STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

PHILIP CARTWRIGHT,

Respondent.

)

)

)

)

) Case No. 10-9618

)

)

)

)

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on January 13, 2011, in Fort Myers, Florida, before Thomas P. Crapps, a designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County 2855 Colonial Boulevard

Fort Myers, Florida 33966-1012

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman Post Office Box 2089

Fort Myers, Florida 33902 STATEMENT OF THE ISSUE

Whether Petitioner has established "just cause" to terminate Respondent based on the allegation that Respondent had altered a prescription allowing him to obtain refills for

Vicodin and that he had submitted the altered prescription to a pharmacy.

PRELIMINARY STATEMENT

On September 8, 2010, James W. Browder, Ed.D., the superintendent of the School District of Lee County (School District), issued a Petition for Termination (Petition) against Respondent, Philip Cartwright (Mr. Cartwright). On October 7, 2010, Petitioner, Lee County School Board (School Board), suspended Mr. Cartwright without pay pending receipt of a recommended order from an Administrative Law Judge. The School Board forwarded the Petition to the Division of Administrative Hearings for the assignment of an Administrative Law Judge.

On October 13, 2010, Administrative Law Judge Thomas P. Crapps was assigned the case, and a final hearing was set for January 13, 2011, in Fort Myers, Florida.

At the January 13, 2011, hearing, the School Board presented the testimony of four witnesses: Ranice Monroe, director of the Department of Professional Standards and Equity; Karl Friedrich, M.D.; Cynthia Nunez, assistant principal of

G. Weaver Hipps Elementary School; and Craig Baker, an investigator and coordinator with the School Board's Department of Professional Standards and Equity. The School Board introduced into evidence Exhibits 1 through 5 and 7 through 9.

Mr. Cartwright testified in his own defense and introduced Exhibits 1 through 12 into evidence.

The parties submitted Proposed Recommended Orders on March 4, 2011. In addition, the parties filed a Joint Pre- hearing Stipulation of which parts have been incorporated into this Recommended Order, as appropriate.

A one-volume Transcript of the proceedings was filed with the Division of Administrative Hearings on February 4, 2011.

FINDINGS OF FACT

1. Mr. Cartwright has been a School District employee since August 4, 2003. Before his suspension in this case,

   Mr. Cartwright was a fourth grade teacher at G. Weaver Hipps Elementary School.

2. Mr. Cartwright testified that he had a pre-existing back injury, which made him susceptible to injury. Mr. Cartwright explained that he was injured in an automobile accident that occurred in 2000. This back injury apparently left

   Mr. Cartwright in pain, which was treated with a series of prescriptions. In the Spring of 2009, Mr. Cartwright injured his back while working for the School District. According to

   Mr. Cartwright, he was helping move equipment out of his classroom and "threw his back out." This injury resulted in him making a workers' compensation claim with the School District and seeking treatment at Lee Convenient Care. Mr. Cartwright also

   
   

   testified about another workers' compensation injury that occurred on January 25, 2010, while he was employed with the School District. It is this January 25, 2010, injury that provides the factual foundation concerning the charges against Mr. Cartwright.

3. Earlier in the school year, on or near January 19, 2010, Mr. Cartwright had exhibited problems with slurred speech and was acting loopy in a classroom. Based on his behavior,

   Mr. Cartwright was driven home. On January 22, 2010,

   
   

   Mr. Cartwright met with Ranice Monroe (Ms. Monroe) and a representative from the teacher's union about Mr. Cartwright's behavior. Mr. Cartwright explained that his medications had caused his behavior and that it would not happen again.

   Ms. Monroe informed Mr. Cartwright that the School District was not looking at discipline at that time, but, if anything further occurred, there would be consequences.

4. On January 25, 2010, Mr. Cartwright picked up a box of copy paper from outside his classroom. As he entered the classroom carrying the box, Mr. Cartwright slipped on a liquid, twisted his back, and fell holding the box. Mr. Cartwright testified that he assumed that the liquid on the floor may have been milk or some other liquid that had been spilled during breakfast by one of the students. Mr. Cartwright informed the

   
   

   school that he had been injured, and he went to Lee Convenient Care seeking medical treatment.

5. On January 25, 2010, Karl Friedrich, M.D.

   
   

   (Dr. Friedrich), a physician at Lee Convenient Care wrote,

   
   

   Mr. Cartwright a prescription for Vicodin with the lines on the form for Mr. Cartwright's address, age, and number of refills left blank.

6. After seeing Dr. Friedrich, on January 25, 2010,

   
   

   Mr. Cartwright presented the prescription to a pharmacy technician at the CVS Pharmacy for filling the prescription. At some point, the prescription was altered to authorize two refills.

7. On February 17, 2010, Mr. Cartwright refilled his prescription for the Vicodin at the CVS Pharmacy.

8. On February 18, 2010, Scott LeMaster (Mr. LeMaster), the principal for G. Weaver Hipps Elementary School, asked

   Mr. Cartwright to meet with him. It was reported to the principal that Mr. Cartwright was having great difficulty in the classroom and with his capability to work with the children.

   During the meeting, Mr. LeMaster informed Mr. Cartwright that he was worried about Mr. Cartwright and asked if there was something that Mr. Cartwright should tell him. At this point,

   Mr. Cartwright admitted that he had a problem and that he needed help.

   
   

9. Mr. LeMaster contacted Craig Baker (Mr. Baker), from the School District. Mr. Baker is an investigator for the School District and the coordinator for the School District's Department of Professional Standards and Equity. Mr. Baker arrived at the school and observed Mr. Cartwright. Mr. Baker found that

   Mr. Cartwright exhibited "very jittery, jumpy behavior, rapid speech." Based on these observations and statements made by Mr. Cartwright to Mr. LeMaster, the School District had reasonable suspicion to perform a drug test. Mr. Baker administered the drug test, and, at that point, Mr. Cartwright informed Mr. Baker that the test would be positive for Vicodin. The drug test came back positive for cocaine. Based on

   Mr. Cartwright's behavior and drug test, he was driven home, placed on suspension with pay, and referred to the School District's Employee Assistance Program pursuant to the School District's Alcohol and Drug Free Workplace policy.

10. Mr. Cartwright successfully completed the Employee Assistance Program on May 11, 2010. On June 4, 2010,

    Mr. Cartwright received a letter of reprimand for this conduct.

    
    

11. On May 11, 2010, the School District's Department of Professional Standards and Equity received allegations from the School District's workers' compensation carrier concerning

    Mr. Cartwright. Specifically, Paul Kosvich, an investigator for the School District's workers' compensation carrier, voiced

    
    

    suspicions that Mr. Cartwright had falsified his prescription for Vicodin in order to obtain a refill on February 17, 2010. As a result of this allegation, the School District continued

    Mr. Cartwright's suspension and began an investigation.

    
    

12. A copy of the altered prescription showed that, unlike the original prescription entered on January 25, 2010, the altered prescription contained Mr. Cartwright's address, date of birth, and provided for two refills of Vicodin. Based on the determination that Mr. Cartwright had altered the prescription, the School Board determined to seek Mr. Cartwright's termination.

13. Mr. Cartwright testified that, when he was filling the prescription on January 25, 2010, the CVS pharmacy technician informed him that she could not fill the prescription without information concerning his address, date of birth, and refills.1/ According to Mr. Cartwright, the pharmacy technician asked him for his date of birth and address. Mr. Cartwright testified that he saw the pharmacy technician write Mr. Cartwright's address and date of birth on the prescription and that she called Lee Convenient Care about his prescription. Further, Mr. Cartwright testified that he did not see the pharmacy technician write in the number of refills and that he assumed that she had written the number. Finally, Mr. Cartwright denied that he had altered the prescription. Mr. Cartwright's testimony concerning the altercation of the prescription is not credible.

    
    

14. Mr. Cartwright's explanation is not credible because the medical records do not support his contention that a CVS pharmacy technician called Lee Convenient Care on January 25, 2010. Although Dr. Friedrich testified that he did not specifically remember Mr. Cartwright, Dr. Friedrich credibly testified that he had not authorized the refill and that it was doubtful that a pharmacy technician had called Lee Convenient Care, as explained by Mr. Cartwright. Dr. Friedrich based his testimony on his review of Mr. Cartwright's medical record at Lee Convenient Care and the typical practice of noting telephone conversations with a pharmacy in the medical records. Specifically, Dr. Friedrich credibly testified that he reviewed Mr. Cartwright's medical records at Lee Convenient Care, and the records showed that he had not authorized a refill for

    Mr. Cartwright. Further, Dr. Friedrich credibly testified that Mr. Cartwright's medical file did not contain any notation showing that someone had called about the January 25, 2010, prescription. Dr. Friedrich explained that typically if a pharmacy calls Lee Convenient Care about a patient's medication that the call would be documented in the patient's medical record.

15. Mr. Cartwright's explanation also does not make sense, because the pharmacy technician did not have to call Lee Convenient Care to verify Mr. Cartwright's date of birth and

    
    

    address. Those facts are readily attainable from Mr. Cartwright. Further, there would not have been any reason for the pharmacy technician to determine an amount of refills, when the physician had left the refill space blank, and the prescription is being filled for the first time. Based on the foregoing, Mr.

    Cartwright's explanation that a pharmacy technician had altered the prescription is not credible. The evidence supports the conclusion that Mr. Cartwright altered the prescription.

16. Mr. Cartwright's teacher evaluations showed that, for the 2008-2009 school year, he was a highly-regarded teacher, earning "outstanding" and "high performing" marks. A review of his teacher evaluations from 2003 until 2007 also reflect he was an effective and good teacher.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has contractual jurisdiction over the parties and subject matter of the Petition pursuant to section 120.65(7), Florida Statutes (2010),1/ and pursuant to School Board Policy 1.16(6)(c) and sections 1012.40(2)(c), 120.569, and 120.57, Florida Statutes.

18. The School Board has the authority to terminate and/or suspend instructional personnel without pay and benefits pursuant to sections 1012.22(1)(f) and 1012.40(2)(c).

    
    

19. The standard for discipline of instructional personnel is "just cause" pursuant to section 6.024 of the Teachers Association of Lee County (TALC) Collective Bargaining Agreement and section 1012.33(1)(a).

20. Mr. Cartwright is an instructional employee of the School District; thus subject to the collective bargaining agreement and section 1012.33. Although the collective bargaining agreement does not define "just cause," the term is defined by section 1012.33. Section 1012.33 states that "just cause" "includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude."

21. The Petition charged that Mr. Cartwright's action in altering a prescription in order to obtain a refill of Vicodin constituted "misconduct in office" under section 1012.33(1)(a), as defined by the State Board of Education, Florida Administrative Code Rule 6B-4.009(3). Further, the Petition charged that Mr. Cartwright violated School Board Policy 5.02, requiring school employees to adhere to the highest ethical standards, and School Board Policy 5.29, requiring school

    
    

    employees to exemplify conduct that is lawful and professional and contributing to a positive learning environment for students.

22. The School Board has the burden of proving by a preponderance of the evidence the allegations underlying the proposed disciplinary action set forth in the Petition. See McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).

23. Rule 6B-4.009 sets out the criteria for suspension and dismissal for school instructional personnel. Rule 6B-4.009(3) provides the definition for "misconduct in office" as follows:

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

    
    

24. Florida Administrative Code Rule 6B-1.001, the Code of Ethics of the Education Profession in Florida, requires that a teacher to strive "to achieve and sustain the highest degree of ethical conduct." Similarly, Florida Administrative Code Rule 6B-1.006(3)(a), entitled the "Principles of Professional Conduct for the Education Profession in Florida," requires a teacher, as part of the teacher's "obligation to the student," to "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."

25. The School Board has shown by the preponderance of the evidence that Mr. Cartwright altered the prescription, in order to obtain a refill for Vicodin, and submitted the altered prescription to the CVS Pharmacy. Further, the evidence showed by preponderance of the evidence that Mr. Cartwright received the "refill" of the Vicodin on February 17, 2010.

26. The School Board has shown by a preponderance of the evidence just cause to terminate Mr. Cartwright's employment as a teacher. Mr. Cartwright's conduct in altering a prescription in order to fraudulently obtain a refill of Vicodin, a controlled substance, is so serious that it impairs his effectiveness in the school system. As stated by the School Board's Policies 5.02

    and 5.29, teachers are held to high ethical standards and are expected to exemplify conduct that is lawful. Unfortunately, Mr. Cartwright's actions here do not reflect the high ethical standards or lawful conduct expected of teachers. Contrary to the expectations, Mr. Cartwright's actions violated Florida law and demonstrated a level of dishonesty that impairs his effectiveness as a teacher. The record shows that, at the same time he was using cocaine, Mr. Cartwright altered the prescription in order to obtain a refill of Vicodin.

    Consequently, the School Board has met its burden to terminate

    
    

    Mr. Cartwright. See Purvis v. Marion Cnty. Sch. Bd., 766 So. 2d 492, 498 (Fla. 5th DCA 2000)(holding that teacher who lied under oath and resisted arrest was a level of misconduct which would support the inference that the teacher's effectiveness had been impaired).

27. Although the School Board has met the evidentiary burden to terminate Mr. Cartwright, the evidence did establish four mitigating facts:

The first mitigating fact is, on February 18, 2010,

Mr. Cartwright asked the principal of his school, Mr. LeMaster, for help because Mr. Cartwright realized that his addiction problems were destroying his life.

The second mitigating fact is that Mr. Cartwright's alteration of the prescription occurred before he got help to deal with his addiction. The facts showed that the prescription was altered on January 25, 2010. The testimony supports the conclusion that, at the time the prescription was altered, Mr.

Cartwright was showing extremely poor judgment because of his addictions.

The third mitigating fact is that Mr. Cartwright successfully completed the School District's Employee Assistance Program to address his cocaine addiction problem.

The fourth mitigating fact was that Mr. Cartwright had been an excellent teacher before his substance abuse problems.

A review of the collective bargaining agreement and statute shows that a teacher may be terminated for "just cause." The collective bargaining agreement and the statute are silent about weighing any mitigating factors. Because the collective bargaining agreement and the statute are silent about considering mitigating circumstances in a teacher termination case, the undersigned does not consider the factors in making his recommendation. The School Board, however, with its discretion may want to consider these mitigating factors in

reaching its decision.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order finding that Phillip Cartwright committed misconduct in office and that he should be dismissed from his employment as a teacher pursuant to section 1012.33.

DONE AND ENTERED this 4th day of April, 2011, in Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of April, 2011.

ENDNOTES

1/ Mr. Cartwright was uncertain about the sex of the pharmacy technician, but tended to think the technician was female.

2/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 version.

COPIES FURNISHED:

Robert Dodig, Jr., Esquire School District of Lee County 2855 Colonial Boulevard

Fort Myers, Florida 33966-1012

Robert J. Coleman, Esquire Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902

Lois Tepper, Acting General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Lawrence D. Tihen, Interim Superintendent Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966-1012

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: 10-009618TTS

Orders for Case No: 10-009618TTS