vs. ) Case No. 99-3618
Respondent. )
Pursuant to notice, a formal hearing was conducted in this case on January 11, 2000, in Fort Myers, Florida, before
Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
For Petitioner: Victor M. Arias, Esquire
For Respondent: Robert J. Coleman, Esquire
The issue presented for decision in this case is whether Petitioner, the School Board of Lee County (the "School Board"), has just cause to dismiss Respondent, a teacher at Cypress Lake High School ("Cypress Lake"), for setting his car on fire on school property.
On August 17, 1999, Dr. Bruce Harter, Superintendent of Schools for Lee County, presented to the School Board a Petition for Suspension Without Pay and Benefits Pending Termination of Employment (the "Petition"). The Petition set forth factual allegations that Respondent had set fire to his own car in the parking lot of Cypress Lake on the morning of April 19, 1999, and that such actions were in "direct violation of School Board Policy and state law," jeopardized the life and safety of students and staff members, and constituted just cause to suspend Respondent without pay and benefits, pending termination of his employment. The School Board voted to accept the Petition.
By letter dated August 19, 1999, counsel for Respondent notified counsel for the School Board that Respondent requested a formal evidentiary hearing. On August 26, 1999, the School Board forwarded the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge and the conduct of a formal administrative hearing in this matter, pursuant to Section 120.57(1), Florida Statutes. The case was assigned to the undersigned and scheduled for hearing on January 11, 2000.
At the final hearing, Petitioner presented the testimony of Donald Koedyker, a sites worker at Cypress Lake; William G. Geddes, principal of Cypress Lake; Daniel Leffin, a battalion chief with the Iona MacGregor Fire District and an officer with the Lee County Sheriff’s Department; and Gail D. Williams, the director of personnel services with the Lee County School
District. Respondent presented the testimony of Andrew W. Baker, a teacher at Cypress Lake, and Jacki Gruhn, assistant principal for administration at Cypress Lake. Respondent did not testify.
Petitioner’s Exhibits C through M were admitted into evidence. Respondent’s Exhibits 1-3 were admitted into evidence.
No transcript of the final hearing was ordered. The parties filed Proposed Recommended Orders on January 20, 2000.
Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made:
Since August 1995, Respondent has been employed as a high school classroom teacher by the Lee County School District, teaching Spanish at Cypress Lake. He worked for the school district continuously until April 20, 1999, when he was suspended with pay and benefits.
Throughout his active employment with the school district, Respondent’s performance evaluations and assessments showed that he met or exceeded all performance criteria. Respondent has not been subjected to discipline prior to this case.
William Geddes, the principal of Cypress Lake, hired Respondent and had known him for five years. He testified that Respondent was a very effective Spanish teacher. He testified
that Respondent got along well with students and staff and greatly improved the school’s Spanish club.
Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has known Respondent professionally for five years and described him as a very good teacher, doing exciting things in the classroom. She said Respondent was popular with students and fellow teachers.
Ms. Gruhn called Respondent "fair" and "upright."
Donald Koedyker is the sites maintenance person at Cypress Lakes. He begins work at about 6 a.m., Monday through Friday. He testified that he uses a golf cart to get around the campus during the day.
On April 19, 1999, Mr. Koedyker arrived at the Cypress Lake campus at around 5:45 a.m. He opened the storage shed and got his golf cart and a trash barrel. He testified that he picks up trash on the school grounds first thing in the morning.
Mr. Koedyker stated that he was running late that morning because there was a flat tire on his golf cart. He either pumped the tire or took the other golf cart, then began his rounds.
As Mr. Koedyker drove his golf cart past a building toward the parking lot, he saw a flicker of light. After he rounded the corner of the building, he could see Respondent’s car burning. The car was parked in a handicapped space near the front of the main school building. Mr. Koedyker estimated the distance to be about 30 feet from the car to the building entrance.
Mr. Koedyker drove to the cafeteria and pounded on the door. Carol Cote, the lunchroom manager, answered the door. Mr. Koedyker told her to call 911, then he headed back to the burning car.
Mr. Koedyker saw Respondent coming through a wrought iron gate from the courtyard to the back of the cafeteria parking lot. Respondent was walking in no apparent hurry. Mr. Koedyker did not notice whether Respondent was carrying anything.
Mr. Koedyker yelled to Respondent that his car was on fire. Respondent climbed onto the golf cart and rode to the parking lot with Mr. Koedyker.
Mr. Koedyker testified that Respondent told him that he couldn’t believe his car was burning. He described Respondent as being "in shock."
They stopped the golf cart about 30 to 40 yards from the car. Mr. Koedyker testified that the fire appeared to be burning more intensely than when he first saw it. Shortly thereafter, a fire truck arrived and they watched the firemen attempt to put out the fire for about 25 minutes.
Mr. Koedyker testified that the flames were intense enough that he could feel the heat from where he stopped the golf cart, some 30 or more yards away.
Mr. Koedyker testified that he saw no damage to the main building at the time of the fire, but the next day he saw that the asphalt was singed where the car had been parked.
Mr. Koedyker estimated that five or six teachers were at work at the time he discovered the fire, which he estimated to be at about 6:10 a.m. The custodian who opens the school building was also there. By the time the fire was put out, nearly all the staff and faculty were at school. Mr. Koedyker estimated that the fire department arrived at about 6:20 a.m., and that the fire was out by 7 a.m.
Mr. Koedyker testified that he saw no students at the time of the fire, though some students regularly arrive early to run track. Mr. Koedyker testified that the school building is usually open by 6:05 a.m. He was not aware of any school policy prohibiting students from entering the school until a time certain.
Mr. Koedyker testified that Respondent regularly arrives early at school. He described Respondent as one of about four "early bird" teachers. Mr. Koedyker stated that Respondent arrives about the same time as he does.
Mr. Koedyker stated that Respondent was not parked in his usual spot that day. Respondent walks with a cane, and has a handicapped parking sticker, but usually does not park in the handicapped space. Respondent is one of two staff people at Cypress Lake with handicapped parking stickers.
Mr. Koedyker recollected that Respondent stated he was told to park there on the morning of April 19, 1999.
Construction was still going on in the main building. The actual
construction was finished, but punch list items and cleanup were still under way.
Mr. Koedyker testified that Respondent was aware of his morning routine, and that his routine made it likely that he might discover the person setting the car on fire.
Mr. Geddes has been the principal of Cypress Lake for over a year and has worked at the school for 24 years.
Mr. Geddes testified that the official work day for teachers runs from 7:00 a.m. until 2:30 p.m., and that they report to work from 6:30 to 6:45 a.m. He testified that he prefers to keep students out of the building until 7 a.m.
On April 19, 1999, Mr. Geddes arrived on the campus at 6:23 a.m. He recalled the precise time because he checked his watch as he drove onto Panther Lane, the main road into the school.
As he drove in, Mr. Geddes saw a fire truck pull out of Panther Lane. As he drove the 200 feet from the entrance to the front of the campus, Mr. Geddes saw several police and fire department cars, and yellow tape cordoning off the burned vehicle. He saw no flames coming from the car.
Mr. Geddes’ testimony has the fire already out at about 6:25 a.m., roughly the same time Mr. Koedyker testified the fire truck first arrived. This variance in the testimony is noted, but has no real bearing on the relevant facts of the case. In any event, Mr. Geddes’ testimony on this point is credited due to
his more precise recollection. Mr. Koedyker testified that he was estimating the times.
Mr. Geddes spoke to a police officer, who told him that a student may have set the car on fire.
Mr. Koedyker told Mr. Geddes that the car belonged to Respondent. Mr. Geddes commenced looking for Respondent. He called for Respondent over the school loudspeaker system. He waited ten to fifteen minutes, but received no response.
Mr. Geddes then went back to the parking lot, but did not see Respondent there. He saw the that the police and fire department were still investigating the scene, and that they had pulled a one gallon container of liquid from the vehicle.
Mr. Geddes stated that the officers told him they were going to bring in arson investigators, but there was nothing for him to do and he should simply go about the business of running the school.
Mr. Geddes testified that the fire did not delay the start of school.
Mr. Geddes testified that Respondent’s car was parked about 50 feet from the entrance of the main building, in the parking space closest to the school.
Cypress Lake has a circular drive, with a student drop- off area near the school. School buses drop off students about 200-250 feet from the school entrance. The students exit the buses and walk up a covered walkway to the entrance. Mr. Geddes estimated that the burned car was parked about 200 feet from the
bus drop-off point, but only 30 feet from the nearest point on the walkway.
Mr. Geddes returned to his office at about 6:45 a.m. and again called for Respondent over the school loudspeaker system. At about 7:10 a.m., Respondent came to Mr. Geddes’ office. He told Mr. Geddes that he had not heard the call on the loudspeaker, but had been told that Mr. Geddes was looking for him.
Mr. Geddes testified that he never found out what Respondent was doing during the period between the first loudspeaker call and his arrival at the office. Mr. Geddes testified that Respondent was a smoker, and that teachers are not supposed to smoke on the campus. Mr. Geddes conceded that Respondent may have been smoking a cigarette at the shed where the golf carts were stored, but stated that the loudspeaker can be heard at the shed because he had fielded complaints about it from the residents of the suburb behind that area.
Respondent told Mr. Geddes that he left his car unlocked as he came into the school to copy some papers for a class, and that a student apparently "torched" his vehicle while he was in the building. Respondent said he could think of no one who would set his car on fire, and said nothing to implicate himself. Respondent told Mr. Geddes that he was unhurt, but "pretty shook up."
Mr. Geddes told Respondent that he would see that Respondent’s classes were covered, and that Respondent should
concentrate on taking care of this matter. Respondent left the office and went outside to work with the fire and police investigators. Mr. Geddes contacted the district office to inform them of the matter.
At around 9:30 a.m., Mr. Geddes received a phone call from the Lee County Sheriff’s Office telling him that they were taking Respondent to the district substation for further investigation.
Some time between 11:30 a.m. and noon, the Sheriff’s Office called Mr. Geddes to tell him they were arresting Respondent and charging him with arson. Respondent was to be transported to the Lee County Jail.
Shortly thereafter, Respondent called Mr. Geddes and asked him to bring his briefcase, keys, and cellular phone down to the police station. Mr. Geddes told Respondent that he would bring the items to the jail after school, and asked Respondent if his wife knew what had happened. Respondent said she didn’t, and accepted Mr. Geddes’ offer to call her. Mr. Geddes called Respondent’s wife, informed her of the events of that morning, and told her that he was going to try to see Respondent at
3:00 p.m. Respondent’s wife said she would try to meet Mr. Geddes at the jail.
Mr. Geddes tried to deliver the briefcase to Respondent, but the police would not allow him to see Respondent because Respondent had not yet been arraigned. The police told
Mr. Geddes that only Respondent’s lawyer could speak with Respondent prior to arraignment.
Mr. Geddes testified that he waited for Respondent’s wife at the police station until about 4:15 p.m., but she never appeared.
Mr. Geddes testified that Respondent told him during their telephone conversation that he was sorry for what he had done. Respondent sounded as if he was choking back tears.
Mr. Geddes testified that he did not take this statement as an admission that Respondent had set the fire.
Mr. Geddes testified that in the immediate aftermath of the fire, teachers on the Cypress Lake campus were concerned about students setting fires.
The Lee County Sheriff’s Office told Mr. Geddes that Respondent had admitted setting the fire. The officers also told him they had found burns on Respondent’s body.
Mr. Geddes attended the predetermination hearing concerning Respondent’s employment status. Also present were Gail Williams, a secretary; and Respondent and his counsel. Respondent’s counsel advised Respondent to make no statements pending resolution of the criminal charges.
After the meeting, Mr. Geddes recommended that Respondent not return to Cypress Lake, believing that it was in no one’s best interests to have him on the campus. Mr. Geddes testified that there was shock on the campus when it was learned that Respondent had been charged with arson, but also relief that
the perpetrator apparently was not a student. Mr. Geddes testified that the incident undermined Respondent’s effectiveness on campus.
Mr. Geddes testified that the area where Respondent’s car was parked on April 19 was generally more visible than the area where Respondent usually parked. He testified that there were less obvious places on campus to set a car on fire.
Daniel Leffin is a battalion chief with the Iona MacGregor Fire District and an officer with the Lee County Sheriff’s Office.
On the morning of April 19, 1999, Mr. Leffin was on duty at the fire department. His unit was dispatched to Cypress Lake shortly after 6:00 a.m.
Mr. Leffin testified that, as shift commander, he separately drove a car to the scene, arriving two minutes after the call. The fire truck followed immediately behind him.
Mr. Leffin estimated they arrived at the school at about 6:15
a.m. He testified that five to seven people, including Respondent, were in the parking lot as they arrived. Respondent was sitting on Mr. Koedyker’s golf cart.
The firemen found a Toyota 4Runner "fairly well involved" in a passenger compartment fire. The fire had broken out the windows, and flames were shooting about two feet over the top of the car.
Mr. Leffin testified that the car could have blown up, but that explosions are not something the firemen ordinarily
worry about. Explosions are very rare, usually caused by ruptures in the gas tank. Mr. Leffin stated that he has seen only two car explosions in 19 years of work, and both of those involved crashes.
Mr. Leffin testified that the fire was hard to extinguish. He stated that water is usually sufficient for car fires, but in this case foam had to be used. Foam is usually used on fuel fires. Mr. Leffin stated that it took about five to ten minutes to put out the fire.
After the fire was extinguished, Mr. Leffin surveyed the car in an effort to discover how the fire started. He found fuel containers under the floor boards of the passenger seat and the rear left seat. At that point, he did not remove the containers.
Mr. Leffin testified that it was apparent that the fire had been started intentionally, and he called in the police and the State Fire Marshall. The scene was cordoned off with yellow tape for a radius of 20 feet.
Mr. Leffin estimated that the vehicle was parked about
30 feet from the walkway, and was about 50-75 feet away from the main building.
While waiting for the police to arrive, Mr. Leffin spoke to Respondent, who told him he didn’t know what happened. Respondent told Mr. Leffin that he had gone into the building to make copies, and was told by Mr. Koedyker that his car was on fire.
Mr. Leffin asked Respondent whether anybody was "mad" at him. Respondent said he could not think of anyone. Mr. Leffin testified that the conversation was limited after this point, because he had begun to suspect that Respondent set the fire.
Also arousing Mr. Leffin’s suspicions was the fact that, when Respondent went to view the burned vehicle, he walked straight to the left back window and looked in where one of the fuel containers had been. Mr. Leffin had mentioned the fuel containers to Respondent, but had not told him their location in the car.
Mr. Leffin waited for Philip Roman of the State Fire Marshall’s office to arrive before questioning Respondent any further. In Mr. Roman’s presence, Mr. Leffin removed one of the fuel containers from the car and set it aside. The odor and color of the liquid in the container indicated it was "some sort of accelerant."
Philip Roman was the arresting officer, though Mr. Leffin sat in on the interview at the district substation.
During the interview, Mr. Roman noted singed hair on Respondent’s right upper hand and palm. He also noted what appeared to be heat blisters on Respondent’s pant legs.
Mr. Leffin testified that Respondent appeared "indifferent" at the outset of the interview, sitting and listening without any outward display of emotion. Later,
Respondent appeared to be on the verge of breaking down, holding back tears.
Mr. Roman read Respondent his Miranda rights and had Respondent sign a "Miranda Warning" form. Respondent wrote "No" next to the question, "Having these rights in mind, do you wish to talk to us now?"
Mr. Leffin testified that there was a period during which Respondent wanted to talk to them, but then changed his mind. Still later, Respondent agreed to talk to Mr. Roman alone. After that discussion, Mr. Roman taped a statement by Respondent.
Mr. Leffin testified that Respondent confessed to Mr. Roman that he had gotten the fuel containers out of a recycling bin, filled them with gas at a Hess station on the way to school, and set the car on fire. Respondent did not tell them why he did it. Respondent was charged with second degree arson.
At the hearing, Respondent produced an Order Granting Defendant’s Motion to Suppress, entered by Circuit Judge Isaac Anderson, Jr. in the criminal case against Respondent. Judge Anderson found that Mr. Roman "used pressure designed to embarrass, intimidate and to ultimately get the Defendant to confess," and that these actions justified suppression of Respondent’s confession.
Gail D. Williams is the director of personnel services for the Lee County School District. Among her duties are disciplinary and internal investigations. In this case, her supervisor received the complaint and initiated the
investigation. Ms. Williams then chaired the predetermination conference for Respondent on July 26, 1999.
After the conference, the Superintendent recommended moving forward with Respondent’s termination. His reasoning was that Respondent’s actions jeopardized the safety of students and staff at Cypress Lake. The Superintendent notified Respondent of his recommendation by letter dated August 10, 1999.
Ms. Williams could not say whether Respondent ever admitted to school district personnel that he set the fire. On advice of counsel, Respondent said nothing at the predetermination conference.
Ms. Williams stated that Respondent’s actions constituted violations of Rules 6B-1.006(3), 6B-1.006(5)(a), 6B-1.001(2), and 6B-1.001(3), Florida Administrative Code.
Andrew W. Baker has been a teacher and basketball coach at Cypress Lake for three years. He knows Respondent as a
co-worker, and as a volunteer ticket taker at basketball games.
On the morning of April 19, 1999, Mr. Baker arrived at school at 5:50 a.m. He opened his classroom, then walked to the main office at 6:00 a.m. to sign in. Mr. Baker said good morning to Respondent in the office. He noticed nothing unusual in Respondent’s behavior.
Mr. Baker then walked to the main entrance of the building to get a morning newspaper and walked back to his classroom to read the newspaper. He did not see a fire in the
parking lot at that time. He testified that the lot adjacent to the main entrance is the best lit parking lot on the campus.
Mr. Baker testified that he saw Respondent again about
20 minutes later. Mr. Baker was sitting in his classroom, reading the paper, and drinking coffee when Respondent knocked and came in. Respondent told Mr. Baker, "Somebody blew up my truck." Respondent wondered aloud, "Why would a kid do this to me?" Mr. Baker testified that Respondent was crying.
Mr. Baker testified that on a typical day, there are five or six teachers and other employees at the school at 6 a.m., including Mr. Koedyker.
Mr. Baker testified that he did not hear any sirens, because his classroom is "clear in the back of the school."
Mr. Baker testified that he heard some students discussing the incident later. He described their state of mind as encompassing confusion, surprise, and shock.
Mr. Baker also heard students discussing Respondent’s arrest. Some of the students told him they had seen Respondent being handcuffed. Mr. Baker testified that he did not know if the handcuffing actually occurred.
Mr. Baker testified that no one questioned him about the incident.
Jacki Gruhn is the assistant principal for administration at Cypress Lake. She has worked at Cypress Lake for eight years.
She has known Respondent professionally for five years, and described him as a very good teacher.
On April 19, 1999, Ms. Gruhn came in late to school, at about 8:30 a.m. She was told about the fire when she called in to the office to say she would be late. The person on the phone told her there was some "excitement" at the school, that someone had set Respondent’s car on fire and that there was gasoline in the car.
When she arrived at school, Ms. Gruhn heard more about the incident from teachers. Ms. Gruhn testified that the teachers were scared, and were asking her about security in the parking lot. Some of the early arriving teachers asked Ms. Gruhn if they should wait until 7 a.m. to come to school henceforth.
After she arrived at the school, Ms. Gruhn talked to Respondent. Ms. Gruhn described Respondent as very upset, crying off and on. Respondent told her that someone had started a fire in his car, and Mr. Koedyker had come running to tell him it was on fire.
Ms. Gruhn discussed the matter with the deans at the school. They wondered who was the likely candidate to have come in early to the school and burned Respondent’s car. None of them was privy to what the investigators at the scene were thinking.
Ms. Gruhn recalled that on the next day, Mr. Geddes told her confidentially that Respondent had set the fire.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), Florida Statutes.
Petitioner has the burden of establishing by a preponderance of the evidence that the actions of Respondent warrant his dismissal or lesser discipline. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).
The School Board has the authority to dismiss instructional staff and other school employees pursuant to Section 230.23(5)(f), Florida Statutes, subject to the procedures set forth in Chapter 231, Florida Statutes.
Dismissal must be based on just cause. "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. Section 231.36(1)(a), Florida Statutes.
Respondent is charged with misconduct in office, which is defined by Rule 6B-4.009(3), Florida Administrative Code, as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code. Such a violation must be "so serious as to impair the individual’s effectiveness in the school system." Whether a
particular action constitutes a violation of a rule "is a factual question to be decided in the context of the alleged violation." McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995).
Relevant to this proceeding is Rule 6B-1.001(2) and (3), Florida Administrative Code, which reads as follows:
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.
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.
Also relevant to this case is the following portion of Rule 6B-1.006, Florida Administrative Code:
Obligation to the student requires that the individual:
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.
The Petition sufficiently sets forth the specific facts upon which Respondent’s proposed discipline is based. Respondent correctly argues that the Petition does not state in so many words that Respondent set fire to his truck on school property. However, the Petition does state that the truck was set afire on school property, and that Respondent was later charged with arson. A fair reading of the Petition leaves no doubt that Respondent’s dismissal is based on his setting the fire.
Respondent argues that the suppressed confession should not be considered in this matter, and that, absent the confession, there is no competent, substantial evidence that Respondent set fire to his truck. Respondent’s first point is accepted. Judge Anderson concluded that the facts surrounding the interrogation established that Respondent’s confession was coerced. The parties cited no case law establishing that a confession suppressed in a criminal proceeding may not be considered in an administrative proceeding on employee dismissal, and the undersigned’s own research found no case on point.
Nonetheless, Respondent’s confession must be excluded, for two reasons. First, Respondent has a constitutional right against self-incrimination in a proceeding that is penal in nature in that it tends "to degrade the individual’s professional standing, professional reputation or livelihood." State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487, 491 (Fla. 1973). Miranda v. Arizona, 384 U.S. 436 (1966), explains that, in addition to securing the privilege against self- incrimination, a subsidiary purpose of observing the proprieties of the Miranda warnings is to ensure the reliability of the information obtained in the confession. It is concluded that Respondent’s suppressed confession lacks the requisite indicia of reliability.
Second, and related to the first reason, is the more mundane requirement that a hearsay admission be excluded from evidence if it is unreliable. See Criminal Justice Standards and
Training Commission v. Blendsoe, DOAH Case No. 97-1922 (Recommended Order, December 29, 1997), and cases cited therein.
However, Respondent’s argument that exclusion of the confession means that there is no competent, substantial evidence establishing that he set the truck on fire is rejected.
Mr. Leffin noted that it was apparent the fire had been started intentionally, and that Respondent approached the vehicle as if looking for the fuel container on the left hand passenger side. Mr. Roman noted singed hairs on Respondent’s hand and "pucker" marks on his pants indicating exposure to extreme heat.
Respondent was hesitant to respond to Mr. Geddes’ calls on the intercom system, and later told Mr. Geddes that he was sorry for what he had done. Mr. Geddes testified that he did not take that statement as an admission, but it is difficult to posit what else Respondent would be apologizing for under the circumstances.
Respondent argued that he was familiar with Mr. Koedyker’s routine in the morning, and that routine made it likely that Mr. Koedyker might see Respondent setting the fire. This argument is not persuasive. Knowledge of Mr. Koedyker’s routine made it just as likely Respondent could time his actions so as not to be seen.
Respondent contended that the fact that on this morning, he parked his car close to the school, in a well- lighted, open lot, makes it apparent that he did not set the car on fire. This argument is also not persuasive. Parking the car near the school arguably increased his chances of being seen, but
surely also made it easier for Respondent, who walked with a cane, to escape the scene of the fire and disappear into the school building before being seen.
Respondent also argued that no reason was ever offered by Petitioner as to why Respondent would burn his vehicle. Only Respondent knows the reason why he burned his own car. Respondent consistently refused to speak to Petitioner’s representatives. Respondent certainly was within his rights to remain silent, and that refusal cannot be held against him. However, neither may Respondent’s silence form the basis of a conclusion in his favor, when Petitioner could not prove a fact of which Respondent had exclusive knowledge.
In any event, it was not necessary for Petitioner to prove Respondent’s motive in burning his car. Petitioner’s concern was to ensure the safety of staff and students on the Cypress Lake campus. Once satisfied that Respondent set the fire, Petitioner was obliged to act regardless of Respondent’s motive. The lack of an apparent motive makes the act appear all the more irrational and the need to remove Respondent from the school more pressing.
Respondent argued that school and law enforcement authorities were remiss in failing to investigate other suspects. This argument overlooks that Respondent himself could name no one else he thought might have set his car on fire. Mr. Koedyker noted no students on the school grounds at the time of the fire. The law enforcement personnel quickly homed in on Respondent as
the culprit, and apparently saw no need to canvass the school for phantom suspects.
Finally, Respondent argued that because no persons or property were injured or damaged by the fire, aside from Respondent’s own car, the life and safety of students and staff were not jeopardized. In this, Respondent relies heavily on the testimony of Mr. Leffin regarding the relative rarity of burning vehicle exploding. This argument is not persuasive. Respondent set his car on fire about 50 feet from the entrance of the school, and about 30 feet from the walkway used by students to enter the school from the bus drop-off point. The fire was intense, hot enough to blow out the windows of the car and to require the use of chemical foam by the fire department.
Mr. Leffin testified that the flames were shooting two feet above the car, and Mr. Koedyker testified that he could feel the heat of the flames from 30 yards away. Regardless of the actual harm caused, Respondent’s intentional setting of such a fire evinces a reckless disregard for the life and safety of the staff and students of Cypress Lake sufficient to justify the action taken by Petitioner.
It is concluded that Petitioner demonstrated by a preponderance of the evidence that Respondent violated Rule
6B-1.001(2), Florida Administrative Code. By setting his own car on fire, Respondent plainly failed to exercise the best professional judgment and integrity.
It is concluded that Petitioner demonstrated by a preponderance of the evidence that Respondent violated Rule
6B-1.001(3), Florida Administrative Code. By setting his own car on fire in the parking lot of the school, Respondent fell well short of striving to achieve and sustain the highest degree of ethical conduct.
It is concluded that Petitioner demonstrated by a preponderance of the evidence that Respondent violated Rule 6B- 1.006(3)(a), Florida Administrative Code, because Respondent’s actions did not constitute a reasonable effort to protect the students from conditions harmful to their physical health and safety. To the contrary, Respondent created a highly unsafe situation, mitigated only by the fact that few if any students had yet arrived on the campus at the time of the fire.
Having established that Respondent violated Rules 6B-1.001(2) and (3) and 6B-1.006(3)(a), Florida Administrative Code, Petitioner must further establish that Respondent’s violations were "so serious as to impair the individual’s
effectiveness in the school system" in order to demonstrate that Respondent committed "misconduct in office."
Respondent’s effectiveness in the school system has obviously been impaired. Respondent argued that Petitioner failed to introduce evidence directly on the point of his impaired effectiveness, but this argument is untenable in light of the facts that were proven. Respondent set his car on fire in the school parking lot. Students and teachers were aware of his
act. Common knowledge that Respondent committed such a dangerous, apparently irrational act on school grounds cannot help but affect his status in the sight of his students and his peers.
Thus, it is concluded that Petitioner established by a preponderance of the evidence that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code. The Superintendent recommended dismissal. The evidence demonstrated that Respondent was a fine teacher and had been subject to no prior discipline. Had Respondent admitted and explained his actions to school authorities, and perhaps undergone counseling or treatment, some lesser penalty might have been appropriate. This was not the situation confronting the Superintendent, whose priority rightly was the protection of the students and staff of Cypress Lake. Under the circumstances, and given the severity and danger of the offense, the Superintendent’s recommendation was appropriate.
Upon the foregoing findings of fact and conclusions of law, it is recommended that the School Board enter a final order finding that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, and ordering that Respondent be dismissed from employment with the Lee County School Board.
DONE AND ENTERED this 28th day of March, 2000, in Tallahassee, Leon County, Florida.
LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2000.
Victor M. Arias, Esquire School Board of Lee County 2055 Central Avenue
Robert J. Coleman, Esquire Coleman & Coleman
Keith B. Martin, Esquire School Board of Lee County 2055 Central Avenue
Dr. Bruce Harter, Superintendent School Board of Lee County
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.
