STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5767

)

RICHARD WITHERSPOON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case on March 21, 1996, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Carmen M. Rodriguez, Esquire

Whitelock, Soloff, Rodriguez and Williams, P.A.

One East Broward Boulevard, Suite 601 Fort Lauderdale, Florida 33301

For Respondent: Richard Witherspoon, Pro Se

Post Office Box 1795

Fort Lauderdale, Florida 33302 STATEMENT OF THE ISSUE

Whether Respondent violated Section 231.36(1)(a), Florida Statutes, and Rules 6B-4.009(2), (3), and (4), Florida Administrative Code, and if so, whether Respondent should be suspended without pay and dismissed from employment with Petitioner.

PRELIMINARY STATEMENT

By letter dated October 3, 1995, the Superintendent of Schools for the Petitioner Broward County School Board, advised Respondent Richard Witherspoon, that the School Board was suspending him without pay and that the Superintendent was making a recommendation to the School Board to dismiss Witherspoon based on an Administrative Complaint which was filed on October 5, 1995. By letter dated October 27, 1995, Witherspoon requested an administrative hearing. The case was forwarded to the Division of Administrative Hearings for assignment to a Hearing Officer on November 27, 1995. The case was originally assigned to Hearing Officer Claude B. Arrington but was transferred to Hearing Officer Susan B. Kirkland to conduct the final hearing.

At the final hearing, the School Board called the following witnesses:

Clay Barrett, Angie Pollack, and Ron Wright. Petitioner's Exhibits 1 and 2 were admitted. Respondent testified in his own behalf. Respondent's Exhibits 1-4 were admitted in evidence. Joint Exhibits 1-5 were admitted in evidence.

At the final hearing the parties agreed to file proposed recommended orders within ten days after the date of the filing of the transcript. The transcript was filed on April 25, 1996. Respondent filed his proposed recommended order on April 3, 1996. Petitioner filed its proposed recommended order on May 6, 1996. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Respondent, Richard Witherspoon (Witherspoon), is an employee of the Broward County School Board, holding a professional services contract, and is currently employed as a teacher at Broward Estates Elementary School.

   
   

2. On November 30, 1994, the Fort Lauderdale Police Narcotics Unit was conducting an undercover drug operation at 2146 N.W. 7th Court in Fort Lauderdale. As part of the operation, Detective Clay Barrett posed as a drug dealer.

   
   

3. Witherspoon approached Detective Barrett and asked him for a dime bag of marijuana. Witherspoon gave the officer money and received a bag of marijuana. Detective Barrett then signaled to other officers, who came and took Witherspoon into custody.

   
   

4. Witherspoon was handcuffed and taken to the police department's processing room, where he was photographed. Witherspoon told the police that he was a school teacher.

   
   

5. An information was filed against Witherspoon, charging him with the purchase of a controlled substance. In lieu of standing trial, Witherspoon agreed to enter a drug intervention program through the Circuit Court of the Seventeenth Judicial Circuit, Broward County, Florida. As a prerequisite to become eligible for the drug intervention program, Witherspoon admitted to the presence of the drug.

   
   

6. There were newspaper articles concerning the arrest of Witherspoon for purchasing marijuana, stating that Witherspoon was a schoolteacher.

   
   

7. Witherspoon completed the pretrial intervention drug program. On January 30, 1996, the criminal case involving the purchase of a controlled substance was dismissed.

   
   

8. Prior to his arrest, Witherspoon's teaching performance at Broward Estates Elementary School had been satisfactory and there had been no complaints concerning his teaching ability. After the arrest and resulting newspaper articles, there were still no complaints concerning Witherspoon's teaching performance but parents did express their disappointment in him because of his arrest.

   
   

9. In 1989, Witherspoon was employed with the Dade County School Board as a teacher at Avocado Elementary School. On May 12, 1989, in Jefferson County, Alabama, he was arrested and charged with five counts of negotiating a worthless instrument. Witherspoon entered a bonding agreement for his release before

   trial. He failed to appear at trial and defaulted on his bonding agreement. Witherspoon was taken into custody at Avocado Elementary School and transported to Alabama to stand trial. He pled guilty to all five counts and was sentenced to a six month prison term, one year of probation, and charged with court costs and restitution. On October 30, 1989, Witherspoon resigned from employment with the Dade County Schools. In his letter of resignation, Witherspoon requested the Dade County Schools to send any correspondence to him at his sister's address.

   
   

10. In July, 1990, the Florida Education Practices Commission filed an administrative complaint against Witherspoon based on the Alabama charges, seeking action against Witherspoon's teacher's certificate. Attempts to serve the complaint by mail and hand delivery were unsuccessful. Notice of the complaint was published in a Dade County newspaper on November 13, 19, 16, and December 3, 1990.

    
    

11. A notice of the hearing on the administrative compliant was sent to Witherspoon by restricted delivery on January 14, 1991, but was returned to the Education Practices Commission because Witherspoon had moved and left no forwarding address.

    
    

12. On February 1, 1991, the Education Practices Commission reviewed the case record. By Final Order of the Florida Education Practices Commission dated February 27, 1991, Witherspoon was found guilty of gross immorality, moral turpitude, and personal conduct which seriously reduced his effectiveness as an employee of the Dade County School Board. Witherspoon's teaching certificate was suspended for a period of six months commencing on March 8, 1991. Witherspoon was issued a written reprimand and was required to serve three years probation, with conditions to be met upon his reemployment as a teacher. Copies of the Final Order were sent to Witherspoon by regular and certified mail, but were returned to the Education Practices Commission, marked "Moved, Not Forwardable."

    
    

13. Witherspoon applied for employment as a teacher with the Broward County School Board on June 18, 1991. He answered "no" on his application in response to the following question: "Have you ever had your teaching certificate from any state suspended or revoked?" At the time that he applied for employment, he did not know that his teaching certificate had been suspended. Witherspoon first learned that his certificate had been suspended during a conversation with an employee of the Education Practices Commission on November 7, 1991.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

15. Petitioner seeks to dismiss Witherspoon from employment with the Broward County School Board pursuant to Section 231.36(1)(a), Florida Statutes, for misconduct in office, gross insubordination or willful neglect of duties, and immorality.

    
    

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

    1. violation of the Code of Ethics of the Educational Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Pro- fession in Florida, as adopted in 6B-1.006,

       F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

       
       

17. The Code of Ethics of the Education Professional provides at Rule 6B- 1.0001(3), Florida Administrative Code, that:

    
    

    Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

    
    

18. "Immorality" as used in Section 231.36(1)(a), Florida Statutes, is defined by Rule 6B-4.009(2), Florida Administrative Code as:

    
    

    [C]onduct that is inconsistent with the stan- dards of public conscience and good morals.

    It is conduct sufficiently notorious to bring the individual concerned or the educational profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

19. Petitioner has established that Witherspoon did buy marijuana from an undercover police officer. In Adams v. State Professional Practices Council,

    406 So.2d 1170 (Fla. 1st DCA 1981), the court held that possession of marijuana constituted immorality under Chapter 231, Florida Statutes, stating that "[b]y virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community." Id. at 1172. In Adams, because of the newspaper publicity many people were aware that the teacher had been in possession of the marijuana. As a result of the teacher's involvement with marijuana, he had not fulfilled his duty of providing leadership and had lost his effectiveness as a teacher.

    
    

20. In the instant case, parents were aware that Witherspoon had been arrested for buying marijuana. A teacher who illegally purchases a controlled substance cannot be the role model needed to provide leadership to and effectively teach elementary students. Thus, Petitioner has established that Witherspoon is guilty of immorality. Witherspoon's actions also constitute misconduct in office because such actions demonstrate a failure to strive to achieve and maintain the highest degree of ethical conduct.

    
    

21. Petitioner has failed to establish that Witherspoon falsified his application for employment when he indicated that his teaching certificate had never been suspended. At the time that Witherspoon filled out the application form, he did not know that a Final Order had been entered suspending his teaching certificate.

    
    

22. "Gross insubordination or willful neglect of duties, as used in Section 231.36(1)(a), Florida Statues, is defined by Rule 6B-4.009(4), Florida Administrative Code, as:

    1. constant or continuing intentional refusal to obey a direct order, reasonable

       in nature and given by and with proper authority.

       
       

23. Petitioner has failed to establish that Witherspoon's actions constituted gross insubordination or willful neglect of duties. There was no showing that Witherspoon was given any order which was not obeyed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining Respondent's

suspension and terminating his employment with the School Board of Broward

County, Florida.

DONE AND ENTERED this 10th day of May, 1996, in Tallahassee, Leon County, Florida.

SUSAN B. KIRKLAND, 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 10th day of May, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5767

To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Paragraphs 1-6: Accepted.

2. Paragraph 7: Sentences 1-7 are accepted in substance. The last sentence is rejected as unnecessary.

3. Paragraph 8: Accepted.

4. Paragraph 9: The first two sentences are accepted. The remainder is accepted in substance to the extent that factually he was suspended but rejected to the extent that it implies that Witherspoon knew he was suspended at the time he made the application and that he knowingly falsified his application.

5. Paragraph 10: Rejected as constituting argument.

Respondent's Proposed Findings of Fact.

1. Paragraph 1: The third sentence is rejected as constituting argument. The remaining is accepted insubstance.

2. Paragraph 2: Rejected as subordinate to the facts found.

3. Paragraph 3: The first sentence is accepted in substance to the extent that there had been no problems with Witherspoon's teaching performance prior to the newspaper articles appearing concerning his arrest. The last sentence is rejected as not supported by the greater weight of the evidence.

4. Paragraph 4: The first sentence is accepted to the extent that that is what the Petitioner charged. The last sentence is rejected as irrelevant since the Final Order came from the Education Practices Commission not from the Dade County School Board.

5. Paragraphs 5-8: Accepted in substance.

6. Paragraph 9: Rejected as constituting argument.

COPIES FURNISHED:

Carmen Rodriguez, Esquire Whitelock Soloff, Rodriguez and

Williams, P.A.

One East Broward Boulevard, Suite 601 Fort Lauderdale, Florida 33301

Mr. Richard Witherspoon Post Office Box 1795

Fort Lauderdale, Florida 33302

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Frank R. Petruzielo, Supertintendent Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

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: 95-005767

Orders for Case No: 95-005767