STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2088

)

JOHN HENRY MC ARTHUR, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, K. N. Ayers, held a public hearing in the above styled cause on February 24, 1976, at Miami, Florida.

APPEARANCES

For Petitioner: Jesse J. McCrary, Jr., Esquire

c/o Dade County Public Schools 1410 Northeast 2nd Avenue Miami, Florida

For Respondent: Elizabeth J. duFresne, Esquire

Suite 101, 1492 South Miami Avenue

Miami, Florida 33130

By Notice of Charges dated April 6, 1973, the Dade County School Board seeks to dismiss John Henry McArthur, Respondent herein, from the instructional staff of the Dade County School System upon the allegation that Respondent committed an aggravated assault upon two Dade County law enforcement officers while they were engaged in the performance of their official duties. The Respondent was not present; however, his attorney acknowledged that Respondent had been personally advised of the time and place of the hearing.

At the hearing Petitioner submitted a certified copy of the judgment entered in the Circuit Court of the Eleventh Judicial

Circuit in the case of State vs. McArthur dated December 12, 1973, which was admitted into evidence without objection. Therein Respondent was found guilty of "committing an assault upon Fred Dunphy and Dennis Hatterman" and sentenced to confinement in the county jail for sixty (60) days. Thereupon Petitioner rested and no further evidence was submitted by either party.

CONCLUSIONS OF LAW

1. Section 231.36(6) Florida Statutes provides in part:

   
   

   "Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, may be suspended or dismissed at any time during the school year; provided that no such employee may be discharged or removed during the school year without opportunity to be heard at a public hearing after at least ten

   (10) days written notice of the charges against him and of the time and place of the hearing; and, provided further, that the charges must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude."

   
   

2. Although Respondent was charged in the Notice of Charges with aggravated assault the evidence introduced was the adjudication of guilt of simple assault. The former involves moral turpitude; the latter, standing alone, does not.

   
   

3. Section 784.011(2) Florida Statutes provides:

   
   

   "Whoever commits an assault shall be guilty of a misdemeanor in the second degree punishable as provided in Chapter 775."

   
   

4. Section 775.082(4)(b) Florida Statutes contains sentencing provisions and provides in part:

   
   

   "A person who has been convicted of. . .a misdemeanor in the second degree [may be sentenced to] a definite term of imprisonment not exceeding sixty (60) days."

5. As noted above, Respondent was found guilty of assault and sentenced to sixty (60) days confinement in the county jail, the maximum punishment that may be awarded upon conviction of a misdemeanor in the second degree. Misdemeanors generally do not involve moral turpitude. 9 Fla. Jur. Criminal Law 8 provides:

   
   

   "A crime involves moral turpitude if it is an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man or to society in general.

   Unless the offense is one which by its very commission implies a base and depraved nature, the question of moral turpitude depends not only on the nature of the offense, but also on the attendant circumstances; the standard is public sentiment, which charges as the moral opinions of the public change."

   
   

6. Simple assault on its face does not involve immorality. No evidence was introduced that the assault complained of occurred while Respondent was engaged in his duties as a teacher or that the persons assaulted were police engaged in the performance of their official duties. Nor does the charge of assault carry with it connotations of incompetency, gross insubordination, willful neglect of duty or drunkenness. Accordingly, the conviction shown herein does not authorize dismissal.

   
   

7. From the foregoing it is concluded that the offense proved does not authorize dismissal from the instructional staff of the Dade County School System. It is therefore,

RECOMMENDED that Respondent be restored to his position in the Dade County School System Instructional staff.

DONE and ENTERED this 15th day of March, 1976 in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DADE COUNTY SCHOOL BOARD,

Petitioner,

vs. CASE NO. 75-2088

JOHN HENRY MC ARTHUR,

Respondent.

/

SETTLEMENT STIPULATION

WHEREAS, The School Board of Dade County, Florida, herein referred to as Dade County School Board, has filed charges and amended charges against John Henry McArthur seeking the dismissal of John Henry McArthur as an employee of The School Board of Dade County, Florida; and

WHEREAS, this cause came on to be heard before Hearing Officer K. N. Ayers on February 24, 1976; and

WHEREAS, it was the recommendation of Hearing Officer Ayers ". . .that Respondent be restored to his position in the Dade County School System Instructional Staff."; and

WHEREAS, the Petition Excepting to the Recommended Order and Conclusions of Law of the Hearing Examiner and Requesting Relief from Said Order filed by the School Board has been denied; and

WHEREAS, it now remains for the School Board to accept or reject the recommended order of the Hearing Examiner.

NOW, THEREFORE, it is stipulated and agreed between the parties as follows:

1. The School Board agrees to accept the recommendation of the Hearing Officer as set forth above upon the condition that John Henry McArthur may not be restored to his position in the Dade County school system instructional staff until such time as he possesses a valid Florida teaching certificate, as provided for and required under Florida Statutes 231.02 and 231.15.

   
   

2. John Henry McArthur waives any and all rights to receive any form of back pay or monetary damages which may flow from any acts or omissions of the School Board, its agents or employees in reference to his suspension as an employee, or in connection with the administrative proceedings in the case of Dade County School Board vs John Henry McArthur, Case Nos. 72-13 and 75-2088.

   
   

3. In signing this stipulation, both parties agree that the above styled case will be deemed by the parties to be settled and neither party will in any way seek to proceed further in this cause.

Signed this 21st day of April, 1976, in Miami, Florida.

ELIZABETH DuFRESNE, Attorney for John Henry McArthur

FRANK A. HOWARD, JR., Attorney for The School Board of Dade County,

Florida

Docket for Case No: 75-002088

Orders for Case No: 75-002088