STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PROFESSIONAL PRACTICES COUNCIL ) and PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1664

) 77-2180

MELVIN H. WOODARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in these consolidated cases 1/ on March 7, 1978, in Clearwater, Florida.

APPEARANCES

For Petitioner: J. David Holder, Esquire Professional Post Office Box 1501 Practices Council Tallahassee, Florida 32302

For Petitioner: William A. Borja, Esquire

Pinellas County 501 South Fort Harrison Avenue, Suite 204 School Board Clearwater, Florida 33516

For Respondent: Ronald G. Meyer, Esquire

Office of the General Counsel Florida Teaching Profession-NEA

325 John Knox Road, L-500 Tallahassee, Florida 32303

By its Petition, executed November 17, 1977, the Professional Practices Council (herein sometimes called Council or (PPC) recommended that the State Board of Education revoke the Florida Teaching Certificate of Melvin H. Woodard (sometimes herein called the Respondent) based on allegations that during the Spring of 1977, Respondent supplied beer and marijuana to female students of Seminole Middle School in his apartment and also that Respondent smoked marijuana with female students of Seminole Middle School in his apartment. The Council concluded that such acts amount to violations of Section 231.28; .09, Florida Statutes, and Chapter 6A-4.37 and 6B-1, Rules of the State Board of Education, in that said acts constitute conduct which seriously reduces Respondent's effectiveness as a school board employee and is not a proper example or model for students as such as it is detrimental to their health and safety.

ISSUES

The issues posed for decision herein are whether or not the Respondent, during the Spring of 1977, supplied beer and marijuana to female students of Seminole Middle School; whether he smoked or permitted them to smoke marijuana in his apartment during this period and whether such conduct constitutes acts violative of Chapter 231.26 and 231.09, Florida Statutes, and Rules 6A-4.37 and 6B-1 of the State Board of Education, Florida Administrative Code.

Based on the testimony of the witnesses and their demeanor while testifying, including the entire record compiled herein, I make the following:

FINDINGS OF FACT

1. The Respondent is the holder of a Graduate Rank III teaching certificate number 318622 and has been employed as a teacher for approximately five years. During school year 1976-1977, he was assigned as a teacher at Seminole Middle School. By letter dated September 2, 1977, from Gus Sakkis, Superintendent of Schools for Pinellas County, Respondent was advised that he was suspended, without pay, from his duties at Seminole Middle School beginning August 24, 1977, and was further advised that it was the Superintendent's "intention to recommend to the School Board of Pinellas County at their regular meeting of September 28, 1977, that it sustain the suspension and that [Respondent's] contract with the School System be cancelled." Respondent was also advised that he was being charged with misconduct in office pursuant to Section 231.36, Florida Statutes.

   
   

2. As stated, the acts which comprise the alleged misconduct in office by Respondent involve the giving/selling of alcoholic beverages and marijuana, to- wit: beer and marijuana to certain eighth grade students in the Seminole Middle School, Pinellas County, Florida, during the 1976-1977 school year and the summer months of 1977; that the Respondent smoked marijuana in the presence of the same students on several occasions and that Respondent drank beer and/or other alcoholic beverages with the students.

   
   

3. To substantiate the allegations contained in the Petition for Revocation of Respondent's Teaching Certificate, the Petitioners presented the testimony of four female students: Stacey Soper, Terri Cotterman, Donna Lombardi and Genine Buckley. Petitioners also presented witnesses Lois Beacham, Douglas McBriarty and Ruth A. McNutt, all employees in the Pinellas County school system.

   
   

4. Stacey Soper, a fifteen year old ninth grade student at Seminole Middle School was an eighth grade student during the 1976-1977 school year. She testified that she lived in the same apartment complex as the Respondent and saw him on numerous occasions at the apartment complex, the swimming pool and at football and baseball games. She has smoked marijuana before and drank beer. She recalled having smoked marijuana supplied by Respondent on at least three occasions along with two other students, Terri Cotterman and Genine Buckley.

   She recalled this incident as having occurred during the Spring of 1977, in addition to one other occasion in which she drank beer with Respondent. She testified that on one occasion she asked Respondent to sell her a "joint" for which she paid seventy-five cents. (She recalled at least one other occasion during the Spring of 1977, when she asked Respondent to give her some "pot." She testified that when the marijuana was smoked, Respondent and two or three other students were engaged in smoking one "joint" at a time. While so doing,

   she testified that Respondent would close the door to his apartment. Respondent

   kept marijuana in a plastic bag in a desk drawer in his coffee table. She testified that these smoking sessions lasted from one to one and one half hours. The witness reiterated her familiarity with marijuana and beer as she has drunk beer and smoked marijuana on numerous occasions prior to the subject occasion with Respondent.

   
   

5. Terri Cotterman, a fifteen year old ninth grade student at Seminole Middle High School recognized Respondent and noted that Respondent taught her for one week during her seventh grade school year and was her regular English teacher during her eighth grade school year. Cotterman also had smoked marijuana with Genine Buckley (Genine) and Stacey Soper (Stacey) during the Spring of 1977. She testified that she, along with Genine and Stacey, smoked marijuana with Respondent and another former instructor in the school system, a Mr. Asbury, who brought them home after they smoked marijuana at Respondent's apartment. She recalled that on one occasion, after they finished smoking marijuana and was sitting around the apartment, there was a knock on the door and two individuals, later identified as Alvin Philpot and Margaret Croskey, visited Respondent's apartment. She testified that when they entered the apartment, Mr. Asbury advised Respondent that "you'd better get them out of here." They all left and Mr. Asbury drove them home. She specifically recalled that the marijuana had been smoked when Philpot and Croskey came to Respondent's apartment. Witness Soper testified that she asked Respondent to purchase a six- pack of beer for them sometime during the 1977 Memorial Day weekend. She testified that while she remembered Respondent purchasing the beer for them, she failed to recall which brand was purchased or whether the beer was in glass or metal containers.

   
   

6. Donna Lombardi, also a student, recalled being in Respondent's apartment complex on approximately two occasions and recalled one time when Respondent bought herself, Terri and Stacey a six-pack of beer (TR. 151). She testified that Respondent was outside washing his car when Donna, Terri and Stacey asked Respondent to buy them some beer. Respondent agreed, purchased the beer and they drank it in Stacey's apartment.

   
   

7. Lois Ann Beacham, an Assistant Principal at Seminole Middle School, has known Respondent as a coworker since approximately 1973. Ms. Beacham recalled two conferences in which she had, prior to the subject incidents, warned Respondent of the "hands-off" policy in effect at the school as it related to instructors and preadolescent students. She testified that the first incident stemmed from an occasion in which a student, Wendy Aydlett, cuddled up to Respondent at a table in the library and moved her chair closer to him. This occurred during the months of October thru December, 1976. Another incident occurred during November 1976, when a student whose last name was Vega, rode her bicycle over to Respondent's apartment and her mother later learned of this, became highly upset and brought the matter to the attention of Mrs. McNutt, the head of the eighth grade sub-team. Ms. Beacham and Mrs. McNutt met with Respondent the following day and they discussed the matter. According to Ms. Beacham, Respondent received the advice given him during the conferences in a graceful manner and thanked them for the manner in which the incidents were handled. No similar incidents occurred.

   
   

8. Douglas McBriarty, Director of Instructional Personnel for the Pinellas School System, is involved on a day-to-day basis in the handling of teaching problems, hiring, leave problems and investigation and handling of complaints filed against teachers for improper activities or misconduct in office. He has held this position for approximately eight years. Mr. McBriarty became involved in Respondent's case when Mr. Zachary, Principal at Seminole Junior High School,

   called him and advised that a detective Howe from the Pinellas County Sheriff's Department had approached him about statements from three students (Soper, Cotterman and Buckley) which had originated from a diary found by a mother which made references to Respondent having drank beer and smoked marijuana with students. Dr. McBriarty approached Respondent about the allegations and he essentially denied that any of the allegations were true. Dr. McBriarty asked Respondent if he and Mr. Zachary could examine his apartment which Respondent agreed to. They visited Respondent's apartment and found no traces of marijuana or any paraphernalia associated with the smoking of marijuana. Dr. McBriarty testified that he examined a coffee table which was alluded to by the students in their statements and found nothing. Dr. McBriarty voiced his opinion that Respondent's effectiveness as an employee of the School Board had been reduced based on the incidents brought about as a result of the School Board's investigation and stated this was reinforced by his talks with parents of the students involved. He testified that at all times Respondent was cooperative and responded to questions asked of him. Prior to Dr. McBriarty asking Respondent if he and the principal could visit his apartment, he (Respondent) had no knowledge that an investigation of him was ongoing. Based on Dr.

   McBriarty's investigation, he made a recommendation to Dr. Sakkis, Superintendent, that Respondent should be suspended based on acts which in his opinion, amounted to misconduct in office. It was based on this recommendation that Respondent was suspended by the above referenced letter of the School Board dated September 2, 1977, and it was this action which prompted the investigation and Petition for Revocation by the Professional Practices Council.

   
   

   Respondent's Defense

   
   

9. At the outset of the Respondent's defense, counsel moved for a dismissal of the charges arguing essentially that, assuming arguendo that the complaint allegations are true, the record was barren of any evidence tending to show that the Respondent's effectiveness had been reduced as per the teaching of BOYETTE v. STATE, PROFESSIONAL PRACTICES COUNCIL, 346 So.2d 598 (Fla. 1st D.C.A. 1977). Additionally, Respondent's counsel urged that the proof falls short of showing that the alleged acts and/or conduct allegedly engaged in by Respondent as testified to by Petitioners' witnesses, failed to establish any official misconduct within the meaning of Chapter 231.36, Florida Statutes. This Motion was denied based on the undersigned's opinion that the Petitioners had established a prima facie case.

   
   

10. The Respondent denied that he had either given or sold beer or marijuana to Seminole Middle School students as alleged or that he engaged in any of the alleged acts complained of herein. Additionally, in support of his position, Respondent offered the testimony of witnesses Alvin Philpot and Margaret Croskey. They denied that they witnessed any marijuana being smoked at the Respondent's apartment when they visited him on the occasion when students Soper, Buckley or Cotterman were present. They also stated that they only witnessed one beer can present in Respondent's apartment and that they did not smell any marijuana in the apartment. Finally, they testified that the students left shortly after they arrived.

    
    

11. An analysis of the testimony of witnesses Croskey and Philpot was not at all viewed as contradictory of the testimony of student witnesses Soper, Cotterman, Buckley or Lombardi. As a matter of fact, the student witnesses testified that when witnesses Croskey and Philpot arrived, they had finished smoking the marijuana.

12. Contrasting the testimony of witnesses Soper, Cotterman, Lombardi, Buckley and McBriarty, with that of witnesses Croskey and Philpot (as well as the Respondent) the testimony of the witnesses offered by Petitioners i.e., Soper, Cotterman, Lombardi, Buckley and McBriarty, is more creditable. While there were some minor discrepancies in the student witnesses testimony respecting dates, they all testified without contradiction that they in fact smoked marijuana with Respondent which at times was supplied by him either free or for monetary consideration and that he purchased beer for them. Significantly, all of the students had high regards for the Respondent as an instructor and no ulterior motive was advanced by Respondent which would tend to show that the student witnesses would have any basis to fabricate their testimony. Noteworthy too, is the fact that these factors did not come to light until one of the students' parents learned of the activities by reading her daughter's diary. This hardly resembles a situation where student witnesses are out to "get their teacher." That a public school teacher would permit such a blatant violation of the law [Section 893.13(1)(f), F.S.] to take place under any circumstances is totally incomprehensible and raises serious questions concerning his fitness to continue in a teaching capacity. By such acts and conduct, it is, therefore, concluded that Respondent performed acts constituting misconduct in office as alleged.

    
    

13. However, the Petition (Complaint) allegations wherein it is argued that the Respondent's effectiveness as a teacher has been reduced by his acts and conduct as set forth hereinabove, presents a more difficult issue. Here, as in Boyette, supra, the second element of the charge, i.e., that Respondent's effectiveness as a school teacher was seriously reduced as a result of the conduct complained of, was based almost entirely by the Petitioners upon the opinion testimony of Dr. McBriarty. While the record clearly reveals that the Respondent's acts and conduct herein were misguided, they fail to demonstrate that he was unfit to continue as a teacher. The testimony of those instructors who had any knowledge of Respondent's abilities indicated that he is a competent teacher and that he had not been seriously disciplined in the past. Under these circumstances, I, accordingly, find that the Petitioners failed to establish that necessary quantum of proof to support the allegations that the Respondent's effectiveness as a school teacher was reduced as a result of the conduct complained of herein.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Charter 120.57(1), Florida Statutes.

    
    

15. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

    
    

16. The authority of the Petitioner, Professional Practices Council, is derived from Chapter 231, Florida Statutes, and Chapters 6A and 6B, Florida Administrative Code.

    
    

17. Competent and substantial evidence was offered to establish that the Respondent engaged in misconduct in office as alleged. Section 231.36(6) provides in pertinent part that any member of the instructional staff may be suspended or dismissed by the Board at any time during the school year after notice and hearing. Chapter 231.36(6), Florida Statutes.

18. Insufficient evidence was offered herein to establish that the Respondent's effectiveness as a teacher has been reduced as alleged.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Petitioner, Pinellas County School Board's, suspension of Respondent without pay be sustained for a period of two years. Additionally, it is further recommended that the Petitioner, Professional Practices Council, place the Respondent's teaching certificate under suspension from the date of the Pinellas County School Board's letter initially suspending him thru the 1978-79 school year.

RECOMMENDED this 21st day of June, 1978, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 530, Carlton Building

2009 Apalachee Parkway

Tallahassee, Florida 32304

(904) 488-9675

ENDNOTE

1/ The cases were consolidated by Order dated December 14, 1977, based on an examination of the case files which indicate that both actions involve the same facts and parties and pose similar issues of law. Accordingly, and pursuant to Chapter 28-5.07, Florida Administrative Code, the cases were consolidated to avoid unnecessary costs, delay and duplication of efforts.

COPIES FURNISHED:

William A. Borja, Esquire Suite 204, 501 S. Fort Harrison Avenue Clearwater, Florida 33516

J. David Holder, Esquire Post Office Box 1501 Tallahassee, Florida 32302

Ronald G. Meyer, Esquire Office of the General Counsel

Florida Teaching Profession-NEA

325 John Knox Road, L-500 Tallahassee, Florida 32303

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

================================================================= BEFORE THE STATE BOARD OF EDUCATION OF FLORIDA

IN RE: MELVIN H. WOODARD DOAH CASE NO. 77-2180

/

ORDER

THIS CAUSE came on to be heard before the State Board of Education, duly assembled, upon the Petition of Lynnl Guettler as Chairman of the Professional Practices Council for the revocation of the teacher's certificate of the Respondent, MELVIN H. WOODARD, Department of Education Number 318622.

This Board having reviewed the findings and recommendation of the Hearing Officer of the Division of Administrative Hearings and the entire record; and

It appearing that the Respondent has been granted all procedural and other constitutional rights in the premises, and the Board having had due deliberation thereon, the Board makes the following findings of fact and conclusions of law:

MELVIN H. WOODARD presently holds Florida teacher's certificate number 318622, valid until June 30, 1982. The Board adopts the Findings of Fact and Conclusions of Law contained in the Recommended Order of the Hearing Officer for the Division of Administrative Hearings as its own, which is by reference made a part hereof, but rejects the hearing officer's recommended penalty and instead permanently revokes the teaching certificate of MELVIN H. WOODARD.

ORDERED AND ADJUDGED that the teaching certificate of MELVIN H. WOODARD be revoked permanently.

DONE at the State Board of Education meeting in open session at Tallahassee, Florida, on the 20th day of November, 1979

EXECUTED AND RENDERED on this 18th day of December, 1979.

Bob Graham, Governor; Chairman

George Firestone, Secretary of State

Jim Smith, Attorney General

Gerald A. Lewis, Comptroller

Bill Gunter, Treasurer

Ralph Turlington, Commissioner of Education; Secretary-Executive Officer

Doyle Conner, Commissioner of Agriculture

As and constituting the State Board of Education of Florida as assembled for the purposes herein.

Duly recorded in the official records of the State Board of Education of Florida.

I HEREBY CERTIFY that copies of the foregoing Order in this matter were mailed to Mr. Melvin Woodard, Ronald Meyer, Esquire, Dr. Douglas O. McBriarty, J. David Holder, Esquire, and James E. Bradwell on this 18th day of December, 1979.

Hugh Ingram, Administrator

Docket for Case No: 77-001664

Orders for Case No: 77-001664