vs. ) Case No. 99-4059
Respondent. )
Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal video teleconference hearing on November 23, 1999, in Tallahassee/Fort Myers, Florida.
For Petitioner: Victor M. Arias, Esquire
For Respondent: Harry A. Blair, Esquire
Did the Lee County School Board (Board) have just cause to suspend Respondent without pay for ten days?
By letter dated August 16, 1999, Dr. Bruce Harter, Superintendent of Schools for Lee County, advised Respondent
that due to a current investigation concerning Respondent, he was suspending Respondent for ten days with pay. By letter dated September 20, 1999, Bruce Harter advised Respondent that he was recommending to the Board that Respondent be suspended for ten days without pay. By letter dated September 21, 1999, Respondent requested a formal administrative hearing. By letter dated September 27, 1999, this matter was referred to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of an administrative hearing. This matter was scheduled for video teleconference hearing on November 23, 1999.
At the hearing, the Board presented the testimony of Kimberly McGlohon, Herman Williams, Eric McFee, and Peter Folaros. The Board's Exhibit numbered 1 and the Board's Exhibits lettered D through H and K through M were admitted in evidence. Respondent testified in his own behalf but did not offer any other witness. Respondent's Exhibit lettered A was admitted in evidence.
A Transcript of this proceeding was filed with the Division on December 9, 1999. By motion filed with the Division on December 16, 1999, the parties requested and were granted additional time to submit their Proposed Findings of Fact and Conclusions of Law with the understanding that any
time constraint imposed under Rule 28-106.216(1), Florida Administrative Code was waived in accordance with
Rule 28-106.216(2), Florida Administrative Code. The parties filed their Proposed Recommended Orders under the extended time frame.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
The Board is a corporate and governmental agency duly empowered by the Constitution and statutes of the State of Florida to administer, manage, and operate the public schools within Lee County, Florida.
At all times pertinent to this proceeding, Respondent was employed by the Board as an Assistant Principal at Lehigh Senior High School (LSHS).
At all times pertinent to this proceeding, Respondent was employed by the Board under an administrator's contract as defined in Section 230.36(3)(a), Florida Statutes.
Respondent has taught in the public school system of Florida for 30 years, and in the Lee County school system for the last 18 of those 30 years.
During his 30-year career, Respondent has no disciplinary incidents on his record and his evaluations were either satisfactory or above average.
Respondent began his tenure with the Board as a teacher and swimming coach at Cape Coral High School on August 17, 1983.
On August 9, 1994, Respondent applied for, and was appointed to, the position of Assistant Principal of Student Affairs at LSHS. At the beginning of the 1999-2000 school year, Respondent occupied the position of Assistant Principal for Curriculum at LSHS.
During his tenure with the Board, Respondent applied for numerous positions within the Lee County School system. Several of those applications resulted in Respondent being assigned to different positions. However, there were 17 applications filed by Respondent with the Lee County school system that did not result in any kind of a response from the Superintendent's office. Some of these applications were submitted as late as the 1998-1999 school year.
By the beginning of the 1999-2000 school year, Respondent had become frustrated because he had not received the courtesy of a response, not even a negative one, to his many applications.
As a result of his frustration, Respondent, at the beginning of the 1999-2000 school year, made some inappropriate remarks which resulted in Dr. Harter's suspension of Respondent for 10 days with pay, pending a predetermination investigation and predetermination hearing.
As a result of the investigation and hearing, John
V. Hennebery, Director of Public Relations, advised Respondent by letter of September 3, 1999, of the recommended disciplinary action to be taken against Respondent. This recommended disciplinary action was that: (1) the letter of discipline was to be placed in Respondent's personnel file;
Respondent was to continue counseling until successful completion of the Employee Assistance Program (EAP) is provided indicating that Respondent was able to return to work; (3) a recommendation for 10-day suspension without pay be brought forward to the Board; and (4) upon eligibility to return to work, Respondent would be reassigned to a position of an 11 1/2-month assistant principal on assignment for the remainder of the 1999-2000 school year.
By letter dated September 20, 1999, Superintendent Harter notified Respondent that he would be recommending to the Board that Respondent be suspended for 10 days without pay from his position as assistant principal of Lehigh Senior High
School. This letter also advised Respondent of his right to contest the Superintendent's decision.
By letter addressed to Victor Arias, staff attorney of the Lee County School District, dated September 21, 1999, Respondent, through counsel, requested an administrative hearing on the matter.
Respondent submitted to a psychiatric examination by Dr. Newman, Psychiatrist of the Employee Assistance Program, who certified Respondent safe to return to work without any restrictions. Respondent did not undergo any psychiatric treatment.
When Respondent returned to work after his suspension with pay, he was assigned as assistant principal at the Alternative Learning Center High School.
On September 24, 1999, Superintendent Harter filed a Petition For Suspension Without Pay with the Board requesting that Respondent be suspended without pay for 10 days.
Petitioner's Exhibit D is Kimberly McGlohon's notes of her recollection of the comments made by Respondent concerning Lynn Strong on August 12-13, 1999, and the comments made by Respondent on August 11, 1999, concerning Superintendent Harter. These notes were apparently made contemporaneously to the time of the comments. McGlohon's notes indicate that Respondent made the comment, "I am waiting
for someone to go down and shoot Dr. Harter." Furthermore, McGlohon's notes indicate that she was outside the Student Affairs office along with Respondent when he made this comment and that Eric McFee, another assistant principal, also heard the comment.
On direct examination, McGlohon testified that she was in the Student Affairs office on August 11, 1999, when she heard Respondent, who was in the hallway, say "that someone needed to shoot-go down and shoot Dr. Harter." On cross- examination, McGlohon testified that what she had written in her notes ("I am waiting for someone to go down and shoot Dr. Harter.") was correct rather than her statement made on direct examination.
McGlohon's notes indicate that Eric McFee was in the room with McGlohon and heard Respondent's statement concerning Dr. Harter. McFee's notes make mention of this incident, but indicate that the incident occurred on Thursday, August 12, 1999, rather than August 11, 1999. In his direct testimony concerning this incident, McFee testified that he was in the Student Affairs room in August, 1999 (no specific date) with McGlohon when Respondent came into the room and made the statement: "Does anyone want to bet who will shoot Dr. Harter?"
McGlohon testified that on August 12, 1999, while attending a district leadership meeting at Three Oaks Middle School, she overheard Respondent make the statement: "Someone needs to shoot Lynn Strong." Sitting at the table with McGlohon were Herman Williams, assistant principal, and Respondent. Williams testified that he also heard Respondent make basically the same statement. Respondent's recollection was that someone said, "They should give Lynn Strong a hand for all she had done." Respondent admitted that he replied: "I would rather someone give her a bullet."
On August 13, 1999, at an administrative meeting in the conference room at Lehigh Senior High School attended by McGlohon, Williams, McFee, and Peter Folaros, Principal of LSHS, McGlohon heard Respondent mumbling something but could not make out what he was saying. After this meeting, while following Williams and Respondent down the hallway, McGlohon thought she heard Respondent say that he wanted to shoot Lynn Strong. Williams' recollection was that he thought Respondent said: "Someone should shoot Lynn Strong." Respondent's recollection of this incident was that he was walking down the hall by himself and did not make any comment concerning Dr. Harter or Lynn Strong.
Both Williams and McFee recollect that Respondent made inappropriate remarks concerning Lynn Strong and Dr.
Harter at the meeting on August 13, 1999, to the effect that "someone needs to shoot Lynn Strong" and "someone needs to shoot Dr. Harter." Neither in his notes nor in his testimony does Folaros, who also attended this meeting, indicate that he heard any inappropriate remarks concerning Dr. Harter or Lynn Strong during the meeting at LSHS on August 13, 1999.
None of the individuals (McGlohon, Williams, and McFee) who heard Respondent make the remarks concerning Dr. Harter or Lynn Strong considered the remarks threatening to either
Dr. Harter or Lynn Strong but were the result of Respondent's frustration with the system.
Around 12:00 noon on August 13, 1999, McGlohon and Williams approached Folaros concerning the inappropriate remarks about Lynn Strong and Dr. Harter made by Respondent. Folaros assured McGlohon and Williams that he would talk to Respondent concerning these remarks. Subsequently, Folaros talked with Respondent about the remarks and advised him of that such remarks could result in dire consequences. Respondent assured Folaros that any remarks made by him were purely off-the-cuff or off-hand remarks and were in no manner meant to be threatening. Additionally, Respondent assured Folaros that he would cease making such remarks.
After discussing the matter with Respondent, Folaros called Debbie Diggs, in staff development, who had already been informed of this matter by McGlohon. As a result of the conversation with Diggs, Folaros called Lynn Strong and was advised by Strong that an investigation would be initiated.
Although Folaros had assured both McGlohon and Williams that he would talk with Respondent and have the matter investigated, McGlohon took it upon herself to call Lynn Strong, apparently at her home, and tell her the "whole story" on Strong's answering machine.
After Respondent's suspension, McGlohon was appointed to fill his position as assistant principal of curriculum at Lehigh Senior High School.
Clearly, Respondent's remarks concerning Dr. Harter and Lynn Strong were inappropriate. However, it is equally clear that those remarks were made out of frustration with the system and not intended as threats to either Dr. Harter or Lynn Strong and should be considered as off-the-cuff or off- hand remarks
Although Respondent's remarks were inappropriate, the evidence does not establish that Respondent's remarks or behavior jeopardized the life and safety of Dr. Harter, Lynn Strong, or any other staff member of the school district. Likewise, the evidence does not establish that Respondent's
remarks or behavior caused fear or disruption in the work environment within the school district.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1) and 231.36(6)(a)2., Florida Statutes.
In accordance with Section 230.23(5)(f), Florida Statutes, the Board may suspend or dismiss its employees in accordance with Chapter 231, Florida Statutes. An employee, such as Respondent, who has a contract with the Board may be suspended or dismissed under Section 231.36(6)(a), Florida Statutes, at any time during the term of the employee's contract for just cause as provided in Section 231.36(1)(a), Florida Statutes. Under Section 231.36(1)(a), Florida Statues, 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 as defined by rule of the State Board of Education.
The Board contends that Respondent's conduct amounts to misconduct in office and immorality. Rule 6B-4.009(2) and (3),
Florida Administrative Code, defines misconduct in office and immorality 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 disgrace or disrepair and impair the individual's service in the community.
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 adopted in Rule 6B-1.006,
FAC.,
which is so serious as to impair the individuals effectiveness in the school system. (Emphasis furnished).
The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,
396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the Board must establish facts upon which its allegations are based by a preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3rd DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3rd DCA 1990), and Section 120.57(1)(j), Florida Statutes (1999). The Board has failed to meet its burden in this regard.
While Respondent's comments concerning Dr. Harter and Lynn Strong may be sufficiently inappropriate to result in a suspension of 10 days with pay, a requirement for psychiatric evaluation, and a transfer from his position as a assistant principal at LSHS, the established facts just do not support the Board's position that Respondent was guilty of misconduct in office or that Respondent's conduct reached the level of immorality.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order dismissing Superintendent Harter's Petition For Suspension Without Pay filed against Respondent.
DONE AND ENTERED this 28th day of February, 2000, in Tallahassee, Leon County, Florida.
___________________________________ WILLIAM R. CAVE
Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2000.
The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Dr. Bruce Harter
Victor M. Arias, Esquire School District of Lee County 2055 Central Avenue
Harry A. Blair, Esquire
All parties have the right to submit 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.
