STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL DISTRICT OF PALM BEACH ) COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 97-2581

)

PRAKASH PATHMANATHAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a Section 120.57(1) hearing was conducted in this case on September 14, 1998, by video teleconference at sites in West Palm Beach and Tallahassee, Florida, before Stuart M. Lerner, a duly designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Virginia Tanner-Otts, Esquire

School District of Palm Beach County Office of the General Counsel

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813

For Respondent: No appearance

STATEMENT OF THE ISSUES

1. Whether Respondent engaged in the conduct alleged in the Superintendent of Schools' Notice of Suspension and Recommendation for Dismissal from Employment.

2. If so, whether such conduct provides the School District of Palm Beach County with "just cause" to take disciplinary action against Respondent pursuant to Section 231.36, Florida Statutes.

3. If so, what specific disciplinary action should be taken.

PRELIMINARY STATEMENT

After receiving written notice that the Superintendent of Schools of Palm Beach County was recommending his "suspension without pay and dismissal from employment with the School District as an ESOL instructor" for engaging in "repeated inappropriate behavior with students," to wit: "ma[king] sexual advances towards female students," Respondent (in writing), through his attorney, John Chamblee, Jr., Esquire, "denie[d] that there [wa]s any basis to support the Superintendent's recommendation" and requested that "a [Section 120.57(1)] hearing be conducted with respect to all issues raised by the charges and his defense to the charges." On June 2, 1997, the School District of Palm Beach County (School District or School Board) referred the matter to the Division of Administrative Hearings (Division) for the assignment of a Division administrative law judge to conduct the hearing Respondent had requested.

In their Joint Response to the Initial Order issued by the Division, the parties requested that the final hearing in this case "be continued and further proceedings in this matter be

stayed until the criminal proceedings [against Respondent were]

resolved." On June 25, 1997, the undersigned issued an order granting the parties' request. At the request of the parties, subsequent orders were entered extending the stay.

On June 23, 1998, Mr. Chamblee filed a motion requesting that he be granted leave to withdraw as counsel of record for Respondent in the instant case. In his request, Mr. Chamblee advised that he had been unable to locate Respondent and therefore was "without the ability to communicate with him." Mr. Chamblee asserted in the certificate of service he provided that he had served a copy of the motion on both counsel for Petitioner and on Respondent. The certificate reflected that service on Respondent was accomplished by mailing a copy of the motion, on June 23, 1998, to the "last known address of Respondent."

On July 16, 1998, the undersigned issued a Notice of Hearing by Video Teleconference announcing that the final hearing in this case would commence on September 14, 1998. On that same day, July 16, 1998, the undersigned issued an order addressing Mr.

Chamblee's motion for leave to withdraw as Respondent's counsel of record in this case. The order provided, in pertinent part, as follows:

Upon consideration, it is hereby ORDERED:

Mr. Chamblee is relieved of all responsibilities in connection with the representation of Respondent in the instant case, except that, if he subsequently speaks with Respondent or ascertains Respondent's whereabouts, he shall advise Respondent of the contents of all orders and notices issued in the instant case (including this Order, as

well as the Notice of Hearing by Video Teleconference issued simultaneously

therewith) and he shall further file a written statement certifying that Respondent was so advised.

As noted above, the final hearing in this case was held on September 14, 1998, as scheduled. The School District appeared at the hearing through counsel. Respondent, on the other hand, did not make an appearance, either in person or through counsel or an authorized representative.

At the hearing, the School District presented the testimony of ten witnesses: Megha P., Suchi H., Lovely R., Alexis G., Chrisly A., Gerald Riopelle, Janice Laforte, Ralph Builing, James Sapyta, and W. Paul LaChance. In addition to the testimony of these ten witnesses, Petitioner offered 13 exhibits (Petitioner's Exhibits 1 through 11, 13, and 14) into evidence. All 13 exhibits were received by the undersigned.

At the close of the evidentiary portion of the hearing on September 14, 1998, the undersigned, on the record, advised, that proposed recommended orders had to be filed no later than 60 days from the date of the undersigned's receipt of the transcript of the final hearing. The undersigned received the transcript of the hearing on October 1, 1998.

On October 16, 1998, the School District filed its Proposed Recommended Order. The School District's Proposed Recommended Order has been carefully considered by the undersigned. To date, Respondent has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

The School Board

1. The School Board is responsible for the operation, control and supervision of all public schools (grades K through

   12) in Palm Beach County, Florida. Respondent's Certification

2. Respondent previously held a temporary, non-renewable teaching certificate (Certificate Number 618674) issued by the Florida Department of Education certifying that he was eligible to teach biology in grades six through twelve in the State of Florida. The certificate's "validity period" was July 1, 1995, through June 30, 1997.

   Respondent's Employment with the School District

   
   

3. At all material times to the instant case, Respondent was employed by the School District as a biology teacher in the ESOL program at Atlantic Community High School.

4. The ESOL program is designed to meet the special needs of students whose native language is not English.

   The Collective Bargaining Agreement

   
   

5. As a teacher employed by the School District, Respondent was a member of a collective bargaining unit represented by the Palm Beach County Classroom Teachers Association (CTA) and covered by a collective bargaining agreement between the School

   District and the CTA (CTA Contract), effective from July 1, 1995, to June 30, 1997.

6. Article II, Section M, of the CTA Contract addresses the subject of "discipline of employees." It provide as follows:

   1. Without the consent of the employee and the Association [CTA], disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action.

      
      

   2. All disciplinary action shall be governed by applicable statutes and provisions of this Agreement. Further, an employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action.

      
      

   3. Any information which may be relied upon to take action against an employee will be shared promptly with said employee and his/her Association representative as soon as possible. Copies of any written information/correspondence that is related to the action of the employee or the investigating administrator(s) will be provided promptly to the employee and his/her Association representative.

      
      

   4. An employee against whom action is to be taken under any Section and his/her Association representative shall have the right to review and refute any and all of the information relied upon to support any proposed disciplinary action prior to taking such action. To this end, the employee and his/her Association representative shall be afforded a reasonable amount of time to prepare and present responses/refutations concerning the pending disciplinary action. This amount of time is to be mutually agreed upon by the parties.

      
      

   5. Only previous disciplinary actions which are a part of the employee's personnel file

      or which are a matter of record as provided in paragraph #7 below may be cited.

      
      

   6. Where just cause warrants such disciplinary action(s) and in keeping with provisions of this Section, an employee may be reprimanded verbally, reprimanded in writing, suspended with pay, suspended without pay or dismissed upon the recommendation of the immediate supervisor to the Superintendent. Other disciplinary action(s) may be taken with the mutual agreement of the parties.

      
      

   7. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations, 1/ progressive discipline shall be administered as follows:

      
      

      1. Verbal Reprimand With A Written Notation. Such written notation shall not be placed in the employee's personnel file and shall not be used to the further detriment of the employee after twelve months of the action/inaction of the employee which led to the notation.

         
         

      2. Written Reprimand. A written reprimand may be issued to an employee when appropriate in keeping with provisions of this Section. Such written reprimand shall be dated and signed by the giver and the receiver of the reprimand and shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement.

         
         

      3. Suspension With Pay. A suspension with pay may be issued to an employee when appropriate in keeping with provisions of this Section, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension with pay shall be placed in writing, dated and signed by the giver and receiver of the

         
         

         Megha P.

         suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement.

         
         

      4. Suspension Without Pay. A suspension without pay may be issued to an employee when appropriate, in keeping with provisions of this Agreement, including just cause and applicable laws. The length of the suspension also shall be determined by just cause as set forth in this Section. The notice and specifics of the suspension without pay shall be placed in writing, dated and signed by the giver and receiver of the suspension. The specific days of suspension will be clearly set forth in the written suspension notice which shall be filed in the affected employee's personnel file in keeping with provisions of Article II, Section B of this Agreement.

         
         

      5. Dismissal. An employee may be dismissed (employment contract terminated or non- renewed) when appropriate in keeping with provisions of this Section, including just cause and applicable laws.

      
      

   8. An employee against whom disciplinary action(s) has been taken may appeal through the grievance procedure. If the disciplinary action(s) taken include either a suspension or dismissal, the grievance shall be initiated at STEP TWO.

      
      

      1. Megha P. was a student at Atlantic Community High School during the 1995-96 and 1996-97 school years.

      2. Megha was a ninth grader during the 1995-96 school year.

         
         

      3. Respondent was Megha's biology teacher during the first semester of that school year.

      4. On the day of her final examination in Respondent's

         class, Megha arrived at school early, approximately three hours before the examination was scheduled to commence. Shortly after her arrival at school that day, she was approached by Respondent, who asked her to accompany him to his classroom to help him with some paperwork. Megha complied with Respondent's request. After Megha and Respondent walked into the classroom, Respondent closed the classroom door behind them and told Megha to sit on his lap. Megha refused. Respondent then forced her to sit on his lap.

         While Megha was on his lap, Respondent fondled her buttocks and breasts. Megha tried to stand up and walk away, but Respondent physically restrained her and she was unable to escape his grasp. As he was restraining her, Respondent demanded that Megha give him "hugs and kisses." Megha told him "no." Respondent, however, persisted. He told Megha that "all the girls" give him "hugs and kisses" and that she should do the same. Megha responded that she did not care what "all the girls" did.

         Despite Respondent's persistence, Megha never gave Respondent the "hugs and kisses" he had requested.

      5. Megha was involved in another incident with Respondent during the first semester of the following school year. She was not a student of Respondent's at the time.

      6. On this subsequent occasion, Megha went to Respondent's classroom to purchase a bagel. (Respondent was selling bagels at school to raise money for a class trip.)

      7. When Megha entered the classroom, Respondent commented

         to her that she always wore loose fitting pants without a belt. Megha replied that she did not like wearing belts. Respondent then suddenly pulled down Megha's pants. Megha quickly pulled up her pants and left the classroom.

      8. Following this incident, Respondent, on several occasions, invited Megha to his classroom, but Megha declined his invitations.

         Suchi H.

         
         

      9. When she was in the ninth grade at Atlantic Community High School, Suchi H. was a member of a student organization (the Asian Club) sponsored by Respondent.

      10. On a club outing to the beach, during the taking of a group photograph, Respondent, who was standing next to Suchi, put his hand on the side of her breast and kept it there. Respondent's uninvited advance made Suchi feel very uncomfortable.

          Lovely R.

          
          

      11. During the first semester of the 1996-97 school year, Lovely R. was a student in Respondent's class. She was in eleventh grade at the time.

      12. Lovely was once late to Respondent's class on the day of an examination and Respondent told her to come back to the classroom later in the day to take the examination. Lovely did as she was told and returned to Respondent's classroom later that day. Upon entering the classroom, she locked the door behind her pursuant to Respondent's instructions. Respondent then gave Lovely a copy of the examination, along with the answer key.

          When asked by Lovely why he had given her the answers to the examination, Respondent replied that he was her friend and would do anything for her. Acting without Lovely's consent, Respondent thereupon moved his hands down her body, touching her neck, shoulders, breast and buttocks. He also tried to kiss her on the

          face, but was unsuccessful as Lovely turned her head away from

          him. Not wanting to be subjected to any more of Respondent's advances, Lovely told him that she had another examination she had to take (a story she made up) and left the classroom.

      13. Before this incident, Lovely had been receiving A's for her work in Respondent's class. After the incident, she received, undeservedly, F's from Respondent.

          Alexis G.

          
          

      14. During the first semester of the 1996-97 school year, Alexis G. was a tenth grade student in Respondent's class.

      15. One day during the semester, Respondent asked Alexis to stay after school so that she could show him a homework assignment she had done. He told her that if she did not see him after the end of that school day, she would not receive any credit for having done the assignment.

      16. At the end of the school day, Alexis went to Respondent's classroom. After she entered the room, Respondent locked the door behind her. He then directed Alexis to a table in the back of the room and told her to lie down on it.

          Following Respondent's instructions, Alexis got on the table and laid down on her stomach. Respondent proceeded to caress Alexis' back, breasts and buttocks and press his body against hers. He then asked Alexis to take her clothes off. Alexis told him "no" and screamed at him to get off of her. Respondent responded by moving away from Alexis. With Respondent off of her, Alexis stood up and left the classroom.

      17. On a subsequent occasion, acting in accordance with Respondent's instructions, Alexis visited Respondent in his classroom before her sixth period class. When she arrived, Respondent was alone. Following Respondent's directives, she gave him a massage.

          Chrisly A.

          
          

      18. In 1996, when she was in tenth grade, Chrisly A. was a student in Respondent's class.

      19. One day in class, Respondent approached Chrisly and told her that he wanted to speak to her during sixth period that day to discuss her grades. When Chrisly expressed concerns about missing her sixth period class, Respondent gave her a pass to show to her sixth period teacher.

      20. Chrisly went to Respondent's classroom after her fifth period class that day as Respondent had asked her to. After Chrisly entered the classroom, Respondent locked the door behind her. He then began to talk with Chrisly about her grades, as he had said he would earlier that day when he had requested her to meet with him. After a short period of time, however, he abruptly changed the subject of their discussion when he told Chrisly that he liked her and that he wanted to be her boyfriend and have sex with her. In addition, he asked Chrisly when she had her menstrual period.

      21. Respondent then forced Chrisly to sit in his lap. While Chrisly was on his lap, he stroked her neck, breasts and

          stomach and made her kiss him. He asked Chrisly to take off the shirts she was wearing so he could see her body, but she refused. Chrisly tried to get up from Respondent's lap, but Respondent held on to her and would not let her go. Finally, after someone knocked on the classroom door, Respondent permitted Chrisly to leave.

          Effectiveness

          
          

      22. By engaging in the conduct described above with Megha, Suchi, Lovely, Alexis, and Chrisly, Respondent has impaired his effectiveness as a teacher in the school system and as a member of the community.

          Aftermath

          
          

      23. Neither Megha, Suchi, Lovely, Alexis, nor Chrisly immediately reported Respondent to school authorities.

      24. Respondent's highly inappropriate conduct with these students, however, was ultimately brought to the authorities' attention.

      25. Following an investigation conducted by the School Board's Police Department, the School Board's Department of Employee Relations determined, based upon the findings of the investigation (which were contained in a written report prepared by the investigating officer), that a pre-disciplinary meeting should be held with Respondent.

      26. Such a pre-disciplinary meeting was held on April 7, 1997. Present at the meeting were representatives of the School

          District, a representative of the Palm Beach County Teachers Association, Respondent and his attorney.

      27. During the meeting, Respondent declined the opportunity to make a statement.

      28. On or about April 8, 1997, the Superintendent of Schools sent Respondent a Notice of Suspension and Recommendation for Dismissal from Employment, which read as follows:

          Based upon substantial information presented to me, I hereby inform you that I have found probable cause sufficient to warrant recommendation for your suspension without pay and dismissal from employment with the School District as an ESOL instructor.

          
          

          You are charged with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between The School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon your repeated inappropriate behavior with students. Specifically, on numerous occasions you made sexual advances towards female students. Such conduct constitutes a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B- 1, Florida Administrative Code.

          
          

          Please be advised that I will recommend at the April 23, 1997, meeting of the School Board of Palm Beach County, Florida, that the School Board suspend you without pay effective April 24, 1997, and that termination of employment will become effective upon the expiration of fifteen (15) days thereafter. This action is taken in accordance with Sections 230.23 and 230.33, Florida Statutes.

          The April 23, 1997, School Board meeting will be held in the Board Room at 3300 Forest Hill Boulevard, West Palm Beach, Florida at

          5:00 p.m. You or your representative have the right to attend this meeting and present an oral statement or documentation to show why you should not be suspended without pay and/or terminated. If you intend to speak before the School Board, please immediately notify Ms. Alicia Bell, Clerk, at (407) 434- 8139, of your intention to make a presentation at that meeting.

          
          

          Pursuant to School Board Policy 3.27, you have the right to request a formal hearing contesting the recommendation for your suspension without pay and dismissal. If you desire to request a formal hearing, you must put your request in writing and submit it within fifteen (15) days from receipt of this letter to Cynthia S. Prettyman, General Counsel, School District of Palm Beach County, 3318 Forest Hill Boulevard, C-302, West Palm Beach Florida 33406-5813. Failure on your part to timely request a hearing will be deemed a waiver of your right to a hearing on the matter, and all material allegations and charges made against you shall be deemed true by the School Board for purposes of entering a final order in this matter.

      29. By letter dated April 22, 1998, Respondent, through counsel, requested a hearing on the matter. The letter from Respondent's counsel read as follows:

          Our office has been retained for the purpose of representing Mr. Prakash Pathmanathan before the School Board of Palm Beach County, Florida with respect to the issues raised in the Superintendent's letter dated April 8, 1997, charging Mr. Pathmanathan with inappropriate behavior with students.

          
          

          Mr. Pathmanathan denies that there is any basis to support the Superintendent's recommendation for suspension without pay, and contests the recommendation for his dismissal.

          Mr. Pathmanathan requests that a hearing be conducted with respect to all issues raised by the charges described above and his defense to the charges, and requests that the hearing be conducted pursuant to the provisions of Section 120.57(1), Fla. Stat., before an Administrative Law Judge appointed by the Division of Administrative Hearings.

          
          

          Neither Mr. Pathmanathan, I, nor any other representative for Mr. Pathmanathan will make a presentation at the School Board meeting scheduled for April 23, 1997, when the Board will consider the propriety of the recommendation for suspension without pay, and recommend Mr. Pathmanathan's dismissal from employment. Accordingly, we request that the matter be placed on the Board's consent agenda.

      30. The matter was subsequently referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct the hearing Respondent had requested.

          CONCLUSIONS OF LAW

          
          

      31. "In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Florida Statutes.

      32. Such authority extends to personnel matters. See Section 231.001, Florida Statutes.

      33. A district school board may suspend or dismiss its employees for proper or just cause. See Sections 230.23(5)(f),

          231.36 and 447.209, Florida Statutes; see also Article II,

          Section M, of the CTA Contract.

          
          

      34. Pursuant to Section 231.36(6)(a), Florida Statutes, an instructional employee of a district school board, like Respondent, may be suspended or dismissed at any time during the term of the employee's contract for, among other reasons, "misconduct in office," "immorality," or any other reason amounting to "just cause," as described in Section 231.36(1)(a), Florida Statutes. 2/ "[W]henever [such] charges are made against the employee," the School Board "may suspend such person without pay; but, if the charges are not sustained, the employee [must] be immediately reinstated, and his or her back salary [must] be paid." Section 231.36(6)(a), Florida Statutes.

      35. "Misconduct in office," as that term is used in Section 231.36, Florida Statutes, is defined in subsection (3) of Rule 6B-4.009, Florida Administrative Code, as follows:

          Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, FAC., which is so serious as to impair the individual's effectiveness in the school system.

      36. Rule 6B-1.001, Florida Administrative Code, which is referenced in the definition of "misconduct in office" found in Rule 6B-4.009(3), Florida Administrative Code, provides as follows:

          Code of Ethics of the Education Profession in Florida

          1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

             
             

          2. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

             
             

          3. 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.

             
             

      37. Subsection (2) of Rule 6B-4.009, Florida Administrative Code, defines "immorality," as that term is used in Section 231.36, Florida Statutes, as follows:

          Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

          To establish that a teacher is guilty of "immorality," as defined in Rule 6B-4.009(2), Florida Administrative Code, therefore, not only must it be shown that the teacher engaged in "conduct that is inconsistent with the standards of public conscience and good morals," it must also be shown that, by engaging in such conduct,

          the teacher impaired his effectiveness within the community. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996).

      38. Likewise, proof that the teacher committed a violation of the Code of Ethics of the Education Profession in Florida, standing alone, is insufficient to establish "misconduct in office," as that term is used in Section 231.36, Florida Statutes, and defined in Rule 6B-4.009(3), Florida Administrative Code. Impairment of the teacher's "effectiveness in the school system" as a result of the violation must also be shown. See Braddock v. School Board of Nassau County, 455 So. 2d 394, 396 (Fla. 1st DCA 1984).

      39. A teacher whom a district school board seeks to suspend or dismiss pursuant to Section 231.36(6)(a), Florida Statutes, must be notified in writing of the school board's charges. Although the school board's notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the rule [or statute] the [district school board] alleges has been violated and the conduct which occasioned the violation of the rule [or statute so specified]." Jacker v. School Board of Dade County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring); see also Article II, Section M2, of the CTA Contract ("[A]n employee shall be provided with a written notice of wrongdoing, setting forth the specific charges against that employee prior to taking any action.").

      40. If the teacher desires to contest the school board's charges, the teacher:

          must, within 15 days after receipt of the written notice [of the charges], submit a written request for a hearing. Such hearing shall be conducted at the school board's election in accordance with one of the following procedures:

          
          

          1. A direct hearing conducted by the school board within 60 days after receipt of the written appeal. The hearing shall be conducted in accordance with the provisions of ss. 120.569 and 120.57. 3/ A majority vote of the membership of the school board shall be required to sustain the superintendent's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment; or

          2. A hearing conducted by an administrative law judge assigned by the Division of Administrative Hearings of the Department of Management Services. The hearing shall be conducted within 60 days after receipt of the written appeal in accordance with chapter

          120. The recommendation of the administrative law judge shall be made to the school board. A majority vote of the membership of the school board shall be required to sustain or change the administrative law judge's recommendation. The determination of the school board shall be final as to the sufficiency or insufficiency of the grounds for termination of employment.

          
          

          Any such decision adverse to the employee may be appealed by the employee pursuant to s.

          120.68, provided such appeal is filed within

          30 days after the decision of the school board.

          
          

          Section 231.36(6)(a), Florida Statutes.

          
          

      41. At the hearing held at the teacher's request, the burden is on the district school board to prove that there is just cause to suspend or dismiss the teacher. The employee's failure to appear at the hearing does not relieve the school board of its burden. cf. Scott v. Department of Professional Regulation, 603 So. 2d 519 (Fla. 1st DCA 1992)("The appellant [a registered nurse challenging an order suspending her license after an evidentiary hearing before the Board of Nursing] did not appear at the hearing and did not otherwise respond to the complaint against her. However, the appellant's failure to appear or respond does not relieve the appellee of its obligation to substantiate the charges by presenting sufficient evidence.").

      42. Ordinarily, the school board's proof need only meet the preponderance of the evidence standard. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were true . . . ."); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard."). Where, however, the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, 4/ it must honor,

          and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment ");

          Palm Beach County School Board v. Auerbach, No. 96-3683 (Fla. DOAH February 20, 1997)(Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . . However, in this case, the district must comply with the terms of the collective bargaining agreement, 5/ which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence. The text of the agreement does not support the district’s contention that this standard of proof in the collective bargain agreement applies only when an employee appeals through the grievance procedure. By agreement, in collective bargaining, a school district may limit or abridge its authority to discipline continuing contract teachers.").

          Inasmuch as the School Board has entered into a collective bargaining agreement with Respondent's collective bargaining representative which provides, in pertinent part, that just cause for disciplinary action "must be substantiated by clear and convincing evidence," the School Board may not suspend or dismiss Respondent or any other instructional employee covered by that agreement absent clear and convincing evidence that there is just cause to take such action.

      43. "'[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.'" In re Davey, 645 So. 2d 398, 404 (Fla. 1994), quoting, with approval, from

          Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

          
          

      44. Furthermore, any disciplinary action taken by the School Board against one of its instructional employees must be based upon charges that the employee was timely and properly notified would be litigated at hearing. See Macmillan v. Nassau County School Board, 629 So. 2d 226, 229 (Fla. 1st DCA 1993).

      45. In the instant case, Respondent received from the School Board's Superintendent of Schools a Notice of Suspension

          and Recommendation for Dismissal from Employment (Notice) charging him "with committing misconduct sufficient to constitute just cause under the 1995-1997 collective bargaining agreement between The School District of Palm Beach County, and the Palm Beach County Classroom Teachers Association, based upon [his] repeated inappropriate behavior with students." According to the Notice, "on numerous occasions [he] made sexual advances towards female students" and such conduct "constitute[d] a violation of Section 231.36(1)(a), Florida Statutes (1995), School Board Rules and Regulations, and the Code of Ethics for the Education Profession in Florida, Chapter 6B-1, Florida Administrative Code."

      46. The evidence presented at the final hearing clearly and convincingly establishes that Respondent made unwanted sexual advances towards at least four female students at his school (Atlantic Community High School); in so doing, he acted in a manner "inconsistent with the standards of public conscience and good morals" 6/ and, in addition, failed to "sustain the highest degree of ethical conduct," contrary to the requirements of the Code of Ethics of the Education Profession in Florida, specifically Rule 6B-1.001(3), Florida Administrative Code; his egregious conduct has impaired his effectiveness in the school system and the community and therefore constitutes "misconduct in office," as used in Section 231.36, Florida Statutes, and defined in Rule 6B-4.009(3), Florida Administrative Code, and

"immorality," as used in Section 231.36, Florida Statutes, and defined in Rule 6B-4.009(2), Florida Administrative Code; and, given its serious nature and the extent to which it has impaired his effectiveness to teach, such "misconduct in office" and "immorality" warrant his dismissal pursuant to Section 231.36(6)(a), Florida Statutes, and Article II, Section M7, of the CTA Contract, which provides that the School Board need not administer "progressive discipline" in cases which "clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations." See Allen v. School Board of Dade County, 571 So. 2d 568 (Fla. 3d DCA 1990)(school board's determination to dismiss employee who engaged in inappropriate physical conduct with students upheld); Tomerlin v. Dade County School Board, 318 So.

2d 159, 160 (Fla. 1st DCA 1975)("Although Tomerlin's immoral act was done at his home and after school hours, it was indirectly related to his job. His conduct is an incident of a perverse personality which makes him a danger to school children and unfit to teach them. Mothers and fathers would question the safety of their children; children would discuss Tomerlin's conduct and morals. All of these relate to Tomerlin's job performance. . . .

A school teacher holds a position of great trust. We entrust the custody of our children to the teacher. We look to the teacher to educate and prepare our children for their adult lives. To

fulfill this trust, the teacher must be of good moral character; to require less would jeopardize the future lives of our children.").

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the School Board issue a final order sustaining Respondent's suspension and dismissing him as an employee of the School Board.

DONE AND ENTERED this 4th day of December, 1998, in Tallahassee, Florida.

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1998.

ENDNOTES

1 Such "reasonable school rules and regulations" include those which prohibit unit members from engaging in "misconduct in office" and "immorality," as those terms are defined in Rule 6B- 4.009, Florida Administrative Code.

2 Section 231.36(1)(a), Florida Statutes, provides that "[j]ust 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." Although not specifically mentioned in Section 231.36(1)(a), Florida Statutes, "immorality" also constitutes "just cause" within the meaning of Section 231.36(1)(a), Florida Statutes. See Dietz v. Lee County School Board, 647 So. 2d 217, 218 (Fla. 2d DCA 1994)(Blue, J., concurring)("Just cause therefore includes but is not limited to five of the seven deadly sins [referenced in Section 231.36(4)(c), Florida Statutes, which concerns the suspension and dismissal of teachers under continuing contract]. We assume that drunkenness and immorality, which are not included in the non- exclusive list of sins constituting just cause, would also be grounds for dismissal.").

3 "Under Florida law, a school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

4 There is no language in Section 231.36, Florida Statutes, prohibiting a district school board from entering into such an agreement with the collective bargaining representative of its instructional employees.

5 The collective bargaining agreement to which the administrative law judge in Auerbach was referring is the very same collective bargaining agreement that is involved in the instant case.

6 The School Board was not required, in order to establish Respondent's "immorality," to present "expert testimony as to the 'standards of public conscience and morals' in the community." "Any reasonable person should know that the act[s] performed by [Respondent] w[ere] immoral" (that is, inconsistent with such standards). Tomerlin v. Dade County School Board, 318 So. 2d 159, 160 (Fla. 1st DCA 1975); see also Kinniry v. Abbington School District, 673 A. 2d 429 (Pa. Commw. Ct. 1996)("Here, Kinniry contends that the District did not present evidence that his conduct offended the morals of the community or was a bad example to the children in the district. On the contrary, Kinniry claims that the District failed to produce any evidence regarding the community moral standard. Kinniry also asserts that the testimony of the thirty-one supporting character witnesses establishes that the morals of the community were not offended, and that he would not be a bad role model for students. The District, on the other hand, while not contesting Kinniry's past effectiveness as a teacher, asserts that the federal offenses to which Kinniry pled guilty are per se offensive and, as federal crimes, offend the morals of every community in the nation. We agree with the District.").

COPIES FURNISHED:

Virginia Tanner-Otts, Esquire

School District of Palm Beach County Office of the General Counsel

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813

John J. Chamblee, Jr., Esquire

Law Offices of John J. Chamblee, Jr.

202 West Cardy Street Tampa, Florida 33606

Prakash Pathmanathan

c/o John J. Chamblee, Jr., Esquire Law Offices of John J. Chamblee, Jr.

202 West Cardy Street Tampa, Florida 33606

Prakash Pathmanathan

2309 Southeast 2nd Street Boynton Beach, Florida 33455

Dr. Joan P. Kowal Superintendent of Schools

School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5813

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 97-002581

Orders for Case No: 97-002581