STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4972

)

RODNEY SNYDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on November 17, 1993 in Largo, Florida.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Pinellas County School Board

301 4th Street, South West Largo, Florida 34649-2942

For Respondent: Lawrence D. Black, Esquire

650 Seminole Boulevard

Largo, Florida 34640-3625 STATEMENT OF THE ISSUE

Whether the Respondent's employment as a teacher with the Pinellas County School Board should be terminated based on the misconduct alleged in the School Superintendent's letter of August 17, 1993, as amended by the School Superintendent's letter of September 17, 1993.

PRELIMINARY STATEMENT

The Superintendent of Public Schools for Pinellas County, Florida, J. Howard Hinesley, Ed.D. (Superintendent) advised the Respondent, Rodney Snyder, by letter dated August 17, 1993, that the Respondent was suspended with pay effective August 19, 1993, and that the Superintendent intended to recommend to the School Board of Pinellas County, Florida (Board) at its meeting on September 8, 1993, that the Respondent's suspension be sustained and that Respondent's employment with the Board be terminated effective September 9, 1993. The Superintendent's recommendation was based on the allegations that Respondent had: (a) been arrested on May 24, 1991 for possession of marijuana and fined

$300.00; (b) been arrested for possession of an open container of alcohol in Respondent's vehicle in 1987 and fined $32.00; and (c) falsified Petitioner's PCS Form 1919 dated August 19, 1986, by failing to report Respondent's arrest and adjudication of guilt for disorderly conduct on November 5, 1980. The

letter further advised Respondent that his actions constituted just cause for dismissal pursuant to Section 231.36 (6)(a), Florida Statutes, and that he was entitled to a formal hearing under Chapter 120, Florida Statutes.

The Respondent denied the allegations and by letter dated August 23, 1993, requested a formal hearing under Chapter 120, Florida Statutes. By letter dated August 25, 1993, the Board referred the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a hearing.

By letter dated September 17, 1993, the Superintendent advised the Respondent that the allegation contained in (c) above was incorrect and was amended to show that Respondent had been arrested and fined $32.00 for possessing an open container of alcohol in an area on the beach where an open container of alcohol was prohibited.

At the hearing, the Board presented the testimony of Superintendent, J. Howard Hinesley, James M. Barker, Edward L. Evans and Steve Bolin. The Board's exhibits 1 through 9 were received as evidence in this case. Respondent testified on his own behalf and presented the testimony of Rudy Coffin and Michael Kessinger. Respondent did not offer any documentary evidence.

There was no transcript of this proceeding filed with the Division of Administrative Hearings. The parties timely filed their Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. The Respondent has been, at all times material to this proceeding, employed by the Board as a certified teacher.

2 The Respondent was issued a professional service contract by the Board in accordance with Section 231.36(3)(a), Florida Statutes, and at all times material to this proceeding was employed by the Board under that professional service contract.

1. The Respondent has been employed by the Board as both a Health Teacher and a Coach since 1986. Since the beginning of the 1989-90 school year, the Respondent has taught Health to tenth grade level students at Clearwater High School.

   
   

2. The Board has a strong substance abuse prevention program throughout all of its schools in Pinellas County, Florida.

   
   

3. It was one of Respondent's responsibilities in teaching Health to instruct the students on substance abuse and its prevention.

   
   

4. Respondent has attended workshops on substance abuse prevention presented by the Board while employed as a Health Teacher by the Board.

5. On November 5, 1980, The Respondent was charged with disorderly conduct in violation of an Ordinance (Section 14-33M) of the City of Clearwater and issued a citation (Notice To Appear - Ordinance Violation) instead of being arrested. The citation gave the Respondent the option of appearing in County Court on November 21, 1980 or paying the minimum fine of $27.00. Respondent paid the fine without a court appearance.

   
   

6. On August 19, 1986, the Respondent completed Form PCS-1919, Notice To All New And Rehired Employees and in the section designated for reporting all arrests, citations or convictions on criminal charges the Respondent answered "None", notwithstanding that the form cautioned those reporting to report a citation even if in doubt as to whether the citation was criminal and that failure to report could result in dismissal.

   
   

7. While the Respondent exercised poor judgment in not seeking clarification of this portion of PCS Form 1919, it is clear that the Respondent misunderstood the charge made against him in the citation on November 5, 1980. Respondent considered the charge non-criminal since it was an ordinance violation and he was not arrested.

   
   

8. It was not Respondent's intent to deceive the Board or to submit fraudulent information when he failed to divulge the citation issued against him on November 5, 1980 for disorderly conduct in the PCS Form 1919 dated August 19, 1986.

   
   

9. On January 22, 1987, in an effort to expunge the record in this case, the Court, on Respondent's oral motion, entered an order allowing the Respondent to withdraw his guilty plea. The record does not reveal a plea of guilty being entered by the Respondent per se. Apparently, the court considered paying the fine the same as a guilty plea. The court then allowed the Respondent to enter a plea of nolo contendere whereupon the court entered an order withholding adjudication and placing Respondent on 24 hours probation. The plea and Order were both dated nunc pro tunc, November 14, 1980. The court then entered an order dated January 22, 1987, expunging and sealing the Respondent's criminal records in this case. By order dated September 30, 1993, the court, on a motion by the State of Florida, entered an order unsealing and disseminating the Respondent's criminal history records in this case.

   
   

10. On July 12, 1987, the Respondent was issued a citation for violation of Ordinance 3-5b, St. Petersburg Beach, Florida for having an open container of alcoholic beverage (8 ounces beer in plastic cup) on the public beach where an open container of alcoholic beverages was prohibited. The Respondent was attending a party and several other persons were likewise cited for this same violation. The citation gave the Respondent the option of appearing in court on August 7, 1987 or paying a fine of $32.00 within ten days of the citation. Respondent chose to pay the fine. The Respondent was not arrested. The citation clearly indicated this to be an ordinance violation and not a misdemeanor.

    
    

11. On May 24, 1991, Respondent had, individually, made the decision to disconnect his father from a life support system. After the decision to disconnect, the Respondent, being very depressed, exhibited a human weakness during a troubled time in his life in attempting to overcome his depression by smoking marijuana. While smoking the marijuana in a restaurant parking lot, the Respondent was observed by law enforcement officers and charged with possession of less than 20 grams of marijuana, a misdemeanor, requiring a mandatory court

    appearance. On June 17, 1993, the Respondent entered a plea of nolo contendere to the charge. The court withheld adjudication of guilt and required Respondent to pay court costs in the amount of $300.00.

    
    

12. On June 10, 1993, the Respondent completed an Application For Renewal Of A Professional Florida Educator's Certificate. On Page two, section three, of the application, under the heading "Date of Arrest", the Respondent listed those incidents referred to in Findings of Fact 7, 12 and 13 above.

    
    

13. Because of these admissions by the Respondent, the matter was investigated. After the investigation, the Superintendent advise the Respondent by letter dated August 17, 1993, that he was suspended with pay pending the meeting of the Board on September 8, 1993, and at that time the Superintendent would recommend to the Board that the Respondent's suspension be sustained and his employment with the Board be terminated effective September 9, 1993.

    
    

14. Sometime after the investigation was completed, an article, discussing the incidents surrounding Respondent's recommended dismissal, was published in the St. Petersburg Times. There was no evidence of any other article appearing in the St. Petersburg Times or any other publication where the incidents surrounding Respondent's dismissal were discussed.

    
    

15. The Superintendent received telephone calls from "some parents" expressing their concern over the incidents of Respondent's dismissal reported in the St. Petersburg Times' article. Based on these telephone calls and the fact that the incidents had become known to the public because of the newspaper article, the Superintendent was of the opinion that Respondent's effectiveness in the school system had been impaired.

    
    

16. Robert L. Evans, Principal of Clearwater High School, was also of the opinion that Respondent's effectiveness in the school system had been impaired. Mr. Evans' opinion was based primarily on the effect this matter would have on Respondent teaching a health course that emphasized substance abuse and its prevention where the students were aware that Respondent had been charged with possession of marijuana. Apparently, Mr. Evans had discussed the incidents with the Superintendent and other members of the administrative staff but there was no evidence that Mr. Evans had discussed the incidents with any students, teachers, parents or anyone else in the general public.

    
    

17. Rudy Coffin, a Coach and Health and Driver's Education Teacher, has known Respondent for a number of years. Mr. Coffin discussed the incidents with numerous students at the school and it was his testimony that the consensus of those students was that they understood the circumstances, that the Respondent deserved another chance and they wanted Respondent back teaching. It was Mr. Coffin's opinion that Respondent would use these incidents as a positive teaching message in substance abuse prevention, for example, what not to do, from experience. From his knowledge of the Respondent and his discussion with the students, it was Mr. Coffin's opinion that Respondent's effectiveness in the school system had not been impaired.

    
    

18. Michael Kessinger, a teacher at Clearwater High School, has known Respondent a number of a years and considers Respondent one of the most effective teachers he has known. Respondent has coached Mr. Kessinger's daughter in girl's basketball and Mr. Kessinger would not hesitate to allow Respondent to coach his daughter again. Like Mr. Coffin, Mr. Kessinger feels that Respondent would use these incidents as a positive teaching message in substance abuse. From his knowledge of Respondent and having discussed these

    incidents with students in the school, Mr. Kessinger is of the opinion that the students want Respondent back teaching and that his effectiveness in the school system has not been impaired.

    
    

19. Respondent's colleagues, even Mr. Evans, spoke highly of his past performance, particularly of his ability to work with students on the lower end of the grade scale who are candidates for dropping out of school. Respondent has in the past been instrumental in numerous students staying in school because of his willingness to invest some time with the student to let the student know that he was interested in their situation.

    
    

20. There was no evidence that Respondent's conduct, in and of itself, was so egregious or that the community of Pinellas County thought it so egregious, that it was self evident, without anything more, that such conduct had impaired the Respondent's effectiveness in the school system.

    
    

21. There is competent substantial evidence in the record to establish facts to show that Respondent's effectiveness in the school system has not been impaired, notwithstanding the testimony and opinions of Superintendent Hinesley and Edward Evans to the contrary.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

23. Section 230.23(5)(f), Florida Statutes, grants the school boards of the state of Florida the authority to dismiss, suspend or return to annual contract, members of the instructional staff as provided for in Section 231.36, Florida Statutes.

    
    

24. Section 236.36(6)(a), Florida Statutes, provides that any member of the instructional staff, excluding instructional staff on continuing contracts, may be suspended or dismissed for just cause.

    
    

25. As provided in Section 231.36(1)(a), Florida Statutes, just cause includes misconduct in office, incompetency, gross insubordination, willful neglect of duty or conviction of a crime involving moral turpitude.

    
    

26. In general, Rule 6B-1.001, Florida Administrative Code, titled as the Code of Ethics of the Education Profession in Florida, is aspirational in nature, and in most cases is not susceptible of forming a basis for suspension or dismissal. It is concluded that the Board has failed to prove a violation of this rule by Respondent.

    
    

27. By comparison with the Code of Ethics of the Education Profession in Florida, Rule 6B-1.006, Florida Administrative Code, titled as the Principles of Professional Conduct for the Education Profession in Florida, sets more definite and measurable standards of conduct. Rule 6B-1.006(1) and (5)(i) and (h), Florida Administrative Code, provides as follows:

    
    

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       . . . .

       (5) Obligation to the profession of education requires that the individual:

       . . . .

       1. Shall not submit fraudulent information on any document in connection with professional activities.

       2. Shall not make fraudulent statements or fail to disclose a material fact in one's own or another's application for a professional position.

       
       

28. Rule 6B-4.009(3), Florida Administrative Code, titled as the Criteria for Suspension and Dismissal provides as follows:

    
    

    6B-4.009 Criteria for Suspension and Dismissal. The basis for charges upon which dismissal action against instructional personnel may be pursued as set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    . . . .

    (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, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system. (Emphasis supplied)

    
    

29. Superintendent Hinesley's letters which enumerate the charges against the Respondent, charges that Respondent's conduct constitutes just cause for his dismissal pursuant to Section 231.36(6)(a), Florida Statutes. The alleged misconduct, if proven, would more appropriately constitute a violation Rule 6B- 1.006(5)(h) & (i), Florida Administrative Code, and thereby form the basis for the charge of misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code. However, a violation of that rules is insufficient for the suspension or dismissal of a member of the Board's instructional staff on the charge of misconduct in office, unless such violation is so serious as to impair the individual's effectiveness in the school system. The Board has failed to prove a violation of the above rule. However, assuming arguendo that the Board has proven a violation of the above rule, it has failed to prove that the violation was so serious as to impair the Respondent's effectiveness in the school system.

    
    

30. The burden of proof in proceedings such as these require that the Board prove its allegations by a preponderance of the evidence. Allen v. School Board of Dade County, 571 So.2d 568 (3 DCA Fla. 1990); Dileo v. School Board of Dade County, 569 So.2d 883 (3 DCA Fla. 1990). The Board has failed to sustain this burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Petitioner, Pinellas County School Board enter a Final Order dismissing the charges against the Respondent, reinstating Respondent to his teaching position and granting Respondent back pay to and including September 9, 1993.

DONE AND ENTERED this 23rd day of December, 1993, in Tallahassee, Florida.

WILLIAM R. CAVE

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 23rd day of December, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4972

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact:

1. Proposed findings of fact 1, 2, 6, 8, and 9 are adopted in Findings of Fact 3, 2, 22, 14 and 15, respectively.

2. Proposed finding of fact 3 is adopted in substance in Finding of Fact 7 except that there is no evidence that Respondent was arrested.

3. Proposed finding of fact 4 is adopted in Finding of Fact 8 with the exception of the date the document was completed which appears to be August 19, 1986 rather than August 9, 1986.

4. Proposed finding of fact 5 is rejected in that there was competent substantial evidence to show that document was not falsified. See Finding of Fact 9.

5. Proposed finding of fact 7 is adopted in Finding of Fact 13 with the exception that the record does not show that Respondent was arrested.

6. Proposed finding of fact 10 is covered in the Preliminary Statement.

Respondent's Proposed Findings of Fact:

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1,3); 2(12); 3(7,9,10); 4(13); 5(14); 6(16); 7(17,18 21); 8(22); 9(19,20) and 10(9).

   
   

2. Proposed finding of fact 11 is neither material nor relevant.

COPIES FURNISHED:

Dr. J. Howard Hinesley, Superintendent Pinellas County Schools

Post Office Box 2942 Largo, Florida 34649-2942

Keith B. Martin, Esquire Pinellas County Schools Post Office Box 2942 Largo, Florida 34649-2942

Lawrence D. Black, Esquire 650 Seminole Boulevard

Largo, Florida 34640-3625

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

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.

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AGENCY FINAL ORDER

=================================================================

SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA ADMINISTRATIVE PROCEEDINGS

PINELLAS COUNTY SCHOOL BOARD,

Petitioner,

vs. DOAH CASE NO.: 93-4972

RODNEY SNYDER,

Respondent.

/

FINAL ORDER

WHEREAS, by letter dated August 17, 1993, the Superintendent of Schools recommended to the SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA, that RODNEY SNYDER,

a teacher employed by means of a professional service contract, be dismissed, which letter contains the reasons therefor and

WHEREAS, said RODNEY SNYDER timely requested an administrative hearing on the issues set forth in the Superintendent's charging letter, the matter was referred to the Division of Administrative Hearings and

WHEREAS, a hearing was conducted on November 17, 1993 before William R. Cave, Hearing Officer of the Division of Administrative Hearings, and

WHEREAS the Hearing Officer's Recommended Order together with the Petitioner's Exceptions to the Hearing Officer's Recommended Order and the entire record of the case have been reviewed, it is

ORDERED AND ADJUDGED that the Hearing Officer's Preliminary Statement, Findings of Fact and Conclusions of Law, Numbers 24, 25, 26, 29 and 30 are hereby accepted and adopted herein by reference, and it is further

ORDERED AND ADJUDGED that Petitioner's Exception to the Hearing Officer's Recommended Order Number 1 is accepted and the Hearing Officer's Conclusion of Law Number 27 is hereby rejected in that Florida Statutes, 231.36(1)(a) states that just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty or conviction of a crime involving moral turpitude, and it is further

ORDERED AND ADJUDGED that Petitioner's Exception to the Hearing Officer's Recommended Order Number 2 is accepted and the Hearing Officer's Conclusion of Law Number 28 is hereby rejected to the extent that it states that Rule 6B- 1.001(3), Florida Administrative Code is not susceptible in most cases of forming a basis for a suspension or dismissal and to the extent that it concludes that the evidence did not prove a violation of this Rule in that: (a) such a conclusion is inconsistent with the Hearing Officer's Findings of Fact

Numbers 12 and 13; and (b) such a conclusion is totally unsupported by competent, substantial evidence in that the Respondent admitted he exercised poor judgment, as set forth on Page 80, Lines 19 through 23, of the Transcript of Proceedings and in that the weight of the evidence clearly established that the Respondent did not maintain a high degree of ethical conduct, and it is further

ORDERED AND ADJUDGED that Petitioner's Exception to the Hearing Officer's Recommended Order Number 3 is accepted and the Hearing Officer's Conclusion of Law Number 31 is hereby rejected to the extent that it states that the alleged misconduct, if proven, would most appropriately form the basis for a charge of misconduct as defined in Rule 6B-4.009(3), Florida Administrative Code, and therefore require proof that the misconduct was so serious as to impair the individuals effectiveness in the school system and to the extent that it finds that there was no misconduct proven, in that: (a) the Hearing Officer's conclusion that no misconduct was proven is inconsistent with his Findings of Fact Numbers 12 and 13; and (b) since Respondent held a Professional Services Contract, the Petitioner's burden was to establish that there was lust cause for his dismissal pursuant to 231.36(6)(a), Florida Statutes. The Petitioner was not required by the law to establish a charge of misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, and it is further

ORDERED AND ADJUDGED that Petitioner's Exception to the Hearing Officer's Recommended Order Number 4 is accepted and Hearing Officer's Conclusion of Law Number 32 is hereby rejected to the extent that it states that the Petitioner failed to meet its burden of proof as to the allegations against Mr. Snyder in that the Hearing Officer's conclusion is inconsistent with his Findings of Fact Numbers 12 and 13.

ORDERED AND ADJUDGED that Petitioner's Exception to the Hearing Officer's Recommended Order Number 5 is accepted and the Hearing Officer's recommendation that a Final Order be entered in this cause reinstating Respondent to his teaching position and granting Respondent back pay to and including September 9, 1993 is hereby rejected in that: (a) the Hearing Officer's Recommended Order does not establish that he ever considered whether Respondent's found acts of misconduct were just cause for discipline; (b) a dismissal is consistent with the disciplinary recommendations of the administration in similar cases as shown by the testimony of J. Howard Hinesley, Ed.D., Superintendent, (Transcript of Proceedings Page 11, Lines 3 through 6) and the testimony of James Barker, Director of Professional Standards, (Transcript of Proceedings Page 24, Lines 20 through 25, and Page 25, Lines 1 through 6); (c) it is clearly not necessary to find a reduction in effectiveness in order to determine that Respondent is guilty of committing an act which creates just cause for his dismissal as Respondent's misconduct in this matter is clearly job related in that he chose to use illegal drugs, the evils of which he proclaimed as a health education teacher; (d) as shown by Petitioner's Exhibit's 1 and 2, Respondent has had more than one past charge, including one involving illegal drugs; (e) the drugs were delivered in a public place, as set forth in Hearing Officer's Finding of Fact Number 13; (f) Respondent exhibited poor judgment in failing to seek clarification of disclosure forms, as set forth in Hearing Officer's Finding of Fact Number 9; and (g) the School Board has a strong policy against drug use as set forth in Hearing Officer's Finding of Fact Number 4. This misconduct is sufficient to impose the discipline of dismissal and the decision to do so is neither arbitrary nor capricious, and it is further

ORDERED AND ADJUDGED that the suspension without pay of RODNEY SNYDER effective starting September 9, 1993 through 196 work days, is hereby confirmed, and it is further

ORDERED AND ADJUDGED that RODNEY SNYDER will be reinstated to his employment with the PINELLAS COUNTY SCHOOL BOARD following said suspension without pay, and it is further

ORDERED AND ADJUDGED that following his suspension without pay, RODNEY SNYDER, for a period of one year shall be subject to random drug testing to be paid for by himself, and it is further

ORDERED AND ADJUDGED that RODNEY SNYDER is hereby notified of his right to appeal this Order to the Second District Court of Appeal in Lakeland, Florida, by filing notice of intent to do so with the Clerk of the Court or on Keith B. Martin, Assistant School Board Attorney, within thirty (30) days of this date.

DATED: January 26, 1994.

THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

By: Chairman

Attest: Ex-officio Secretary

Docket for Case No: 93-004972

Orders for Case No: 93-004972