STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF COLUMBIA ) COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2229

)

GLORIA FAYE TOWNSEND )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Lake City, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on August 2, 1988. The Division of Administrative Hearings received the transcript of proceedings on August 30, 1988. The parties' proposed recommended orders, filed on September 13 and 20, 1988, include proposed findings of fact, which the attached appendix addresses by number.

The parties are represented by counsel:

For Petitioner: Wade L. Griffin

Collins and Griffin, P.A. Post Office Box 2149

Lake City, Florida 32056-2149

For Respondent: Pamela L. Cooper

Meyer, Brooks and Cooper, P.A. Post Office Box 1547 Tallahassee, Florida 32302

On March 8, 1988, Silas Pittman, Columbia County's Superintendent of Schools, wrote respondent Townsend, advising her that she was suspended from employment, and that he was recommending that the school board terminate her employment "based upon [h]er obtaining employment with the Columbia County School System by fraudulent means." In this letter and in a subsequent petition drafted by petitioner's counsel, respondent was accused of falsifying her application for employment.

Specifically, the petition alleged that respondent's false, negative answer to question No. 33 on her employment application constituted the fraudulent means, inasmuch as the question asked whether she had "ever been arrested, charged or held ... for violation of any law, ordinance or regulation," and she had in fact been charged not only with various traffic violations but also "with a violation of Section 843.02, Florida Statutes."

ISSUE

Whether petitioner was entitled to terminate respondent's employment or suspend her without pay because she failed to disclose two traffic infractions, an arrest, and several charges of law breaking?

FINDINGS OF FACT

1. In July of 1986, while a resident of Day, Florida, respondent Gloria Faye Townsend signed an application for employment by the Columbia County School Board. Among the questions on the form was No. 33, which asks:

   
   

   Have you ever been arrested, charged or held by military or civilian law enforcement authorities for violation of any law, ordinance or regulation? (Include traffic violations but not parking tickets)

   
   

   After the question came "yes" and "no," each followed by a box. Ms. Townsend, who completed the form herself, typed an "X" in the box next to "No." Petitioner's Exhibit B.

   
   

2. Just above Ms. Townsend's signature appears the following:

   
   

   ... I also understand that employment is contingent upon the results of a thorough character and fitness investigation. [For which] I hereby

   give authority on this application[.] I am aware that willful withholding of information or making of false statement on this application will be the basis for dismissal. I agree to those conditions and hereby certify that all statements made on this application are true, complete and correct to the best of my knowledge.

   Petitioner's Exhibit B.

   
   

   Ms. Townsend submitted the completed form to the School Board.

   
   

3. Some time later Earl Varnes, to whom Ms. Townsend had disclosed her hope of finding a teaching position in Columbia County, learned of a mid-year vacancy Grady D. "Sam" Markham anticipated at Five Points Elementary School.

   Mr. Varnes mentioned Ms. Townsend, who at all pertinent times has held a Florida teacher's certificate, no. 341799, to Mr. Markham. As principal for nine years, Mr. Markham's recommendation of a teacher to replace the one who left on maternity leave December 19, 1986, proved dispositive.

   
   

4. Before he met Ms. Townsend, Mr. Markham had heard from Mr. Varnes about problems Ms. Townsend had encountered in Lafayette County, where she had resigned a teaching position, and been harassed by at least one law enforcement officer. Mr. Markham discussed traffic citations and other matters with Ms. Townsend during three face-to-face interviews and some dozen telephone conversations that preceded her coming to work. Mr. Varnes was not aware, however, that Ms. Townsend had been found guilty of passing a school bus while

   it was stopped or that she had been charged with opposing a police officer. (T. 112, 117, 118).

   
   

5. After the initial interview, Mr. Markham "went to the School Board office and looked at the application" (T. 20) Ms. Townsend had submitted the preceding summer. He relied in part on the application in recommending her for the job. He did not, however, ask her about her mistaken affirmative answer to question No. 20(a), "Has your license to practice every been revoked or suspended?" Although Mr. Markham testified that he would not have recommended her for employment if he had known of her arrest or of the school bus infractions, (T. 23) she "told him about the bus stops ... the careless driving

   ... the deputy." (T. 81).

   
   

6. Mr. Markham heard another version of events in December of 1987 from William F. Hart, who is principal of Lafayette Elementary School. After obtaining court records, Mr. Markham relayed information concerning Ms. Townsend's traffic infractions and arrests to Silas Pittman, who suspended Ms. Townsend effective March 8, 1988, and recommended to the School Board that she be suspended from employment, without pay, and that her employment be terminated. The School Board voted first to suspend, then to terminate her employment.

   
   

7. In April of 1987, Mr. Pittman and Ms. Townsend executed an annual contract of employment for the period August 17, 1987, to June 4, 1988. Joint Exhibit No. 21. The agreement provides that "The teacher shall not be dismissed during the term of this contract except for just cause as provided in Section 231.36(1)(a), Florida Statutes." Id.

   
   

   The Law and Ms. Townsend

   
   

8. On January 23, 1981, a Deputy Feagle of the Lafayette County Sheriff's Office stopped the car Ms. Townsend was driving and proposition her, but she was not interested. (T. 67) She has not been accused of violating any law on that day.

   
   

9. On May 1, 1981, when she spotted Deputy Wendell Feagle manning a road block on the highway ahead of her, she turned onto another road "a secondary road ... instead of going through the road block ... and ... went through the Forestry Services, and then got back up on the highway ... and then went on home." (T. 68-69).

   
   

10. About two weeks later, four or five "Sheriff's cars" arrived at the school where Ms. Townsend taught at the time. Asked to "come ... and talk with the judge" (T. 70), she got into the car Deputy Kenny Wimberly was driving. Instead of stopping at the courthouse, the caravan made its way to the jail in Mayo where a deputy sheriff gave her "five tickets." Nobody took Ms. Townsend's finger prints or told her she was under arrest.

    
    

11. Petitioner offered in evidence two of the traffic citations Ms. Townsend received on May 1, 1981, No. 225-081W, charging careless driving, Petitioner's Exhibit No. 1, and No. 225-082W, charging her with "Attempting to Elude A Police Officer." Petitioner's Exhibit No. 5. On July 2, 1981, she was convicted "of the crime of [o]perating motor vehicle in a careless manner," Petitioner's Exhibit No. 3, and fined $25, but all other charges against her arising out of the events of May 1, 1981, were dismissed. Petitioner's Exhibit Nos. 7 and 9. (T. 74) Among the charges dismissed was the charge that, on May 1, 1981, "Faye Townsend did ... unlawfully obstruct or oppose a law enforcement

    officer ... in the execution of a legal duty, without offering or doing violence to the person of the officer." Petitioner's Exhibit No. 88.

    
    

12. In a subsequent conversation, the Sheriff of Lafayette County told Ms. Townsend, "[W]ithin one year there will be no record of this," (T. 76) referring to the legal proceedings occasioned by the citations and affidavits Wendell Feagle executed against Ms. Townsend in May of 1981.

    
    

13. When traffic citation No. 137-660Q, Petitioner's Exhibit No. 13, arrived in the mail, Ms. Townsend learned that it had been alleged that she "RAN SCHOOL BUS STOP SIGN," on October 24, 1984. Although the citation stated that it was for an infraction that did not require a court appearance, Ms. Townsend engaged a lawyer to contest the accusation; and to defend against a subsequent charge that she was guilty of the same infraction at the same place on November 8, 1984. Petitioner's Exhibit No. 15. Carla S. Brock, a teacher at Lafayette High School, drove the bus and executed the affidavits accusing Ms. Townsend on both occasions. After an evidentiary hearing on January 10, 1985, Ms. Townsend was "found guilty ... of passing a stopped school bus ... in both cases." Petitioner's Exhibit No. 18.

    
    

14. Ms. Townsend testified to the effect that she viewed her legal problems as "minor traffic violations," (T. 66) and explained her answer to question No. 33, as follows:

    
    

    I think 43 was my signature, and 33 was asking me if I had been arrested, and I hadn't been arrested.

    
    

    A witness at hearing testified in regard to question No. 33, "it is highly unusual to see one that says 'including' traffic violation[s]." (T. 125).

    
    

    CONCLUSIONS OF LAW

    
    

15. When respondent referred petitioner's request for "a formal administrative hearing ... to contest these allegations" to the Division of Administrative Hearings, in keeping with Section 120.57(1)(b)3., Florida Statutes (1987), the Division assumed jurisdiction of the proceeding.

    
    

16. As an instructional employee on annual contract, Ms. Townsend was subject to "dismissal during the term of the contract only for just cause." Section 231.36(1)(a), Florida Statutes (1987). Sherburne vs. School Board of Suwannee County, 455 So.2d 1057 (Fla. 1st DCA 1984); Foreman vs. Columbia County School Board, 429 So.2d 383 (Fla. 1st DCA 1983). The parties' contract, which superseded anything to the contrary in the application form, reflected this.

    
    

    Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    Section 231.36(1)(a), Florida Statutes (1987).

    
    

    Rule 6B-4.009(3), Florida Administrative Code, defines misconduct in office 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."

    
    

17. The Code of Ethics recites that the "educator values ... the pursuit of truth ... [and] strives to achieve and sustain the highest degree of ethical conduct ..." Rule 6B-1.001(1) and (3), Florida Administrative Code. The Principles of Professional Conduct provide that an educator "[s]hall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position." Rule 6B-1.006(5)(h), Florida Administrative Code.

    
    

18. Petitioner has the burden to demonstrate statutory just cause by a preponderance of the evidence. South Florida Water Management District vs. Caluwe, 459 So.2d 390, 394 (Fla. 4th DCA 1984); Department of Corrections vs. Dixon, 436 So.2d 320 (Fla. 1st DCA 1983); Foreman vs. Columbia County School Board, 429 So.2d 383 (Fla. 1st DCA 1983). See Greene vs. School Board of Hamilton County, 444 So.2d 500 (Fla. 1st DCA 1984); Florida Department of Health and Rehabilitative Services vs. Career Service Commission, 289 So.2d 412 (Fla. 4th DCA 1974). Petitioner must establish more than "just simply the falsification of an application." (T. 57).

    
    

19. Whether made intentionally, recklessly or negligently, her answer to question No. 33 was undoubtedly a misstatement. Assuming its materiality and respondent's culpability for it, petitioner had nevertheless the additional burden to prove that the misstatement was serious enough to impair her effectiveness as a teacher. Boyette vs. State Professional Practices Council,

    346 So.2d 598, 600 (Fla. 1st DCA 1977). As definitively interpreted by the rule, the statute requires that petitioner demonstrate that respondent made a material misstatement on her application "so serious as to impair ... [her] effectiveness in she school system." Rule 6B-1.006, Florida Administrative Code.

    
    

20. Here, as in the Sherburne case, "the record is devoid of evidence that any conduct [of which respondent was guilty, outside the classroom] ... had ... [any] effect on her students, or that her effectiveness as a teacher had been impaired in any respect." 455 So.2d at 1061. Nor did the petition plead that respondent's traffic infractions or arrests some years back, or her failure to disclose them, affected her teaching. See Williams vs. Turlington, 498 So.2d

468 (Fla. 3rd DCA 1986); Davis vs. Department of Professional Regulation, 457 So.2d 1974, 1076, 1078 (Fla. 1st DCA 1984).

It is, accordingly, RECOMMENDED:

That petitioner pay respondent the moneys she would have been paid if petitioner had permitted her to work through June 4, 1988.

DONE and ENTERED this 25th day of October, 1988, in Tallahassee, Florida.

ROBERT T. BENTON, II

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 25th day of October, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2229

Petitioner's proposed findings of fact Nos. 2, 3, 4, 5, 7, 8, and 10 have been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact No. 1, the third listed charge arose at the same time as the first two listed. The first three charges were made in 1981. The latter two in 1984.

With respect to petitioner's proposed finding of fact No. 6, the evidence did establish that a person whom the respondent had reason to believe told her that the records generated in May of 1981 would be expunged. But she had no reason to believe that the 1984 records would be expunged.

With respect to petitioner's proposed finding of fact No. 9, the testimony of Ms. Townsend and Mr. Markham did conflict. See findings of fact Nos. 4, 5, 6.

With respect to petitioner's proposed finding of fact No. 11, respondent did testify that she did not view the incident in May of 1981 as an arrest (but see T. 65) although she also characterized the charges as traffic offenses, which she claimed not to have realized the question called for.

Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6, 7, 8, 10, 11,

13, 14, 15, 16, 19, 23, the first No. 24, 25, 28 and 31 have been adopted, in substance, insofar as material.

With respect to respondent's proposed findings of fact Nos. 3 and 21, see findings of fact Nos. 4, 5 and 6.

With respect to respondent's proposed finding of fact No. 9, completion of the application form antedated any oral disclosures to Markham.

With respect to respondent's proposed finding of fact No. 12, the importance respondent attached to the traffic citations is immaterial.

Respondent's proposed findings of fact Nos. 17, 22, the second No. 24, 26 and 30 are subordinate or immaterial.

With respect to respondent's proposed findings of fact Nos. 18, 20, 27 and 30, the evidence did not show that Mr. Varnes knew of the school bus infractions.

COPIES FURNISHED:

Wade L. Griffin, Esquire Post Office Box 2149 Lake City, Florida 32055

Pamela L. Cooper, Esquire 911 East Park Avenue

Post Office Box 1547 Tallahassee, Florida 32301

Silas Pittman Superintendent

Columbia County School System Post Office Box 1148

Lake City, Florida 32056-1148

Commissioner Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399

Docket for Case No: 88-002229

Orders for Case No: 88-002229