STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF ORANGE )
COUNTY, FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 81-276
)
EDWARD PRESSLEY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, in Orlando, Florida.
APPEARANCES
For Petitioner John W. Bowen, Esquire
Bowen and King
217 North Eola Drive Orlando, Florida
For Respondent Mark F. Kelly, Esquire
341 Plant Avenue Tampa, Florida
The Superintendent of the School Board of Orange County, Florida, filed a Notice of Charges against the Respondent, Edward Pressley, on January 12, 1981, before the Orange County School Board. Based on these charges, the Superintendent recommended to the Board that Pressley be suspended without pay and ultimately dismissed from his employment with the School Board pursuant to Florida Statutes, Section 231.36(6). The charges, as amended, assert the following allegations:
On March 23, 1979, the Respondent was drinking alcoholic beverages during duty hours and during the time he was required to be on the school premises at his employment.
On March 30, 1979, the Respondent was in an intoxicated condition during the time he was otherwise on duty as an employee of the school system.
On May 23, 1980, while present on the premises of Magnolia School, he was in an intoxicated condition and interfered with the normal operation of that school.
During the month of December, 1980, he was unable to perform his duties as a teacher at Maynard Evans High School as a result of being arrested on the campus and being taken from the campus by law enforcement officials.
From September, 1980, through December, 1980, he was observed by students from time to time as being under the influence of alcohol and/or smelling of alcoholic beverages.
The Respondent was late in reporting for work on January 7, 1981.
On January 7, 1981, the Respondent appeared at school while under the influence of alcoholic beverages and was unable to perform his teaching duties on that day.
Based on these allegations, the Respondent was charged with misconduct in office, willful neglect of duty and drunkenness, within the meaning of Section 231.36(6), Florida Statutes. On January 13, 1981, the School Board suspended Pressley without pay pending a hearing to be conducted by the Division of Administrative Hearings. The Respondent requested a hearing by letter dated January 19, 1981, and received by the School Board on January 21, 1981.
The Respondent moved to dismiss the charges at the outset of the hearing.
The two bases for the motion are dealt with in the Conclusions of Law below.
The parties stipulated into evidence Exhibit 1, which establishes that the Petitioner and Respondent agreed that Petitioner would forbear prosecuting the 1979 charges if the Respondent transferred to another school and undertook rehabilitation. In return, the Respondent agreed that the Petitioner's forbearance from prosecuting would not prejudice its right to reassert the charges later if Respondent repeated this conduct. The Petitioner is properly exercising its right to recommence proceeding on the original (1979) charges.
The Petitioner presented 11 witnesses, and the Respondent presented one witness. The Petitioner presented eight exhibits as well as three depositions. The depositions were admitted into evidence subject to the Respondent's objections as to relevancy and materiality of certain portions of those depositions. To the extent that those depositions contained questions and testimony related to the Petitioner's unrelated arrests and to alleged conduct he may have engaged in unrelated to the subject charges, that testimony has been excluded by rulings made during the course of the hearing. Thus, the testimony regarding the Respondent's traffic offenses, as well as the allegations of certain unnamed students not present at the hearing who allegedly smelled alcohol on Respondent's breath, is specifically excluded from consideration herein, as is testimony in the Pressley deposition regarding an incident involving his disciplining of students, which is unrelated to the case at bar.
As the undersigned has previously ruled at the hearing, evidence at the hearing and in the depositions regarding the Respondent's prior arrests for Driving While Intoxicated have been excluded except on the narrow issue of the Respondent's prior knowledge or lack of mistake, concerning the effects of combined use of drugs and alcohol. See Section 90.404(2), Florida Statutes.
At the conclusion of the hearing, the parties requested the benefit of a transcript of the proceedings, the right to file proposed findings of fact, conclusions of law and/or briefs and waived the requirement contained in Rule 28-5.402, Florida Administrative Code. In the ensuing period of time, the
parties requested an additional 30-day extension for filing proposed findings of fact and conclusions of law, which was granted. The parties have submitted proposed findings of fact and conclusions of law and/or briefs. The Hearing Officer has considered all proposed findings of fact, conclusions and supporting arguments of the parties. To the extent that the proposed findings of fact and
conclusions of law submitted by the parties, and the arguments by them, are in accordance with the findings, conclusions and views stated herein, they have been accepted; and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties, are inconsistent therewith, they have been rejected. Certain proposed findings have been omitted as not relevant, dispositive or as not necessary to a proper determination of the material issues presented. To the extent that the testimony of the witnesses is not in accord with the findings and conclusions herein, it is not credited.
FINDINGS OF FACT
Edward Pressley, the Respondent, has been a teacher in the Orange County school system for approximately 12 years. Mr. Pressley was serving as a physical education teacher and a remedial teacher for high school students with scholastic difficulty at all times pertinent hereto. In August of 1978, Mr. Pressley had been transferred from the Magnolia School to Cherokee School as a physical education teacher for the 1978-79 school year. On March 28, 1979, Karen Werrenrath, the Principal of Cherokee School and Mr. Pressley's immediate supervisor, determined that he was not at his assigned work location at about the middle of the morning. Mr. Pressley had earlier reported to the Principal that he had discovered the theft of a film projector from the school and that he had reported the theft to a policeman he had observed driving by the school after discovering it missing. Mrs. Werrenrath had inquired about Mr. Pressley's whereabouts because she had received a call from the school system's media center inquiring about the projector which Mr. Pressley had checked out and then reported stolen. The media center required the police department case number which was assigned to the stolen article. Upon calling the police department, Mrs. Werrenrath was informed that the police had no record of any such report, and on March 28, 1979, she therefore informed Mr. Pressley that she had had difficulty in obtaining the number and requested that he obtain it for her. On that date, however, the Respondent left the school campus without permission of the Principal between 10:30 and 11:00 a.m. and did not return to his duty station until approximately 1:15 p.m. Mrs. Werrenrath inquired about his whereabouts during that period of time, and he stated he had gone to the police department and sat on a bench waiting for the police officer to whom he had reported the theft to walk by, and after that he went to lunch. Immediately upon his return to the school campus, however, and during the course of his attempt to explain his previous whereabouts, Mrs. Werrenrath smelled alcohol on Mr. Pressley's breath. Mrs. Werrenrath informed Mr. Pressley that she detected alcohol on his breath, and he offered the explanation that he was taking medication for a halitosis condition.
On March 29, 1979, a "workshop" or seminar for physical education teachers in the Orange County school system was held at Meadowbrook Junior High School. Judith Walker is the physical education coordinator for the Orange County public school system and attended that meeting. Ms. Walker is acquainted with the Respondent and saw him at the meeting. Mr. Pressley asked her if he could talk to her, apparently with regard to what he felt was a situation of personal harassment by the school administration. Ms. Walker assented, and the two of them left for lunch together, riding in Mr. Pressley's car. Mr. Pressley was driving. Ms. Walker has known the Respondent for approximately seven years and has observed him on those occasions when he has obviously not been drinking or under the influence of any sort of drug. On those occasions he has been polite and gentlemanly in his conduct, has been able to speak clearly and concisely, and articulate his thoughts reasonably. When she got into Mr. Pressley's car, Ms. Walker noticed a very definite odor of alcoholic beverages. As they drove to a local fast food restaurant, Ms. Walker observed that Mr.
Pressley had difficulty controlling the car. He was unable to stay in his lane and was "weaving" from the center line to the side of the road and drove in the wrong way to a drive-in window of the fast food restaurant. In attempting to back out of the drive-in lane, he ran into a post and ultimately hit another post with his car before leaving the restaurant parking area. Ms. Walker also established that the Respondent appeared disoriented and unable to locate the familiar restaurant without her assistance, spoke with slurred speech, and articulated his thoughts in an erratic and disorganized manner. He was unable to conduct a conversation about a subject in a clear and concise manner. Ms.
Walker has frequently been in contact with people who have been drinking alcoholic beverages with her knowledge and has seen people in an intoxicated condition. Based upon her experience in observing people in that condition and her observations of Mr. Pressley while she was with him during the school day on March 30, 1979, she felt he was under the influence of alcohol during that time.
Shortly after this episode, Ms. Walker reported the incident to the Superintendent of Schools for Orange County at that time, Mr. L. Linton Deck, Jr. She also, shortly thereafter, reduced her observations and impressions regarding the incident to writing in a memorandum to the Superintendent dated April 17, 1979. (Petitioner's Exhibit 3). During the course of their conversation, while Ms. Walker was riding in Mr. Pressley's car on March 30, he informed her that he had been taking pain medication for a back injury and that it was his practice to take beer with his pain pills in order to hasten the comforting effects. Ultimately, in a letter dated April 24, 1979, the Superintendent of public schools in Orange County charged Mr. Pressley with misconduct in office based upon the observations of the two above witnesses that he had been drinking or had been under the influence of alcohol during duty hours. (Petitioner's Exhibit 1).
Mr. Pressley retained counsel at that time and, after various negotiations between the Petitioner and the Respondent, an agreement was worked out between counsel for the School Board and Mr. Pressley such that no final disciplinary action was taken with respect to those charges, with the express understanding that Mr. Pressley would enroll in an alcoholic rehabilitation program and would be removed from continuing contract status and placed on annual contract status henceforth. Mr. Pressley was also transferred to Evans High School for employment. Petitioner's Exhibit 1, stipulated into evidence, reveals that the Superintendent's action in deferring taking any formal action against Mr. Pressley on the basis of the charges was purely a result of this agreement. The Respondent expressly agreed, as the letter from his counsel dated May 4, 1979, contained in this exhibit establishes, that the School Board's forbearance in pressing formal action on the charges would not prejudice the School Board in any way with regard to reinstituting the charges at a later time should Mr. Pressley's subsequent conduct justify resumption of their prosecution.
Accordingly, as a result of that agreement, Mr. Pressley was allowed to return to the Orange County school system as a teacher on annual contract and was transferred to Evans High School for the 1979-80 school year as a teacher of remedial classes for students who were having scholastic difficulties.
Magnolia School is a special education center in the Orange County school system. The Respondent was employed at the Magnolia School some years prior to 1980. On Friday, May 23, 1980, while Mr. Pressley was on personal leave from his job at Evans High School, he appeared upon the grounds of Magnolia School. Jessie D. Smith is a special education teacher who was acquainted with Mr. Pressley from the time he was employed at Magnolia School.
On this particular day, Ms. Smith was conducting a private conference with Mrs. Margaret Murray. Mrs. Murray had a son enrolled in the untrainable mentally retarded program at Magnolia Center under Ms. Smith's supervision. This was a private conference between Mrs. Murray and Ms. Smith regarding Mrs. Murray's son's progress in the program and his prognosis for the future. Mr. Pressley had nothing to do with the education of Mrs. Murray's child and had no business being in attendance at the private conference between Ms. Smith and Mrs. Murray. Mr. Pressley had no official business to conduct which justified his presence on the grounds of Magnolia School on that or any other day. The Respondent was not invited by either of the participants in this private conference to participate in it, and indeed Mrs. Murray had never seen Mr. Pressley before he walked into the room, interrupting their conference. Mr. Pressley did not know Mrs. Murray and, although he was not invited to participate in the conference, interrupted it by taking a seat in close proximity to Ms. Smith and Mrs. Murray and abruptly started questioning Mrs. Murray. The Respondent asked Mrs. Murray impertinent and inappropriate questions regarding her marital status, whether she was able to care for her child, and whether she had a boy friend. He insinuated that he felt Mrs. Murray was wasting the school's time by requesting and conducting this conference regarding her child and then declared if he were in her position he would remove her child from school immediately.
Ms. Smith naturally became quite irritated with Mr. Pressley's shockingly inappropriate conduct and escorted Mrs. Murray into the next classroom in order to attempt to finish their conference without further interference by the Respondent. Ms. Smith was unable to say whether or not Mr. Pressley had been indulging in alcoholic beverages on the day in question, but she stated, with a view toward her long experience with the Respondent's personality and behavior, that he definitely was not behaving and conducting himself in a normal manner during her observations of him on May 23, 1980. Ms. Smith was shocked and embarrassed that Mr. Pressley as a professional colleague and employee of the same school system would conduct himself in that manner in the presence of the parent of one of her students. When the Respondent first sat down at the conference between Ms. Smith and Mrs. Murray, Mrs. Murray believed him to be a teacher, but when he began talking he was mumbling and slurring his words and speaking in an incoherent manner which led Mrs. Murray to believe that he was in some way retarded. After hearing him converse in that fashion for awhile, she then formed the opinion that he was simply drunk.
Ms. Phyllis Albert was employed as a teacher's aide at Magnolia School and was present in the room on May 23, 1980, when Mr. Pressley entered it prior to Ms. Smith and Mrs. Murray coming into the room. Ms. Albert has known the Respondent for a substantial period of time and described him as quiet, reserved and somber. On the day in question, however, Ms. Albert established that Mr. Pressley was acting quite differently from his normal behavior in that he was acting and speaking very exuberantly and in general behaving in an outgoing, extroverted fashion. When the Respondent shook Ms. Albert's hand, she detected a definite odor of alcoholic beverages on the Respondent's breath. She recalled that her impression at the time was that he was "really bombed out of his mind."
Olla Evans, the Assistant Principal at Evans High School, observed the Respondent on two occasions between September and December of 1980, when he brought students to her office for disciplinary purposes. On each of these occasions she detected the odor of alcoholic beverages on the Respondent and on the Respondent's breath when he was in her office. On one of these occasions, the odor was so strong that she had to open the door to clear the smell out of her office. On this occasion she also observed that the Respondent's eyes were markedly red. Witness Evans also established that on repetitive occasions (five
or six), during the fall of 1980, the Respondent was late arriving for work and that she had to call substitute teachers to take his classes for him until he arrived.
Catherine Melton was a regular, continuing substitute teacher for Mr. Pressley's classes at Evans High School in the fall of 1980. She was called to substitute for Pressley's classes at least three or four times during the course of the fall school term. She substituted for his second period class in December on the day before the Christmas holidays commenced. At approximately 8:30 that morning the Respondent appeared, looking in the window of the classroom door. She opened the door and asked him if he was coming into the class at that time. He did not respond but walked into the classroom and appeared confused and disoriented. She observed the Respondent in this disoriented state for several minutes, during which time he did not acknowledge her presence or respond to her in any way.
On another occasion, in December of 1980, the Respondent was escorted from the school by two police officers. On that occasion the Respondent missed the entire afternoon of that working day without his absence being excused. He was thus unable to perform his duties as a teacher that afternoon and did not obtain leave approval for that time.
On January 7, 1981, Juana Senter, who is an Assistant Principal at Evans High School, reported to John Pitts, the Principal, that Mr. Pressley was late again and had not called in to report that he would be late nor to seek an excuse for his absence. She reported this to the Principal at approximately 8:15 or 8:20 a.m. The official starting time for teachers at Evans High School at all times pertinent hereto was 7:00 a.m. The students then report at 7:15 a.m., and the tardy bell for students and teachers is rung at 7:20 a.m.
Inasmuch as Mr. Pressley had already been late reporting for work five or six times during the fall of 1980, and now once again on January 7, 1981, Ms. Senter suggested to the Principal that "something should be done about it." Mr. Pitts directed Ms. Senter to secure a substitute teacher for Mr. Pressley's classes and direct Mr. Pressley to report to his office when he arrived at school. The Respondent arrived at school at approximately 8:30 a.m. on that day and reported to Mr. Pitts' office. Mr. Pitts was taken aback at the Respondent's appearance. The Respondent was untidy, with wrinkled, rumpled clothes, and Mr. Pitts detected the strong odor of alcoholic beverages on or about the Respondent's person as soon as the Respondent entered his office. Mr. Pitts described the Respondent as "either getting drunk or doing some drinking, or coming off a real tough night." The witness then established that he had had substantial experience in the Navy, and since, around people who have been drinking in various amounts, and described his observations as to how people act when under the influence of alcohol. In his experience, people who have been drinking late into the night or early in the morning usually carry evidence of the odor of alcoholic beverages on their breath or on their clothing and generally act, move or behave in an unsteady manner. The witness established that the Respondent acted in this manner on this occasion and that his presence was accompanied by a strong odor of alcoholic beverages. There was no question in this witness' mind that the Respondent had been drinking shortly before coming into his office.
Mr. Pitts therefore was not desirous of the Respondent coming in contact with the students while he was in that condition. He therefore directed that Mr. Pressley return home and "get himself straightened out" and report back to Mr. Pitts for a conference about his problem before returning to the classroom to conduct business with his students. Mr. Pitts was aware that the Respondent was enrolled in an alcoholic rehabilitation program, and he described himself and the school administration as making every effort to be supportive of the
Respondent in his rehabilitation effort. The Respondent failed to return to the school that day and did not come in for a conference with Mr. Pitts, but rather returned the next day to the regular conduct of his classes without further discussing the incident with Mr. Pitts.
The Respondent has been on medication of one type or another since January of 1979. He has had prescribed for him and has been taking various types of pain and tranquilizer medications and muscle relaxants such as Fiorinal No. 3, Talwin, Vicodin, Tylox, Librium and Valium. The Respondent contends he has never taken an overdose of any of his various types of medication, but acknowledges that he has at times taken medication in conjunction with alcoholic beverages in order to speed up the comforting effects of the medication. Although the Respondent stated at one point that he had had no difficulties occasioned by mixing his medications with alcoholic beverages, he has admitted that he was convicted of driving while intoxicated as a result of mixing medication and alcohol on two occasions: January 22, 1979; and again on March 7, 1980. Parenthetically, it should be noted that portions of the arrest record for the Respondent's arrests for Driving While Intoxicated were admitted for the narrow reason of demonstrating that he was aware of the effects of consuming alcohol and his medication contemporaneously prior to his engaging in some of the conduct described in the Findings of Fact above. In any event, Mr. Pressley has admitted that on those two occasions he was mixing medications with alcoholic beverages with the convictions resulting. Mr. Pressley, in testifying concerning the episode occurring at Magnolia School, stated that he had been taking medication that day prior to going to the school. Later in his testimony he recanted and testified that he could not remember if he had been taking medication, and he denied drinking that day.
The Respondent's testimony is repeatedly characterized by the statement, "I don't recall," or "I don't remember." He recalls being in the room with Ms. Smith and another person at Magnolia School, but does not recall who that person was, nor does he remember participating in the meeting with Mrs. Murray and Ms. Smith. He claims not to remember anything he asked Mrs. Murray. Mr. Pressley also maintains he cannot recall any of the details of the episode at Magnolia School, although he maintains he definitely does recall that he had not been drinking that day. The undersigned finds the Respondent's testimony and demeanor on the witness stand characterized by poor memory or evasiveness or both.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding.
Section 231.36(6), Florida Statutes, provides in pertinent part as follows:
Any member of the district administrative or supervisory staff and any member of the instructional staff, including any princi- pal, may be suspended or dismissed at any time during the school year; provided that the charges against him must be based on immorality, misconduct in office, incom- petency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude.
Whenever such charges are made against any such employee of the school board, the school board may suspend such a person without pay, but if charges are not sus- tained he shall be immediately reinstated, and his back salary shall be paid. In cases of suspension by the school board or by the superintendent, the school board shall determine upon the evidence submitted whether the charges have been sustained and, if such charges are sustained, either to dismiss said employee or fix the terms under which said employee may be rein- stated.
Pursuant to this section, the above enumerated allegations were lodged against the Respondent, and based upon them, Respondent has been charged pursuant to the above section with misconduct in office, willful neglect of duty and drunkenness.
The Respondent moved to dismiss the charges against him on two grounds at the outset of the hearing. The first basis for the Respondent's motion to dismiss was predicated on the School Board's failure to request a Hearing Officer within the period prescribed by Section 120.57(1)(b)3, Florida Statutes. This motion was denied. The record reflects that the Petitioner requested the Hearing Officer one day after the time limit in the subject statute expired, and there has been no showing that the Respondent's rights were prejudiced thereby and that the agency's failure operated to affect the fairness of the proceeding or the correctness of the action. The motion to dismiss on this basis should be denied. Pinellas County v. Public Employees Relations Commission, 379 So.2d 985 (2nd DCA Fla. 1980); City of Panama City v. Public Employees Relations Commission, 364 So.2d 109, 113 (1st DCA Fla. 1978). The delay by the Petitioner in this regard was not so egregious as to flout the guidelines for assessing the effect of such a delay enunciated in these decisions.
The Respondent has also moved to dismiss several of the allegations charged by the Petitioner relating to 1979, on the ground that they have been the subject of prior proceedings and have already been resolved to the satisfaction of the Respondent and the Petitioner and that they pertain to events occurring prior to Pressley's reappointment as an annual contract teacher for the 1980-81 school year. This basis for the motion to dismiss should also be denied.
Rule 6B-4.09, Florida Administrative Code, further defines the criteria upon which the Respondent has been charged in pertinent part as follows:
... (3) Misconduct in office is defined as a violation of the code of ethics of the education profession so serious as to impair the individual's effectiveness in the school system.
Gross insubordination or willful neglect of duties is defined as a con- stant or a continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
Drunkenness is defined as:
That condition which exists when an individual publicly is under the influence of alcoholic
beverages or drugs to such an extent that his normal faculties are impaired; or
Conviction of the charge of drunkenness by a court of law.
The code of ethics of the education profession referred to in Rule 6B- 4.09, Florida Administrative Code, has been promulgated as Chapter 6B-1, Florida Administrative Code. In pertinent part the code of ethics requires that a teacher "accord just and equitable treatment to all members of the profession in the exercise of their professional rights and responsibilities." Rule 6B- 1.04(2)(b), Florida Administrative Code.
The totality of the Petitioner's testimony and evidence in this record, consisting of 11 witnesses as well as Petitioner's exhibits, establishes without question that the Respondent failed to accord his professional colleagues "just and equitable treatment" by, firstly, being repetitively late for work such that other teachers and administrative staff had to assume responsibility for his classes and his duties until he arrived and such that the Respondent's employer frequently had to arrange for, secure and incur the expense involved in hiring substitute teachers to take the Respondent's classes until he arrived. Secondly, the Respondent's invasion of a private conference between a member of his profession and a parent concerning a private and confidential exchange of information between that teacher and the parent about the progress of her child is a shocking example of inequitable, unjust and callous treatment of another member of the Respondent's profession when she was attempting to discreetly and effectively exercise her professional rights and responsibilities. The events described in the above Findings of Fact by multiple witnesses were entirely unrefuted by the Respondent, who simply maintained he could not recall any of the events surrounding his presence at the above described private conference. The Respondent similarly offered no cognent explanation of his repetitive instances of tardiness which caused the above- mentioned detrimental effects and influences on his fellow teachers and the members of the Petitioner's administration. Further, his tardiness on a repetitive basis is deemed to constitute an intentional refusal to obey a direct, reasonable order, as envisioned by the definition of "willful neglect of duties" in the above rule, since the "standing orders" or policy of the School Board and Evans High School was that teachers had to report the day or evening before if they were to be absent or late or in any event no later than 6:00 a.m. the next morning, which order of policy was supplied to all teachers in their teacher handbooks upon employment. While the Respondent was only prosecuted for neglect of duty stemming from his tardiness on January 7, 1981, that was because that instance was the culmination of a frequently repeated pattern of failing to report for work in a timely manner and of leaving his place of employment without permission. Thus, while he was only charged with neglect of duties involving tardiness on that one date, the fact pattern described in the above
Findings of Fact regarding its prior frequent occurrences justifies its use in the absence of refutation, as a basis for a finding that the Respondent is guilty of misconduct in office as well as willful neglect of duties as defined above.
The Respondent's conduct in all of the instances described in the above Findings of Fact is rendered even more grave in that, as the above Findings of Fact demonstrate, there is no question that the evidence shows it resulted from the Respondent's use of alcoholic beverages during the times pertinent hereto when he was on duty or should have been on duty and due to his being under the influence of alcoholic beverages or drugs to such an extent that his normal faculties were impaired during the episodes described. The testimony of witness Walker, the evidence of two of the Respondent's DWI convictions, as well as the Respondent's own admission, established without doubt that he was aware of the effect of indulging in his medications and alcohol simultaneously or contemporaneously, but disregarded the danger. The Petitioner's witnesses describing the Respondent's aberrational conduct in conjunction with the odor of alcohol on or about his person established that they had had ample experience in observing people under the influence of alcoholic beverages such that they could form a coherent, accurate impression that the Respondent was in that condition on the occasions described above when they observed him engage in the various instances of misconduct charged. There is no question that if the Respondent's conduct, appearance, statements and acts on an occasion are first described by a witness, then that witness can competently express an opinion regarding whether such a Respondent was under the influence of intoxicating beverages to the extent that his normal faculties were impaired. Cannon v. State, 91 Fla. 214,
107 So. 360 (1926); City of Orlando v. Newell, 232 So.2d 413 (4th DCA 1970). Further, these witnesses, in describing the Respondent as being in an intoxicated condition or being under the influence of alcoholic beverages were able also to compare his condition at those times with the Respondent's normal well-behaved, rather sedate condition. Their testimony, therefore, is even more competent than the standard required for lay witnesses giving opinions as to drunkenness which was enunciated in City of Orlando v. Ford, 220 So.2d 661 (Fla. App. 1969), a case which is substantially identical in its holding.
Thus, there is no question that the evidence in the record is overwhelming and unrefuted in establishing that the Respondent was under the influence of alcoholic beverages and in an intoxicated condition at the times pertinent hereto in violation of Section 231.36(6), Florida Statutes, as well as Subsection (5) of Rule 6B-4.09, Florida Administrative Code.
The established fact of his being under the influence of alcoholic beverages at the times pertinent hereto (and on at least one occasion drugs as well) to such an extent that his normal faculties were impaired, during times when the Respondent was required to be on duty also constitutes an additional basis of support for the charges involving misconduct in office and willful neglect of duties as defined hereinabove. Thus, the Petitioner has adduced overwhelming and unrebutted evidence in this record which establishes that the Respondent, at the times and in the manner charged, has been guilty of repetitive instances of misconduct in office, willful neglect of duties and drunkenness.
Inasmuch as the Respondent has been guilty of these violations on a repetitive basis over the course of approximately one and a half years; and in view of the fact that the Petitioner forebore from earlier prosecuting the Respondent on a portion of these charges on Mr. Pressley's assurance that he was making positive efforts to rehabilitate himself, which efforts at leniency have
proven to be of no avail in overcoming his problem, the only appropriate penalty is termination. The Petitioner in good faith believed Mr. Pressley's assurance that he was seeking psychiatric help and was making a bona fide effort to put his problem behind him through enrollment and participation in a rehabilitation program. By his repetitive violations since that time, Mr. Pressley has put the Petitioner and all his professional colleagues on notice that he has refused or is unable to alleviate his problem and is likely to continue to conduct himself in the same reprehensible manner as he has in the past. Thus, no useful purpose can be served in imposing further emotional, professional and financial burdens on Mr. Pressley's colleagues, his employer, and the parents and teachers he comes in contact with by maintaining him in the employ of the Petitioner in the hope that his problem may be corrected sometime in the future. Any obligation the school system may owe to assist Mr. Pressley in alleviation of his problem is now outweighed by its obligation to its students and their parents and to its instructional and administrative staff to avoid subjecting them to the aberrational behavior exhibited by this kind of teacher. It has neither the obligation, the expertise nor the right to aid in Mr. Pressley's rehabilitation while maintaining him in its employ to the continued detriment of its students and its staff. His employment should, therefore, be terminated.
In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence in the record, and the pleadings and arguments of counsel, it is
RECOMMENDED:
That a final order be entered by the School Board of Orange County, Florida, dismissing the Respondent as an instructional employee of the School Board of Orange County, Florida.
RECOMMENDED this 27th day of July, 1981, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1981.
COPIES FURNISHED:
John W. Bower, Esquire Bowen and King
217 North Eola Drive Orlando, Florida 32802
Mark F. Kelly, Esquire
341 Plant Avenue Tampa, Florida 33606
| Issue Date | Proceedings |
|---|---|
| Oct. 01, 1981 | Final Order filed. |
| Jul. 27, 1981 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 28, 1981 | Agency Final Order | |
| Jul. 27, 1981 | Recommended Order | Uphold decision to dismiss Respondent for misconduct in office, willful neglect of duty and drunkenness. |
ORANGE COUNTY SCHOOL BOARD vs. JOHN LAWRENCE, 81-000276 (1981)
ORANGE COUNTY SCHOOL BOARD vs CAROL A. HOSKINS, 81-000276 (1981)
ORANGE COUNTY SCHOOL BOARD vs AARON PERFETTO, 81-000276 (1981)
ORANGE COUNTY SCHOOL BOARD vs. ROBERT GAY RIDGEWAY, 81-000276 (1981)
GERARD ROBINSON, AS COMMISSIONER OF EDUCATION vs FRANCES ELLERBE VALERIO, 81-000276 (1981)
