STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANCIS ROWELL, Superintendent ) of the District School Board of ) Levy County, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1453

)

KENNETH NEIL WATTS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on July 13, 1982, in Yankeetown, Florida. The issue for determination at the hearing was whether respondent should be terminated from employment by the School Board of Levy County on the grounds that he has been guilty of misconduct in office, gross insubordination, drunkenness and/or willful neglect of duty.

APPEARANCES

For Petitioner: John D. Carlson

Woods, Johnston & Carlson

1030 East Lafayette Street, Suite 112

Tallahassee, Florida 32301

For Respondent: C. Anthony Cleveland

General Counsel, FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

INTRODUCTION

By memorandum dated April 30, 1982, Superintendent Francis Rowell with the School Board of Levy County notified respondent Kenneth Neil Watts that he was recommending respondent's termination from employment on the grounds of misconduct in office, gross insubordination, drunkenness and willful neglect of duty. The factual allegations were as follows:

1. On various occasions during the 1981-82 school year you appeared for work under the apparent influence of alcohol.

2. On two occasions, August 20, 1981 and April 19, 1982, it was necessary for the principal to order you to leave the school premises because of intoxication and drunkenness.

3. On April 19, 1982, you were requested to submit to a breathalizer test and refused unless one could be given at the school, knowing the test could be administered in in Bronson.

4. During the 1981-82 school year you have had excessive absences, failed to provide adequate lesson plans, failed to give reasonable notice for absences, and have been required to be removed from the school premises.

5. During the 1981-82 school year you have failed to conduct yourself in a manner to establish an example and objective for pupils as required by 231.09(2) and (4), Fla. Stat.

6. Your actions as hereinabove described have been detrimental to the morale of other

faculty at the Yankeetown School and citizen support for the school system.

Respondent had previously been suspended with pay on April 19, 1982, and then was suspended without pay commencing May 7, 1982.

At the hearing, petitioner presented the testimony of Francis Rowell, Superintendent; Harvey Markham, Principal of Yankeetown School; Bobby Geisinger, the Principal's secretary; Barbara Delores Gaintanis, a teacher; and three students. The testimony of two more students was presented by deposition.

Petitioner's Exhibits 1 through 10 were received into evidence.

Respondent presented the testimony of two teachers' aides, one teacher, eleven students, one parent, respondent's wife and the respondent. The testimony of another teacher, another aide and another student was presented by way of deposition. Respondent's Exhibits A through E were received into evidence.

On August 16, 1982 subsequent to the hearing, each party filed proposed findings of fact, proposed conclusions of law and a proposed recommendation. To the extent that the parties' proposed findings of fact are not contained in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing or as irrelevant and immaterial to the charges involved in this proceeding.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, as well as observation of the demeanor of the witnesses, the following facts are found:

1. Respondent Kenneth Neil Watts has been employed by the Levy County School Board for ten years. He has continuously been assigned to Yankeetown School where he has taught seventh and eighth grade math, science and physical education. He has been on continuing contract status since 1975. Prior to coming to Yankeetown, he had an additional three years of teaching experience.

   
   

2. On August 20, 1981, the first day of school for students, respondent came to school a little late. Harvey Markham, the Principal of Yankeetown School, believed that he smelled alcohol on respondent's breath. He had a

   conference with respondent and the building representative for the Levy County Educational Association, Barbara Delores Gaitanis, was present at this conference. Mr. Markham accused respondent of being inebriated and respondent denied that he had been drinking any alcoholic beverage: Respondent became very upset from his conversation with Mr. Markham, did not feel that he could go into his classroom in that upset condition and asked if he could be relieved from his duties on that day. Respondent then drove himself home. Nothing was placed in respondent's personnel file concerning this incident. Ms. Gaitanis did not notice any smell of alcohol from the respondent, and did not notice anything unusual about respondent's physical appearance. Mr. Markham believed he smelled alcohol and noted that respondent's face was flushed and his eyes were bloodshot. Respondent was not slurring his speech or staggering.

   
   

3. On December 9, 1981, respondent did not report for work. This was the first occasion when respondent had not given prior adequate notice of his absence. The school called respondent's residence, respondent answered the phone and said that he had overslept and would be in later. Respondent's words during that conversation were somewhat slurred. Respondent's wife later called in and reported that respondent would not be in that day. Mr. Markham asked respondent to go to a doctor that day and to bring him a note from the doctor. Respondent did go to a doctor and brought Mr. Markham a paid receipt for the visit.

   
   

4. Two students believed they smelled alcohol on respondent's breath on or about December 18, 1981, the last day of school before the Christmas holidays. These students did not notice any change in respondent's physical appearance or behavior on that occasion.

   
   

5. Three other students believed they smelled alcohol on respondent's breath on several occasions. They could not recall the dates. On such occasions, respondent showed no difference in behavior or physical appearance.

   
   

6. Two teachers who had worked with respondent for ten years and saw him on a daily basis, sometimes in the morning, at lunchtime and again at the end of the school day, never smelled alcohol on respondent's breath. One of these teachers specifically remembered seeing respondent on the last day before the Christmas holidays. Three teachers' aides employed at Yankeetown School for 6,

   4 and 2 1/2 years respectively, observed respondent on a daily basis--sometimes three times a day--and never smelled alcohol on respondent's breath. Twelve students who had respondent as a teacher for two or three periods a day on a daily basis during the 1981-82 school year never noticed the odor of alcohol from the respondent. Many of these students had respondent as a teacher during the first and second periods of the day and would have been present both on the day preceding the Christmas holidays and on April 19th, the day of his suspension.

   
   

7. On April 19, 1982, Principal Markham's secretary noticed the smell of alcohol on respondent's breath as he was taking roll in his classroom. Mr. Markham called respondent to his office and building representative Gaitanis was again present. Markham accused respondent of being intoxicated, respondent denied that he had been drinking, and Markham then gave respondent the option to take a breathalizer examination. Respondent replied that he would do so if he could do it locally and did not have to travel to Bronson. Bronson is some thirty-five miles from Yankeetown and respondent did not have a car on April 19th. Mr. Markham did not order respondent to take the breathalizer exam. Mr. Markham sent respondent to the teachers' lounge and then asked his secretary to drive respondent home. Ms. Gaitanis noticed no odor of alcohol during the

   conference between respondent and Mr. Markham. A teacher's aide who saw respondent in the teachers' lounge at about 10:00 a.m. on April 19th and sat three to four feet away from him noticed no odor of alcohol. Mr. Markham admitted that respondent did not slur his speech, stagger or otherwise appear intoxicated in his behavior. He did observe that respondent's eyes were bloodshot and his face was flushed. Mr. Markham's secretary smelled the odor of alcohol while driving respondent home, but did not notice anything peculiar in respondent's behavior or appearance.

   
   

8. Respondent does not like and does not drink hard liquor. He sometimes drinks a beer or two on the weekends or in the afternoon or evening after school. Respondent does not drink beer or alcohol at school or in the mornings before school. His eyes are often bloodshot and he occasionally has trouble sleeping at night. On Sunday, April 18th, respondent had been at the beach in the sun all day.

   
   

9. Yankeetown is a small town with a population of approximately 500. If a resident had a drinking problem, it is probable that it would be common knowledge throughout the community. There was no testimony from parents, teachers or other community members that they had heard that respondent came to school intoxicated or with alcohol on his breath, or otherwise had a drinking problem.

   
   

10. Principal Markham's "Instructional Evaluation" of respondent for the 1981-82 school year was prepared on March 18, 1982. As was true for the previous years' evaluations, respondent received a "Currently Satisfactory," the highest rating available, in all areas under the headings of "Teaching Competencies" and "Personnel and Professional Qualities." The subareas in which respondent was rated included "planning," "teaching techniques," "classroom management," "accurate and punctual in routine duties, records and reports" and "complies with school, county and state policies."

    
    

11. Respondent took eleven full days and five half days of sick and personal leave during the 1981-82 school year. Other than the one December 9th occasion, respondent gave adequate notice of his absences. His leave days were always approved and he was paid for each of them. Mr. Markham felt that respondent's absences were a "minor" problem and he would not have recommended termination on this basis alone. He discussed respondent's absences with him on one occasion, but did not place anything in writing in respondent's personnel file.

    
    

12. Respondent prepared lesson plans for substitutes to use during his absences and these plans were submitted to Principal Markham. Markham recalled discussing inadequate lesson plans with respondent on one or two occasions, but admitted that he had not previously placed much emphasis on lesson plans. No memoranda were placed in respondent's personnel file concerning lesson plans, and respondent could not recall any discussion with Mr. Markham regarding the adequacy of his lesson plans.

    
    

    CONCLUSIONS OF LAW

    
    

13. Pursuant to Section 231.36(6), Florida Statutes, a member of the instructional staff of any district school system may be suspended or dismissed for misconduct in office, gross insubordination, willful neglect of duty and/or drunkenness. The allegations of fact which form the basis for such charges must be supported by competent substantial evidence.

14. A review of the factual allegations contained in Superintendent Rowell's memorandum recommending respondent's dismissal, as set forth in the Introduction section of this Recommended Order, in light of the facts adduced at the final hearing, leads to the conclusion that there is insufficient evidence to support the charges of misconduct in office, gross insubordination, willful neglect of duty and/or drunkenness.

    
    

15. The first two factual charges relate to the allegations that respondent appeared for work "under the apparent influence of alcohol" and was ordered to leave the school premises on August 20, 1981 and April 19, 1982, because of "intoxication and drunkenness." The charges have not been established by the evidence adduced at the hearing. Even if one were to disregard all the testimony from the witnesses presented by the respondent, the petitioner has utterly failed to establish that respondent was under the apparent influence of alcohol at work or was ordered to leave school because he was intoxicated or drunk. Principal Markham and/or his secretary "believed" they smelled alcohol on respondent's breath on two occasions--August 20, 1981 and April 19, 1982. Neither witness noticed any change in respondent's behavior on these occasions. His speech was normal and he was not staggering. Mr. Markham noticed only that respondent's face was red or flushed and his eyes were bloodshot. The evidence is clear that it was respondent who asked to be relieved of his duties on August 20, 1981, because he became extremely upset after Mr. Markham's accusations relating to alcohol. On the second occasion, April 19, 1982, Mr. Markham admitted that he sent respondent home because of the odor of alcohol and not because of respondent's behavior or appearance. "Drunkenness" is specifically defined in Rule 6B-4.09(5), Florida Administrative Code, as

    
    

    "that condition which exists when an individual publicly is under the influence of alcoholic beverages or drugs to such an extent

    that his or her normal faculties are impaired. . ."

    
    

    There was absolutely no evidence that respondent's normal faculties were impaired on the two occasions upon which Mr. Markham thought he smelled alcohol on respondent's breath. A red face and/or bloodshot eyes are consistent with being out in the sun on the previous day or receiving little sleep the night before. Others who directly observed respondent on the two dates in question did not detect the smell of alcohol from respondent. Students who believed they smelled the odor of alcohol from respondent on other occasions noticed no change in respondent's appearance or behavior on those occasions. In conclusion, the record of this proceeding simply does not support the allegation that respondent appeared for work intoxicated, drunk or under the influence of alcohol.

    
    

16. If petitioner's charge of "misconduct in office" relates simply to the alleged odor of alcohol on respondent's breath, this too is unsupported by the rules which govern this proceeding. Misconduct in office" is defined in Rule 6B-4.09(3) 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."

    
    

    Respondent was described by Principal Markham as a "good" teacher. Respondent's evaluations performed by Mr. Markham support this opinion and constitute evidence that respondent's principal did regard him highly as a teacher. There

    was absolutely no evidence from respondent's superiors, respondent's co-workers, respondent's students, parents of students or other community members that respondent's effectiveness as a teacher was impaired for any reason.

    
    

17. The third factual allegation charges that respondent was requested and refused to submit to a breathalizer test on April 19, 1982. From the testimony of Mr. Markham himself, it is clear that respondent was given the "option" to take a breathalizer examination after he denied that he had been drinking alcoholic beverages and that he stated he "would" take such a test if he did not have to drive all the way to Bronson because he did not have his car on that day. This is not a "request" and "refusal" situation. If this incident forms the basis for the petitioner's ultimate charge of "gross insubordination" and "willful neglect of duties," a review of the definition of those offenses again illustrates a complete lack of evidence in support thereof. The offenses of "gross insubordination" or "willful neglect of duty" is defined as

    
    

    "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." Rule 6B-4.09(4), Florida Administrative Code.

    
    

    An "option" is not a direct order, and Principal Markham did not have the authority to require that respondent submit to a breathalizer examination.

    
    

18. The fourth factual allegation of the complaint relates to excessive absences, inadequate lesson plans and failure to give reasonable notice for absences. These charges also find no support in the record of this proceeding. With one exception, respondent did provide adequate notice of each of his absences. That exception concerns the December 9th occasion when he overslept. While a steady pattern of oversleeping would be reprehensible, one such event does not constitute willful neglect of duties or misconduct in office. There was insufficient evidence to establish that the respondent's number of absences was excessive. To the contrary, it was demonstrated that respondent gave prior notice, received approval and was paid for each of his absences. Mr. Markham admitted that he placed no emphasis on lesson plans during the 1981-82 school year. Nothing was placed in respondent's personnel file concerning his absences or his lesson plans. In the areas of "planning," "accurate and punctual in routine duties, records and reports" and "complies with school, county and state policies," respondent received on his evaluation for the year the highest rating possible. And, finally, Mr. Markham himself admitted that the allegations concerning absences and lesson plans would not support respondent's termination from employment.

    
    

19. The two remaining charges against the respondent allege that he has failed to conduct himself in a manner to establish an example for pupils and that respondent's actions have been detrimental to the morale of other faculty and citizen support for the school system. Again, there was no evidence to establish these charges. The faculty members who testified at the hearing had never smelled alcohol on respondent's breath. There was not even an attempt to prove that respondent's action had any effect upon faculty, citizen support for the school or the students.

    
    

20. In conclusion, the factual allegations against the respondent have not been proven by competent substantial evidence in the record of this proceeding. As such, the ultimate charges of misconduct in office, gross insubordination, drunkenness and willful neglect of duty must be dismissed.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the charges contained in the April 30, 1982, "Recommendation of Dismissal" be DISMISSED, and that respondent be immediately reinstated with back pay from May 7, 1982, the date of his suspension without pay.

Respectfully submitted and entered this 30th day of August, 1982, in Tallahassee, Florida.

DIANE D. TREMOR, 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 30th day of August, 1982.

COPIES FURNISHED:

John D. Carlson, Esquire Woods, Johnston & Carlson 1030 East Lafayette Street Suite 112

Tallahassee, Florida 32301

C. Anthony Cleveland General Counsel, FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

Francis E. Rowell Superintendent

School Board of Levy County, Florida Post Office Box 128

Bronson, Florida 32621-0128

Docket for Case No: 82-001453

Orders for Case No: 82-001453