WILLIAM J. LEARY, )
vs. ) CASE NO. 86-0202
Respondent. )
This cause came on for formal hearing before Ella Jane P. Davis, duly designated hearing officer of the Division of Administrative hearings, on May 8, 1986 in Ft. Lauderdale, Florida.
For Petitioner: Charles T. Whitelock, Esquire
1311 Southeast Second Avenue Ft. Lauderdale, Florida 33316
Tom E. Young, Esquire
This cause arises upon that certain Petition for Dismissal of a continuing contract teacher dated December 12, 1985.
By Motion to Suppress, filed May 1, 1985, Respondent interposed objection to certain of Petitioner's proposed exhibits based upon an allegedly illegal search and seizure of Respondent's purse on November 25, 1985. The parties waived a preliminary suppression hearing and stipulated to proceed with the formal evidentiary proceeding on the merits and that the evidence adduced would also form the basis of any rulings on the Motion to Suppress, which rulings are included in this recommended order. (TR-21-22)
Subject to the Motion to Suppress, Petitioner presented the oral testimony of Doris Seitner, Shawn Joseph, Kathryn Mangan, Pamela Tepsio, William J. Bohan, Roger Suprenant, and Howard J. Stearns. Petitioner also had admitted, subject to the Motion to Suppress, Exhibits P-1A, 1B, 1C, 2, 3, 4, 5 and 6. Exhibit P-7 was not admitted. Exhibit P-8 was withdrawn. P-4 is the deposition testimony of Respondent, Claudia Walker. P-6 is the deposition testimony of John Smith.
Also subject to the Motion to Suppress, Respondent presented her oral testimony and that of Wilton Johnson and had admitted Exhibits R-1 (TR 25 1.22) R-2, and 3 (TR 64-65)
At the conclusion of Petitioner's case in chief, Respondent moved to dismiss Counts I and II of the Petition for Dismissal. Ruling thereon was reserved for disposition within this recommended order.
Transcript herein was filed by Petitioner. The parties initially stipulated that the time for filing post-hearing proposals should be 15 days, and later, upon agreement of the parties and motion, the time for filing post- hearing proposals was further extended. Both parties have filed post-hearing proposed findings of fact and conclusions of law and each has waived specific rulings pursuant to Section 120.59(2) Florida Statutes on the proposed findings of fact (TR-209).
At all times material, Respondent, Claudia Walker, was employed as a continuing contract teacher by Petitioner Broward County School Board. The Respondent taught from January 1979 through November 1, 1984 at Bright Horizons School. In November 1984, she transferred to South Florida State Exceptional Student Center and thereafter taught elementary school age children with behavioral problems. Among those assigned to her Self-contained classroom were some homicidal and suicidal students with low impulse control.
During the time Respondent has worked for the Broward County School Board, her teaching evaluations have been good, to outstanding, to exceptional. She has never previously been cited or disciplined.
Doris Seitner was employed by Petitioner as a teaching assistant from approximately September 3, 1985 to December 3, 1985 and was assigned to Respondent's class.
On Thursday, November 7, 1985, Respondent and Seitner took the class of about 25 students on a field trip to the Metro Zoo. Prior to their departure on the bus, Ms. Seitner noticed Respondent entering the staff restroom. When Respondent emerged, a student immediately entered the restroom. Upon the student exiting the restroom, Ms. Seitner also entered the restroom where she found a small pink glasses case. Believing the case belonged to the student, the aide opened the purse and saw a plastic baggie containing a white powder, a small vial, a razor blade, and several cut up straws. Upon leaving the restroom, Ms. Seitner encountered the Respondent, who identified the case as hers and took it.
At this point, the state of events was that Doris Seitner had seen a substance she thought was cocaine. Doris Seitner is not an expert on drug identification. She admits never previously having seen cocaine up close. Although she had seen some drug abuse classes at the school, she had no courses in cocaine and had never smelled or tasted it. She did not open the plastic baggie or examine its contents on November 7, 1985.
However, believing that the case contained cocaine and drug related paraphernalia, Ms. Seitner confided what she had found, together with her suspicions to a number of people and sought their advice on how to proceed. Shawn Joseph, another teacher's aide, suggested Ms. Seitner inform the school officials of what she had found. Later in the evening, Ms. Seitner contacted
Pam Tepsic, a teacher on task assignment, who suggested she advise the principal immediately. The acting principal, Kathryn Mangan, upon learning of the discovery, contacted Howard Stearns, Petitioner's Director of Internal Affairs, who referred her to William Bohan.
At all times material, William Bohan was employed by Petitioner as an investigator for Internal Affairs and has been a certified law enforcement officer. On November 12, 1985, Mangan told Bohan about Ms. Seitner's belief that she had seen cocaine in Respondent's glasses case. Bohan instructed Mangan to take no action but to call him in case the glasses case was seen again.
Bohan interviewed Ms. Seitner and instructed her to watch out for the case.
On the morning of Monday, November 25, 1985, while Respondent was in her classroom, Ms. Seitner came in and asked if she could fetch lunch for Respondent. Respondent retrieved her purse from the back room of the self- contained classroom, a location called "the teacher planning area", wherein she normally isolates her purse from the students, and gave Ms. Seitner money to pay for her lunch. Doris Seitner sat at the desk, and looking down into the Respondent's unzipped purse, spotted the pink glasses case. Seitner notified Tepsic, who notified John Smith, acting principal, who notified Bohan, who came to the school.
Bohan and Tepsic walked to Respondent's classroom. When they arrived there, Tepsic approached Respondent in the classroom; Bohan stationed himself at the door. Tepsic told Respondent that a man wanted to see her in the principal's office. Tepsic avoided responding to Respondent's repeated requests to know what was going on or answered Respondent that she did not know what was going on. Respondent walked with Tepsic to the door. Bohan asked Respondent if the purse by her classroom desk was hers. The Respondent answered, "yes" whereupon Bohan walked over, picked up the purse, and, retaining the purse, began walking with Respondent and Pam Tepsic to John Smith's office. On the way to Smith's office, Respondent told Bohan she could carry her own purse but Bohan responded that he could carry it. She repeated her questions to Pam Tepsic, asking what was going on and received the same evasions. In making the immediately preceding finding of fact, the testimony of Pam Tepsic, Investigator Bohan, and Respondent have been considered and weighed. While Investigator Bohan testified that Respondent said and did nothing to claim her purse after he seized it and Pam Tepsic initially related that Respondent said nothing about her purse at any time in the classroom or while walking over to the principal's office, Pam Tepsic's testimony as a whole reveals that she was particularly nervous during all these incidents and that at a point in time closer to the actual events, she had believed some such conversation took place between Bohan and Respondent, but that on the date of formal hearing she simply could not recall any conversation between Bohan and the Respondent, including Bohan's asking Respondent if the purse were hers and Respondent's reply, "yes", statements Bohan and Respondent each testified had been made. The Respondent's account of her request to carry her own purse is highly credible. It is simply not credible that any adult woman would not request return of such an intimate item as her purse, containing all her personal effects, including valuables and money, from a man whom she had never seen before in the absence of any explanation of what was going on.
Bohan, Tepsic, and Respondent entered John Smith's office. Bohan placed Respondent's purse on Smith's desk in front of himself. Bohan told Respondent he had been informed she was in possession of an illegal drug and asked if she would consent to Bohan's searching her purse. Pam Tepsic's recollection of what happened next was that either Respondent said she would
consent to the search or that someone else said Respondent had consented or said something like, "Well, then you consent," to Respondent. Respondent denies ever being asked to consent to a search of her purse. John Smith understood Bohan to ask permission to search the purse and understood that Respondent said "yes" to Bohan's request. Bohan relates an affirmative answer from Respondent. Before he started searching her purse, but after the question concerning consent/permission, Bohan asked Respondent did she have anything in her purse that might be a problem that she might want to tell him about before he searched her purse. Tepsic, Bohan, Smith, and Respondent are in agreement that Respondent replied, "yes" that she did want to tell Bohan what was in the purse. The explanation given at that time was that early that morning she had taken cocaine and other items from her estranged husband who had a drug problem.
Bohan removed from Respondent's purse the pink glasses case; some other unrelated items; four small plastic bags containing a white powdery residue; four straws cut 2-1/4 inches to 2-3/4 inches long; one GEM single edge razor blade; one small, 3/4 inch empty vial; one piece of aluminum foil 2-1/2 inches by 3-1/4 inches; eight straws in Wendy's wrappers; one wooden toothpick; and one nickel. When Respondent persisted in her explanation that the drugs and paraphernalia were her husband's property and that she had taken them to protect him but in response to further questioning by Bohan, Respondent was unable to flesh out an explanation she had begun concerning the husband's drug counselling and treatment and her participation therein, Bohan told Respondent that her options were either jail in Fort Lauderdale via the Broward County Sheriff's Department or discussing the matter at Petitioner's Internal Affairs Office. Although Bohan asserted that he made no "threats," Bohan, Tepsic, Smith, and Respondent concur that these were the only alternatives Bohan provided Respondent during their confrontation in Smith's office.
A subsequent laboratory analysis conducted on the items seized November 25, 1985 revealed the presence of cocaine only in the small plastic bag containing the white powder. The property in the purse was taken into the Internal Affairs Office for inventory. These items, including the cocaine, were described by Ms. Seitner as "similar" to the items she saw in the pink case on November 7, 1985.
Respondent customarily keeps a razor blade in her purse to use for arts and crafts projects in her class. Other teachers at the center also use razor blades to perform art projects.
The Respondent customarily keeps drinking straws in her purse to give to her three small children to drink with while they are riding in her car.
Article XVIII, Section K, of the current collective bargaining agreement between the Broward Teachers Union and Petitioner provides:
"No investigation of an em- ployee, beyond preliminary inquiry, by the Internal Affairs Department may be undertaken without written notice to the employee, such notice to include a statement of the cause giving rise to the investigation."
No written notice was given to Respondent by Petitioner.
A sign posted on the grounds of the school at the front gate notifies anyone entering that they are subject to being searched while on the grounds. (TR 149-150)
Respondent accompanied Bohan to Internal Affairs where Bohan and Stearns interrogated her. Respondent again told them the drugs inventoried belonged to her husband. She further revealed to Stearns, apparently in hopes of receiving counselling instead of dismissal, that she had been clean of cocaine during the nine months of her recent pregnancy and clean recently until the immediately preceding Saturday night. (TR-205) After Internal Affairs finished questioning Respondent, Bohan took her to the Employee Assistance Program and then later to the Broward Alcohol and Rehabilitation Center. Respondent claims she was denied use of a phone to contact anyone until she reached the Employee Assistance Program, but she concedes there were public phones available at the school and she did not insist on using any.
At hearing, Respondent testified that she had never used cocaine and would not have used it in November, 1985 because she was breastfeeding her new daughter. She also testified that the contraband items were taken from her husband the morning of November 25, however, rather than corroborating this story, the testimony of Wilton Johnson, her estranged husband, is contrary to Respondent's account of the incident in so many details as to adversely affect Respondent's credibility that the incident occurred.
Respondent was suspended with pay November 26-28, 1985, the remainder of the school week. On Monday, December 2, 1985, she was permitted to resume her classroom duties until she was notified of suspension with pay, December 6, 1985. On December 19, 1985, Petitioner suspended Respondent without pay.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause.
The Charges:
The Petition for Dismissal charges Respondent in Count I with violations of Section 231.36(4)(c) F.S. (1983) and Rules 6B-1.01, 6B-1.02(b), (c), (d), (f), (g), 6B-4.09(2), and 6B-4.09(3) F.A.C. by acts of immorality or misconduct in office upon allegations of possession of a controlled substance, to wit: cocaine, on school premises during working hours on November 7, 1985.
The Petition for Dismissal charges Respondent in Count II with violations of Section 231.36(4)(c) F.S. (1983) and Rules 6B-1.01, 6B-1.02(b), (c), (d), (f), (g), 6B-4.09(2) and 6B-4.09(3) F.A.C. by acts of immorality or misconduct upon allegations of possession of drug paraphernalia, to wit: several snorting straws, a razor blade, a piece of aluminum foil, and a mirror, contrary to Chapter 893 F.S., upon the school premises during working hours on November 7, 1985.
The Petition for Dismissal charges Respondent in Count III with violations of Section 231.36(4)(c) F.S. (1983) and Rules 6B- 1.01, 6B-1.02(b), (c), (d), (f), (g), 6B-4.09(2), and 6B-4.09(3) F.A.C. by acts of immorality and misconduct in office upon allegations of possession of a controlled substance, to wit: cocaine, on school premises during working hours on November 25, 1985.
The Petition for Dismissal charges Respondent in Count IV with violation of Section 231.36(4)(c) F.S. (1983) and Rules 6B-1.01, 6B-1.02(b), (c), (d), (f), (g), 6B-4.09(2), and 6B-4.09(3) F.A.C. by acts of immorality and misconduct in office upon allegations of possession of drug paraphernalia, to wit: four short snorting straws, four plastic bags with white residue, an empty vial, aluminum foil, wooden toothpick, and a single-edge razor blade, contrary to Chapter 893, F.S., upon the school premises during work hours on November 25, 1985.
The Motion to Dismiss Counts I and II pertaining to November 7, 1985:
The only evidence to support Counts I and II is Doris Seitner's testimony. Ms. Seitner's recollection of the November 7, 1985 incident is categorically denied by Respondent. On this issue, Ms. Seitner is the more credible witness. The evidence establishes that Ms. Seitner found in Respondent's glasses case a single plastic baggie containing a white powder.
She neither opened nor examined the baggie nor its contents. She had never previously seen cocaine up close and no predicate was laid to establish that she was qualified to identify cocaine had it been present, and, indeed, Ms. Seitner testified she was not certain the substance was cocaine. A non-expert witness' unsupported belief that a substance is contraband is not sufficient to establish its contraband nature. Ms. Seitner also found in the glasses case several cut straws and a razor blade, but she did not testify that on November 7, 1985 she saw any other items listed in Count II of the Petition. A razor blade commonly used in art projects and cut straws may have many uses, not solely that of inducing cocaine into the human body. Section 893.145 F.S., defines "drug paraphernalia," and Section 893.146, which provides guidelines for an "authority," in this case, the hearing officer, to determine what objects constitute drug paraphernalia. When applied to the evidence adduced in this case, these statutes do not clearly point to the razor blade and straws as being drug paraphernalia. There was no testimony that these items seen by Ms. Seitner were intended for introducing a controlled substance into a human body. Ms.
Seitner could not provide evidence that a controlled substance was concurrently present, is not an expert in drug abuse or the tools used to administer illegal drugs, and even if the subsequent events of November 25, 1985 might be considered, those events, more than two weeks later, are not in sufficient proximity in time to support a determination under cited statutes that there was illegal possession of drug paraphernalia on November 7, 1986.
There is simply not clear and convincing evidence to support either Count I or Count II. In a case such as this, the charges must be established by clear and convincing evidence. See Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966) . There is confusing dicta in the decision of Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) suggesting that the "clear and convincing" standard of proof is replaced under the new Administrative Procedure Act by a "competent substantial evidence" standard of proof. Cf. Also Harvey v. Department of Business Regulation, 451 So.2d 165 (Fla. 5th DCA 1984). But the latter standard always has been, and only can be, a standard for use in appellate review. Bowling states that, in license discipline proceedings, to which this dismissal action is clearly akin, "the critical matters at issue must be shown by evidence which is indubitably as "substantial" as the consequences," Bowling at page 172. This would imply that proof of "probable" violation is insufficient. In the instant case, without a laboratory analysis or at least expert evidence to positively identify the white powder, Counts I and II are unproved, cannot be sustained, and should be dismissed.
The Issue of Search and Seizure on November 23, 1986, (The Motion to Suppress):
Counts III and IV of the Petition for Dismissal address the events of November 25, 1985. Prior to formal hearing, Respondent filed a written Motion to Suppress the items listed in these counts from being introduced at the hearing Upon grounds they were seized as the result of an illegal search and seizure in violation of the Florida and United States Constitutions. The motion was amended ore tenus at hearing to include any statements by Respondent resulting from the allegedly improper search and seizure.
Although there is no Florida case directly addressing the application of the exclusionary rule to the dismissal of a teacher, it is determined that a Hearing Officer of the Division of Administrative Hearings may both conduct an evidentiary hearing on a Motion to Suppress and, in proper situations, may suppress certain evidence by authority of the tacit approval and dicta enunciated in Adams v. State of Florida Professional Practice Council, 406 So.2d 1170 (Fla. 1st DCA 1981); Yarborough v. Pfeiffer, :370 So.2d 1177 (Fla. 4th DCA 1979, and Renbur Drugs v. Florida Board of Pharmacy 249 So.2d 698 (Fla. 3d DCA 1971). See also State v. Cross, Fla. S. Ct. Case No. 67-137 (May 1, 1987), 11 FLW 193 (May 2, 1986) and In Re $48,000 in U.S. Currency, 432 So.2d 1382 (Fla. 4th DCA 1983).
Were this a criminal proceeding and were the circumstances limited to the period of time Investigator Bohan and Respondent were together on November 25, 1985, the case of State v. Lanxon, 393 So.2d 1194 (Fla. 3d DCA 1981) requiring exclusion under remarkably similar circumstances would clearly be controlling, but this is not a criminal proceeding. Investigator Bohan, although a certified law enforcement officer, was not acting in that capacity (as asserted in Respondent's argument) nor in the capacity of a disinterested private citizen (as asserted in Petitioner's argument). He was acting as an administrative arm of Petitioner. Further, the totality of the circumstances additionally embraces the fact that for approximately a year Respondent had almost daily passed a sign on the school perimeter advising her that she was subject to search once on the grounds. In light of this implied prior consent, the provisions of the collective bargaining agreement, even if applicable, are insignificant. The search was consensual. Under these circumstances, Respondent's oral explanation offered to Bohan and certainly her subsequent admission to Stearns take on a voluntary quality not present in Lanxon nor in any of the other cases cited by Respondent's proposals.
Conclusions of law upon the merits of the case:
Respondent suggests that all that is involved here is a single lapse of judgment involving Respondent's carrying her estranged husband's contraband goods onto the school grounds, but Respondent's explanation that the contraband items recovered from her purse on November 25, 1985 were collected by her to protect her estranged husband does not ring true. Respondent's credibility at hearing is minimally damaged by her several prior inconsistent statements to Bohan, which are confirmed by Tepsic and Smith who were present. Additionally there are significant external discrepancies between her story and that told by her estranged husband. The testimony of Wilton Johnson not only fails to corroborate Respondent's explanation of how she came to have the drugs on campus, it offers several reasons to doubt her credibility. See Finding of Fact 17, supra. Additionally, there is her admission to Mr. Stearns that she had personally used cocaine the Saturday immediately prior to November 25, 1985. Although the Respondent is not charged with use, this admission is considered with regard to credibility of her explanation of her possession.
"Immorality" and "misconduct in office" are defined by Rule 6B-4.09 Florida Administrative Code, which reads:
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 indi- vidual concerned or the educa- tion profession in public disgrace or disrespect and impair the individual's serv- ice in the community.
Misconduct in office is defined as a violation of the Code of Ethics of the Educa- tion Profession adopted in Rule 6B-1.01, F.A.C., and Principles of Professional Conduct for Education Profes- sion in Florida as adopted in Rule 6B-1.06, which is so serious as to impair the individual's effectiveness in the school system.
Possessing cocaine and drug paraphernalia in a classroom for the emotionally disturbed is such immorality and misconduct.
The Petitioner has established misconduct and immorality in office upon proof by clear and convincing evidence of the violations alleged in Counts III and IV
Upon the foregoing findings of fact and conclusions of law, it is recommended that Petitioner enter a final order dismissing Counts I and II, finding Respondent guilty as charged in Counts III and IV, and dismissing her from employment.
DONE and ORDERED this 5th day of September, 1986, in Tallahassee, Florida.
ELLA JANE P. DAVIS
Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1986.
1/ Testimony by Respondent and Wilton Johnson differs on what arrangements were made for repair of her car, the repair of which occasioned her arrival at his home, whether money was supplied in cash or a bill was paid for the car, whether the car was repaired, what items were actually left on the dining room table that Respondent supposedly seized from Wilton Johnson, and if the cocaine was in a box or a bag. The most damaging aspect of the Respondent's story is in her account of a phone call preceding her early morning visit to her husband November 25, 1985 and his denial that he even had a phone in his home. Wilton Johnson further never saw the Respondent take any drug items from his table.
Charles T. Whitelock, Esquire Whitelock and Moldof
1311 Southeast Second Avenue Ft. Lauderdale, Florida 33316
Sally Gertz, Esquire Tom E. Young, Esquire FEA United
William J. Leary Superintendent of Schools School Board of Broward County Florida
