STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF BROWARD )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4734

)

MARION WRIGHT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on March 22 and 23, 1989, at Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Whitelock & Moldof

1311 Southeast Second Avenue Fort Lauderdale, Florida 33316

For Respondent: Thomas W. Young, III, Esquire

General Counsel, FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The basic issue in this case is whether the Respondent should be dismissed from his employment as a teacher. The Petitioner seeks such dismissal pursuant to Section 231.36, Florida Statutes, on the basis of allegations that the Respondent is guilty of: (a) violation of the Principles of Professional Conduct, (b) immorality, (c) misconduct, (d) willful neglect of duties, and (e) moral turpitude. The Respondent denies any misconduct.

PRELIMINARY STATEMENT

At the hearing in this case both parties presented the testimony of numerous witnesses and both parties offered documentary exhibits. Many of the exhibits consisted of prior statements made by the principal witnesses in this case. Following the hearing, a transcript of the proceedings was prepared and filed on April 20, 1989. Thereafter, all parties filed timely proposed recommended orders containing proposed findings of fact. The parties' proposals have been carefully considered. Specific rulings on all proposed findings of fact are contained in the appendix to this recommended order.

FINDINGS OF FACT

Based on the evidence received at the hearing and on the parties's stipulations, I make the following findings of fact:

Facts stipulated to by the parties

1. Virgil L. Morgan is the duly appointed Superintendent of Schools of Broward County, Florida, and is legally authorized to represent to the School Board of Broward County, Florida, pursuant to statute, that any member of the instructional and/or administrative staff be dismissed from or with the Broward County School System.

   
   

2. The address of Virgil L. Morgan is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida.

   
   

3. The address of the School Board of Broward County, Florida, is 1320 Southwest Fourth Street, Fort Lauderdale, Broward County, Florida.

   
   

4. The Respondent, Marion Wright, is an employee of the School Board of Broward County, Florida, holding a continuing contract of employment since December 5, 1968, and has currently been employed at Nova High School, 3600 College Avenue, Davie, Broward County, Florida, as an American History and Geography teacher.

   
   

5. The last known address of the Respondent is 151 Northwest 33rd Terrace, Fort Lauderdale, Broward County, Florida.

   
   

   Other general facts

   
   

6. While employed at Nova High School, the Respondent was also the coach of the girls junior varsity basketball team.

   
   

   Facts regarding motor vehicle operations

   
   

7. The Respondent's ex-students and assistant coaches often moved his car from one place to another on the Nova campus during the school day. These ex- students and assistant coaches were licensed drivers. The Respondent sometimes also permitted several students who were seniors and who were licensed drivers to move his car while it was on campus. It is not unusual for teachers at Nova High School to permit students to drive their cars. There is no credible competent substantial evidence in this case that the Respondent permitted unlicensed students to operate his motor vehicle.

   
   

8. On January 22, 1988, Andrea Session and Kim Williams, both students at Nova High School who were also members of the girls basketball team, went to the Respondent's classroom shortly after first period began. Neither of the two girls had a driver license. Kim Williams asked the Respondent for the keys to his pickup truck in order to retrieve her school books which were locked in the truck. The Respondent gave the keys to the two girls and they left. It was not uncommon for the girls to leave their books in the Respondent's truck or car, because the Respondent would frequently drive these two girls (and others) from their home to early morning basketball practice before school. They would often leave their school books in the Respondent's vehicle during basketball practice and pick them up later.

9. On January 22, 1988, while in possession of the keys to the Respondent's pickup, Kim Williams attempted to move the pickup and ran into a parked car in the school parking lot. The Respondent did not authorize Kim Williams to drive his pickup truck on January 22, 1988.

   
   

   Facts regarding taking students out of class

   
   

10. The Respondent never requested that Kim Williams, Andrea Session, or any other student or member of his basketball team be excused from other classes, except as was consistent with being excused from class on game days. The Respondent did not write passes requesting that students be excused from other classes. Nor did he usually permit students without passes to remain in his classroom. When Kim or Andrea would come to the Respondent's class without a pass, the Respondent would usually ask them to return to their class. On occasion, Kim and Andrea would skip classes and not go to the Respondent's classroom. There is no credible competent substantial evidence in this case that the Respondent arranged for the unauthorized or illegal removal of any student from scheduled class periods. There is no credible competent substantial evidence in this case that the Respondent provided females students on his basketball team with passes to remove them from their regular scheduled classes on the days that basketball games were scheduled in order for them to rest or relax for the game.

    
    

    Facts regarding transportation of students off campus and to liquor stores

    
    

11. The Respondent frequently transported students from their homes to early morning basketball practice. The Respondent has taken adult female assistant coaches to the Double Feature Liquor Store, and to other liquor stores, and has purchased beer for them on occasion. There is no credible competent substantial evidence in this case that the Respondent took students to a liquor store, bought alcoholic beverages, and consumed alcoholic beverages with students. There is no credible competent substantial evidence in this case that the Respondent took students off campus on personal errands during the students' scheduled class periods.

    
    

    Facts regarding soliciting false statements and submitting a false affidavit

    
    

12. After the Respondent became aware that he was being accused of providing alcoholic beverages to two students, he went to see Ms. Bonnie Session, the mother of one of the students. The Respondent told Bonnie Session about the situation he was in and asked her to sign a statement on his behalf. Thereafter, Adrienne Session, an older daughter of Ms. Session, called the Respondent and told him she had something for him from her mother. Adrienne gave the Respondent a written statement that purported to be signed by Bonnie Session. The Respondent took the statement to a notary public and asked that it be notarized. The notary called on the telephone and spoke to someone she believed to be Bonnie Session. The person to whom the notary spoke acknowledged having signed the statement. The notary then notarized the document and gave it back to the Respondent. At a later date, under circumstances that are not at all clear, Bonnie Session and her two daughters went to the same notary, after having been guided there by the Respondent, and had some additional documents notarized. The Respondent made some efforts, directly and indirectly, to obtain exculpatory statements from several people, but the nature of those efforts cannot be discerned from the credible evidence in this case. There is no credible competent substantial evidence in this case that the Respondent encouraged any students to falsify their accounts of any matters related to the issues in this case. There is no credible competent substantial evidence in

    this case that the Respondent intentionally distorted, or caused to be misrepresented, any facts regarding an affidavit that was purportedly signed by Bonnie Session.

    
    

    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. Sec. 120.57, Fla. Stat.

    
    

14. In a case of this nature, the burden of proof is on the Petitioner to prove its allegations of misconduct by a preponderance of the evidence. Ferris

    v. Austin, 487 So.2d 1163 (5th DCA 1986), as further clarified in Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). And all facts found must be supported in the record by competent substantial evidence. See Sec. 120.57(1)(b)10, Fla. Stat.

    
    

15. Section 231.36(4)(c), Florida Statutes, reads as follows, in pertinent part:

    
    

    (c) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude. 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.

    
    

16. None of the charges in this case have been sustained. The testimony of the principal witnesses against the Respondent has, for the most part, been found to be lacking in credibility and unworthy of belief. When the testimony of a witness is not believed by the fact-finder, that testimony cannot constitute competent substantial evidence of the matters asserted by the witness. The charges having not been sustained, pursuant to Section 231.36(4)(c), Florida Statutes, the Respondent is entitled to be reinstated with back pay.

RECOMMENDATION

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

RECOMMENDED that the School Board of Broward County issue a final order in this case dismissing all administrative charges against the Respondent, Marion Wright, and reinstating him with full back pay.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of June 1989.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of June 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4734

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

To facilitate an understanding of the rulings which follow, attention is directed to the fact that, for the most part, the testimony of the two principal witnesses against the Respondent has been found to be unworthy of belief and to be an insufficient basis for findings of fact. The two principal accusers have both, while under oath, changed major portions of their stories on more than one occasion. The credibility of their stories is also impaired in large part by the fact that the stories told by the two principal witnesses are inconsistent in a number of telling details, and those stories also conflict with the testimony of other witnesses who are much more worthy of belief. It is also noted that the candor of Respondent's testimony was not without its own tarnish in places. While the Respondent's denial of the charges against him has been accepted in substance, this is largely because of the absence of believable evidence in support of the charges rather than because of any great reliance on the Respondent's candor.

Findings proposed by Petitioner:

Paragraph 1: Accepted.

Paragraph 2: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence.

Paragraph 3: First sentence rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. Second sentence accepted.

Paragraph 4: For the most part, rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence. It is accepted that there was an on-campus accident involving Respondent's vehicle.

Paragraph 5: Rejected as irrelevant in light of other evidence in the record.

Paragraph 6: Rejected as constituting legal argument rather than proposed findings of fact.

Paragraph 7: Rejected as irrelevant. [The presentation of the testimony of the Assistant State Attorney appears to have been primarily for the purpose of vouching for the truthfulness of the other witnesses against Respondent.

Such vouching is an inappropriate form of proof. See Fuller v. State, 450 So.2d 182, 184 (Fla. 5th DCA 1989).]

Paragraph 8: Rejected as not supported by credible competent substantial evidence and as contrary to the greater weight of the believable evidence.

Findings proposed by Respondent:

Paragraph 1: First sentence rejected as subordinate and unnecessary details. Remainder accepted in substance with a few unnecessary details omitted.

Paragraphs 2 and 3: Rejected as subordinate and unnecessary details. Paragraph 4: Accepted in substance with some unnecessary details omitted.

Paragraphs 5 and 6: Accepted in substance with some unnecessary details omitted.

Paragraph 7: Accepted in substance.

Paragraph 8: Rejected as a summary of testimony rather than proposed findings of fact. In any event, the subject matter of the summary consists of subordinate and unnecessary details.

Paragraphs 9, 10, 11, and 12: Rejected as subordinate and unnecessary details.

Paragraph 13: Accepted in substance.

Paragraphs 14 and 15: Rejected as subordinate and unnecessary details.

Paragraphs 16 through 30: Rejected as constituting, for the most part, a summary of the history of many of the reasons for not making findings of fact rather than actual proposed findings. (Many of the details in this summary form the basis for the conclusion that the testimony of the two principal witnesses against the Respondent is unreliable.).

COPIES FURNISHED:

Charles T. Whitelock, Esquire Whitelock & Moldof

1311 Southeast Second Avenue Fort Lauderdale, Florida 33316

Thomas W. Young, III, Esquire General Counsel, FEA/United

208 West Pensacola Street Tallahassee, Florida 32301

Virgil L. Morgan, Superintendent Broward County School Board

1320 Southwest Fourth Street Fort Lauderdale, Florida

=================================================================

AGENCY FINAL ORDER

=================================================================

PROCEEDINGS BEFORE THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA

VIRGIL L. MORGAN,

Superintendent of Schools,

Petitioner,

vs. CASE NO.: 88-4734

MARION WRIGHT,

Respondent.

/

FINAL ORDER

THIS CAUSE coming on to be heard before THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA at it regular meeting on September 19, 1969, upon the Recommended Order dated June 30, 1969, in case #88-4734, by Hearing Officer Michael M. Parrish, State of Florida, Division of Administrative Hearings, and upon the exceptions to the Recommended Order filed by the Petitioner, and the Memorandum in Support of the Hearing Officer's Recommended Order filed on behalf of the Respondent, and The School Board having heard oral argument and being fully advised of the premises,

IT IS HEREBY ORDERED that:

1. Exception #1, Issue #1 is rejected in that the Hearing Officer made sufficient reference in the Findings of Fact.

   
   

2. Exception #1, Issue #2 is rejected in that there is no requirement to provide presumptions, therefore, there would be no requirement to delineate.

   
   

3. Exception #1, Issue #3 is rejected in that it was not a requirement of the Hearing Officer.

   
   

4. Exception #2, is rejected in that the board finds that the Order is complete.

   
   

5. Exception #3 is accepted in that the Hearing Officer interpreted the law improperly as to that witness.

   
   

6. Exception #4 is rejected in that there is substantial, competent evidence in the record to support the Hearing Officer's Findings of Fact.

THE SCHOOL BOARD, with the amendment of exception #3, accepts the Hearing Officer's Findings of Fact, Conclusions of Law and Recommendation, and THE SCHOOL BOARD OF BROWARD COUNTY, FLORIDA, hereby issues its Final Order of this

cause dismissing all administrative charges against Respondent, MARION WRIGHT, and reinstating him with full back pay.

DONE AND ORDERED this 19th day of June, 1990.

By EILEEN S. SCHWARTZ, Chairperson The School Board of Broward County, Florida

COPIES FURNISHED:

Charles T. Whitelock, Esquire Thomas W. Young, III, Esquire

APPEAL OF FINAL ORDER

THIS ORDER may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), Florida Statutes, and Florida Rules of Civil Procedure 9.110(b) and (c), within thirty (30) days of the date of the entry of this ORDER.

Filed in Official School Board Records this 21st day of June, 1990.

Supervisor, Official School Board Records

Docket for Case No: 88-004734

Orders for Case No: 88-004734