STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TOM GALLAGHER, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) Case No. 00-3344PL

)

GREGORY JAMISON, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on December 12, 2000.

APPEARANCES

For Petitioner: William R. Scherer III

Conrad & Scherer

Post Office Box 14723

Fort Lauderdale, Florida 33302

For Respondent: Harry A. Blair

Harry A. Blair, P.A.

2180 West First Street, Suite 401 Fort Myers, Florida 33901

STATEMENT OF THE ISSUE

The issue is whether Respondent's Educator's Certificate should be suspended..

PRELIMINARY STATEMENT

By Administrative Complaint dated July 20, 2000, Petitioner alleged that Respondent, while employed as an

assistant principal at Lehigh Senior High School, made inappropriate and threatening remarks about the Director of Personnel, Lynn Strong, and the Superintendent, Bruce Harter. The alleged remarks were that “someone needs to shoot them” and “I should kill Dr. Harter and shoot Ms. Lynn Strong.” The Administrative Complaint alleges that Respondent made these comments several times.

The Administrative Complaint alleges that Respondent was thus guilty of gross immorality, in violation of

Section 231.28(1)(c), Florida Statutes; personal conduct that seriously reduces his effectiveness as an employee of the school board, in violation of Section 231.28(1)(f), Florida Statutes; and a violation of the Principles of Professional Conduct for the Education Profession by engaging in harassment or discriminatory conduct that unreasonably interfered with an individual’s performance of professional or work responsibilities or with the orderly processes of education or that created a hostile, intimidating, abusive, offensive, or oppressive environment, in violation of Section 231.28(1)(i), Florida Statutes, and

Rule 6B-1.006(5)(d), Florida Administrative Code.

At the hearing, Petitioner called seven witnesses and offered into evidence three exhibits. Respondent called six

witnesses and offered into evidence three exhibits. All exhibits were admitted except Petitioner Exhibits 1-3.

The court reporter filed the Transcript on January 24, 2001.

FINDINGS OF FACT

1. Respondent has been in the education profession for

   
   

   31 years. He holds a master’s degree in psychological counseling and a specialist certificate in educational leadership. He has taught, in chronological order, at Lake City Junior High School, Deland Senior High School, Edison Community College, and Cape Coral High School. He has served as an assistant principal at Cape Coral High School, Riverview High School, and Lehigh Senior High School, for a total of eight years.

2. During his career in education, Respondent has not been disciplined and has generally received excellent evaluations.

3. In August 1999, prior to the return of the students or faculty, Respondent was the assistant principal of curriculum at Lehigh Senior High School. This was a difficult period for the school district. It had spent more than it had received during the prior school year, and the superintendent, Dr. Bruce Harter, had had to recommend to the school board difficult cutbacks, including over 90 teaching positions. The

   school board had adopted these recommendations, and Dr. Harter had implemented them, starting the 1999-2000 school year.

4. In mid August 1999, while working in the common area of the office in preparation for the return of the teachers to school, Respondent was talking with a couple of other school administrators while they were painting school colors in the office. In charge of preparing the master schedule of classes for the school, Respondent was especially upset at the teaching cutbacks. During a conversation among the three administrators, Respondent commented once or twice, “Who do you want to bet will shoot Dr. Harter?”

5. The administrator who recounted this comment walked away to his office to terminate the conversation. He reported that Respondent was not ranting or raving when making the comment and that Respondent did not make these comments in a threatening manner. The administrator has known Respondent since 1988 and has never known him to be dangerous, threatening, or unprofessional.

6. As all persons involved in this case were aware, this comment was especially distasteful because a distraught school teacher had murdered a superintendent a few years earlier. In a school district the size of Lee County, nearly everyone involved in this case had some personal involvement in the tragic loss of the superintendent. For instance, the

   administrator who recounted the conversation at the school office had known the teacher who had shot the superintendent.

7. A day or two after the first comment, on August 19, 1999, Respondent attended a meeting at another school for the purpose of welcoming the new principals. Respondent was frustrated because he had applied over a dozen times in the past four years for the position of school principal, but had never even been interviewed.

8. In the course of the presentation, a speaker said, “Let’s give Lynn Strong a round of applause.” Ms. Strong was in charge of personnel and had some involvement in the selection process for principals. In response to the speaker’s comment, Respondent muttered, “I’d rather give her a bullet.” This remark was heard only by two or three other administrators, also from Lehigh Senior High School, who were seated at the same table as Respondent.

9. The administrators hearing Respondent’s remark were not so much alarmed, as they were concerned. The consensus among them was that someone should inform the principal of Respondent’s remarks, and the principal should talk to Respondent.

10. On the same day as the latter statement, the principal visited Respondent in his office and told him that he had learned of these statements and that they were

    inappropriate. The principal warned Respondent that such statements could get him in a lot of trouble. Without denying having made the statements, Respondent said that he had not intended to act on them.

11. Unsure what, if anything, to do next, the principal received a call from someone in the district office, who had heard about Respondent’s statements. Even though he had worked with Respondent for several years and had never known him to behave unprofessionally, the principal decided to report the threat to Ms. Strong and the superintendent.

12. Ms. Strong became frightened by the report. She had known of the murder of the superintendent, as well as a murder of a teacher in the recent past. Ms. Strong stayed in her home all of the ensuing weekend, and her husband escorted her to work for a couple of weeks. She never contacted Respondent about the situation, largely because Ms. Strong’s professional responsibilities encompassed the investigation, but Respondent never contacted her and explained the situation to relieve her of her understandable anxiety.

13. After an investigation, the school district removed Respondent from Lehigh Senior High School and suspended him with pay for nine weeks. After the completion of the suspension, the school district reassigned Respondent to a

    second-chance school, until his contract expired at the end of the school year.

14. The next year, the principal of Fort Myers High School, who had known Respondent as an effective educational professional for many years, hired him as a teacher. Respondent’s work after the two incidents in August 1999 has earned him praise from his supervisors.

15. The two comments made by Respondent were repulsive, especially given the tragic recent history of violence directed against Lee County education professionals. Assessed in the context of a long, effective career in education, these two incidents stand out as isolated and largely inexplicable. The only partial explanation appearing in the record was that Respondent had, in August 1997, completed counseling for the sudden death from an undetermined cause of his 22-year-old daughter, while she was attending the University of Florida. The question nevertheless remains why a mature professional educator, himself having recently undergone a tragic, recent loss, would choose to express his displeasure with policy and personnel decisions by oblique references to the death of the administrators making these policy and personnel decisions.

16. Based on the prehearing stipulation, Petitioner abandoned its allegation that Respondent is guilty of a violation of the Principles of Professional Conduct for the

    Education Profession. In any event, Petitioner did not prove by clear and convincing evidence that Respondent is guilty of intimidating or harassing anyone.

17. Petitioner has failed to prove by clear and convincing evidence that Respondent is guilty of gross immorality or moral turpitude. Evaluated in the context of his long professional career in education, these lapses in judgment, although serious departures from good judgment, do not constitute moral turpitude, especially in view of the fact that no one hearing the remarks believed that Respondent intended to do violence to Dr. Harter or Ms. Strong.

18. Petitioner has failed to prove by clear and convincing evidence that Respondent has reduced his effectiveness as an employee of the school board. Absent the willingness of two administrators to work with Respondent following his August 1999 comments, this issue would be more difficult to resolve. However, these administrators have given Respondent the opportunity to demonstrate that he remains an effective educator and has lost none of his effectiveness as an employee of the school board. One’s sense of justice is not offended by Respondent’s removal from administrative duties, nor the likelihood that his resumption of administrative duties will, if ever, be long deferred; however, as a teacher, Respondent remains an effective and

    valuable employee of the school board, provided he guards carefully against a recurrence of this irresponsible behavior.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

20. Section 231.2615(1)(c) and (f) (formerly 231.28(1)(c) and (f)), authorize discipline against an educator who is guilty of “personal conduct which seriously reduces that person’s effectiveness as an employee of the district school board” and “gross immorality or an act involving moral turpitude.”

21. Petitioner must prove the material allegations by clear and convincing evidence. Department of Banking and Finance v. Osborne Stern and Company, Inc., 670 So. 2d 932 (Fla. 1996) and Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

22. Petitioner has failed to prove that Respondent’s conduct constitutes a violation of the cited provisions.

RECOMMENDATION

It is

RECOMMENDED that the Education Practices Commission enter a final order dismissing the Administrative Complaint against Respondent.

DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida.

___________________________________ ROBERT E. MEALE

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 9th day of March, 2001.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Department of Education

Florida Education Center, Room 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Jerry W. Whitmore, Chief Department of Education

Bureau of Educator Standards, Room 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

James A. Robinson, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

William R. Scherer III Conrad & Scherer

Post Office Box 14723

Fort Lauderdale, Florida 33302

Harry A. Blair

Harry A. Blair, P.A.

2180 West First Street, Suite 401 Fort Myers, Florida 33901

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: 00-003344PL

Orders for Case No: 00-003344PL