STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4119

)

CHARLES P. WILLIAMS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on June 30, 1988, in Miami, Florida.

APPEARANCES

For Petitioner: Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

For Respondent: Michael J. Knowles, Esquire

335 Northwest 54th Street Miami, Florida 33127

BACKGROUND

By letter dated August 20, 1987, petitioner, School Board of Dade County, advised respondent, Charles P. Williams, a continuing contract counselor, that he was dismissed from employment with petitioner effective August 19, 1987 "for immorality and misconduct in office." Thereafter, by letter dated August 24, 1987 respondent timely requested a hearing to contest the action. The matter was referred to the Division of Administrative Hearings by petitioner on September 21, 1987, with a request that a hearing officer be assigned to conduct a hearing. On December 16, 1987 petitioner filed a Notice of Specific Charges which provided greater detail concerning the basis for dismissal. In brief, petitioner alleged that on May 22, 1987 respondent purchased two cocaine rocks from undercover police officers and was subsequently arrested for possession of a controlled substance, and that his arrest generated notoriety in the community thereby constituting immorality and misconduct in office and a violation of the Code of Ethics of the education profession. For this conduct, petitioner seeks to dismiss respondent as an employee.

By notice of hearing dated December 15, 1987 a final hearing was scheduled on February 2-5, 1988 in Miami, Florida. At petitioner's request, the matter was continued to June 30, 1988 at the same location. The case was reassigned from hearing Officer Joyous D. Parrish to the undersigned on June 28, 1988.

At final hearing, petitioner presented the testimony of Sharon Troy, a City of Miami police officer, Jose Almirall, a Metro-Dade criminalist and accepted as an expert in the chemical analysis of contraband, Rita Binelo, a Metro-Dade social worker, and Jack Silberman, a former principal at South Miami Heights Elementary School. In addition, petitioner's motion to late-file the deposition of Dr. D. Patrick Gray was granted. It also offered petitioner's exhibits 1-6. All exhibits were received in evidence. Respondent testified on his own behalf and offered respondent's exhibits 1 and 2. Both exhibits were received in evidence.

The transcript of hearing was filed on July 22, 1988 while the deposition of Dr. Gray was filed on August 17, 1988. Proposed findings of fact and conclusions of law were filed by petitioner on September 1, 1988. A ruling on each proposed finding of fact is contained in the Appendix attached to this Recommended Order.

At issue is whether respondent should be dismissed from his job for the conduct described in the Notice of Specific Charges.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. At all times relevant hereto, respondent, Charles P. Williams, was a counselor at South Miami Heights Elementary School (SMHES) in Miami, Florida. He was under a continuing contract with petitioner, School Board of Dade County (Board). Respondent has been a teacher or counselor in the school system since 1967.

   
   

2. On August 19, 1987 the Board voted to dismiss Williams without pay effective that date for "immorality and misconduct in office." The action stemmed from respondent being arrested in May, 1987 and charged with possession of cocaine, a felony. A Notice of Specific Charges was later issued on November 30, 1987 setting forth the charges in greater detail.

   
   

3. On the evening of Friday, May 22, 1987 the City of Miami Police Department assigned a special task force unit known as the Street Narcotics Unit (SNU) to conduct a reverse sting operation in an area of the city where narcotics were being sold. In such an operation, the police officers became the sellers of drugs and then arrested their customers. On this day, SNU selected the area around 15th Avenue and 68th Street, a "known narcotic area" of the city. The officers took over the complete block and "moved out" all known sellers and lookouts. The officers wore baggy street clothes and were given cocaine rock, powder cocaine and marijuana to sell to buyers. They also carried weapons and a badge, both hidden. One officer was Sharon Troy who was assigned the job of "selling" drugs on the east side of 15th Avenue and 68th Street. Officer Troy is an experienced officer who has participated in some ten to fifteen sting operations and has made approximately 150 to 200 arrests.

   
   

4. Around 10:58 p.m. that evening, Officer Troy was approached by respondent who happened to be in the neighborhood. Williams asked Troy where he could find some narcotics. She replied, "Well, what do you want?" Williams said "cocaine." When offered a choice between rock and powder cocaine, Williams chose "rock." Officer Troy then sold him two "rocks" for $20 cash.

5. After the exchange of money and drugs took place, Officer Troy identified herself as a police officer and arrested Williams. She immediately placed the $20 cash and the two rocks in an empty pocket. Williams was escorted by Officer Troy and another officer to a nearby apartment complex that had been converted into a temporary holding area. At the holding area, Officer Troy elicited certain information from Williams and filled out an arrest affidavit received in evidence as petitioner's exhibit 4. The money and drugs were placed in an envelope, the envelope was sealed with tape, and Officer Troy placed her name, the contents and the arrestee's name on the outside of the envelope. The envelope was then placed in an evidence box which was carried to the property unit of the Police Department.

   
   

6. Williams was transported from the holding area to the Metro-Dade jail where he was fingerprinted, photographed and placed in a small cell with approximately twenty to thirty other arrestees. He remained there until Monday morning.

   
   

7. After the evidence was taken to the property unit, Officer Troy retrieved the envelope, broke the seal and placed the money and drugs into two separate envelopes. The envelopes were resealed with evidence tape and given to the property specialist who placed them in the vault. The sealed envelope with the drug was not broken until the contraband was hand- delivered to the Metro- Dade laboratory on September 9, 1987. There, a Metro-Dade criminalist tested the substance and determined the rocks contained 0.2 grams of cocaine, a controlled substance. The envelope was resealed and remained in that posture until final hearing. The seal on the money bag was not broken until the bag was opened in the undersigned's presence at final hearing. Therefore, it is found that the chain of custody was not broken between the time of the arrest and the submission into evidence of the money and drugs.

   
   

8. A few days after respondent's arrest, a Metro-Dade social worker heard a radio news report on a Spanish radio station, WQBA, concerning the arrest of an unnamed SMHES counselor. At SMHES, a few secretaries made comments about respondent's arrest and most of the faculty asked the principal about the matter. There was no television or newspaper commentary on the arrest nor was there any indication that students, parents or other community members were aware of the same.

   
   

9. According to Dr. D. Patrick Gray, who has been accepted as an expert in the area of ethics and professional standards for educators, respondent's effectiveness as a counselor and employee of the Board has been seriously impaired by virtue of his arrest for possession of cocaine. This opinion was echoed by the school principal. It was also Dr. Gray's opinion that respondent has violated the standards of ethical conduct of the teaching profession. More specifically, Dr. Gray opined that Williams failed to maintain the respect and confidence of his colleagues, students, parents and other community members.

   
   

10. Both at hearing and at a conference for the record, respondent denied that he purchased the drugs. Instead, he maintained that he was in the neighborhood that evening searching for a funeral home to ascertain the time of a family friend's funeral to be held on Saturday, May 23. According to Williams, Officer Troy approached him and, after asking what he was doing, without any cause handcuffed and arrested him for purchasing cocaine. Although there are two funeral homes within a few blocks of where Williams was arrested, his story is not deemed to be credible and is accordingly discredited.

11. Williams received a satisfactory evaluation at SMHES for school year 1986-87. He was the school's only full-time counselor and worked with troubled students. Ironically, he was in charge of the school's "say no to drugs" program and the youth crime watch" program. His principal described him as having done a good job at school and characterized his work as "very satisfactory." There is no evidence of any prior disciplinary action against the licensee.

    
    

12. Williams stated he loves the teaching profession and desires to continue teaching. He has successfully completed a court imposed "Self-help Program" which required, among other things, that respondent submit himself to a weekly test for drugs. After completion of the program, the court withheld adjudication of guilt and authorized the expunction and sealing of respondent's criminal record. Williams has taught for some twenty years, and during his recent suspension, has taken additional college course work to sharpen his education skills.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (1987).

    
    

14. Since respondent's position with the School Board is at risk, but his professional license is not subject to revocation in this proceeding, the Board need only prove the allegations in the Notice of Specific Charges by the preponderance of evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987)

    
    

15. The Notice alleges that, by virtue of having been arrested and charged with possession of a controlled substance, respondent is guilty of immorality and misconduct in office within the meaning of Rule 6B-4.009(2) and (3), Florida Administrative Code (1987). As such, the Board contends respondent may be disciplined under Subsection 23l.36(4)(c), Florida Statutes (1987). Immorality and misconduct are defined in Rule 6B-4.009 as follows:

    
    

    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 professional 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 Professional as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule

       6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system. (Emphasis added)

       
       

16. By a preponderance of evidence petitioner has sustained the charge that respondent was arrested and charged with possession of cocaine, a controlled substance, on May 22, 1987. Since possession of marijuana by a

    teacher constitutes immorality, Adams v. State, Professional Practices Council,

    406 So.2d 1170 (Fla. 1st DCA 1981), it follows that possession of cocaine likewise constitutes immorality within the meaning of the law. Therefore, the first allegation has been sustained.

    
    

17. As a part of its charge that respondent was guilty of misconduct, the Notice cites to Rule 6B-1.001(3), Florida Administrative Code (1987), a code of ethic of the education profession. Since it is well-settled that an educator cannot be disciplined for a violation of this rule alone, the allegation has been disregarded. See, e.g., Ralph B. Turlington v. Carroll, 5 FALR 207-A (Dept. of Educ., December 21, 1982). The Notice alleged also that Rule 6B- 1.006(a), Florida Administrative Code (1987), was violated. Although this is obviously an erroneous citation, and no further clarification has been given, a review of Rule 6B-1.006 reveals that Williams' conduct did not violate the tenets enumerated in section (3), which pertain to a teacher's obligation to students, or those in sections (4) and (5), which deal with a teacher's obligation to the public and education profession, respectively. Since a necessary element for establishing misconduct in office is to show that a teacher has violated a principle of professional conduct, and no such showing was made here, the charge of misconduct in office must be dismissed. 1/

    
    

18. Subsection 231.36(6)(b), Florida Statutes (1987), provides that if a charge of immorality is sustained, the Board "shall determine either to dismiss the employee or fix the terms under which he may be reinstated." Given respondent's lengthy, heretofore unblemished tenure as a teacher, a two year suspension as an employee is appropriate, said suspension to be retroactive to August 19, 1987.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of immorality and that he be

suspended from his position for two years, said suspension to be retroactive to

August 19, 1987. The remaining charge should be dismissed.

DONE AND ORDERED this 14th day of September, 1988, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1988.

ENDNOTE

1/ As presently framed, the rule requires both a violation of the code of ethics and the principles of professional conduct in order to establish misconduct. Thus, a violation of the code of ethics alone is insufficient to establish a violation of the rule.

APPENDIX

Petitioner:

COPIES FURNISHED:

Jaime C. Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

Michael J. Knowles, Esquire

335 Northwest 54th Street Miami, Florida 33127

Dr. Fernandez Superintendent of Schools Dade County Public Schools

1450 Northeast Second Avenue Miami, Florida

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Docket for Case No: 87-004119

Orders for Case No: 87-004119