STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF GADSDEN COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2840

)

JOHN C. BUCKLEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in

this case on September 12, 1988, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. At the hearing the parties were represented by the following counsel:

For Petitioner: Claude B. Arrington, Esquire

Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A.

101 North Monroe Street Monroe-Park Tower, Suite 1010 Tallahassee, Florida 32301

For Respondent Philip J. Padovano, Esquire

Post Office Box 873 Tallahassee, Florida 32302

ISSUES AND INTRODUCTION

The basic issue in this case is whether there exists "just cause" within the meaning of Section 231.36(1)(a), Florida Statutes, to terminate the professional services contract between the School Board of Gadsden County, Florida, and John C. Buckley. The School Board seeks such a termination on the basis of allegations that John C. Buckley engaged in various forms of inappropriate conduct during the course of a science fair trip. Briefly summarized, the allegations are that John C. Buckley (a) permitted students to smoke cigarettes, (b) purchased alcoholic beverages in the presence of a student, (c) consumed alcoholic beverages in the presence of students, (d) provided alcoholic beverages to students and permitted them to consume such beverages, and (e) inappropriately touched one or more female students.

At the hearing, the parties presented the testimony of several witnesses, including the testimony of Respondent. Following the hearing, a transcript of the proceedings was filed and all parties thereafter filed timely proposed recommended orders. The parties' proposed recommended orders have been carefully considered during the formulation of this recommended order. All findings of fact prepared by the parties are specifically addressed in the appendix which is attached to and incorporated into this recommended order.

FINDINGS OF FACT

Based on the evidence received at the hearing and the admissions of the Respondent, I make the following findings of fact:

1. At all times material, the Respondent, John C. Buckley, was employed as a science teacher at the James A. Shanks High School in Gadsden County, Florida. At all times material, the Respondent was employed under a professional service contract as defined in Section 231.36(3)(a), Florida Statutes (1987).

   
   

2. The Respondent accompanied a group of Gadsden County high school students to Jacksonville to attend a science fair on April 13, 1988, through April 16, 1988. There were three other adults present during the trip; Oscar Rogers, a school bus driver employed by the Gadsden County School Board, Cynthia

   B. Clark, a science teacher from Carter Parramore Middle School, and Betty Williams, a chaperon.

   
   

3. On the way to Jacksonville, the following three female students rode with the Respondent in his personal car: Ginger Godwin (10th grade), Twanna Scott (12th grade), and Yvonne Dunson (12th grade). The other students and adults rode in a school bus. During the drive to Jacksonville, two of the students in Respondent's car were smoking cigarettes. The Respondent knew these two students intended to smoke in his car and he did not prohibit either student from smoking in his car.

   
   

4. During the evening of April 13, 1988, the Respondent drove in his car to a liquor store in Jacksonville, where he purchased some beer, some bottled wine coolers, and a small bottle of bourbon. Twanna Scott, a student, rode in Respondent's car to and from the liquor store, but she did not get out of the car when the Respondent went into the liquor store.

   
   

5. During the evening of April 13, 1988, the Respondent consumed several beers, probably three or four. Some of the Respondent's consumption of beer took place in the presence of some of the students, specifically at a time when the students and the adults on the trip were eating pizza for their evening meal. The Respondent did not, on April 13, 1988, or any other time, provide any alcoholic beverages to any of the students, nor did he permit any of the students to consume alcohol.

   
   

6. Later, on the evening of April 13, 1988, the Respondent entered the motel room in which Ginger Godwin, Twanna Scott, Yvonne Dunson, and Precious Anderson were staying. At the time the Respondent entered the room, Godwin, Scott, and Dunson, and several other people were also in the room. During the time the Respondent was in the room a door that connected to the next room was open. The next room was the room in which Cynthia B. Clark, a teacher, was staying with two other female students. While the Respondent was in the room, Twanna Scott complained of a stiff back and the Respondent sat on the edge of the bed and gave Twanna Scott a brief back rub. At the time of the back rub, the only other people in the room were Ginger Godwin and Yvonne Dunson. Following the back rub, the Respondent left the room. The Respondent did not touch any part of Twanna Scott's body other than her back. The Respondent did not touch either of the other female students who were in the room.

   
   

7. On the evening of April 14, 1988, while the Respondent was away from the motel with some of the students, Ginger Godwin, Twanna Scott, and Yvonne Dunson told Cynthia B. Clark, one of the teachers, that they wanted to spend some time watching television in the motel room of some insurance salesmen they

   had recently met at the motel. Mrs. Clark agreed to let them do so, subject to some ground rules which included: the door to the salesmen's motel room had to remain open, the curtains had to remain open, and the girls had to check with Mrs. Clark every 30 minutes or so.

   
   

8. At about 9:45 p.m. during the evening of April 14, 1988, Mrs. Clark walked by the salesmen's room and observed Ginger Godwin drinking a beer. Mrs. Clark told Ginger Godwin that she did not approve of such conduct and Ginger Godwin acted indifferent to the disapproval. Mrs. Clark told the girls that they needed to be back in their own rooms by 10:30 p.m.

   
   

9. Sometime between 10:30 and 10:45 p.m., Mrs. Clark returned to the salesmen's room and tried to get the three girls to return to their own room. They essentially ignored her and remained in the salesmen's room.

   
   

10. The Respondent returned to the motel sometime shortly after 11:00 p.m., at which time Mrs. Clark told him about the three girls in the insurance salesmen's room. Mrs. Clark and the Respondent then went to the salesmen's room and the Respondent told the girls they had to return to their own room. After some argument, the three girls eventually complied. Later in the evening the salesmen were down tapping on the window of the girls' motel room and the girls were talking to the salesmen through an open window. When this was brought to the Respondent's attention, he went to the girls' room, told them they should go to bed and tried to get the salesmen to leave. The three girls and the insurance salesmen all rebuffed the Respondent's efforts, and the Respondent ultimately had to call the motel security guard. At about that time, Ginger Godwin got into a heated argument with the Respondent, during the course of which there was some yelling and shouting back and forth. Apparently there were further heated arguments the next day about the salesmen. At some point in the arguments, Ginger Godwin threatened to retaliate against the Respondent as a result of his interference with the relationship between the three girls and the insurance salesmen. The threats made to the Respondent included statements such as, "I know how to get you," "I'm going to take care of your job Monday," and "I'll get even with you and I'll take care of you Monday when I get back." Upon returning home, Ginger Godwin, Yvonne Dunson, and Twanna Scott reported to school authorities that the Respondent had engaged in improper conduct during the science fair trip. They accused the Respondent of, among other things, improper sexual touching of Dunson and Scott. The allegations of improper sexual touching were false.

    
    

11. School rules prohibit the use of tobacco substances at school campuses, activities, or field trips. School rules prohibit the consumption of alcoholic beverages on School Board premises, at school activities, and on school field trips. School rules prohibit the consumption of alcoholic beverages by teachers in the presence of students, during school field trips. When supervising field trips, teachers have 24-hour supervisory responsibility over the students on the field trip.

    
    

12. The Respondent had been previously warned to curtail his smoking in front of students by Janey DuPont, an Administrator employed by the Petitioner. Respondent had also been specifically warned by Janey DuPont not to consume alcoholic beverages in the presence of students. The Respondent knew or should have known that he was not supposed to be drinking alcoholic beverages in the presence of students under his supervision.

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes.

    
    

14. In a proceeding of this nature, the Petitioner has the burden of proving its allegations by clear and convincing evidence. Ferris v. Turlington,

    510 So.2d 292 (Fla. 1987). The nature of that burden is described as follows in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983):

    
    

    Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    In the more recent case of Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), the court quoted with approval the foregoing language from Slomowitz, and also noted:

    
    

    "Clear and convincing evidence" is

    an intermediate standard of proof, more than the "preponderance of the evidence" standard used in most civil cases, and less than the "beyond a reasonable doubt" standard used in criminal cases. See State v. Graham, 240 So.2d 486 (Fla. 2d DCA 1970)

    
    

15. Paragraph 4 of the charges against the Respondent alleges that he provided alcoholic beverages to students under his supervision and permitted those students to consume alcoholic beverages. The evidence of those allegations is far from clear and convincing; there is not even a preponderance of the evidence in support of the charges in Paragraph 4. Rather, the greater weight of the evidence is to the effect that the Respondent did not furnish alcoholic beverages to any of the students under his supervision and did not permit any such students to consume alcoholic beverages. Accordingly, the charges in Paragraph 4 of the charging document [the Board's letter of June 8, 1988] should be dismissed for failure of proof.

    
    

16. Paragraph 5 of the charges against the Respondent alleges that he inappropriately touched one or more female students who were under his supervision. The evidence in support of these charges is, again, far from clear and convincing. To the contrary, such evidence is implausible and most unlikely. The evidence in support of these charges is also tainted by the

    witnesses' retaliatory animus against the Respondent. The greater weight of the evidence supports a finding that there was no inappropriate touching.

    Accordingly, the charges in Paragraph 5 of the charging document [the Board's letter of June 8, 1988] should be dismissed for failure of proof.

    
    

17. The Respondent has admitted the allegations in Paragraphs 1, 2 and 3 of the charging document. Those charges are to the effect that, while chaperoning students on a science fair trip, the Respondent did the following:

    
    

    1. permitted certain students in his charge to smoke cigarettes,

    2. purchased alcoholic beverages while in the presence of a student who was

       under his supervision, and

    3. consumed alcoholic beverages while in the presence of students under his supervision.

       
       

       Thus, the final issue to be decided is whether the three acts described immediately above constitute "just cause" within the meaning of Section 231.36(1)(a), Florida Statutes, to take disciplinary action against the Respondent.

       
       

18. Section 231.36(6)(a), Florida Statutes (1987), upon which the complaint in this case is founded, sets forth the circumstances under which a school board can terminate a professional service contract or to impose other disciplinary measures against a tenured school teacher. The statute provides in material part that:

    
    

    Any member of the instructional staff, excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract; however, the charges against him must be based on just cause as provided in paragraph (1)(a).

    Whenever such charges are made against any such employee of the school board, the school board may suspend such person without pay; but, if the charges are not sustained, he shall be immediately reinstated, and his back salary shall be paid.

    
    

19. The term "just cause" is defined in Section 231.36(1)(a), Florida Statutes (1987) as follows:

    
    

    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.

    
    

20. The case against the Respondent appears to be based on the theory that the Respondent is guilty of misconduct in office, although such is not clearly stated in the charging document. (The charging document merely states that the allegations constitute "just cause" for termination.) The term "misconduct in

    office" is not defined in the statutes, but it is defined in the Rules of the State Board of Education. Rule 6B-4.09(3), Florida Administrative Code, defines misconduct in office as follows:

    
    

    (3) 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. (emphasis added)

    
    

    Since the Gadsden County School Board did not adopt any definition of the term "misconduct in office," the definition to be applied is the one set forth in the Florida Administrative Code. See Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981)

    
    

21. In determining what constitutes "misconduct in office" within the meaning of the foregoing statutory and rule provisions, the courts have emphasized that impairment of the individual's effectiveness in the school system is an independent element of the charge of misconduct in office and, as such, it is a matter which must be alleged and proved in addition to the allegation and proof of the substantive act or acts of misconduct. See Boyette

    v. State, Professional Practices Council, 346 So.2d 598 (Fla. 1st DCA 1977); Smith v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981); Braddock v. School Board of Nassau County, 455 So.2d 394 (Fla. 1st DCA 1984). To similar effect, see also Sherburne v. School Board of Suwannee County, 455 So.2d 1057 (Fla. 1st DCA 1984).

    
    

22. At most, the record in this case establishes that the Respondent violated school policy by consuming alcoholic beverages in the presence of students under his supervision and by permitting some of such students to smoke cigarettes. These violations do not, however, constitute "misconduct in office" within the meaning of the applicable statutory and rule provisions because there is neither allegations nor evidence that the Respondent's conduct ". . .is so serious as to impair the individuals's effectiveness in the school system."

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the administrative charges against the Respondent Buckley be dismissed and that the Respondent be reinstated as a professional service contract teacher with full back pay.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 3rd day of November, 1988.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1050

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1988.

APPENDIX TO RECOMMENDED ORDER

The following are my specific rulings on all findings of fact proposed by the parties to this case.

Findings proposed by Petitioner:

Paragraph 1: Accepted

Paragraphs 2 and 3: Rejected as unnecessary recitation of procedural details. (Findings have been made incorporating the substance of the conduct admitted by the Respondent.)

Paragraphs 4 and 5: Rejected as unnecessary. Paragraphs 6, 7, 8, 9, and 10: Accepted.

Paragraph 11: Rejected as irrelevant to the issues in this case. Paragraphs 12, 13, 14, 15, 16, and 17; Accepted.

Paragraphs 18 and 19: Rejected as subordinate and unnecessary details.

Paragraphs 20, 21, 22, and 23: Accepted, with some unnecessary details omitted.

Paragraphs 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details. Covered in preliminary statement.

Paragraph 29: Accepted.

Paragraphs 30 and 31: Rejected because there is no clear and convincing evidence that any inappropriate touching of female students occurred on this occasion and, absent any inappropriate touching, the proposed details are subordinate and unnecessary. Specifically, there is no persuasive evidence that the Respondent made several attempts to bite Twanna Scott on her ear. Ms.

Scott's testimony to that effort is unconvincing. The Respondent's denial is accepted.

Paragraphs 32, 33, 34, and 35: Rejected as not supported by credible evidence. I reject as unworthy of belief the testimony that the Respondent provided alcoholic beverages to three students. I accept the Respondent's denial that he provided alcoholic beverages to any student.

Paragraph 36: Rejected as irrelevant because the Respondent has not been charged with this conduct and, in any event, there is no evidence that Respondent consumed sufficient alcohol to impair his ability to drive safely.

Paragraph 37: First fourteen words rejected as contrary to the greater weight of the evidence; I have rejected the testimony that Respondent provided alcoholic beverages to any students. Next seven words rejected as irrelevant and unnecessary because there has been no showing that the Respondent consumed

sufficient alcoholic beverages to impair his judgment. The remainder of this paragraph is accepted.

Paragraph 38: First sentence rejected as vague and inaccurate; the subject student was wearing a robe and was on the bed watching television. Second sentence accepted in substance with a few clarifying details.

Paragraphs 39, 40, and 41: Rejected as contrary to the greater weight of the evidence. In view of all the circumstances, the Respondent's denials and the Respondent's version of what occurred is more believable than the testimony of Yvonne Dunson, Twanna Scott, and Ginger Godwin. Yvonne Dunson, Twanna Scott, and Ginger Godwin are not credible witnesses.

Paragraph 42: Rejected as inaccurate; the girls made a report when they returned, but it was a false report.

Findings proposed by the Respondent

Paragraphs 1, 2, 3, 4, 5, and 6: Accepted in substance.

Paragraphs 7 and 8: Rejected as constituting summaries of testimony rather than proposed findings of fact. Further, the subject matter of these paragraphs is irrelevant because in the hand holding in the car is not the "inappropriate" touching with which the Respondent has been charged.

Paragraph 9: Accepted in substance. Paragraph 10: Accepted.

Paragraphs 11, 12, 13, and 14: I have not made any findings on the subject matter addressed by these paragraphs because there is no clear and convincing evidence that any inappropriate touching of female students occurred on this occasion and, absent any inappropriate touching, the proposed details are subordinate and unnecessary.

Paragraph 15: Rejected as subordinate and unnecessary details.

Paragraph 16: First sentence accepted. Second sentence rejected as irrelevant.

Paragraphs 17 and 18: Rejected as constituting summaries of testimony rather than proposed findings of fact. On this subject, I have found that the greater weight of the evidence is consistent with the Respondent's denial.

Paragraph 19: Accepted in substance.

Paragraphs 20, 21, and 22: Rejected as constituting summaries of testimony rather than proposed findings of fact. (The summarized testimony has not been credited.)

Paragraph 23: First sentence accepted. Second sentence rejected as not supported by persuasive evidence; I seriously doubt that Ginger Godwin told the other two girls anything about any "incidents" on Wednesday night. I believe the three girls (Ginger Godwin, Twanna Scott, and Yvonne Dunson) fabricated their stories at a later date.

Paragraph 24: Rejected as constituting a summary of testimony rather than proposed findings of fact. I have, however, made findings of fact consistent with the Respondent's version of this incident.

Paragraph 25: Accepted in substance.

Paragraph 26: Rejected as subordinate and unnecessary details.

Paragraphs 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, and 37: Accepted in substance.

COPIES FURNISHED TO:

CLAUDE B. ARRINGTON, ESQUIRE RUDEN, BARNETT, MCCLOSKY, SMITH,

SCHUSTER & RUSSELL, P.A.

101 NORTH MONROE STREET MONROE-PARK TOWER, SUITE 1010 TALLAHASSEE, FLORIDA 32301

PHILIP J. PADOVANO, ESQUIRE POST OFFICE BOX 873 TALLAHASSEE, FLORIDA 32302

ROBERT H. BRYANT SUPERINTENDENT OF SCHOOLS SCHOOL BOARD OF GADSDEN COUNTY POST OFFICE BOX 818

QUINCY, FLORIDA 32351

Docket for Case No: 88-002840

Orders for Case No: 88-002840