)(c) (and Sections 777.04(2), and 893.03(2)(a), Florida Statutes), Florida Statutes and Rules 6B-1.001 and 6B-1.006, Florida Administrative Code.

    
    

    1. Burden of Proof.

       
       

44. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    249 (Fla. 1st DCA 1977).

    
    

45. In this proceeding it is the School Board that is asserting the affirmative. Therefore, the burden of proving the elements of Mr. McKinney's alleged violation was on the School Board. The evidence in support of the School Board's charges must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

    1. Section 231.36(4)(c), Florida Statutes.

       
       

46. Section 231.36(4)(c), Florida Statutes, provides, in pertinent part, the following:

    
    

    (c) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office . . . .

47. The term "immorality" is defined in Rule 6B-4.009(2), Florida Administrative Code, as follows:

    
    

    (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 profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

48. Mr. McKinney has not disputed that he requested prescription medications which contained controlled substances from Ms. Thornton and Ms. Allen. He also has not disputed that his actions were wrong and, perhaps, even illegal. Mr. McKinney has asserted, however, that the evidence failed to prove that his actions were "sufficiently notorious to bring [him] or the education profession into public disgrace or disrespect and impair [his] service in the community."

    
    

49. In determining whether Mr. McKinney's actions constitute "immorality" it is difficult to distinguish the extent of the notoriety caused by the specific incidents involving Ms. Thornton and Ms. Allen from the notoriety caused by the fact that Mr. McKinney was charged with ten other felony counts. There is little doubt that the fact that Mr. McKinney was charged with other criminal matters which are not part of the charges by the School Board against Mr. McKinney has impacted the community's opinion of Mr. McKinney. However, it is the incidents involving Ms. Thornton and Ms. Allen, and those incidents alone, that have been considered in determining whether Mr. McKinney's actions were "sufficiently notorious to bring [him] or the education profession into public disgrace or disrespect and impair [his] service in the community."

    
    

50. The testimony of Mr. Duncan, when considered as a whole, causes the undersigned to conclude that the actions that form the basis for the School Board's suspension and proposed dismissal of Mr. McKinney constitute immorality as defined in Rule 6B-4.009(2), Florida Administrative Code. Those acts, which Mr. McKinney has admitted committing, involved probable criminal conduct by Mr. McKinney--the solicitation of controlled substances. Mr. McKinney's actions also involved the use of his position for his own personal gain and the placing of subordinates in an untenable and uncomfortable position--to obey the law but refuse a request of their boss. The public's awareness of these actions as a result of the criminal charges against Mr. McKinney and the School Board's action in suspending Mr. McKinney and instituting this proceeding supports Mr. Duncan's testimony that Mr. McKinney and the education profession have been publicly disgraced and that Mr. McKinney's service in the community pursuant to his contract of employment with the School Board has been impaired.

    
    

51. "Misconduct in office" is defined in Rule 6B-4.009(3), Florida Administrative Code, as follows:

    
    

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F. A. C., and the Principles of Professional Conduct for the Education

    Profession in Florida as adopted in Rule 6B-1.006, F. A. C., which is so serious as

    to impair the individual's effectiveness in the school system.

    
    

52. The evidence in this case supports a conclusion that Mr. McKinney's actions violated the Code of Ethics of the Education Profession in Florida, Rule 6B-1.001, Florida Administrative Code. Mr. McKinney has failed to "seek to exercise the best professional judgment and integrity" as required by Rule 6B- 1.001(2), Florida Administrative Code. Mr. McKinney also has failed to strive "to achieve and sustain the highest ethical conduct" as required by Rule 6B- 1.001(3), Florida Administrative Code.

    
    

53. The evidence also supports a conclusion that Mr. McKinney's actions violated Principles of Professional Conduct for the Education Profession in Florida, Rule 6B-1.006, Florida Administrative Code. In particular, Mr. McKinney violated Rule 6B-1.006(4)(c), Florida Administrative Code, by using "institutional privileges for personal gain or advantage."

    
    

54. Mr. McKinney used his position as Principal of Starke Elementary School and his authority as supervisor of two subordinate employees to obtain prescription medications for his own personal use. In so doing, Mr. McKinney caused his employees to violate state law and to lie to him. He placed his employees in an uncomfortable position, causing them to fear for their jobs.

    
    

55. As discussed in conclusions of law 52 and 53, Mr. McKinney's actions impaired his effectiveness in the school system.

    
    

    1. Is the School Board Barred from Seeking Mr. McKinney's Termination from Employment?

       
       

56. In the Pre-hearing Stipulation filed by the parties, Mr. McKinney asserted that the School Board is barred from pursing his termination from employment because the School Board "knew of such matters at remote times to the filing of the instant Petition and failed to act thereupon . . . " and because "an agreement not to proceed by way of the instant Petition was entered into . .

    . ." The evidence failed to support these arguments.

    
    

57. The evidence failed to prove that any agreement was entered between the School Board and Mr. McKinney concerning the instant action. In Mr. McKinney's proposed recommended order in this case, even Mr. McKinney admits that [t]he evidence is unclear as to whether the parties ever reached an agreement that [the action of the School Board in transferring Mr. McKinney from his position as Principal of Starke Elementary School to the district office and requiring Mr. McKinney to obtain drug counseling and random drug testing] would be the discipline for the charges contained in the petition." In fact, the evidence is not unclear. What is clear is that no such agreement was reached.

    
    

58. The evidence also proved that, to the extent that any agreement was reached between the School Board and Mr. McKinney, such an agreement related to events for which the School Board has not relied upon to seek Mr. McKinney's dismissal. The actions which gave rise to Mr. McKinney's reassignment related to missing student medications. Those events are not a part of the charges against Mr. McKinney in this proceeding.

    
    

59. The evidence also established that, although the Superintendent of the school system may have had reason to investigate Mr. McKinney to determine

whether hearsay concerning his solicitation of prescription medications was correct, the Superintendent did not have knowledge of the specific charges at issue in this proceeding until after Mr. McKinney was charged with criminal violations.

63 Additionally, Mr. McKinney has cited no authority which support a conclusion that, had the School Board had prior knowledge of the acts at issue in this proceeding and failed to take immediate action against Mr. McKinney, that the School Board should now be barred from seeking Mr. McKinney's dismissal.

1. Appropriate Penalty.

1. Section 231.36(4)(c), Florida Statutes, specifically authorizes the suspension and termination from employment of any principal under continuing contract who is determined to have committed acts of immorality or misconduct in office. Mr. McKinney, however, has argued that his actions do not warrant termination.

   
   

2. Mr. McKinney has a long record of satisfactory to above-satisfactory service as a teacher and administrator. The events for which he has been charged are limited in scope. The solicitation of medication from Ms. Allen did not occur until more than two years after his solicitation of medication from Ms. Thornton. These factors mitigate against Mr. McKinney's termination from employment.

   
   

3. On the other hand, Mr. McKinney's actions placed his own well-being over that of subordinate employees, no matter how briefly, and constituted an abuse of the power and trust placed in him by the School Board. Mr. McKinney has shown a lack of consideration for his subordinate employees and the laws of this State.

   
   

4. Most importantly, Mr. McKinney's actions involve the misuse and illegal solicitation of controlled substances. This case does not involve a request for over-the-counter pain killers or even general prescription drugs. This case involves the solicitation of controlled substances by the principal of an elementary school at the school. In another environment, one which does not involve the education of children, Mr. McKinney's actions may be viewed less harshly. But as the principal of an elementary school, Mr. McKinney's solicitation of controlled substances is unacceptable.

   
   

5. Mr. McKinney has suggested that his medical history "significantly mitigates any apparent turpitude of the acknowledged misconduct." This suggestion is rejected. While Mr. McKinney's medical history may explain why he acted as he did, his medical history in no way reduces his responsibility for his actions or the inappropriateness for his behavior.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Bradford County School Board enter a Final Order

upholding Dewey McKinney's suspension from employment with the School Board and terminating Mr. McKinney's contract for employment as a Principal with the School Board.

DONE AND ENTERED this 1st day of April, 1993, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1993.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

School Board's Proposed Findings of Fact

The School Board did not designate or identify its proposed findings of fact in the proposed recommended order filed by the School Board. Nor did the School Board number its proposed findings of fact. It appears, however, that the School Board's proposed findings of fact begin with the first full paragraph on page 3 and end on page 8 of the School Board's proposed recommended order.

Beginning on page 3 of the School Board's proposed recommended order, each paragraph has been numbered sequentially with the first full paragraph on page 3 being treated as proposed finding of fact number 1:

1. Accepted in 4-13.

2. Accepted in 14-20.

3. Accepted in 12-13 and 17-19. The first sentence is hereby accepted.

4. Accepted in 21-30.

5. Accepted in 33-35 and 41-44.

6-10 These proposed findings of fact contain a generally correct summary of testimony of the witnesses referred to in these paragraphs. Although the testimony of the witnesses called by Mr. McKinney add some support to a finding that Mr. McKinney's effectiveness in the community has not been impaired, the weight of the evidence failed to support such a finding.

Mr. McKinney's Proposed Findings of Fact

1 Accepted in 2-4 and 39. 2 See 4-20 and 21-30.

1. Accepted in 6-10.

2. Accepted in 12-13. The second sentence is not

   relevant.

3. Accepted in 10. Why, however, would Mr. McKinney ask for the medications if he did not take them. The fact that Ms. Thornton did not actually see Mr. McKinney take the medications is of little consequence.

4. Accepted in 14-18.

5. Accepted in 18 and 20.

6. Hereby accepted.

7. Not supported by the weight of the evidence. What Ms. Thornton "may" have done is too speculative to be given any weight.

8. Not relevant. Ms. Thornton did not testify that she had been asked to give coworkers controlled substances as Mr. McKinney did. Giving a coworker a Tylenol obtained over-the-counter is not comparable to giving a coworker a prescription medication containing a controlled substance.

9. Hereby accepted.

10. Although these proposed findings of fact are generally true, they are not dispositive of the issue. The weight of the evidence concerning Mr. McKinney's effectiveness proved that Mr. McKinney's effectiveness has been impaired.

11. Accepted in 21-30.

12. Accepted in 26.

13. Accepted in 28 and 30.

14. Accepted in 31-33.

15. See 35-38. The last four sentences do not consider Mr. Duncan's testimony as a whole. See 40.

16. Although these proposed findings of fact are generally true, they are not dispositive of the issue. The weight of the evidence concerning Mr. McKinney's effectiveness proved that Mr. McKinney's effectiveness has been impaired.

17. See 40.

18. Not supported by the weight of the evidence.

19. Testimony taken out of context.

20. Hereby accepted.

21. Accepted in 31-32.

22. See 31-34. The second sentence is not supported by the weight of the evidence.

23. Accepted in 32.

24. Hereby accepted.

25. Accepted in 32 and 40. The last sentence is not supported by the weight of the evidence.

26. Not supported by the weight of the evidence.

29-33 These proposed findings of fact are a generally correct summary of the testimony of the several witnesses called by Mr. McKinney. Although the testimony of the witnesses called by Mr. McKinney add some support to a finding that Mr. McKinney's effectiveness in the community has not been impaired, the weight of the evidence failed to support such a finding.

1. Accepted in 39.

2. See 32.

3. Not relevant. The last sentence is not supported by the weight of the evidence.

4. Not relevant.

5. Not relevant and not supported by the weight of the evidence.

6. Argument. Not supported by the weight of the evidence.

COPIES FURNISHED:

JoAnn Rowe, Superintendent Bradford County Schools

582 N. Temple Avenue Starke, Florida 32091

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Sydney H. McKenzie, Esquire General Counsel

Department of Education The Capitol

Tallahassee, Florida 32399-0400

William P. Cervone, Esquire Post Office Box 1526 Gainesville, Florida 32602

Terence M. Brown, Esquire Post Office Box 40

Starke, Florida 32091-0040

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: 92-003643

Orders for Case No: 92-003643