STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4120

)

ELYCE B. WOLK, )

)

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 January 19, 1988, in Miami, Florida.

Petitioner School Board of Dade County was represented by Jaime Claudio Bovell, Esquire, Coral Gables, Florida; and Respondent Elyce B. Wolk was represented by William Du Fresne, Esquire, Miami, Florida.

Petitioner has suspended and seeks termination of Respondent's employment with Petitioner as a continuing contract teacher on grounds of immorality and misconduct in office, and

Respondent has timely requested a formal hearing. Accordingly, the issue for determination herein is whether Respondent is guilty of immorality and misconduct in office so that the suspension should be upheld and her termination from employment approved. Petitioner presented the testimony of Paul Shannon, James Edward Monroe, and by way of deposition Allixen Stevens and Allen Klein.

Additionally, Petitioner's Exhibit numbered one was admitted in evidence. Respondent presented no evidence in this cause.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent was employed by the Petitioner as a special education teacher at Parkview Elementary School, pursuant to a continuing contract with the School Board of Dade County, Florida.

   
   

2. On June 6, 1986, Respondent was arrested for possession of cocaine. On approximately September 20, 1986, the principal at Parkview Elementary School was contacted by a probation officer regarding Respondent. The principal immediately advised Petitioner's Area Office and Petitioner's Office of Professional Standards of the phone call. He summoned Respondent to his office and advised her of the telephone contact. Respondent admitted that she had been arrested for possession of a controlled substance.

3. Respondent continued to teach at Parkview Elementary School through the end of that school year and, possibly, during the subsequent summer session. According to the principal, Respondent continued to do a "fine job" as a teacher.

   
   

4. By letter dated August 28, 1987, Petitioner advised Respondent that the superintendent of schools would be recommending to the School Board of Dade County, Florida, at its September 9, 1987, meeting that the School Board suspend Respondent and initiate dismissal proceedings effective at the close of business September 9, 1987, for immorality and misconduct in office. At the same time, Respondent was assigned to work in the Area Office and was removed from her teaching responsibilities at Parkview Elementary School.

   
   

5. As a result of Petitioner assigning Respondent to the Area Office, several teachers at Parkview and the President of the PTA at Parkview inquired of the principal as to why Respondent was not at the school. They were told that there was a problem with the Area Office which would hopefully be resolved.

   
   

6. On September 9, 1987, the School Board of Dade County, Florida, suspended Respondent from her employment and approved the recommendation for dismissal.

   
   

7. As a result of the Board's action, information regarding Respondent's arrest, suspension, and termination appeared in the newspaper.

   
   

8. Before the newspaper story of September 13, 1987, regarding the Board's action on September 9, 1987, there was no public knowledge and no public notoriety regarding Respondent's arrest. Even the arresting officer, who was unable to identify Respondent as the person he arrested, believed the person he arrested to be unemployed.

   
   

9. Although the Office of Professional Standards will consider many factors in deciding whether to recommend to the School Board the suspension and/or dismissal of a teacher who has been arrested, the recommendation to suspend and dismiss Respondent was based solely on her arrest.

   
   

10. The Notice of Specific Charges filed in this cause contains allegations that Respondent was previously placed on probation for the felony offense of a worthless check, that Respondent failed to complete the conditions of probation relative to the worthless check charge, that Respondent was arrested and charged with possession of a controlled substance, and that Respondent failed to complete the conditions of probation relative to that charge. No evidence was offered, however, in support of the allegations regarding any arrest on a worthless check charge, regarding Respondent being placed on probation, regarding any terms of such probation, regarding her failure to fulfill those conditions, or of the disposition of the charge of possession of controlled substance.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. The Notice of Specific Charges filed in this cause charges Respondent with being guilty of immorality and misconduct in office. Section 231.36(4)(c), Florida Statutes, provides that a member of the instructional staff who is under

    continuing contract may be suspended or dismissed for immorality or misconduct in office. Rule 6B-4.009, Florida Administrative Code, defines immorality and misconduct in office as follows:

    
    

    1. Immorality as 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- 1.001, 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.

       
       

13. Petitioner has failed to meet its burden of proving that Respondent is guilty of immorality or of misconduct in office. Respondent was arrested on June 6, 1986. The Petitioner assigned Respondent to the Area Office and initiated suspension and dismissal proceedings against her by letter dated August 28, 1987. During the intervening 15 months, Respondent did a "fine job" as a teacher and no one was aware of Respondent's arrest other than her principal and his two superiors whom he told. There was absolutely no notoriety surrounding Respondent's arrest and no interference with her classroom duties or her relationships with students, parents, staff members, and persons in the community until after the Board meeting of September 9, 1987, when the notoriety was caused solely by the Board's own actions. Petitioner cannot rely upon notoriety subsequent to termination to form the basis and reason for that termination.

    
    

14. There is no evidence Respondent was convicted of possession of cocaine. Indeed, there is no evidence that Respondent is the same person as the person who was arrested except for Respondent's admission to her principal that she had indeed been arrested.

    
    

15. Similarly, although the Notice of Specific Charges alleges that Respondent was arrested for a worthless check and was placed on probation and has violated conditions of probation, no evidence was offered to support any of those allegations. Accordingly, Petitioner has failed to carry its burden of proof regarding those allegations, and those allegations are hereby dismissed.

    
    

16. The Code of Ethics of the Education Profession in Florida requires, inter alia, that an educator be aware of the importance of maintaining the respect and confidence of colleagues, students, parents, and other members of the community and therefore strive to achieve the highest degree of ethical conduct. Rule 6B-1.001(3), Florida Administrative Code. The Principles of Professional Conduct for the Education Profession in Florida require that an educator make reasonable effort to protect students from conditions harmful to learning or to health or safety. Rule 6B-1.006(3)(a), Florida Administrative Code. No evidence was offered to show that merely being arrested constitutes a

failure to protect students from conditions harmful to learning or to health or to safety. In short, Petitioner has simply failed to prove that Respondent's conduct, i.e., being arrested, has in any way impaired her effectiveness within the community. Petitioner has cited no statutory or case law and no contractual provision which would uphold suspension and termination from employment of a teacher on continuing contract based solely on an arrest with no proof of conviction and no proof of any impact on that teacher's classroom performance or standing in the community particularly in the absence of any notoriety or public knowledge until the School Board chose to make that teacher's arrest a matter of public knowledge by disclosing it to the community.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered reinstating the Respondent and awarding her back pay for the period of her suspension less any monies earned by the Respondent during that time.

DONE and RECOMMENDED this 15th day of April, 1988, at Tallahassee, Florida.

LINDA M. RIGOT, 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 15th day of April, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4120

1. Petitioner's proposed finding of fact numbered has been adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 1, 10, and 12 have been rejected as not being supported by the evidence in this cause.

3. Petitioner's proposed findings of fact numbered 2, 3, 5-8, and 11 have been rejected as being unnecessary for determining the issues in this cause.

4. Petitioner's proposed findings of fact numbered 4 has been rejected as being contrary to the evidence in this cause.

5. Respondent's proposed findings of fact numbered 3-5 and 7 have been adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed findings of fact numbered 1 and 2 have been rejected as not constituting findings of fact but rather as constituting conclusions of law.

7. Respondent's proposed findings of fact numbered 6 has been rejected as being subordinate to the issues in this cause.

COPIES FURNISHED:

Joseph A. Fernandez, Superintendent School Board of Dade County

Board Administration Building 1450 Northeast 2nd Avenue Miami, Florida 33132

Jaime Claudio Bovell, Esquire

370 Minorca Avenue

Coral Gables, Florida 33134

William Du Fresne, Esquire 2929 Southwest 3rd Avenue Miami, Florida 33129

Madelyn P. Schere, Esquire Board Administration Building 1450 Northeast 2nd Avenue Miami, Florida 33132

Docket for Case No: 87-004120

Orders for Case No: 87-004120