STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1244

)

RICHARD L. MCNEILL, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida on August 1 and 2, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Pinellas County School Board

301 Fourth Street, Southwest Largo, Florida 34649

For Respondent: Mark Herdman, Esquire

34650 U.S. Highway 19 North, Number 308 Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

The issue for consideration in this matter is whether Respondent is guilty of misconduct which impairs his effectiveness as a school teacher sufficiently to justify his dismissal from employment with the Pinellas County School Board.

PRELIMINARY MATTERS

By letter dated February 21, 1995, Dr. J. Howard Hinesley, Superintendent of the Pinellas County Schools, advised Respondent, Richard L. McNeill, that he was being suspended with pay, effective February 20, 1995 because, it was alleged, on February 10, 1995, Respondent fondled the genital area of an undercover policeman in a public place during working hours; and that because of that misconduct, Respondent would be recommended for dismissal at the next meeting of the School Board to be held on March 14, 1995. Respondent requested formal hearing on this proposed action and this hearing followed.

At the hearing, Petitioner presented the testimony of Christopher Laughlin, a detective with the Pinellas County Sheriff's Office; Judith Ann Feighan, secretary to the School Board's director of special projects; John Pikramenos, a sergeant with the Pinellas County Sheriff's Office; Christa Miller and Joan Miller, both accounting clerks for the School Board; Dr. Edward A. Brown, director of special projects for the School Board; Dr. Martha L. O'Howell, an

administrator in the Office of Professional Standards with Pinellas County Schools; Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools; Jill Rommel and Karen J. Hone, parents of present and former students in the Pinellas County Schools; and Steven G. Crosby, director of instructional personnel for the Pinellas County Schools. Petitioner also introduced Petitioner's Exhibits 1 and 3 through 14. Petitioner's Exhibit 2 was identified and offered but not accepted.

Respondent testified in his own behalf and presented the testimony of June McNeill, his wife; Sarah McNeill, his daughter; and Richard J. McNeill, his son; Linda G. Vinson, a teacher with whom Respondent taught previously; William L. Vinson, a lawyer and former fellow teacher; Thomas French, a newspaper reporter and consultant working with high school journalists; Harold M. Brockus, Respondent's former pastor; Richard J. Callahan, Jr., an ecologist and parent of former students of the Respondent; Elizabeth Buell, substitute teacher and parent of former students of Respondent; Marjorie Schoaf, teacher, former supervisor of the Respondent, and former parent of a student of Respondent; Susan W. Kaineg, guidance counselor who worked with Respondent; Shirley Westrate, parent of a former student; Curtis Kruger, newspaper reporter and former guest lecturer in Respondent's classes; Barbara G. Farrell, elementary school teacher and family friend; Shirley Moravec, former teacher of Respondent; Patty Boylan, teacher and coworker; Christopher Westrate, Kathleen Butler, Michael Madalena, Michael Hilleboe, Jonathan C. Becker, Keir S. Bickerstaffe, and Sean Kane, current and former students of the Respondent; Michael C. Becker, parent of a former student; and Jade Moore, executive director of the Pinellas County Teacher's Association. Respondent also introduced Respondent's Composite Exhibit 1.

A transcript of the proceedings was furnished and subsequent to the receipt of the transcript, both counsel submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Pinellas County School Board, (Board), is the county agency responsible for providing public primary, secondary and adult education in Pinellas County, and to facilitate that responsibility it hires certified teachers for classroom and administrative activity. Respondent, Richard L. McNeill, is a teacher certified by the State of Florida, holding a continuing contract of employment with the Board, and at the time in issue, and effective in November, 1994, was occupying a grant writing position at the Board headquarters. From 1980 to 1994, he taught English and journalism at Countryside High School, and has been employed as a teacher in the Pinellas County school system for 24 years.

   
   

2. On February 10, 1995, Respondent went to Clearview Elementary School, in his private car, at approximately 12:30 PM on official business. Prior to leaving the Board offices, he discussed with Dr. Brown, his supervisor, the need to pick up materials at Countryside High School. He indicated he would pick them up after going to Clearview that afternoon, but if he could not do so, would pick them up over the weekend. From this discussion, Respondent asserts it was understood by the parties that Respondent would not return to the Board office building that afternoon. Neither Dr. Brown nor his secretary recall it as happening that way. The fact remains, however, that the incident took place during the work day, and there is no confirmation by anyone in authority of Respondent's claims he was authorized compensatory time off.

3. After completing his business at Clearview, Respondent left the school at approximately 2:50 PM, and instead of taking the most direct route north to his office, Countryside or home, he went instead to the beach that runs along Gandy Boulevard in Pinellas County on Tampa Bay where, he claims, he intended to jog. This area is heavily overgrown with mangrove trees and is not suitable for jogging. The Pinellas County Sheriff's office had received numerous complaints regarding loitering and lewd conduct in the area, and as a result, the Sheriff had set up an undercover operation to monitor the situation.

   
   

4. Arriving at his intended jogging site, Respondent changed his clothes and began to walk into the mangrove area that runs between Gandy Boulevard and the water. On his way out of the mangroves, he passed another individual going in the opposite direction. After walking forward for a short while, he stopped and turned to look back, only to find that the other person had also stopped and was looking back his way.

   
   

5. Respondent then walked toward this individual, later identified as an undercover police officer, until they were a couple of feet apart. The parties engaged in a short conversation during which, the officer claims, Respondent kept his eyes on the officer's groin area. At this point, not knowing who the individual was, Respondent asked if it was safe, to which the individual responded that it was. Respondent claims he intended his question to relate to the physical safety of being in the area. The officer, however, interpreted the question as being one frequently asked by individuals seeking a homosexual contact, to determine if it is safe to solicit or engage in that type of conduct.

   
   

6. Respondent then moved to within a foot of the officer and reached over and touched the officer in the groin area. Whereas Respondent claims he touched the officer only on the outside of the individual's sweat pants, at the stomach area, the officer claims Respondent grabbed his groin area with one hand and with the other, pulled out the drawstring of the officer's sweat pants and attempted to place his hand inside the pants. In any case, at no time did the officer give Respondent permission to touch him. Respondent was not incarcerated as a result of the arrest but was released immediately.

   
   

7. In light of Respondent's testimony at hearing that his purpose in touching the officer was, "...to see how friendly he was, what he wanted to do, what he didn't want to do", it is found that the touching was a sexually suggestive act which, had it been more positively received, might well have resulted in a physical relationship between them. It is irrelevant that the incident took place in a densely overgrown area of the mangroves and that no one else was about.

   
   

8. That evening Respondent told his wife what had happened and several days later advised several coworkers that he had committed a serious indiscretion, had been arrested, and intended to fight the charge. After the incident in question, Respondent sought the services of a licensed mental health counselor with whom he has worked since that time. In the opinion of the counselor, Respondent has been forthcoming in dealing with some long-standing internal conflicts, and the prognosis for any similar future acts is extremely low.

   
   

9. As a result of the incident, Respondent was charged with criminal battery, but was acquitted upon trial in Circuit Court on the ground that the evidence did not support a non-consensual touching. The court did not find that

   the touching did not take place. The incident was reported in a newspaper article published in the St. Petersburg Times.

   
   

10. Thereafter, on February 21, 1995, Respondent was notified by certified letter from the Superintendent, Dr. J. Howard Hinesley, that a recommendation was to be made to the Board that he be dismissed based on the touching which took place on February 10, 1995 during working hours. It was Dr. Hinesley's position that Respondent's action constituted immorality and misconduct in office. Respondent requested a formal hearing. Dr. Hinesley noted at hearing, however, that if the evidence established that Respondent touched the officer only on the stomach, dismissal is not an appropriate remedy. He further noted at hearing that if the Respondent were found to have taken compensatory time at the time of the alleged incident, that would not be a basis for discipline here because there is no documented pattern of abuse.

    
    

11. There is no question that Respondent's teaching career has been exemplary and all his performance evaluations have been positive. On four occasions he was selected Countryside High School Teacher of the Year. He has also twice been selected as District Four Regional Journalism Teacher of the Year, and has also been selected the State of Florida Journalism Teacher of the Year. In 1992 he was given an award for environmental education by the Governor of Florida and in 1993, an award by the Environmental Protection Agency. He has also received a number of distinguished advisor awards.

    
    

12. Respondent has been married for 24 years and has two children. He has lived in the same community for 17 years and is consistently involved in community and church projects. He is well thought-of in his community and among his peers.

    
    

13. The Superintendent has concluded that Respondent's actions have impaired his effectiveness as a teacher. This position was supported by Dr. O'Howell of the Board's office of professional standards, and two citizens opined that Respondent should not continue as a teacher because of this incident, though neither knows him or has any information on actual impact of his actions on students. Dr. Hinesley's opinion is based on his perception of young people as being impressionable. Both he and Dr. O'Howell also see Respondent's actions as a violation of community standards, but neither indicated they had any specific information from students, parents or coworkers to support their position.

    
    

14. On the other hand, twenty-five citizens, parents, friends, coworkers, former supervisors and students lauded Respondent's performance as a parent, citizen, and, most specifically, a teacher, indicating he challenged his students, taught them how to think, and set a moral, ethical and performance example worthy of emulation. In addition to those individuals who testified in person, an additional twenty-five individuals submitted letters in support of the respondent, indicating their belief he can effectively perform his duties.

    
    

15. The Executive Director of the Pinellas County Classroom Teachers Association for the past 21 years, Jade Moore, has, over the term of his incumbency, dealt repeatedly with matters of employee discipline. In his opinion, the Respondent's misconduct did not involve students and should not serve as the basis for dismissal.

    
    

16. In that regard, the Board's long-standing policy on matters of this nature, recently reduced to writing, has been to recommend dismissal in cases where the culpability of the employee has been established. In a case referred

    to by the Respondent, where the employee was not dismissed, the employee was arrested for soliciting for prostitution, but the charges were dismissed prior to trial. In most cases, it would appear the employee resigned in lieu of disciplinary action being taken.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

18. Petitioner seeks to dismiss the Respondent from employment as a teacher on the bases of immorality and misconduct in office. Petitioner must carry its burden of proof by a preponderance of the evidence.

    
    

19. Chapter 231, Florida Statutes, is the chapter governing teacher contracts and teacher discipline. Section 231.02(1), Florida Statutes, provides that to be eligible for appointment in any position in any school district, "a person shall be of good moral character." Section 231.36(1)(a), Florida Statutes, provide that each person employed as a member of the instructional staff in any school district shall be employed pursuant to a written contract specified in Chapter 230 and that all such contracts, except continuing contracts specified in subsection (4), shall contain provision for dismissal during the term of the contract "only for just cause." The statute defined just cause as:

    
    

    ... misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    
    

20. Chapter 231, Florida Statutes, does not define "misconduct in office", "good moral character", "moral turpitude" or "immorality." However, the Department of Education, in Rule 6B-4.009, F.A.C., has defined both "immorality" and "misconduct in office." The latter is defined in Rule 6B-4.009(3), F.A.C., as a violation of the Code of Ethics of the Education Profession, as adopted in Rule 6B-1.001, or the Principles of Professional Conduct for the Education Profession, as adopted in Rule 6B-1.006, "... which is so serious as to impair the individual's effectiveness in the school system." Immorality, as it applied to the education profession, is defined in Rule 6B-4.009 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.

    
    

21. Clearly, these definitions are broad and are intended to maintain a high moral standard for teachers. Ford v. Bay County School Board, 253 So.2d 728 (Fla. 1st DCA 1971); Adams v. State Professional Practices Council, 406 So.2d 1170, (Fla. 1st DCA 1981); Negrich v. Dade County Board of Public Instruction,

    143 So.2d 498 (Fla. 3rd DCA 1960). However, consensual sexual acts, including the prelude to consensual sexual activity, have never been considered immoral activity for the purpose of determining a person's fitness to practice his or her profession. Sherburne v. School Board of Suwannee County, 455 So.2d 1057 (Fla. 1st DCA 1984); Clark v. School Board of Lake County, 17 FLW 1084 (Fla. 5th DCA 1992); Florida Board of Bar Examiners Re N.R.S., 403 So.2d 1315 (Fla. 1981).

22. There can be little doubt that Respondent touched the officer in an inappropriate manner. The other evidence clearly requires the conclusion that the touching was sexual in nature. It is within that context that one must evaluate the comment by Dr. Hinesley that a mere touching on the stomach would not be grounds for dismissal. This was not an innocent "mere touching", however. It is clear that Respondent was seeking a sexual encounter and a touching on the stomach, with intended further sexual contact, can and does reasonably fall within the definition of immorality. However, the fact that Mr. McNeill was not officially excused from duty and may be considered to have been on duty at the time of the incident, while technically misconduct in office, does not, in the absence of a demonstrated pattern of abuse, constitute grounds for dismissal, according to the Superintendent.

    
    

23. In a case strikingly similar in facts to the instant case, (School Board of Escambia County v. Madison, DOAH Case 91-1581, FO for reinstatement entered by the Board on July 21, 1992), the school board proposed to dismiss a teacher for placing his hand on the clothing in the area of the genitals of an undercover policeman in the woods beside a parking lot where the teacher had gone to urinate, and into which he was followed by the officer. As here, the teacher was arrested and pursuant to his plea of nolo contendere, was placed on six months probation and paid a $150 fine. Also, as here, notice of the arrest was published in the local newspaper.

    
    

24. At the hearing on the Madison case, the evidence indicated substantial opposition to the teacher's retention by some parents at the school where the teacher worked, but the parental reaction was evenly divided between those who sought the teacher's ouster and those who supported him. The opposition was to the teacher's homosexuality and did not show a loss of support for the school. The evidence affirmatively demonstrated that the teacher's ability to teach was not impaired by the events for which he was being disciplined or by the subsequent agitation of a segment of the parent population. The teacher showed embarrassment over the incident but handled those feelings and went on with his life and his duties.

    
    

25. Here, the evidence shows even less grounds for dismissal. There was no outcry of public or parental demand for Mr. McNeill's ouster. Only two individuals so indicated at hearing. No one from the school testified that his effectiveness as a teacher had been diminished. Only the Superintendent and Dr. O'Howell indicated a diminishment of effectiveness, without any specifics, and the clear implication is that the initiation of dismissal action was for the purpose of consistency with prior unwritten policy.

    
    

26. There was no suggestion that Respondent had ever attempted to inject his views regarding sexual preference into the classroom or into his private conversations with students. The evidence did not show Respondent's actions in issue had any significant impact on the school or the school's reputation.

    
    

27. On the other hand, there was an outpouring of affection and support for the Respondent from his past and present students, their parents, his coworkers, friends and associates. His lack of prior discipline, his prior recognition as an outstanding teacher, his immediate seeking of professional counselling and the counselor's belief that there will be no repetition of such behavior, and the continued support for him by his associates and his family all indicate that his effectiveness as a teacher in the Pinellas County Schools has not been diminished. See MacMillan v. Nassau County School Board, 629 So.2d 226 (Fla. 1st DCA 1993).

28. It should be noted that Respondent did, in fact, commit a violation in taking compensatory time which had not been approved in advance by his supervisor. This does not support dismissal, but rather, suspension.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED THAT Respondent be reinstated as of the date of the Board's Final order but not be awarded back pay and benefits, during the period of suspension.

RECOMMENDED this 21st day of September, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 21st day of September, 1995.

APPENDIX TO RECOMMENDED ORDER

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 to this case.

FOR THE PETITIONER:

1. - 3. Accepted and incorporated herein.

4. - 6. Accepted and incorporated herein.

7. & 8. Accepted and incorporated herein.

1. - 20. Accepted and incorporated herein.

   1. Accepted that a touching occurred and that the touching was a suggestion of sexual activity or a prelude thereto. Last sentence accepted.

   2. & 23. Accepted and incorporated herein.

1. & 25. Accepted but not probative of any material fact.

   
   

   FOR THE RESPONDENT:

   
   

   1. - 3. Accepted and incorporated herein.

      1. Accepted and incorporated herein.

      2. Accepted.

      3. Accepted and incorporated herein except for last sentence which is rejected as not proven.

      4. - 9. Accepted and incorporated herein.

         1. Accepted that Respondent touched the officer on the outside of his pants below the waist. Balance

            accepted and incorporated herein.

         2. Not a Finding of Fact but a restatement of testimony and a comment on the evidence. It has been established that a touching took place, that the touching was below the waist, and that the officer did not agree to the touching.

         3. Not a proper Finding of Fact. The officer's former statement was not introduced into evidence. The issue is immaterial, however, in light of the remainder of the evidence.

         4. Not proven.

         5. & 15. Accepted and incorporated herein.

1. - 19. Accepted and incorporated herein.

   1. Accepted and incorporated herein.

   2. & 22. Accepted and incorporated herein.

      1. Accepted and incorporated herein.

      2. Accepted and incorporated herein.

      3. Accepted and incorporated herein.

COPIES FURNISHED:

Keith B. Martin, Esquire Pinellas County School Board

301 Fourth Street, S.W.

P.O. Box 2942

Largo, Florida 34649-2942

Mark Herdman, Esquire

34650 U.S. Highway 19 North, #308 Palm Harbor, Florida 34648

Dr. J. Howard Hinesley Superintendent

Pinellas County Schools

301 Fourth Street, S.W.

P.O. Box 2942

Largo, Florida 34649-2942

Barbara J. Staros General Counsel Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

Frank T. Brogan Commissioner of Education The Capitol, PL-08

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 95-001244

Orders for Case No: 95-001244