STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF BRADFORD COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 84-1242
)
BETTY STEVENS HUTSON, )
)
Respondent. )
)
RECOMMENDED ORDER
This matter came on for hearing in Starke, Florida, before the Division of Administrative Bearings and its duly appointed Hearing Officer, Ella Jane P. Davis on December 10 and 11, 1984. The parties were represented by:
For Petitioner: Terence M. Brown, Esquire
and Daniel Malloy, Esquire Post Office Drawer 40 Starke, Florida 32091
(904) 964-8272
For Respondent: Thomas W. Young, III, Esquire
General Counsel
and Maurine C. Powell, Esquire
208 West Pensacola Street Tallahassee, Florida 32301 (904) 244-1161
At issue is whether Petitioner may dismiss Respondent from her teaching position upon grounds of immorality, misconduct in office, gross insubordination, and willful neglect of duty. 1/
By stipulation, a post-trial deposition was permitted, same has been taken and duly filed. The parties thereafter stipulated for cross-examination by telephonic communication and a "supplemental transcription." No objections to either portion of this deposition have been filed and so the entire deposition (2 parts) of Marion Lovell is admitted in evidence.
Petitioner submitted proposed findings of fact and conclusions of law (22 pages); Respondent submitted proposed findings of fact and a memorandum of law (21 pages total). To the extent these proposed findings have not been adopted or are inconsistent with the findings herein, they have been specifically rejected as irrelevant or not supported by the evidence.
FINDINGS OF FACT
Respondent was employed by the Bradford County School Board as a cosmetology instructor on a continuing teaching contract at the Bradford-Union Area Vocational-Technical Center (Va-Tech Center) in Starke, Florida, for the school year 1983-1984. Respondent's class was designed to prepare students to become licensed cosmetologists.
On one occasion prior to Christmas, 1983, Mary Lee Wolf and Rose Smith, students of Respondent, brought an unopened bottle of wine onto the Vo-Tech Center grounds and presented it to Respondent during a class. There is no evidence that Respondent solicited the gift. Subsequently, on another date and after class hours, students Mary Lee Wolf, Tina Moyer, Bonnie Banks and Respondent's teaching aide, Helen Van Wart, opened the bottle and drank wine from cups in Respondent's presence. Respondent was served a cup, but there is no direct, credible testimony that Respondent personally consumed any wine. There is no evidence that any of those who consumed the wine were minors.
In February 1984 the Ace Beauty Company, in conjunction with the Florida Cosmetology School Association, put on the Florida Sunshine Trade Show in Tampa, Florida. Attendance by students in Respondent's class at this particular trade show was encouraged by Respondent and pre-authorized by the Vo- Tech Center Director, David B. Smith, Jr.
Mr. Smith made no provisions for a teacher's aide to fill in for Respondent on Monday, February 13 and Tuesday, February 14 because Respondent informed him that all but one or two of her students would be attending the trade show from February 11 through February 14, 1984. In fact, seven students did not attend and those who attended returned late February 13.
On Friday, February 10, 1984, Mr. Smith approved use of the Vo-Tech Center van for Respondent's field trip, provided only Respondent drive the van.
The same day, Respondent gave Mr. Smith a signed Application for Leave, requesting leave from February 11, 1984 through February 14, 1984. Past experience indicated trade shows may exceed the printed agenda.
Saturday morning, February 11, 1984, Respondent and the eleven students travelling to the cosmetology show in Tampa, met in the Vo-Tech Center parking lot to board the van. While passing luggage to the Respondent for loading into the van, Bonnie Banks saw liquor bottles protruding from paper bags and remarked to Respondent that it looked like a party was planned. Respondent did not answer her Various students drank mixed alcoholic beverages from paper cups while standing near the van. Those involved took some care to shield their activities from Respondent and there is no direct credible evidence in the record to indicate Respondent was present or observed this alcoholic consumption on the school parking lot. Before climbing aboard the van, several of the students heard Respondent comment to the effect that the students were all adults and she expected them to behave that way. Some interpreted this to mean they were being given tacit permission to drink alcoholic beverages; others interpreted it as a warning either not to drink alcoholic beverages on the trip or not to let Respondent observe them drinking, if they did.
Some of the students drank mixed alcoholic drinks from paper or plastic cups in the van while Respondent drove the van to Tampa. Mary Lee Wolf "tasted" some Kahlua liquor from a bottle in a brown paper bag. At one point, another liquor bottle in a brown paper bag rolled forward on the floor near Respondent
in the driver's seat and Respondent passed it back to students behind her with an admonition to the effect of "keep it down back there." While it is unclear whether this comment was directed to Ms. Wolf or to someone in control of the rolling bottle, of those students who observed the bottle incident, all understood Respondent's comment to mean "don't let the liquor be seen" as opposed to "stop drinking and don't be so loud." While en route to Tampa, Respondent stopped in Gainesville, Florida, to refuel. At this stop, students Paula Tanner, Bonnie Banks, and Kay Kane left the van, purchased a six pack of beer at an adjoining convenience store and brought it back in a brown bag to the van. Respondent was in an adjoining bakery and did not see the beer loaded.
Thereafter, various students drank beer from paper and plastic cups while Respondent drove the van. There is no evidence that any of these students was a minor and there is no direct, credible evidence Respondent consumed any alcoholic beverages in the van.
Also at the Gainesville stop, Respondent drove from the gas pumps to another parking location without closing one of the van doors. The open door contacted the bumper of a parked car. There was little or no visual damage to the van but the students had difficulty closing the door again. Respondent had the necessary minor repair work done to the van in the Vo-Tech mechanical shop upon her return but did not report the accident to Director Smith.
When Respondent unloaded the van in Tampa, several beer cans littered the van floor and a liquor bottle was dropped and broken in proximity to Respondent.
Upon arrival in Tampa, Respondent registered in the Hyatt Regency Hotel, where the trade show was located. For financial reasons, several students had pre-registered in the less expensive Econo-Lodge some distance from the trade show. Respondent permitted Rose Smith to transport these students to and from the Econo-Lodge accommodations to the cosmetology show at the Hyatt Regency throughout the group's stay in Tampa. She jestingly told Rose Smith to say she was Respondent. On Sunday evening, after all educational activities ceased, Rose Smith also drove several of the students to the Confetti Lounge where they consumed alcoholic beverages. Rose Smith and some other students consumed alcoholic beverages in the van on this occasion. Respondent did not accompany the group to the Confetti Lounge.
The Florida Sunshine Trade Show ended at 4:00 p.m., Monday, February 13, 1984. Respondent drove the van back to Starke that evening. During the return trip, some students complained of what they considered excessive speed. Respondent's reply to Paula Tanner's complaint was that if she did not like the ride she could get out and walk. The group arrived at the Vo-Tech campus at approximately 10:30 p.m.
People were present on the grounds, in the classrooms, and in the administration offices when the cosmetology students arrived and for some time thereafter Respondent waited at the Vo-Tech Center for most of the students to be picked up. At student Lisa Morgan's request, she eventually took the remaining students home, but Ms. Morgan refused Respondent's offer to wait with her and insisted on waiting for her own ride which did not arrive until after 1:30 a.m. Tuesday morning, February 14, 1984.
Respondent retained the Vo-Tech van at her home on Tuesday, February 14, 1984. On February 15, 1984, she reported for work. This is the day the van
was repaired. In separate conversations with Barbara Casey, secretary to Director Smith, and with Martha Smith, (Mrs. David Smith) media specialist, Respondent gave the impression she had returned to Starke late Tuesday night. Respondent also submitted a newspaper release to that effect.
On or about Friday, February 17, 1984, Respondent submitted to Director Smith a per-diem voucher requesting compensation from 9:30 a.m., February 11, 1984 to 11:00 p.m., February 14, 1984 when she had in fact returned at 10:30 p.m., February 13, 1984. At Mr. Smith's request for a supporting agenda she submitted a typed agenda for the trade show indicating activities through part of Tuesday, February 14, 1984.
Four other per diem requests submitted by Respondent during the previous four years for field trips had exceeded the time periods established in their respectively attached agendas. In each instance, Mr. Michael Reddish, finance officer, reduced the time requested and made a reduced per diem reimbursement payment to coincide with the agenda submitted. Each time he did this he informed Director Smith of these actions; neither Smith nor Reddish informed Respondent of these actions, but it may be inferred that she was aware her per diem reimbursement payments were being reduced from the hours she had requested so as to coincide with the agendas she had submitted simultaneously with her per diem reimbursement requests. The per diem reimbursement request submitted on February 17, 1984 with supporting agenda amounted to a request for fifty dollars ($50.00) more than the actual time spent by Respondent on the trade show trip.
Respondent's class procedures involved several sources of funds: individual student contributions to a profanity jar, proceeds of a class hot dog sale, fees charged to patrons for student beauty services, charges to students for supplies used by them in class, charges to students for sale of materials such as shampoos and permanents which they took home, and charges to students for special purchase items such as mannequins. Mannequins are false "heads" with rooted hair for hair services' practice.
The profanity jar was apparently Respondent's idea to teach decorous language for purposes of future employment. Students who "cussed" were required to deposit various amounts of small change into the jar for each infraction.
The amount in this jar at any point in time was never established by any credible evidence, nor has it been established what became of it or that Respondent emptied it.
Proceeds from the class hot dog sale were originally intended to be used for groceries for use only for those students attending the trade show field trip. Instead, Respondent responded to non-attenders' complaints and purchased hairspray for the whole class. Although the highest "guesstimate" for hot dog monies was $25, the exact amount of proceeds from the hot dog sale has never been established by any direct credible testimony.
At the beginning of the 1983-1984 school year, Director Smith and Respondent agreed that because Vo-Tech and the students each derived some benefit from student use of supplies, the school would charge students half price for supplies they wished to use at home. These types of supplies were initially purchased by the school from internal student money generated from student work on patrons and from sale of the supplies to students. They were
internal funds and not county monies in Director Smith's eyes. Director Smith required that funds received from students and patrons be accounted for daily but no one in his office checked up on this. It was left to a teacher or a student to report these amounts on "Report of Monies" logs from each class daily.
There is confusion in the testimony of Director Smith, Ms. Edwards, secretary-bookkeeper, and Ms. Norman, school clerk, as to what constituted retail sales and what constituted internal funds, and as to whether wigs and mannequins on hand constitute "supplies" (always retail sales) or are always classified in the category of special pre-paid purchase items. Students could purchase mannequins through the school office but mannequins were normally purchased by the school with county money and Mr. Smith's understanding was that in the 1983-1984 school year there had been only one purchase of mannequins made with county monies and therefore they were not for resale. Ms. Edwards and Ms. Norman thought sale of supplies to students could not generate internal funds and was not permitted, contrary to Mr. Smith's understanding, and both ladies were vague as to whether there had been another set of mannequins for students to purchase. All three administrators agreed resale of items purchased with county funds was improper. Ms. Edwards and Ms. Norman are the persons who determined no amounts of monies in any category had been turned in from Respondent's class in the 1983-1984 school year. On one occasion, student Elizabeth Kelly paid for a mannequin in advance with a check from her grandfather to her, which she endorsed over to Helen Van Wart. She eventually received the mannequin from Helen Van Wart. On another occasion, Bonnie Banks delivered a blank check for $24.00 to Respondent. It was cashed with the name "Betty J. Hutson" filled in and also endorsed on the back. That name is Respondent's name and Bonnie Banks thought that was Respondent's signature but no predicate/foundation/reason exists in the record for that assumption. Bonnie Banks also received her mannequin.
In the 1983-1984 school year, money for all supplies regardless of how categorized were collected by Respondent's teacher's aide, Mrs. Van Wart, but the keys to the supply cabinet were freely given out to students. Permanents were left sitting on an open shelf. Mrs. Van Wart did not routinely give out receipts and none of the money students recall paying for supplies was turned in to the Director's office. In the previous years, student monies and retail sales for patrons services and sales to students had been turned in to the office from Respondent's class. In 1983-1984, no theft of monies or supplies was reported to the Director by anyone. Only one student, Elizabeth Kelly, recalls Respondent mentioning some money was stolen but how much or from what source this money was derived was never established by any direct credible testimony. No credible testimony established any supplies were actually missing from the supply cabinet and an outside year end audit revealed no problems in Respondent's class.
Petitioner established that over a period of approximately three years, Respondent fell asleep several times while under the hairdryer during class while her students practiced on her. On one other occasion, she was absent from the classroom for a short period of time on a personal errand off- campus. The maximum period of time she was gone was less than an hour and a half and during this period she was entitled to take her lunch. During this absence, a patron was permanented by a student and injured. It is contrary to Vo-Tech policy for students to use chemicals without on-site instructor supervision and Respondent did not advise Director Smith of the patron's injury. She further requested her students to say she was in the school cafeteria when it happened.
Cosmetology students attending a normal day of classes on campus would be legitimately credited with seven (7) hours toward their state board requirement. Feeling trade shows were worthwhile learning experiences, Mr. Smith authorized granting students eight (8) hours for the planned activities of a field trip day.
At the beginning of the 1983-1984 school year, Respondent told her entire class that no-one-would be required to attend class the day following any multi-day trade show or seminar. On Friday, February 10, 1984, Respondent told her class that they would be returning from the trade show on Monday evening, February 13; that there would be no class on Tuesday, February 14; and that everyone would still get credit for class on Tuesday. Respondent advised her class that students not attending the trade show would receive attendance credit whether or not they attended school on Monday or Tuesday. Seven students were not in school or any school approved instructional program on Monday, February
These were the students not attending the trade show that day. Eighteen students were not in school or any school approved instructional program on Tuesday, February 14, 1984. This included the eleven students who had returned from the Tampa trade show with Respondent the night before. Respondent gave all the students credit for seven (7) hours on Monday and seven (7) hours on Tuesday instead of eight (8) hours for Sunday and eight (8) hours on Monday for the students attending the trade show and zero (0) hours credit for the "stay at homes" on Monday and zero (o) hours credit for all students for Tuesday. Director Smith testified he would have no problem if she had given eight (8) hours per day for the trade show activities but the attendance records did not reflect that specifically. Interestingly, after Respondent was suspended, Mr. Smith confirmed Respondent's practice by crediting all students just as Respondent had.
Before and during the trade show trip, and at various times thereafter Respondent instructed the students who had been on the field trip, that if asked, they were to say they returned to the Vo-Tech Center grounds on February 14, 1984, instead of a day earlier.
Respondent's immediate supervisor, David Smith, instituted an investigation of Respondent' a activities approximately February 17, 1984. Be did not immediately advise her of the serious allegations concerning allegedly missing supplies and leave requests/per diem claims. Respondent was not aided by him in correcting the latter concern. Particularly, she was prevented from correcting the leave requests/per diem claims. On March 17, 1984, Respondent submitted a letter stating she was at home on February 14, suffering from exhaustion and wished to amend her leave and per diem requests. On March 19, 1984, Respondent submitted an amended sick leave request. Director Smith refused to approve these as over thirty days from date of the sick leave and because he considered the initial requests to be fraudulent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over this cause pursuant to s. 120.57(1), Florida Statutes.
The following specific charges appear in the Amended Petition for Dismissal Paragraph 2:
Respondent offered and/or provided her students alcoholic beverages for their
consumption on school grounds; such alcoholic beverages were consumed by Respondent's students on school grounds following class.
Respondent misappropriated and/or stole monies paid by student(s) to the Bradford County School District for supplies.
Respondent failed to properly report the theft or loss of Bradford County School District internal funds and school activity funds.
Respondent failed to properly report the theft or loss of supplies belonging to the Bradford County School District.
Respondent attempted to defraud the Bradford County School District by submitting a false leave request and a false per diem claim; Respondent involved students and other employees of the Bradford County School District in her scheme to defraud the Bradford County School District.
Respondent improperly utilized school activity funds to purchase supplies for which Bradford County School District funds were available.
Respondent failed to spend school activity funds for the purposes for which they were collected.
Respondent failed to properly manage monies paid by the students for the purchase of supplies. Respondent has failed to account
for such funds and failed to follow Bradford County School Board rules designed for the protection of such funds.
Respondent permitted students to consume alcoholic beverages on a school van while Respondent was transporting the students to a Cosmetology Show in Tampa, Florida, on February 11, 1984.
Respondent permitted students to possess alcoholic beverages on school grounds in a school van on February 11, 1984.
After Mr. David B. Smith, Jr., specifically ordered that no unauthorized persons drive
the school van, Respondent permitted an un- authorized person (student) drive the school van during the trip to Tampa on February 11- 13, 1984; in doing so, Respondent permitted her students to use the school van for "partying" during which time the van was used to transport students to various lounges in Tampa, Florida.
Respondent intentionally misrepresented to Mr. David B. Smith, Jr., area center
director, the number of students who would be attending the Cosmetology Show in Tampa, Florida, on February 11-13, 1984.
Respondent advised her students who were
not attending the Cosmetology Show in Tampa, Florida, that there was no class
on February 13 and 14, 1984, but they would receive class credit for having attended school on said days; Respondent did in
fact give such students credit for having attended school on February 13 and 14, 1984.
Respondent failed to report to school authorities that the school van, while driven by Respondent was involved in a minor traffic accident on February 13, 1984.
Respondent in permitting an unauthorized person to drive the school van, instructed the student to identify herself as Ms. Hutson
[Respondent] in the event that she was stopped or questioned by police or any other person while driving the vehicle.
Respondent drove the school van from Tampa to Starke on February 13, 1984, in a reckless manner and in speeds in excess of posted speed limits.
Prior to and upon returning to Starke on February 13, 1984, Respondent instructed her students to misrepresent when they returned from Tampa; the students were directed to state that thee had returned the evening of February 14, 1984.
Respondent has attempted to obstruct and interfere with the Bradford County School District's investigation of her by suggest- ing to students that they should misrepresent various facts which they may be questioned about and by attempting to intimidate students called as witnesses.
Respondent has neglected her teaching duties by sleeping during class and by leaving the classroom without permission for an extended period of time.
Respondent improperly left her post of duty on February 13, 1984, when she left a student unsupervised on school grounds during the
late evening hours of February 13, 1984 and early morning hours of February 14, 1984. 2/
The pertinent parts of Section 231.36(4)(c) are as follows:
... any member of the instructional staff... who is under continuing contract may be suspended or dismissed at any time during the school year, however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.
Chapter 6B-4 of the Florida Adninistrative Code defines the terms "immorality," "misconduct in office" and "gross insubordination". Rule 6B-4.09
provides:
Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service to the community.
Rule 6B-4.09(3) provides:
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.
Rule 6B-4.09(4) provides:
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order reasonable in nature and given by and with proper authority.
The Code of Ethics in the administrative definition of misconduct in office is defined by the Code of Ethics of the education profession. Rule 6B- 1.01(3) of that code provides:
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Rule 6B-1.06 provides:
Obligation to the student requires that the individual: (h) Shall not exploit a professional relationship with a student for personal gain or advantage.
... (4) Obligation to the public requires that the individual:
... (c) Shall not use institutional privileges for personal gains or advantage.
... (5) Obligation to the profession of education requires that the individual:
... (a) Shall maintain honesty in all professional dealings.
... (g) Shall not submit fraudulent information on any document in connection with professional activities.
Concerning the use of alcoholic beverages (addressed in allegations a, i, and j, of the Amended Petition), there is no evidence Respondent provided or offered alcoholic beverages to her students on school grounds. Although, since she saw it, she probably should have reported the after-class wine incident to the front office, neither the after-class wine incident nor the pre-field trip incident in the parking lot which she did not observe, can reasonably be interpreted as immorality or misconduct in office. More serious are the charges concerning student use of beer and liquor in a school van used for a school function. Given the size of the van, its crowded conditions, and the obvious rolling bottle, one must assume that once underway Respondent became aware of the drinking of alcohol in the van on Saturday. From the surrounding circumstances on Sunday night, she must also have been aware that some of her students would use the van to go to a place where liquor might be consumed. Except for the unauthorized use of the van, addressed infra., Respondent had no authority to monitor the consumption of alcoholic beverages by adult students after trade show events ended for the day on Sunday until the trade show events commenced Monday.
Therefore, the issue becomes what were Respondent's duties and options on Saturday under Rules 6Gx4-2.18 and 6Gx4-4.44. These rules provide as follows:
Rule 6Gx4-2.18:
Alcoholic Beverages and Controlled Substances.-- Alcoholic beverages and controlled substances unsupervised by medical or legal authority in any form are barred from all school property, buildings and functions sponsored by the
public schools of the Bradford County School System. An act by an employee of the Bradford County System in violation of this rule shall be considered conduct subjecting the employee to such disciplinary action as shall be deter- mined under the provisions of ss. 230.23(5), 230.33(7)(h), 231.28, and 231.36, F.S.
Rule 6Gx4-4.44 Alcohol, Drugs and Smoking.-- (in pertinent part):
(1) The use or possession of alcoholic and intoxicating liquors or beverages and narcotic drugs shall not be permitted at any school center by any person, except where the person has a prescription drug for use as prescribed by a medical doctor as authorized by Chapter
465 or 893, Florida Statutes.
Assuming that the van constituted school "property," and that "function" is broadly interpreted, these rules apply to events in the van on Saturday's trip to Tampa but what "act" may be attributed to Respondent's discredit is vague. Her verbal remarks were subject to several interpretations. Perhaps she could have taken greater control than she did, pursuant to Rule
6Gx4-3.40 (supervision) but no rule provides any guidance as to what Respondent
should have done beyond her verbal remarks in the situation of adult students on the highway miles from home. Under the foregoing findings of fact, Petitioner has established no immorality, misconduct in office, gross insubordination, or willful neglect of duty.
Concerning the charges relating to theft/misappropriation of funds and supplies (addressed in allegations b, c, d, f, g, and h of the Amended Petition), Petitioner established that the money in the profanity jar and that raised for hot dog sales constituted student activity funds administered by Respondent and that School Board Rules, require these to be accounted for to the front office. They were not. The amount in the profanity jar was never proved, and it was never even established that its insignificant amount was missing. There is no evidence of what money, if any, was stolen, so Respondent is not guilty of failing to report a theft. Respondent was required to obtain Director Smith's approval for switching the "grocery" purpose to the "hair spray purpose for the hot dog funds, but she did not.
Respondent's failure to comply with these rules are technical failure to manage and account for internal funds in a very small sum but no theft or misappropriation. The only witness who concluded that supplies were missing was Paula Tanner who was admittedly hostile to Respondent. Virtually all student payments for supplies were turned over to Helen Van Wart, teacher's aide, and all students received the supplies they paid for. It was Ms. Van Wart's delegated duty in the 1983-1984 school year to account for monies to the front office. An "agency" theory cannot ascribe the teacher's aide's commissions and omissions to Respondent in a penal proceeding such as this. Since the quantity and quality of the evidence necessary to sustain the burden of proof of a prosecuting agency in a penal proceeding is substantially greater than in other proceedings, it must be concluded, in consideration of the above Findings of Fact, that the charges of theft and misappropriation have not been proven.
Concerning Respondent's leave request and per diem reimbursement request (allegations e and q) involving her students in Respondent's "scheme" and obstructing petitioner's investigation of the situation (allegations e, q, and r), Petitioner failed to establish that the pre-trip leave request was false. However, the evidence is clear and convincing that Respondent submitted a false per diem reimbursement request, and knowing from past experience that without a supporting agenda that request would be reduced, she submitted a false agenda. Her obvious intent was to obtain $50.00 more than she was entitled to. This constitutes immorality and misconduct in office. The evidence supports the conclusion that Respondent's instructions that students say they returned on February 14 had nothing to do with Petitioner's investigation, but were to insure students obtaining allowable credit for the field trip. They were not clearly and convincingly a way to support her fraudulent per diem claim. Nonetheless, she requested that students lie and this constitutes misconduct in office and immorality as well as an offense against the Code of Ethics and the Principles for Professional Conduct. Respondent's amended request for sick leave on March 19 was untimely per Rule 6Gx4-3.27(1) but Rule 6Gx4-3.24 does not specify when a leave request may be amended. That Respondent tried to amend these within 30 days on March 17, and that the low amount involved is minor has been considered in mitigation of her immorality and misconduct.
Concerning the allegation of gross insubordination arising from Respondent's admittedly giving permission for a student to drive the school van and telling that student to give a false name (allegations k and o) , the remark concerning names was an obvious jest and was taken as such. It supports none of
the charges against Respondent. The foregoing findings of fact establish a onetime simple insubordination through intentional refusal to obey a direct ord
er reasonable in nature and given by and with proper authority, but it is insufficient to meet the "constant and continuing" language employed by Rule 6B- 4.09(4)'s definition of "gross insubordination." Further, need for transportation of students between motels constitutes an extenuating circumstance.
Allegations l and m allege falsification of the number of students attending the trade show and of attendance records. Advance misrepresentation by the Respondent of the number of students planning to attend the trade show was not established because the list was subject to change until the last minute. Respondent's representations to the Director and her students concerning the fact that class would not be held on Tuesday, February 14 were consistent. The hours of credit assigned by Respondent to all the students regardless of whether or not they attended the trade show were ratified by Director Smith and the Petitioner cannot now be heard to complain against Respondent on these grounds. These allegations have not been proven.
The Respondent, as instructional personnel, is not required by Rule 6Gx4-2.13 to report the van accident, and so allegation n has not been proven.
Concerning allegation p, endangering her students by speeding and reckless driving on the return trip to Starke, Florida, it is clear that most students were frightened and that at least briefly, Respondent exceeded the posted speed limit. However, the record evidence falls far short of establishing any actual imperilment of students.
Allegation s, that sleeping under a hair dryer constitutes neglect of cosmetology instruction and supervision duties was not established, but a short unauthorized absence from class on one occasion was established. Her request to her students to lie about the burned patron incident is immorality, misconduct in office and a violation of the Code of Ethics and Code of Professional Conduct.
Allegation t, that Respondent improperly left her post of duty on February 13, 1984, is not established by the foregoing findings of fact.
Upon assessment of the facts found, and in the conclusions of law reached and in consideration of the argument of counsel, it is recommended
1. That the Bradford County School Board enter a Final Order ratifying Respondent's suspension of employment with the Bradford County School Board without pay and continuing that suspension without pay to and including the end of the 1984-1985 school year, a total of 2 school years.
DONE and ORDERED this 1st day of February, 1985, in Tallahassee, Florida.
ELLA JANE P. DAVIS
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 1st day of February, 1985.
ENDNOTES
1/ The Amended Petition for Dismissal sets forth 20 factual allegations pursuant to s. 231.36(4)(c) Florida Statutes and Bradford County School Board Rule 6GX4-3.16 which Petitioner claims amount to immorality [6B-4.09(2)F.A.C.], misconduct in office [6B-4.09(3)F.A.C.], gross insubordination [6B- 4.09(4)F.A.C.] and willful neglect of duty [6B-4.09(4)F.A.C.].
2/ Paragraph 3 of the Amended Petition for Dismissal alleges that these factual allegations correspond to violations of ss. 112.061(10) and 812.04 Florida Statutes and Bradford County School Board Rules 6B-1.06, 6B-1.01, 6Gx4-7.09, 6Gx4-3.24(2), 6Gx4-4.44, 6Gx4-3.40, 6Gx4-2.13, 6Gx4-6.21, 6Gx4-6.22, 6Gx4-4.02,
6Gx4-4.08. These Rules are in evidence, per stipulation as Petitioner's Exhibit 14.
COPIES FURNISHED:
Terence M. Brown, Esquire and Daniel Malloy, Esquire Post Office Drawer 40 Starke, Florida 32091
Thomas W. Young, III, Esquire General Counsel
and Maurine C. Powell, Esquire
208 W. Pensacola Street Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
================================================================= IN THE SCHOOL BOARD OF BRADFORD COUNTY
THOMAS L. CASEY, as
Superintendent of the Bradford County School System,
Petitioner,
vs. CASE NO.: 84-1242
BETTY STEVENS HUTSON,
Respondent.
/
FINAL ORDER
Upon consideration, and after a review of the entire record by each member of this Board, it is ORDERED that:
The Findings of Fact and Conclusions of Law of the Hearing Officer's Recommended Order are hereby adopted as the Findings of Fact and Conclusions of Law of this Board, with the following exception:
In Paragraph 19 of the Recommended Order, the closing sentence is "Interestingly, after Respondent was suspended, Mr. Smith confirmed Respondent's practice by crediting all students just as Respondent had". We hold that this Finding was not based upon competent, substantial evidence. While there is evidence that Mr. Smith did not disapprove the credit, there is nothing in the record to support his confirmation of illegal behavior. The closing sentence is hereby stricken.
The recommended penalty contained in the Recommended Order is disapproved and hereby rejected for the following reasons: the Findings of Fact and Conclusions of Law set forth several acts of Immorality and misconduct in office. Such actions are, by statute, grounds for dismissal and such is the appropriate penalty in this instance.
Therefore, for the reasons cited above, Respondent is hereby dismissed from her position and her continuing contract with the School Board of Bradford County is hereby terminated.
Patricia E. Spengler Chairperson
Bradford County School Board
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been sent by U.S. Mail to Betty Stevens Hutson, c/o Thomas W. Young, III, Esquire, General Counsel, FEA/United, 208 West Pensacola Street, Tallahassee, Florida 32301, Thomas W. Young, III, Esquire, General Counsel, FEA/United, 208 West Pensacola Street, Tallahassee, Florida 32301, and to Terence M. Brown, Esquire, Post Office Drawer 40, Starke, Florida 32091, on this 1st day of May, 1985.
Secretary
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AMENDED AGENCY FINAL ORDER
================================================================= IN THE SCHOOL BOARD OF BRADFORD COUNTY
THOMAS L. CASEY, as
Superintendent of the Bradford County School System,
Petitioner,
vs. CASE NO.: 84-1242
BETTY STEVENS HUTSON,
Respondent.
/
AMENDED FINAL ORDER
THIS CAUSE having come before the School Board of Bradford County upon the Amended Recommended Order of the Hearing Officer, after thoughtful review and consideration and after a review of the entire record by each member of this Board, the Board hereby finds and declares:
The Findings of Fact of the Hearing Officer's Amended Recommended Order are hereby adopted as the Findings of Fact by this Board, with the following exception:
Paragraph 19 of the Amended Recommended Order states in its last sentence: "Interestingly, after Respondent was suspended, Mr. Smith confirmed Respondent's practice by crediting all students just as Respondent had." We hold that this finding was not based upon competent, substantiated evidence and therefore substitute the following sentence:
"After Respondent was suspended, Mr. Smith did not change the credit recorded by Respondent."
The Conclusions of Law of the Amended Recommended Order are hereby adopted as the Conclusions of Law of this Board, with the following exception:
The Hearing Officer's suggestion on page "17", "That Respondent tried to amend these within 30 days on March 17, and that the low amount involved is minor has been considered in mitigation of her immorality and misconduct", is rejected. The evidence is clear and convincing that the Respondent attempted to amend her leave request only
after learning of the Superintendent's internal investigation of her improper acts. Furthermore, the relative amount of monies involved in the attempted theft is not an appropriate ground for mitigation when the attempted theft was committed during the course and scope of the Respondent's employment by the Board;
The language heretofore deleted from page "17 of the Amended Recommended Order is replaced by the following:
. . . Respondent's submission of a fraudulent per diem request and a fraudulent agenda of events further constitutes immorality and misconduct in office. Such fraudulent use of school documents, in and of itself, constitutes grounds for termination of Respondent's contract.
The recommendation of the Hearing Officer contained within her Amended Recommended Order is rejected on the following grounds:
For the reasons described herein there
15 no mitigation of the Respondents misconduct and immorality.
The far that the attempted theft was not spontaneous act, but rather a premediated act involving the falsification of various documents constitutes an aggravating circumstance;
The fact that the Respondent requested her students to lie on more than one occasion constitutes an aggravating circumstance;
The cumulative effect of Respondent's misconduct which involved Respondent's dishonesty and professional credibility, so seriously impairs her effectiveness in the school system that she cannot return to teaching in the Bradford County School System;
The recommendation of a one-year suspension is too lenient in light of the seriousness of the Respondent's offenses which were all committed during the course and scope of her employment by the Board.
4. For the reasons cited herein, the Respondent should be dismissed from her teaching position and her continuing contract with the School Board of Bradford County terminated.
It is thereupon ORDERED:
1. That the Respondent is hereby dismissed from her teaching position with the School Board of Bradford County an her continuing contract is cancelled due to immorality and misconduct in office.
J. T. PARRISH, Chairman Bradford County School Board
DATE: October 20, 1986
ATTEST:
Superintendent of Schools Secretary
| Issue Date | Proceedings |
|---|---|
| Nov. 14, 1990 | Final Order filed. |
| Feb. 01, 1985 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 01, 1985 | Agency Final Order | |
| Feb. 01, 1985 | Recommended Order | Suspended Respondent from school board employment for two years for immorality. |
JOHN WINN, AS COMMISSIONER OF EDUCATION vs SUCCESS ACADEMY CHRISTIAN SCHOOL, 84-001242 (1984)
ERIC J. SMITH, AS COMMISSIONER OF EDUCATION vs LEADERSHIP ACADEMY (5159), 84-001242 (1984)
DEPARTMENT OF EDUCATION vs DOLLIE M. TUNSIL, 84-001242 (1984)
DIANE ANDREW vs SARASOTA COUNTY SCHOOL BOARD, 84-001242 (1984)
