STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RALPH D. TURLINGTON, as )

Commissioner of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2652

)

OTIS WARD CARROLL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on April 23, 1982, in Jacksonville, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

1902 Independent Square

Jacksonville, Florida 32202

For Respondent: David A. Hertz, Esquire

General Counsel

Duval Teachers United 1035 LaSalle Street

Jacksonville, Florida 32207 BACKGROUND

These proceedings began on August 27, 1981 when Petitioner, Ralph D. Turlington, as Commissioner of Education, filed an Administrative Complaint against Respondent, Otis Ward Carroll, to discipline Mr. Carroll as a licensed teacher. On October 22, 1981 Respondent filed a request for a formal hearing on the charges contained in the Administrative Complaint. The case was forwarded to the Division of Administrative Hearings on August 26, 1981 for the assignment of a Hearing Officer and the scheduling of a final hearing. After discovery, a continuance, and the filing of an Amended Administrative Complaint, the final hearing was held.

At that final hearing Petitioner offered the testimony of witnesses and offered Exhibits 1 through 8 which were received into evidence. Respondent offered the testimony of witnesses and Exhibits A and B which were received into evidence. During the course of the hearing the parties stipulated that paragraphs 6 and 7 of the Amended Administrative Complaint were amended to state a date of May, 1980 in place of February, 1980. In a prehearing stipulation the parties further agreed that the allegations of paragraphs 1, 2, 3 and of the Amended Administrative Complaint were admitted. Subsequent to the final hearing

the parties filed Proposed Recommended Orders containing findings of fact. To the extent that the proposed findings submitted by the parties are not reflected in this order, they are rejected as being either not supported by admissible evidence or as being irrelevant to the issues determined here. Arico Chemical Company v. Department of Environmental Regulation, 356 So.2d 759, 763 (Fla. 1st DCA 1979).

FINDINGS OF FACT

1. Respondent, Otis Ward Carroll held a Florida Teacher's Certificate No. 169701, which was valid from July 1, 1972 until June 30, 1982.

   
   

2. As a certificate holder Respondent was disciplined on August 7, 1979, when the State Board of Education entered an Order adopting a set of stipulated Findings of Fact and Conclusions of Law. The Board's Order suspended Mr. Carroll's license to teach for sixty (60) days beginning on June 15, 1979. This discipline resulted from Mr. Carroll's numerous absences from school due to his drinking alcohol. The stipulation recited several arrests and numerous admissions to the Detox (detoxication) Center for disorderly intoxication.

   These instances occurred between 1976 and 1978. According to the stipulation Mr. Carroll voluntarily entered an alcoholic treatment program on December 4, 1978 for a period of six (6) months.

   
   

3. During all times pertinent to the Amended Administrative Complaint Mr. Carroll was employed as a full-time science teacher by the School Board of Duval County at Fletcher Senior High School.

   
   

4. On May 18, 1979, the Assistant Superintendent for Personnel of the School Board of Duval County, Florida, sent a letter to Mr. Carroll informing him that he would be employed for the next school year, but he was warned that,

   
   

   Any further indiscretion, however, such as public drunkeness or drinking while on

   the job will be reported to the Professional Practices Council and could result in a recommendation for your dismissal in accor- dance with the Duval County Teacher Tenure Act.

   
   

   May 1980 Absence

   
   

5. During the 1979-80 school year, Mr. Carroll was absent from his teaching duties without prior approval for approximately one week in May, 1980. Before and during his absence Mr. Carroll failed to give notice of his absence as required by school policy. Upon his failure to appear for teaching as scheduled his principal, Dr. Knight, became concerned about his welfare and sent Mr. Daugherty, his administrative assistant, to look for Mr. Carroll. Mr. Carroll could not be found during the school day, but after work Mr. Daugherty, who was going to the grocery store with his wife, saw Mr. Carroll walking down the street. He was "in real bad shape" and was redolent of alcohol.

   
   

6. When Mr. Carroll was offered a ride home he declined stating, "No, I want to go to the lounge." Mr. Daugherty then took Mr. Carroll to the Jax Liquor Store Lounge and promptly found a police officer. Mr. Daugherty explained his concern about Mr. Carroll to the officer. The officer picked Mr. Carroll up from the lounge and transported him to the Detox Center.

7. Mr. Daugherty, who is now a school principal in Okeechobee, Florida, would not, if requested, hire Mr. Carroll as a teacher in his school. He believes that due to Mr. Carroll's drinking problem he could not be relied upon to appear as scheduled for teaching his classes. Dr. Knight has the same opinion.

   
   

   April 14, 1981 Arrest

   
   

8. During the afternoon of April 14, 1981, a passing motorist notified Officer Russell of the Duval County Sheriff's Department that a man was staggering down the middle of East Point Road in Jacksonville, Florida. The patrolman went to the location described, and observed Mr. Carroll walking down the centerline of the street. Mr. Carroll smelled of alcohol and was unsteady on his feet. Because of his condition he was transported by Officer Russell to the Detox Center where he was later arrested.

   
   

   July 21, 1981 Arrest

   
   

9. At approximately 1:15 a.m. on July 21, 1981, Officer Nixon, a patrolman with the Duval County Sheriff's Department, received a complaint from Mr. Carroll's sister that he was creating a disturbance in her home. She reported that Mr. Carroll was drunk and she wanted him to remain in the house because she thought his condition was too dangerous for him to be out in public. Upon his arrival the police officer attempted to talk with Mr. Carroll but he refused to respond at all. He was quite intoxicated and had to be physically assisted out of the house and into the patrol car. Mr. Carroll was charged with disorderly intoxication and taken to the Detox Centers.

   
   

   Spring 1981 Absences

   
   

10. According to Fletcher High School policy teachers were required to either give advance notice of their absences or if such notice was not possible to call the school secretary before 7:00 a.m. of the date on which they would be absent. This notice was required because substitute teachers needed to be obtained as rapidly as possible. If a teacher is too late in giving notice of his absence, it is impossible to obtain a substitute. Other teachers are then required to cover for the absent teacher with the consequential disruption of their omen teaching schedules. During the months of February and March, 1981, there were numerous times when Mr. Carroll did not report his absence as required. He either gave no notice or the notice he gave came after 7:00 o'clock. As a result of his unauthorized absences it was discovered that Mr. Carroll left either inadequate lesson plans or no lesson plans at all for the substitutes who appeared to instruct his class. The failure of Mr. Carroll to timely submit his lesson plans substantially interfered with the ability of the substitutes to teach the appropriate subject material.

    
    

11. During one of his absences due to drinking student grades for the third nine-week period were due. Mr. Carroll did not leave any grades with the school administration to be given in his absence. Initially, the administration was unable to obtain the grades from Mr. Carroll. When it appeared that no grades would be available, students were told that they would receive an "I" (Incomplete) grade. This possibility caused much confusion and consternation among the students' parents. It resulted in numerous explanations to them by Mr. Carroll's principal. At the very last moment Mr. Carroll's mother delivered his grade book to the school. The "I's" which were previously placed on the students' report cards had to be removed and the correct grades were then posted.

12. Respondent's unauthorized absences were the result of his being an alcoholic. Frequently Mr. Carroll was unable to go to school because he was in the Detox Center. Finally Mr. Carroll was given a leave of absence beginning on April 21, 1981 in order to seek treatment for his problem.

    
    

    Effectiveness

    
    

13. Mr. Carroll's effectiveness as a teacher has been seriously reduced by his alcoholism. He cannot be depended upon to appear at the required time for the instruction of his classes. In two instances he appeared at school with the odor of alcohol on his breath. 1/ Knowledge of and rumors about his alcoholism have reduced the respect accorded him by students at Fletcher High School. On March 12, 1981 Mr. Carroll received an official reprimand from his principal, Dr. Jim Ragans. The reprimand noted that Mr. Carroll had been delinquent in giving notice of his absences to the school administration. The reprimand also noted deficiencies in Mr. Carroll's lesson plans and his completion of the student attendance register. He was warned that any reoccurrences of the enumerated delinquencies would result in a recommendation for his dismissal from teaching.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Sections 120.57(1) and 231.262(5). Florida Statutes (1981).

    
    

15. The Administrative Complaint alleges as grounds for discipline against Mr. Carroll, the following acts:

    
    

    1. Being incompetent to teach or perform his duties as an employee of a public school system. Section 231.28(1), Florida Statutes (1981).

    2. Being guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. Section 231.28(1), Florida Statutes (1981).

    3. Having otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate. Section 231.28(1), Florida Statutes (1981) by:

       1. Failure to set a proper example

          for students. Section 231.09(2), Florida Statutes (1981).

       2. Failing to practice his profession according to the highest ethical stan- dards. Section 6B-1.01(1), Florida Administrative Code.

          1. Incompetency

             
             

16. The record shows by clear and convincing evidence that Mr. Carroll is presently incompetent to perform his duties as a teacher in a public school system. It was shown that he has a proclivity toward not timely notifying his school administration of his absences. He was also shown to be lax about submitting required lesson plans, and he was negligent about reporting his student grades on time. These facts, when taken together and when considered in light of Mr. Carroll's uncontrolled alcoholism, demonstrate a present incompetency to teach. It is obvious that Mr. Carroll cannot discharge his teaching duties while he is in the Detox Center sleeping off the effects of a binge.

    
    

    1. Reduced Effectiveness

       
       

17. Mr. Carroll's effectiveness as a teacher has been severely reduced by his alcoholism. He has lost respect from some students at Fletcher High School. His drinking problem is the topic of gossip among his students. His inability to appear for his classes as scheduled makes him worse than ineffective. The evidence shows that when Mr. Carroll was absent due to drinking, the substitutes hired to replace him could not adequately instruct his classes due to his failure to leave them sufficient information and required lesson plans.

    
    

    1. Violation of Provisions of Law and State Board of Education Rules

       
       

18. Section 231.28(1) provides that discipline may be imposed by the Education Practices Commission when it can be shown that the teacher has violated the provisions of law or rules of the State Board of Education, penalty for which is the revocation of the teaching certificate. In an attempt to allege the violation of a provision of law, Petitioner has charged Mr. Carroll with violating Section 231.09(2), Florida Statutes in that he failed to provide an example for pupils. The statute requires that teachers shall:

    
    

    Labor faithfully and earnestly for the advancement of the pupils in their studies, deportment and morals, and embrace every opportunity to inculcate, by precept and example, the principles of truth, honesty, and patriotism and the practice of every Christian virtue.

    
    

    Nowhere does Section 231.09 provide that a violation may result in revocation of a teaching certificate. It is therefore not one of those provisions of law referred to by Section 231.28(1) which gives discipline authority to the Education Practices Commission.

    
    

19. The same conclusion is true with respect to Section 6B-1.01(1). That section provides:

    
    

    The educator believes in the worth and dignity of man. He or she recognizes the supreme importance of the pursuit of truth, devotion to excellence, and the

    nurture of democratic citizenship. He or she regards as essential to these goals the protection of freedom to learn and to

    teach and the guarantee of equal educa- tional opportunity for all. The educator accepts his or her responsibility to practice his or her profession according to the highest ethical standards.

    
    

    This is merely a precatory exhortation. Nowhere does the language of Section 6B-1.01 provide that a violation of its term may result in the revocation of a teaching certificate. It therefore is not within the scope of the discipline authority of the Education Practices Commission.

    
    

    Discipline

    
    

20. As noted in the foregoing Findings of Fact Mr. Carroll has previously been disciplined by the Professional Practices Council. His license to teach was suspended for a period of sixty (60) days. That discipline arose out of admitted violations of the School Code resulting from Mr. Carroll's alcoholism. His problem remains unresolved. This is a tragic situation because the evidence shows that when Mr. Carroll is sober and in the classroom he is an excellent teacher. His excellence however, cannot be demonstrated until such time as he cures himself of alcoholism. It is therefore appropriate that his teaching certificate be revoked and it be reinstated only upon positive proof to the Education Practices Commission that Mr. Carroll has rehabilitated himself from drinking.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Education Practices Commission enter a Final Order revoking the teaching certificate 2/ of Otis Ward Carroll for a period of two years pursuant to Section 231.28, Florida Statutes, and that once the revocation period has expired he be recertified only upon an affirmative demonstration that he is rehabilitated from alcoholism.

DONE and RECOMMENDED this 3rd day of September, 1982, in Tallahassee, Florida.

MICHAEL P. DODSON

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 3rd day of September, 1982.

ENDNOTES

1/ Mr. Carroll's explanation for one instance, that he had alcohol from a biological specimen on his clothing, is not accepted as credible.

2/ The Hearing Officer is aware that the expiration date of Mr. Carroll's certificate has passed. If he is unable to have it extended, this proceeding may be moot as the Education Practices Commission would not have jurisdiction over Mr. Carroll without a certificate. The parties have not advised me of his present certificate status; therefore, this Order is submitted on the possibility that he may still be licensed.

COPIES FURNISHED:

L. Haldane Taylor, Esquire 1902 Independent Square Jacksonville, Florida 32202

David A. Hertz, Esquire General Counsel

Duval Teachers United 1035 LaSalle Street

Jacksonville, Florida 32207

Donald L. Griesheimer Executive Director

Education Practices Commission

125 Knott Building Tallahassee, Florida 32301

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

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

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

RALPH D. TURLINGTON as

Commissioner of Education, Petitioner,

vs. CASE NO. 81-2652

OTIS WARD CARROLL,

Respondent.

/

FINAL ORDER

Respondent, Otis Ward Carroll, holds Florida teaching certificate number 169701. On August 27, 1981 an administrative complaint was filed seeking the suspension or revocation of his certificate. A formal hearing was held before Michael P. Dodson, hearing officer of the Division of Administrative Hearings, on April 23, 1982. A Recommended Order has been forwarded to the Education Practices Commission pursuant to Section 231.262, F.S.

A teacher panel of the Education Practices Commission met to hear argument and take final agency action on December 2, 1982. The Petitioner was represented by L. Haldane Taylor, Esquire, and the Respondent was represented by David A. Hertz, Esquire.

The panel adopts the Findings of Fact of the Recommended Order, which is attached to and made a part of this Final Order.

The panel adopts as its Conclusions of Law paragraphs 1, 2, 4, 5, and 6 of the Conclusions of Law of the Recommended Order.

The panel denies the exceptions filed by the Respondent.

The Respondent did appear before the Education Practices Commission, and Respondent and his attorney did agree to the Imposition of the probationary conditions set out below. It is, therefore,

ORDERED that Respondent Otis Ward Carroll be placed on period of probation for three years from the date of this Final Order. The conditions of this probation are as follows:

1. The Respondent shall have no unauthorized absence from his teaching job.

   
   

2. Respondent shall maintain a satisfactory teaching performance.

   
   

3. Respondent's supervisor shall report every three months to the Department of Education on the above cited conditions.

   
   

4. Respondent shall not consume alcoholic beverages.

DONE AND ORDERED this 21st day of December, 1982.

Carolyn Wilson, Presiding Officer

Filed in the records of the Education Practices Commission this 21st day of December, 1982.

COPIES FURNISHED TO:

Donald L. Griesmeimer, Clerk

Arthur Wallberg

Attorney General's Office

Marlene Greenfield Professional Practices Service

Ms. Judith Brechner General Counsel Department of Education

David A. Hertz, Esquire 1035 LaSalle Street

Jacksonville, Florida 32207

Michael Dodson, Esquire DOAH

The Oakland Building 2209 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 81-002652

Orders for Case No: 81-002652