STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0965

)

JIMMY McCASKILL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on October 19, 1994, Miami, Florida.

APPEARANCES

For Petitioner: Luis M. Garcia, Esquire

Attorney's Office

School Board of Dade County, Florida 1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

For Respondent: William Du Fresne, Esquire

Du Fresne and Bradley, P.A.

2929 Southwest Third Avenue, Suite One Miami, Florida 33129

STATEMENT OF THE ISSUES

Whether Respondent's professional services contract with the Petitioner should be terminated for just cause as alleged in the Notice of Specific Charges.

PRELIMINARY STATEMENT

At all times pertinent to this proceeding, Respondent was employed by Petitioner pursuant to a professional services contract. On February 16, 1994, the Petitioner suspended Respondent's employment and began proceedings to terminate his contract of employment. Respondent timely requested a formal hearing, and these proceedings followed.

Petitioner filed a Notice of Specific Charges which alleged certain facts pertaining to Respondent's dealings with various students in the 1988-89 school year, in the 1991-92 school year, and in the 1993-94 school year. The Notice of Specific Charges also alleged certain facts pertaining to Respondent's arrest on January 14, 1994. Based on those factual allegations, Petitioner concluded that

it had just cause to terminate Respondent's professional services contract on the grounds that Respondent was guilty of immorality and misconduct in office.

At the formal hearing, Petitioner presented the testimony of Craig Sturgeon, William Patton, John Gilbert, Faith Feurst, Paula Young, Horace Morgan, Joyce Annunziata, Nelta Georges, Danielle Williams, George Gomez, Michael Lorenzo, and Kenyard Wright. Pursuant to stipulation, Petitioner was permitted to present as late-filed exhibits the depositions of D.C. Diaz and Jose Moure. Mr. Sturgeon is an administrator employed by Petitioner who was the principal of Miami Edison Senior High School at the times pertinent to this proceeding. Lt. Patton is a police lieutenant employed by the Dade County Public Schools Police Department. Mr. Gilbert was the principal of Norland Middle School at the times pertinent to this proceeding. Ms. Feurst is a teacher who taught at Riviera Middle School at the times pertinent to this proceeding. Dr. Young was an assistant principal at Riviera Middle School at the times pertinent to this proceeding. Officers Morgan, Diaz, and Moure are police officers employed by the City of Miami police department. Dr. Annunziata is an administrator employed by Petitioner and was accepted as an expert witness in the areas of professional ethics, performance appraisal, and personnel management. The remaining witnesses presented by the Petitioner were students or former students. In addition to the two late-filed depositions, Petitioner offered 21 exhibits, each of which were admitted into evidence.

Respondent testified on his own behalf and presented the additional testimony of Walter Ferguson and Jonelle Hogan. Mr. Ferguson is an acquaintance of the Respondent who was called as a character witness. Ms. Hogan is a former student of the Respondent. Respondent presented no exhibits.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent has been employed by Petitioner as a teacher since 1988. At the times pertinent to this proceeding, Respondent held a professional services contract with Petitioner. After he graduated from college in 1970, Respondent played professional football for the San Diego Chargers for one year. Thereafter, he taught and coached in Polk County, Florida, at Albany State College in Georgia, and at Florida A & M University.

   
   

2. Miami Edison Senior High School (Miami Edison), Norland Middle School (Norland), and Riviera Middle School (Riviera), are all public schools in Dade County, Florida.

   
   

3. In 1988, Craig Sturgeon, the principal of Miami Edison, hired Respondent as a teacher and the head football coach at Miami Edison.

   
   

   SUMMER SCHOOL 1988

   
   

4. During the summer of 1988, Respondent was assigned to teach a weight training class. Among the students in Respondent's weight training class were two females, Nelta Georges and Latoya Stewart. During the summer of 1988, Nelta

   and Latoya usually went to Respondent's office to watch television after class. Respondent usually kept snacks in his office and had a refrigerator in which he kept milk. Latoya asked Respondent if she could have some milk to drink with the cookies she had taken from the table. In response to this question, Respondent put his leg up on a table, leaned back in his chair, licked his lips, and told Latoya that he had some "Elsie's milk" that she could have. This was a sexually suggestive statement that was inappropriate for a teacher to make to a student.

   
   

5. After Respondent made this inappropriate comment to Latoya, he gave Nelta permission to leave school to go to a store across the street from Miami Edison. Respondent violated school policy by allowing the student to leave school campus for that purpose while school was in session.

   
   

6. Mr. Sturgeon received complaints that Respondent had made sexually inappropriate comments to female students, including the incident involving Nelta and Latoya, and that he was granting students permission to leave school. An investigation by the special investigation unit of the Dade County Public Schools Police Department, identified as S.I.U. Case #s-0854, confirmed the complaints pertaining to the sexually inappropriate comments. Respondent admitted giving students permission to leave campus. On November 9, 1988, a conference for the record was held involving Mr. Sturgeon, Respondent, and Respondent's union representative. Respondent was reprimanded and rated as unacceptable on Category VII (Professional Responsibilities) of the Teacher Assessment and Development System (TADS) on the following grounds:

   
   

   1. Substantiated Findings S.I.U. Case #s-0854.

   2. Conduct Unbecoming a School Board Employee.

   3. Permitting students to leave the school campus to go to the store while school was in session.

      
      

      SCHOOL YEAR 1991-92

      
      

7. Respondent taught a wood-shop class at Norland Middle School during a portion of the 1991-92 school year.

   
   

8. Danielle Williams is a sixteen year old female who was a student in Respondent's wood-shop class at Norland during the 1991-92 school year. On one occasion, Respondent asked Danielle to come to his lectern and to show him her work. Danielle testified that when she did as she was requested, Respondent put his arm around her shoulder so that he touched her right breast with his hand. Danielle testified that she pushed Respondent's hand away and told him "you don't have to touch me to talk to me." This incident occurred in front of the other students in Respondent's class. Respondent admitted that he put his arm around the student, but asserted that it was a friendly gesture like he used to do with players when he coached. He denied touching the student's breast. The Special Investigation Unit of the school board's police department investigated the incident, but was unable to substantiate that Respondent touched Danielle's breast. The conflict in the evidence is resolved by finding that Respondent inappropriately draped his arm around Danielle's shoulders, but that the evidence is insufficient to establish that he touched Danielle's breast. 1/

   
   

9. Respondent made inappropriate comments to Danielle, asking if she had a father and stating that he wanted to "get with" her mother. Danielle also testified that Respondent stared at her inappropriately as if he could rape her with his eyes. Jonelle Hogan, another female student in Respondent's wood-shop

   class, testified that Respondent also stared at her in a manner she believed to be inappropriate and that he liked to touch students.

   
   

10. John Gilbert was the principal of Norland during the time Respondent taught at that school. In September 1991, Mr. Gilbert received complaints from the parents of two students that Respondent had made sexually suggestive remarks to female students and that he inappropriately stared at and improperly touched students. Respondent was transferred to another school as a result of these complaints.

    
    

    1993-94 School Year

    
    

11. Respondent taught a wood-shop class at Riviera Middle School for a portion of the 1993-94 school year.

    
    

12. George Gomez is a fourteen year old male who was a student in Respondent's wood-shop class at Riviera. On October 12, 1993, George was playing with another student by poking the other student in the rear with a wooden spoon. Respondent told George to stop what he was doing, but George did not obey that instruction. Respondent approached George, grabbed him by the shoulder, and told the other student to hit George. When the other student refused to hit George, Respondent punched George in the chest with his closed fist and told him to sit down. The punch hurt George, and he started crying. George was also embarrassed by this incident because the other students in the class were laughing at him.

    
    

13. After George sat down on a stool, he got up and started to leave the classroom. Respondent grabbed George by the back of his pants, picked him off the ground, and pulled him back into the classroom. While George was being held in the air by the Respondent, George picked up a plastic garbage can and tried to hit Respondent with it. When Respondent released him, George fell on the other plastic garbage cans. George got up and Respondent told him to sit down and asked why he was crying. George said he was crying because the punch had hurt him. George picked up a baseball bat and said if Respondent wanted to see how much it hurt that he should let George hit him with the bat. Respondent told George that he would break his neck if George hit him with the bat. George tossed the bat aside, but Respondent picked up another bat and encouraged George to hit him. Respondent then picked up a rasp and asked George if he wanted to stab him. George replied "why don't you get me a gun?" Respondent asked George whether he wanted a .22 caliber pistol or a shotgun and said he would get it from his car. George believed Respondent was serious when he made the statement about the gun and he stayed silent in response to Respondent's question. At his request, George was transferred out of Respondent's class following this incident.

    
    

14. Some of the students in the Respondent's wood-shop class were special education students. Following the incident between George and the Respondent, these special education students returned to the class of their regular teacher, Faith Feurst. These students were scared and did not want to go back to Respondent's classroom. This incident impaired Respondent's effectiveness as a teacher at Riviera.

    
    

15. At various times while at Riviera Respondent used profane language in front of students in the classroom, using such terms as "fuck," "bitch," and "ass."

16. At the times pertinent to this proceeding, Dr. Pauline A. Young was an assistant principal at Riviera. On October 12, 1993, Dr. Young was notified of the incident involving George. On December 6, 1993, a Conference for the Record (CFR) was held with the Respondent to discuss his employment history and the possibility of further disciplinary action against him. Respondent was reprimanded for the incident and returned to the classroom pending further review of his employment.

    
    

17. A written summary of the CFR, dated January 10, 1994, advised Respondent that the School Board was considering whether it should terminate his professional services contract for cause.

    
    

18. On January 4, 1994, Officer Horace Morgan, a police officer with the City of Miami Police Department was on duty and engaged in narcotics surveillance. Officer Morgan observed Respondent purchase an object Officer Morgan believed to be a plastic bag of cocaine from an unidentified individual. Officer Morgan instructed two other police officers, one of whom was Jose Moure, to arrest Respondent. Officer Moure inspected the inside of Respondent's car at the time of the arrest and found a clear plastic bag with a short red straw. There was a white powder in the bag. The contents of this bag was sent by Officer Moure to a lab for analysis. There was no evidence to establish the chain of custody or the manner in which the laboratory tests were conducted.

    The results of the testing were reflected by a lab report. The report Officer Moure received following the testing reflected that the white powder in the plastic bag was cocaine. This lab report is hearsay that cannot be the basis of a finding of fact. See, Section 120.58(1)(a), Florida Statutes. Petitioner failed to establish by competent, substantial evidence, that the plastic bag taken from Respondent's vehicle contained cocaine.

    
    

19. Also discovered in Respondent's car at the time of the arrest was a military hand grenade training simulator referred to as a M116A. Officer D. C. Diaz, an investigative bomb technician with the City of Miami Police Department's Special Investigation Section, was summoned to examine the M116A. The device was "live" and would have exploded if detonated. This device had the potential to cause bodily harm and property damage. It is a third degree felony for an unauthorized individual to have possession of a device such as a M116A. Respondent had no authorization to be in possession of this device. Although it is illegal to sell such a device in the State of Florida, Respondent's testimony that he bought the device in South Carolina is found to be credible.

    
    

20. Criminal charges were filed against Respondent for possession of cocaine and possession of a destructive device. On January 18, 1994, the Petitioner learned of the criminal charges against Respondent and removed him from the classroom. On May 2, 1994, Respondent entered a plea of nolo contendre to these charges. The presiding judge accepted this plea, withheld adjudication of guilt, and sentenced Respondent to time served.

    
    

21. On February 16, 1994, the School Board took action to terminate Respondent's professional services contract for just cause, immorality, misconduct in office, and conviction of a crime involving moral turpitude, upon such conviction. The Petitioner subsequently filed a Notice of Specific Charges in this proceeding that alleged it has just cause to terminate Respondent's employment on the grounds of immorality and misconduct in office.

    CONCLUSIONS OF LAW

    
    

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

    
    

23. Petitioner has the burden of proving by a preponderance of the evidence the allegations contained in the Notice of Specific Charges. See, Rule 28-6.08(3), Florida Administrative Code. See also, Florida Department of Transportation v. J.W.C., Co., 396 So.2d 778 (Fla. 1st DCA 1981), Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990), and Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990).

    
    

24. The provisions of Section 231.36(1)(a), Florida Statutes, provide, in pertinent part, as follows:

    
    

    (1)(a) Each person employed as a member of the instructional staff in any district

    school system . . . shall be entitled to and shall receive a written contract. All

    such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. 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.

    
    

25. Pursuant to the provisions of Section 231.36(6)(a), Florida Statutes, the employment of a member of the instructional staff with a professional services contract may be suspended or terminated at any time during the term of the contract, but the charges must be based on "just cause" as that term is defined by Section 231.36(1)(a), Florida Statutes.

    
    

    MISCONDUCT IN OFFICE

    
    

26. Rule 6B-4.009(3), Florida Administrative Code, provides the following definition pertinent to this proceeding:

    
    

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession 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.

    
    

27. The provisions of Rule 6B-1.006, Florida Administrative Code, constitute the "Principles of Professional Conduct for the Educational Profession in Florida". Rule 6B-1.006(3), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    1. Obligations to the student requires that the individual:

       1. Shall make reasonable efforts to protect the student from conditions harmful to learning. . . .

    * * *

    (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

    
    

28. Section 231.09, Florida Statutes, is as follows:

    
    

    Members of the instructional staff of the public schools shall perform such duties prescribed by rules of the school board.

    Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods; record keeping; and fulfilling the terms of any contract, unless released from the contract by the school board.

    
    

29. Petitioner has adopted Rule 6Gx13-4A-1.21, which prohibits an employee of the School Board from using abusive or profane language in the presence of students.

    
    

30. Petitioner has adopted Rule 6Gx13-5D-1.07, which prohibits the administration of corporal punishment.

    
    

31. Petitioner established by a preponderance of the evidence that Respondent engaged in misconduct in office in violation of Rule 6B- 1.006(3)(a),(e), and (h), Florida Administrative Code, and within the meaning of Section 231.36(6)(a), Florida Statutes. Respondent engaged in misconduct in making sexually suggestive statements to Latoya in the 1988-89 summer session and in permitting students to leave the school campus to go to a store. Respondent engaged in misconduct by draping his arm around the shoulder of Danielle during the 1991-92 school year and by making inappropriate comments about her mother. Respondent engaged in misconduct by his dealings with George during the 1993-94 school year. The incident with George and the use of profane language in front of his students are viewed as being serious breaches of the educator's Code of Ethics that would justify the termination of Respondent's professional services contract even if the other factors that are present in this case were absent.

    
    

32. It is concluded that Respondent's effectiveness as a teacher in the Dade County School system has been impaired by his misconduct. This conclusion is based, in part, on the nature of the misconduct, the complaints that school officials have received from parents, and the reaction by students to his gross misconduct with George.

    
    

    IMMORALITY

    
    

33. Section 231.02(1), Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. To be eligible for appointment in any position in any district school system, a person shall be of good moral character . . .

       
       

34. Immorality is not a separate basis for termination of Respondent's employment under the provisions of Section 231.36(6)(a), Florida Statutes; however, the statutory definition of the term "just cause" found in Section 231.36(1)(a), Florida Statutes, is not all inclusive, and "immorality" is

    properly considered to be a basis for the termination of an employee's professional services contract. Compare, Sherburne v. School Board of Suwannee County, 455 So.2d 1057 (Fla. 1st DCA 1984) and the provisions of Section 231.02(1), Florida Statutes.

    
    

35. Rule 6B-4.009(2), Florida Administrative Code, provides the following definition pertinent to this proceeding:

    
    

    1. 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 to the community.

    
    

36. In this proceeding, Petitioner has failed to establish that Respondent was guilty of "immorality" as that term is defined by Rule 6B-4.009(2), Florida Administrative Code. The sexually suggestive statements Respondent made at various times during the course of his employment is misconduct, but those statements are insufficient to establish that Respondent was guilty of immorality. Likewise, his touching of Danielle is misconduct. Since the evidence failed to establish that Respondent fondled or otherwise touched the student's breast, that evidence fails to establish that Respondent was guilty of immorality. Although Respondent's possession of the hand grenade simulator is illegal in the State of Florida, it is not a crime of moral turpitude and does not establish that Respondent was guilty of immorality. Respondent's arrest on the charge of possession of cocaine and his subsequent plea of nolo contendre to that charge does not establish that he in fact possessed cocaine and cannot form the basis for a conclusion that Respondent was guilty of immorality. Respondent was not convicted of a crime involving moral turpitude because the court withheld adjudication of guilt.

    
    

37. Petitioner has established that there exists just cause to terminate the Respondent's professional services contract on the grounds of misconduct, but not on the grounds of immorality.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of

fact and the conclusions of law contained herein, that upholds the suspension of Respondent's employment, and that terminates his professional services contract.

DONE AND ENTERED this 2nd day of February 1995 in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 2nd day of February 1995.

ENDNOTE

1/ In finding that the evidence is insufficient to establish that Respondent touched Danielle's breast, the undersigned has considered Danielle's testimony, which is found to be credible. Outweighing that testimony is Respondent's denial that he touched her breast, which is also credible, and the absence of any testimony that substantiates the allegation that he touched her breast from any of the students who were present when the incident occurred.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-0965

The following rulings are made on the proposed findings of fact submitted by the Petitioner.

1. The proposed findings of fact in paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19, 21, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 39, 40, 41, 44, 45, 46, 47, 48, 49, 50, 51, and 54 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 3 are rejected as being argument or conclusions of law.

3. The proposed findings of fact in paragraph 14 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made.

4. The proposed findings of fact in paragraph 20 are rejected as being unnecessary to the conclusions reached.

5. The proposed findings of fact in paragraphs 22, 23, 24, 35, 36, 37, 38, and 55 are subordinate to the findings made.

6. The proposed findings of fact in paragraphs 42 and 43 are adopted in part by the Recommended Order, but are rejected in part as being unnecessary to the conclusions reached.

7. The proposed findings of fact in paragraph 52 are adopted in part by the Recommended Order, but are rejected to the extent they are contrary to the findings made that adjudication of guilt was withheld in the criminal proceeding.

8. The proposed findings of fact in paragraph 53 are rejected as being unsubstantiated by the evidence.

The following rulings are made on the proposed findings of fact submitted by the Respondent. Respondent's post-hearing submittal does not contain a paragraph 11.

1. The proposed findings of fact in paragraphs 1, 2, 3, 4, 6, 7, 8, 9, 10, 12, 14, 15, 16, 17, and 20 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 5 are rejected as being contrary to the findings made.

3. The proposed findings of fact in paragraphs 13 and 23 are adopted by the Recommended Order or are subordinate to the findings made.

4. The proposed findings of fact in paragraphs 18, 21, 24, and 25 are subordinate to the findings made.

5. The proposed findings of fact in paragraphs 19 and 22 are rejected in part as being unnecessary to the conclusions reached or are subordinate to the findings made.

COPIES FURNISHED:

Luis M. Garcia, Esquire Dade County School Board Suite 301

1450 Northeast 2nd Avenue Miami, Florida 33132

William Du Fresne, Esquire Du Fresne and Bradley Suite One

2929 Southwest Third Avenue Miami, Florida 33129

Octavio J. Visiedo, Superintendent Dade County School Board

1450 Northeast 2nd Avenue Miami, Florida 33132

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 ten 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: 94-000965

Orders for Case No: 94-000965