STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0186

)

JOSEPH LONG, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice this cause was heard by Linda M. Rigot the assigned Hearing Officer of the Division of Administrative Hearings on May 1, 1986, in Miami Florida.

Petitioner School Board of Dade County was represented by Frank R. Harder, Esquire, Miami Florida; and the Respondent Joseph Long was represented by George

F. Knox, Esquire, Miami, Florida.

On January 8, 1986, Petitioner School Board of Dade County suspended Respondent Joseph Long from employment as a continuing contract teacher and initiated dismissal proceedings. Respondent timely requested a formal hearing on that determination and a Formal Notice of Charges was subsequently filed by the Petitioner. Accordingly, the issues for determination herein are whether Respondent is guilty of the allegations contained in that Formal Notice of Charges and if so, what disciplinary action should be taken, if any.

Petitioner presented the testimony of Carnell White, Kathy Hightower, Miriam McNeil, Patrick Gray, and by way of deposition Daniel McPhaul.

Respondent Joseph Long testified on his own behalf and presented the testimony of Patrick Gray. Additionally, Petitioner's Exhibits numbered 1-5 and 7 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. Petitioner's proposed finding of fact numbered

23 has been adopted in this Recommended Order; however, Petitioner's proposed findings of fact numbered 1-22 have been rejected as not constituting findings of fact but as constituting recitations of the conflicting testimony. Further, Petitioner's proposed findings of fact numbered 9, 12, and 17 constitute recitations of testimony that was stricken from the record in this cause as unrelated to the allegations contained within the Formal Notice of charges. Respondent's proposed findings of fact numbered 1-6 and 27 have been adopted. The remainder of Respondent's proposed findings of fact have been rejected as follows: numbers 7-18 as being immaterial, and numbers 19-26 as not constituting findings of fact.

FINDINGS OF FACT

1. Respondent Joseph Long has been employed as a continuing contract teacher by Petitioner School Board of Dade County for the past 20 years. He has been on the staff of Miami Carol City Senior High School for approximately 17 years.

   
   

2. During the 1985-86 academic school year, the principal of Miami Carol City Senior High School, Carnell White, received reports of routine periodic property audits which indicated certain items missing from the school's inventory.

   
   

3. The items reported missing included computers and their accessories, cameras, and yearbooks. This loss of school property was further confirmed in July of 1985 when a Special Investigation Unit conducted a preliminary investigation.

   
   

4. On Friday, November 15, 1985, principal White confronted Daniel McPhaul, the employee charged with the security of the missing property for an explanation.

   
   

5. McPhaul confessed to White that he had stolen from Miami Carol City Senior High School television sets, computers, monitors, cameras, and yearbooks in order to help support both his drug dependency and his child.

   
   

6. On Monday, November 18, 1985, McPhaul was again summoned to White's office where he was again interrogated by White and by Officer Miriam McNeil one of Petitioner's investigators.

   
   

7. During that second interrogation, McPhaul made allegations that approximately 10 other instructional and non- instructional personnel at Miami Carol City Senior High School were also involved in the theft of school property and in the use of narcotics on the school campus.

   
   

8. Based upon those allegations, the investigation continued and enlarged. Those persons implicated by McPhaul were also interrogated.

   
   

9. On November 22, 1985, Respondent Joseph Long was interrogated by White and Officer McNeil regarding the allegations made against him that he had knowingly purchased one of the computers stolen by McPhaul and that he had been using and possessing cocaine on the school premises over an extended period of time.

   
   

10. Prior to the interrogation of Respondent on November 22, White had been contacted a number of times by parents of students and other persons advising him that Respondent had a drug problem and also that Respondent had been contacting people asking them for money.

    
    

11. Shortly before the November 22 interrogation, Respondent was evaluated in his performance as a teacher and his performance was rated as being acceptable.

    
    

12. During calendar year 1985, Respondent regularly carried a container of cocaine in his pocket while he was on the premises of Miami Carol City Senior High School and while he was in the performance of his duties as a teacher at that school.

13. During calendar year 1985, Respondent used cocaine while on the school premises and while performing his duties as a teacher.

    
    

14. On one occasion during the 1985-86 school year Respondent gave cocaine to school employee Kathy Hightower which she used in Respondent's presence while she was working in the school library.

    
    

15. Numerous newspaper articles and television and radio news accounts resulted pursuant to discovery of the use of narcotics on campus at Miami Carol City Senior High School and the theft of school property from that location. The Respondent and the other school employees around whom the investigation centered were identified in those various accounts.

    
    

16. As a result of the publicity engendered by the investigation, White received telephone calls from parents who were concerned about Respondent's use of cocaine while employed as a teacher, and a number of students complained to White.

    
    

17. McPhaul's statements that Respondent purchased from him one of the computers that he stole from the school constitute the only evidence against Respondent as to that allegation. Accordingly, that allegation is factually resolved in favor of Respondent partly due to the minimal evidence presented and partly due to McPhaul's questionable credibility caused by his appearance at the final hearing in compliance with Petitioner's subpoena followed by his disappearance before Petitioner could call him to the stand to testify in this cause.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1), Florida Statutes.

    
    

19. Section 231.36(4)(c), Florida Statutes, authorizes Petitioner to suspend or dismiss a member of the instructional staff who is under continuing contract for certain specified conduct including immorality, misconduct in officer and incompetence, the charges made against Respondent in this cause. Those grounds for suspension and dismissal are defined in Section 6B-4.09; Florida Administrative Code as follows:

    
    

    1. Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. Since incompetency is a relative term; an authoritative decision in an individual case may be made on the basis of testimony by members of a panel of expert witnesses appropriately appointed from the teaching profession by the Commissioner of Education. Such judgment shall be based on a preponderance of evidence showing the existence of one or more of the following:

       1. Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, (Florida Statutes);

    2. repeated failure on the part of a

       teacher to communicate with and relate to children in the classroom, to such an extent that pupils are deprived of minimum educational experience; or (3) repeated failure on the part of an administrator or supervisor to communicate with and relate to teachers under his or her supervision to such an extent that the educational program for which he or she is responsible is seriously impaired.

       (b) Incapacity: (1) lack of

       emotional stability; (2) lack of adequate physical ability; (3) lack of general educational background; or (4) lack of adequate command of his or her area of specialization.

       
       

       1. 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 in the community.

          
          

       2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.01; F. A. C. and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule

       6B-1.06, F. A. C. which is so serious as to impair the individual's effectiveness in the school system.

       
       

20. Although the Formal Notice of Charges alleges that Respondent is guilty of incompetency by alleging; for example, Respondent's lack of emotional stability, no evidence was presented in support of the allegation of incompetency. The only evidence regarding Respondent's actual performance of his teaching duties is the testimony that Respondent was evaluated a short time before the investigation into the use of narcotics on school premises and the theft of school property was initiated; and Respondent's performance in his teaching duties was rated as being acceptable. On the other hand, Petitioner has proven by competent, substantial evidence that Petitioner's possession and use of cocaine while on school premises and in the performance of his duties as a teacher constitutes immorality since his conduct was both inconsistent with the standards of public conscious and good morals and was sufficiently notorious to bring himself and his profession into public disgrace or disrespect.

    Further, Respondent's service in the community has been impaired as a result of the notoriety which his conduct caused both before the inception of the investigation (as revealed by the contacts principal White had from persons complaining about Respondent's drug problem) and as a result of the extensive investigation into the conduct of Respondent and others becoming highly publicized (as evidenced by the contacts made to principal White by parents and students resulting from the publicity). Lastly, although Petitioner presented testimony of two witnesses that Respondent's conduct impaired his effectiveness

    in the school system, as required to sustain a charge of misconduct in office, the evidence is unclear as to which component of the Code of Ethics of the Education Profession or the Principles of Professional Conduct for the Education Profession in Florida Respondent is guilty of violating. It is concluded, however, that Respondent failed to maintain the respect and confidence of his colleagues, of students, of parents, and of other members of the community by achieving and sustaining the highest degree of ethical conduct required of an educator. Section 6B-1.01(3), Florida Administrative Code. Accordingly, Petitioner has proven that Respondent is also guilty of misconduct in office.

    
    

21. In mitigation of any disciplinary action to be taken against him, Respondent presented evidence that he has successfully completed a drug treatment program. Commendable as that may be, Respondent did not enter that program until after he had been suspended from his employment with the School Board of Dade County, and his entry into that program is insufficient to compensate for the notoriety attending his possession and use of cocaine on the school campus during the school day, both before and after the official investigation which resulted in Respondent's suspension.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding Respondent guilty of immorality and misconduct in office, dismissing him from employment with the School Board of Dade County and denying any claims for back pay and benefits.

DONE and RECOMMENDED this 20th day of August, 1986, at Tallahassee, Florida.

LINDA M. RIGOT, 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 20th day of August, 1986.

COPIES FURNISHED:

Frank R. Harder, Esquire 2780 Galloway Road

Suite 100

Twin Oaks Building Miami Florida 33165

George F. Knox, Esquire Office at Bay Point Suite 970 4770 Biscayne Boulevard

Miami Florida 33137

Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami, Florida 33132

Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools

1410 Northeast Second Avenue Miami, Florida 33132

Docket for Case No: 86-000186

Orders for Case No: 86-000186