STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-0416

)

GEORGE H. LEWIS, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 17-18, 1999, a formal administrative hearing in this case was held in Sarasota, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert K. Robinson, Esquire

Bowman, George, Scheb, Toale & Robinson

22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237

For Respondent: Charles L. Scalise, Esquire

Bogin, Munns & Munns

250 North Orange Avenue, 11th Floor Orlando, Florida 32802

STATEMENT OF THE ISSUE

The issue in the case is whether the Respondent's employment with the Sarasota County School System should be terminated.

PRELIMINARY STATEMENT

By letter dated January 19, 1999, the Superintendent of Schools for the Sarasota County School Board (School Board)

notified George H. Lewis that "just cause" existed for the termination of Mr. Lewis' employment. The letter advised Mr. Lewis of his right to contest the proposed termination.

Mr. Lewis filed a written request challenging the termination and requesting a hearing. The School Board forwarded the request to the Division of Administrative Hearings, which scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of 20 witnesses and had Exhibits numbered 1-3 and 5-9 admitted into evidence. The Respondent presented the testimony of one witness, testified on his own behalf, and had Exhibits numbered 1-12 admitted into evidence. The Transcript of the hearing was filed on September 1, 1999. Both parties filed Proposed Recommended Orders.

FINDINGS OF FACT

1. At all times material to this case, the Respondent George H. Lewis was employed as a teacher by Petitioner Sarasota County School Board.

2. The Petitioner initially hired the Respondent in October of 1987. During his employment with the School Board, the Respondent has at various times worked as a teacher and as a guidance counselor.

3. Although during the hearing, there was testimony of minimal competence by some witnesses, the Respondent's performance evaluations were all within an acceptable range.

4. Leslie Bachtel is employed by the Petitioner as a teacher. During the 1990-1991 school year, Ms. Bachtel worked at the Venice Middle School, where the Respondent was also employed.

5. On one occasion during the 1990-1991 school year, the Respondent became angry and aggressive towards Ms. Bachtel as they passed in a school courtyard. The Respondent walked towards Ms. Bachtel, stating "you're a fucking bitch," and grabbed her arm with sufficient force to leave an impression on the arm.

6. Students were in the courtyard at the time of the aggression. Ms. Bachtel immediately reported the event to the school principal. According to the testimony of Ms. Bachtel, within an hour, the Respondent confronted Ms. Bachtel's daughter, a Venice Middle School student, in a similar manner.

7. During the 1990-1991 school year, the Respondent received a written reprimand for use of profanity in the presence of administrators, teachers, and students.

8. During the 1994-95 school year, Ms. Bachtel was assigned to an alternative school program ("IDEAL") where the Respondent was also employed. Towards the beginning of the school year, the Respondent confronted her in her classroom and stated that he thought he'd "gotten over it but I haven't," that he would "get even" with her, and that he "hated" her. Ms. Bachtel reported the situation to the school principal.

9. Ms. Bachtel is unaware of the reason for the Respondent's behavior towards her.

10. The Respondent began working at the Wilkinson Elementary School during the 1995-1996 school year.

11. Theresa Hand, a teacher of students with varying exceptionalities, is married and has two children. She first met the Respondent during the summer of 1996 when daughters from each family participated in Asolo Theatre ballet classes. The families became friendly. The daughters became, and continue to be, friends.

12. When Ms. Hand began teaching at the Wilkinson Elementary School, the Respondent was employed there as a guidance counselor. The Respondent and Ms. Hand interacted frequently, as he also did with Ms. Hand's teacher's aide.

13. The Respondent became infatuated with Ms. Hand. He told the aide of his feelings.

14. The aide eventually told Ms. Hand of the situation. By that time, even though the Respondent had not directly spoken to her about the infatuation, Ms. Hand was already aware of his feelings.

15. Eventually, the Respondent confessed his feelings to Ms. Hand during a car ride after a "going-away" party for a colleague. Ms. Hand reminded him that she was married, and that "it wouldn't work out." He appeared to accept her statement. Ms. Hand assumed the matter was resolved.

16. Thereafter, the Respondent was transferred to another school. After his transfer, Pat Fink, a teacher at Wilkinson

    Elementary, ran into the Respondent in a music store. During their conversation, the Respondent told Ms. Fink of his continuing infatuation with Ms. Hand, and admitted he'd discussed his infatuation with Ms. Hand's daughter, who'd been in ballet classes with his own daughter. The next day, Ms. Fink contacted Ms. Hand to advise her of the situation.

17. According to the testimony of Erica Hand, Ms. Hand's daughter, Erica had a new car and went to the school to meet with friends. The Respondent approached her and she offered him a ride in her car. They rode in the car for approximately 15 minutes during which he told her he was "in love" with her mother. She testified she told the Respondent "that was crazy." When she returned home, she told her mother about the Respondent's remarks. She opined that her mother appeared to be aware of the situation.

18. Soon thereafter, Ms. Hand and her husband composed a letter detailing the situation and suggesting that some action was necessary to protect both the Hand family and the Respondent. Mr. Hand signed the letter, dated October 18, 1998, and sent it to school officials.

19. During the 1998-1999 school year, the Respondent taught at Venice High School. Elizabeth Villares was also teaching at Venice High School and was assigned to teach the same classes as those assigned to the Respondent.

20. One Friday, towards the end of October 1998, the Respondent asked to meet with Ms. Villares after school. She agreed to meet with him. During the meeting, he told her he was divorcing his wife and wanted to initiate a relationship with Ms. Villares. He spoke of sexual matters to her in Spanish. He told her he was "passionate" and "virile" and had "a lot to offer."

21. Ms. Villares was very uncomfortable and spoke little during the conversation. Someone eventually entered the room during the conversation to advise her of a phone call. She left to take the call and did not return. The next day, she advised her department chairman of the situation and then made efforts to avoid contact with the Respondent.

22. One of the classes the Respondent was assigned to teach during the fall of 1998 was economics. According to the testimony of students, the Respondent rarely taught economics.

23. Students testified that the Respondent spent much of the class time talking about himself. He gave no tests to the class. He used profanity frequently.

24. The Respondent told the class that he did not "like" them, and that people who were not "liked" in life would "fail." Some students were forced to do "push-ups" as punishment. He refused to permit some students to use the restroom during the 80-minute long class. He criticized students and disparaged their abilities.

25. He used class time to discuss various methods to kill people.

26. He became physically aggressive towards one student, and challenged others.

27. One student testified that the Respondent complained her work was unreadable and would refuse to grade it. She began to type her work, but he still refused to grade it. Other students testified that they got other grades, but did not know how the grades were assigned.

28. The school principal received a steady stream of complaints from students, parents, and other teachers about the Respondent's behavior.

29. On October 6, 1998, the principal met with the Respondent to address numerous concerns regarding the Respondent's behavior. A four-page memorandum dated October 8, 1999, reflects the discussions conducted during the meeting and sets forth the "consensus" plan to address the specific concerns. The consensus plan includes visiting another social studies teacher at another site, sharing lesson plans with administrators, "use other department members to prioritize . . . curriculum," working to "mend . . . fences" with students, and writing discipline referrals for appropriate "behavior consequence."

30. The principal also drafted a "Memorandum of Understanding" dated October 14, 1998, to follow up on the

    meeting of October 6. The memo identifies further classroom procedures to be followed by the Respondent and states as follows:

    1. There will be no profanity in classes or on the campus.

    2. The touching or "poking" of students will stop.

    3. Shadowboxing will not occur.

    4. Unreasonable punishments will not be allowed, i.e., dunce caps, push-ups.

    5. Student intimidation must stop, i.e., name calling and ridiculing.

       
       

31. On October 13, 1998, after the October 6 conference but before the October 14 memo was drafted, Carl Williams, an aide at Venice High School, was taking the Respondent for a ride around campus in a golf cart.

32. A student, Logan Rodgers, approached the cart and attempted to shake hands or "high five" the Respondent, who was apparently not amused. The Respondent told Mr. Rodgers to "stand at attention." Mr. Rodgers placed his hand on the Respondent's right knee. The Respondent pushed off Mr. Rodger's hand saying "What are you, a fucking faggot? If you touch me again, I'll crush your fucking skull."

33. The student walked away from the situation and reported the incident to the principal.

34. On October 15, 1998, the school principal met with the Respondent to discuss the Logan Rogers incident. The Respondent did not deny that the event had occurred.

35. The Respondent was thereafter relieved of his duties at Venice High School.

36. Teachers are required to maintain grade books. When the Respondent was relieved from teaching at Venice High School, school authorities requested that the Respondent provide his grade book so that students could receive grades for the classes.

37. Although the Respondent provided attendance sheets, he failed to provide a grade book. The lack of a grade book posed a problem for school administrators who had no information by which to assign grades to students who had been taught by the Respondent. Eventually, students received grades based on their performance during the second half of the school year or based on the decision of a "grade challenge" committee process.

38. The Respondent asserts that he left his grade book lying against the doorway to the principal's secretary's office. The assertion is not supported by credible evidence and is rejected.

39. At some point prior to November of 1998, Ms. Fink again ran into the Respondent, this time in a craft supply store. The Respondent explained he'd discovered he had Native American heritage and was buying feathers to create a headdress. He also disclosed that Ms. Hand had filed a complaint against him, and that he was going to sue the School Board.

40. On November 13, 1998, the Respondent arrived at the offices of the School Board, bare-chested, dressed in brown

    slacks, a beaded vest, numerous necklaces, and an "indian" headband trailing feathers. He walked unchallenged into the office of the startled superintendent. Persons outside the office immediately became concerned about the situation, and began to seek assistance from other School Board administrators.

41. Several School Board employees entered the superintendent's office and, at the superintendent's request, took seats and remained there during the incident.

42. The Respondent's speech during the event was described as rambling. He discussed a variety of topics, including his past experiences, teaching terrorists in Latin America, strip clubs, playing professional football, becoming a filmmaker and receiving his paycheck.

43. He also expressed his concern about his treatment by the school system. He stated that he wanted his contract bought out for the years remaining until he was able to retire. He advised that if the School Board did not respond to his demand, he would go to "the media" with unidentified allegations regarding the school system.

44. Persons in the superintendent's office attempted to end the meeting several times but were unable to stop the Respondent's conversation. Eventually, they prevailed on the Respondent to allow the superintendent to attend another meeting, at which time the Respondent left the office and exited the building.

45. As a result of the incident, the School Board enacted additional security measures to prevent unauthorized entry into the facility.

46. Several days later, the Respondent returned to the School Board offices to retrieve his paycheck. At that time, he met with William Delp, an assistant superintendent, and asked Mr. Delp whether the superintendent had decided to comply with his request to have his contract "bought out." There is no evidence that the School Board agreed to any demand.

47. On November 20, 1998, the Respondent went to Booker High School, again wearing the headdress. He talked to a number of students collected near the school theatre. He described "death moves" he'd learned as a trainer for the Dominican Republic's "special service." He demonstrated some of the moves on the students who were listening to him.

48. He told the assembled students he was working as a "bouncer" at a local bar, and about how he'd broken the gold chain necklace of a customer who spoke back to a security officer at the bar. He also told the students about a recent sexual encounter, stating "I love to fuck; God, I love to fuck."

49. The Respondent does not dispute much of the evidence related to his behavior. According to the testimony of the Respondent, he suffers from bipolar disorder. Other than the testimony of the Respondent, there is no evidence that the Respondent suffers from bipolar disorder.

50. Bipolar disorder can produce a broad range of emotional instability and can result in inappropriate behaviors. The evidence establishes that the behaviors associated with bipolar disorder can be controlled through the continued administration of medication.

51. According to the Respondent's testimony, the Respondent was prescribed such medication in 1997. The Respondent acknowledges that he has been noncompliant with the requirements of his treatment, and that he'd stopped taking the medication. He asserts that the behaviors that form the basis for the proposed termination of employment are the result of his discontinuation of the prescribed medication.

52. There is no credible medical evidence that the specific inappropriate behaviors that form the basis for the proposed termination of the Respondent's employment are directly or indirectly related to bipolar disorder.

    CONCLUSIONS OF LAW

    
    

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

54. The Petitioner has the burden of establishing by a preponderance of the evidence that just cause exists for termination of the Respondent's employment. Florida Department of Transportation v. JWC Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). In this case, the burden has been met.

55. Section 231.36(1)(a), Florida Statutes, provides as follows:

    (1)(a) Each person employed as a member of the instructional staff in any district school system . . . shall receive a written contract as specified in chapter 230. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

56. Section 231.36(6)(a), Florida Statutes, provides as follows:

    (6)(a) Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a). . . .

    
    

57. Rule 6B-4.009, Florida Administrative Code, provides in relevant part as follows:

    6B-4.009 Criteria for Suspension and Dismissal.

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    1. 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.

    2. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

    
    

58. Rule 6B-1.006, Florida Administrative Code, provides in relevant part as follows:

    6B-1.006 Principles of Professional Conduct for the Education Profession in Florida.

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

    3. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

    * * *

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

    * * *

    (g) Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

    * * *

    (5) Obligation to the profession of education requires that the individual:

    * * *

    (d) Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or

    which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

    
    

59. The Respondent's behavior towards students and other teachers constitutes misconduct in office that is so serious as to impair the individual's effectiveness in the school system.

60. The Respondent failed to make reasonable efforts to protect students from conditions harmful to learning, including mental and physical health and safety. In fact, he created such harmful conditions. The Respondent disparaged students, telling them he did not "like" them and that they would fail. He became physically aggressive with students. He threatened students with physical harm.

61. Whether or not a student is homosexual, use of the word "faggot" towards a student constitutes disparagement and harassment on the basis of sexual orientation.

62. As to fellow teachers, the Respondent's behavior towards Ms. Bachtel and Ms. Villares constitutes harassment that unreasonably interfered with the performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment. Ms. Bachtel was afraid of interactions with the Respondent. Ms. Villares was intimidated by him and took steps to avoid him on campus.

63. Likewise, his behavior towards Ms. Hand also constitutes harassment with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment, and was only heightened by his decision to involve Ms. Hand's daughter in his obsession.

64. Although Ms. Hand, a friend of the Respondent's, minimized the personal effect of the continuing obsession, the fact that she and her husband sent a detailed letter addressing the matter to school officials suggests that the concern was real and immediate at the time of the writing.

65. The failure to provide a grade book for the students he taught during the fall term of 1998 constitutes willful neglect of duty by a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. School officials attempted to obtain the Respondent's grade book. The Respondent did not provide a gradebook to the school. There is no credible evidence that a gradebook ever existed.

66. The Respondent suggests that termination is an inappropriate remedy in this case because the inappropriate behaviors cited as grounds for the proposed termination are associated with bipolar disorder. There is no credible medical evidence that the Respondent suffers from bipolar disorder, or that his specific inappropriate behavior is related to bipolar disorder.

67. Assuming that the Respondent indeed suffers from bipolar disorder, his post-1997 behavior is not the result of an undiagnosed and untreated condition. The Respondent asserts that the diagnosis was made and that medication was prescribed in 1997 to address the disorder and "normalize" behavior.

68. By that time, the Respondent would have full knowledge of his condition, and of the medication required to control it. The Respondent admits that once he started feeling "normal," he stopped taking the medication.

69. Since 1997, the behaviors include the ongoing obsession with Ms. Hand and the involvement of Ms. Hand's daughter, the harassment of Ms. Villares, the continuing incidents inside and outside the classroom at Venice High School, the bizarre episodes at the School Board offices, and his inappropriate conduct with students at Booker High School.

70. The Respondent's assertions of future compliance with medication requirements lack credibility.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Sarasota County School Board enter a final order terminating the employment of George H. Lewis.

DONE AND ENTERED this 18th day of November, 1999, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 18th day of November, 1999.

COPIES FURNISHED:

Robert K. Robinson, Esquire

Bowman, George, Scheb, Toale & Robinson

22 South Tuttle Avenue, Suite 3 Sarasota, Florida 34237

Charles L. Scalise, Esquire Bogin, Munns & Munns

250 North Orange Avenue, 11th Floor Orlando, Florida 32802

Dr. Thomas H. Gaul, Superintendent Sarasota County School Board

1960 Landings Boulevard

Sarasota, Florida 34231-3331

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

Honorable Tom Gallagher Commissioner of Education The Capitol, Plaza Level 08

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-000416

Orders for Case No: 99-000416