STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIAMI-DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 98-5204

)

JIM J. SMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on April 19, 1999, by video teleconference, at sites in Tallahassee and Miami, Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

For Respondent: Leslie Meek, Esquire1

United Teachers of Dade

2929 Southwest Third Avenue (Coral Way) Miami, Florida 33129

STATEMENT OF THE ISSUE:

At issue in this proceeding is whether Respondent committed the offenses set forth in the Notice of Specific Charges and, if

so, what disciplinary action should be taken against him.

PRELIMINARY STATEMENT

On November 18, 1998, Petitioner, School Board of Miami- Dade County (School Board), suspended Respondent, Jim J. Smith, from employment and initiated dismissal proceedings against him. Respondent filed a timely request for a hearing to challenge the School Board's action, and the matter was referred to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct a hearing pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

By Notice of Specific Charges, filed December 23, 1998, the School Board charged that Respondent engaged in the following

misconduct:

1. On or about various dates during

   January, 1997, including but not limited to January 15, 1997, January 28, 1997, and

   January 30, 1997, Respondent exhibited poor judgment, defiant and disruptive behavior, unprofessional conduct, disrespectful conduct, loud outbursts, and aggressive, threatening, degrading, and/or profane language in front of school staff. On or about January 30, 1997, Respondent was directed to leave the school site because of his threatening behavior and remarks.

   
   

2. On or about February 19, 1997, a Conference-for-the-Record ("CFR") was held with Respondent to address his conduct which was deemed unbecoming a School Board employee. Respondent was warned that additional disciplinary measures would be taken if his behavior did not improve.

3. On or about February 25, 1997, Respondent was arrested for loitering. Respondent had a strong odor of alcohol, slurred speech and very red eyes. He appeared unable to answer simple questions.

   
   

4. On or about October 1, 1997, Respondent was arrested for soliciting an undercover law enforcement officer to kill and/or do bodily harm to his former wife. The incident was publicized in local newspapers and created notoriety. Respondent's resulting incarceration resulted in unauthorized absences from work.

   
   

5. On or about October 8, 1997, a CFR was held with Respondent to address Respondent's arrest and the notoriety which resulted. As a result of the conference, Respondent was placed at an alternate work assignment.

   
   

6. On or about March 20, 1998, Respondent was returned to his duties at Drew. This resulted in an outcry from the community.

   
   

7. On or about various dates in May, 1998, including but not limited to May 18, 26, and 27, 1998, Respondent again demonstrated conduct which included, but was not limited to, calling students degrading and/or profane names, making degrading comments about a student's mother, arguing with a parent in front of students, pushing a child into a chair, pushing other student(s) and threatening them, and confronting students in an unprofessional manner.

   
   

8. On or about June 1, 1998, a CFR was held with Respondent to address his administration of corporal punishment to a student and his unbecoming conduct. Respondent was given directives not to confront the victims or witnesses, and to refrain from using physical means to affect students' behavior, inter alia.

   
   

9. On or about June 3, 1998, Respondent was officially reprimanded for his corporal punishment of a student and the unbecoming conduct he demonstrated to a parent. He was warned that further noncompliance with directives would result in further discipline.

   
   

10. On or about early June, 1998, Respondent was arrested and charged with aggravated stalking and violation of a domestic violence injunction.

11. On or about early October, 1998, Respondent was released from jail. Parents of children at Drew protested his attendance at the school and expressed fear of his being around their children.

    
    

12. On or about October 6, 1998, a Region Director held a conference with Respondent to address the parental concerns. Respondent was placed at an alternate assignment at the Region Office the next day. While at the alternate assignment, Respondent exhibited mood swings.

    
    

13. On or about November 5, 1998, Respondent was incarcerated and has remained incarcerated since that date.

    
    

14. On or about December 5, 1996, and February 10, 11, and 14, 1997, Respondent failed to properly supervise students.

    
    

15. On or about January 13-15, 1997, and May 8, 1998, Respondent failed to follow correct procedures in reporting his absences.

    
    

16. Because of conduct previously exhibited by Respondent towards two employees, on or about October, 1996, and August 28, 1998, each of the employees asked to be removed from positions where they would have to have contact with Respondent.

17. On other occasions, Respondent demonstrated aggressive, profane, threatening, and/or disrespectful conduct and/or speech.

    
    

18. On various dates, including but not limited to, on or about April 25, 1997, May 28, 1998, and June 3, 1998, Respondent refused to sign for receipt of documents.

Based on such allegations, the School Board charged Respondent was guilty of conduct unbecoming a School Board employee, misconduct in office, immorality, gross insubordination/willful neglect of duty, absences without leave, and conviction of a crime involving moral turpitude, and requested the entry of an order "recommending that the suspension without pay of Respondent . . . be sustained, [and] that Respondent be dismissed from his employment with [the School Board]."

Here, the proof regarding Respondent's act of solicitation to commit aggravated battery, as well as his conviction for burglary with assault therein, aggravated stalking, and violation of an injunction against domestic violence, is dispositive of the issue raised in this case (whether Respondent's suspension without pay should be sustained, and whether he should be dismissed from his employment with the School Board), and it is unnecessary to address the myriad of other claims of misconduct raised against the Respondent.

Concomitantly, such decision renders it unnecessary to sift the

proof and address the import of previous discipline, if any, imposed for various other claims of misconduct2 or the lack of competent proof (contrasted with the hearsay that was offered) with regard to many of the other claims of misconduct.3

At hearing, the School Board presented the testimony of nine witnesses, and the School Board's (Petitioner's) Exhibits 1-4, 7, and 10-35, were received into evidence. No proof was offered on Respondent's behalf.

The transcript of hearing was filed May 10, 1999, and the parties were accorded ten days from that date to file proposed recommended orders. The School Board elected to file such a proposal and it has been duly considered.

FINDINGS OF FACT

1. Petitioner, School Board of Miami-Dade County (School Board), is a duly-constituted school board charged with the duty to operate, control, and supervise all free public schools within the School District of Miami-Dade County, Florida.

2. Respondent, Jim J. Smith, was at all times material hereto, employed by the School Board as a teacher (under a professional service contract), and assigned to Charles R. Drew Elementary School (Drew Elementary).

3. On or about September, 1997, an informant heard on the street that Respondent wanted to hire someone to kill his former wife. As a consequence, a Florida Department of Law Enforcement

   (FDLE) agent was assigned (on September 15, 1997) to operate undercover and to meet with Respondent regarding his proposal.

4. On September 16, 1997, the undercover FDLE agent was introduced to Respondent, and during the course of that meeting, Respondent told the agent that "he had a brother that had got into some trouble and there was a [female] witness . . . [that] he wanted taken care of so she couldn't testify against him." (Transcript, page 39). Following that explanation, the meeting was discontinued (for reasons not apparent from the record), and another meeting was scheduled for the following day.

5. As arranged, the undercover agent met with the Respondent the next day and, at Respondent's direction, followed the Respondent by car to a residence located at 1149 Northeast 210th Terrace, Miami, Florida. There, Respondent identified the residence as that of the "witness" he wanted "taken care of"; however, it was actually the residence of his former wife and their two daughters. Respondent also advised the agent that the "witness" would be home alone that day between 5:00 and 6:00 p.m., when he wanted the job done. At the time, Respondent knew his former wife would be alone that afternoon because he was scheduled to have visitation with his daughters.

6. After Respondent identified the residence, the parties drove to a K-Mart parking lot where Respondent exited his vehicle and met with the agent in his car. At that time the

   agent related the following conversation ensued:

   
   

   . . . at that time I asked him, "So, what do you want done?

   He says, "I just want her taken care of." I said, "Well, what does that mean?

   What do you want, because there are different payments for different things. If you want me -- if you want me to kill her, cut her up, take her out to the ocean, that's going to be X amount of dollars.

   Whatever you need to do, tell me."

   "I want her messed up, I just want her messed up so she can't talk, whatever you take that as doing, I just need her messed up." 4

   I said, well, fine, that it will be

   $1500 before that, and then it will be $1500 afterwards, which is a total of -- would be a total of $3,000.

   
   

   (Transcript, pages 41 and 42). Notwithstanding Respondent's insistence that the job be done that day, there was no apparent exchange of money and no proof of record that anything further transpired following their conversation.

7. Based on such incident, Respondent was arrested on October 1, 1997, for solicitation to commit aggravated battery. Those charges were, however, dismissed in early March 1998, based on the State's perceived failure to comply with the "Speedy Trial" rule. The propriety of that dismissal is currently pending on appeal.

8. On or about March 20, 1998, following dismissal of the charges, the School Board inexplicably returned Respondent to his duties at Drew Elementary. That reinstatement was met by an

   "outcry from the community"; however, the School Board allowed Respondent to resume his duties.

9. Apart from soliciting someone to harm or, as the undercover agent understood it, to kill his former wife, Respondent had also engaged in a pattern of harassment toward his former wife since on or about April 1, 1996. That harassment abated during the pendency of the criminal charge, and escalated following dismissal of the charge.5 In response, Respondent's former wife secured an injunction against domestic violence which prohibited Respondent from contacting her or their daughters. Notwithstanding, the harassment continued.

10. On October 1, 1998, Respondent was arrested and charged with burglary with assault therein, aggravated stalking, and violation of the injunction against domestic violence. Thereafter, Respondent was apparently erroneously released on bond; however, on or about October 6, 1998, he was taken back into custody, where he remained as of the date of hearing.

11. On April 12, 1999, as his trial was about to commence, Respondent expressed his desire to enter a plea. At the time, Respondent pled guilty to all charges, and was sentenced to two years of community control (house arrest), followed by ten years of probation. As a special condition of the two-year term of community control, Respondent was ordered to serve a term of

    364 days in the Dade County Jail without credit for time served;

    however, the jail term would be mitigated to residential treatment provided Respondent found and entered into appropriate residential mental health counseling. As heretofore noted, as of the date of hearing (April 19, 1999), Respondent remained incarcerated.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.569, 120.57(1) and 231.36(6)(a)2, Florida Statutes.

13. Pertinent to this case, Section 231.36(6)(a), Florida Statutes, provides:

    Any member of the instructional staff . . . [such as Respondent], may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a) . . .

    
    

    Paragraph (1)(a) of the following section defines just cause as follows:

    . . . 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.

    
    

14. Rule 6B-4.009, Florida Administrative Code, defines "immorality," "misconduct in office," and "moral turpitude" as follows:

    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 in the community.

       
       

    2. 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.

       
       

       (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

       
       

15. Pertinent to the charge of "misconduct in office," Rule 6B-1.001, Florida Administrative Code, the Code of Ethics of the Education Profession in Florida, provides:

    (1) The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence. . . .

    
    

    * * *

    
    

    (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.

16. Here, it should not be subject to serious debate that Respondent's act of solicitation to commit aggravated battery was an act of immorality and misconduct in office, and that such conduct seriously impaired Respondent's effectiveness in the school system.6 See Greenwald v. Department of Professional

Regulation, 501 So. 2d 740 (Fla. 3rd DCA 1987) ("[Physician's] undertaking to end a bitter marriage dissolution by soliciting someone to murder his ex-wife evidences warped judgment and disregard for human life -- the antithesis of that which is required and expected of physicians[-- and is considered an offense directly related to the practice of medicine or the ability to practice medicine]"). It should also not be the subject of serious debate that burglary with assault therein, aggravated stalking, and violation of an injunction against domestic violence constitute acts of immorality and misconduct in office, and that, upon conviction, Respondent was also shown to have been convicted of a crime(s) involving moral turpitude. Consequently, Respondent has been shown to have violated the provisions of Section 231.36(6)(a), Florida Statutes, as alleged in the Notice of Specific Charges.

RECOMMENDATION

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

Recommended that a final order be entered which sustains Respondent's suspension without pay, and which dismisses him from employment with the School Board.

DONE AND ENTERED this 28th day of May, 1999, in Tallahassee, Leon County, Florida

WILLIAM J. KENDRICK

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 1999.

ENDNOTES

1/ On April 15, 1999, Leslie A. Meek, counsel for Respondent, filed a "Notice of Respondent's Discharge of Undersigned Counsel" with the Division of Administrative Hearings (and mailed a copy to her client) in which she averred that she had been discharged by her client. No request for leave to withdraw was submitted, nor was a request for continuance made.

Ms. Meek's notice was discussed by telephone conference on Friday, April 16, 1999 (at which time she was directed to appear at hearing to place what had transpired on the record) and at the commencement of the hearing on Monday, April 19, 1999. At hearing, it was observed that no motion to withdraw as counsel had been filed and, to the extent such a request was implicit in Ms. Meek's notice of discharge, it would be denied.

(Transcript, page 7). It was further observed that no motion to continue had been made, and there was no basis to continue the case, over objection. (Transcript, pages 7 and 8). Thereupon, Ms. Meek excused herself from the hearing "because I . . . have

been discharged as his [Respondent's] attorney, and I don't think that it's appropriate for me to stay here."

2/ Department of Transportation v. Career Service Commission,

366 So. 2nd 473 (Fla. 1st DCA 1979) (Agency not only lacked authority to discipline employee twice for the same offense, but its action was fundamentally unfair).

3/ Subsection 120.57(1)(c), Florida Statutes, provides that:

Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in a civil action.

4/ The agent understood Respondent's request to be that the "witness" be killed.

5/ The harassment included abusive telephone calls, waiting outside his ex-wife's house and confronting her, chasing his ex- wife and children in their car through the streets of Miami, while running traffic lights, jumping out of his car to bang on their windows and yell at them, and sometimes blocking their escape, and coming up behind his wife and pointing his finger at her head saying "bang bang, you are dead".

6/ Here, there was direct proof that Respondent's conduct adversely affected his effectiveness in the school system. Moreover, such a conclusion may also be reasonably drawn in the absence of "specific evidence" of impairment of the teacher's "effectiveness as an employee, " where, as here, the "personal conduct" in which the teacher engaged is of such nature that it "must have impaired [the teacher's] effectiveness." Summers v. School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1995); but see McNeill v. Pinellas County School Board, 678 So. 2d 476, 478 (Fla. 2d DCA 1996).

COPIES FURNISHED:

Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400

Miami, Florida 33132

Leslie Meek, Esquire United Teachers of Dade

2929 Southwest 3rd Avenue (Coral Way) Miami, Florida 33129

Jim J. Smith Dade County Jail

1351 Northwest Thirteenth Street Cell No. 2B1, Jail No: 98-83360 Miami, Florida 33125

Robert Q. Cuevae

Miami-Dade County School Superintendent 1450 Northeast Second Avenue, No. 403

Miami, Florida 33132-1308

Tom Gallagher Commissioner of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

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: 98-005204

Orders for Case No: 98-005204