STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1164

)

WALTER PHILLIPS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on June 14, 1989, at Clearwater, Florida.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 4688 Clearwater, Florida 34618

For Respondent: Lawrence D. Black, Esquire

152 Eighth Avenue, Southwest Largo, Florida 34640

STATEMENT OF ISSUES

Whether Respondent is guilty of immorality, gross insubordination, or misconduct in office.

PRELIMINARY STATEMENT

By letter dated February 20, 1989, the Superintendent of Schools, Pinellas County, suspended Walter Phillips, Respondent, a continuing contract teacher at Largo High school, without pay and recommended his dismissal by the Pinellas County School Board. By letter dated February 24, 1989, Walter Phillips, by and through his attorney, requested an administrative hearing to contest the charges made against him. These proceedings followed.

At the hearing Petitioner called four witnesses, Respondent testified in his own behalf and six exhibits were admitted into evidence.

Proposed findings were submitted by Petitioner. Treatment accorded those proposed findings is contained in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. At all times relevant hereto Walter Phillips, Respondent, was a continuing contract teacher employed by the Pinellas County School Board, Petitioner, to teach woodshop, math, graphics and drafting at Largo High School.

   
   

2. In the 1988-89 school year, Brent Roth, a senior at Largo High School, served as teacher's aide to Respondent. Roth was interested in guns and gun magazines and often engaged Respondent in conversation regarding hand guns. On one occasion while looking at a gun magazine at school, Roth showed Respondent an advertisement for a 9 mm Baretta pistol and asked Respondent would he like to own a Baretta. Respondent indicated yes.

   
   

3. Several times thereafter Roth told Respondent that he (Roth) knew where he could purchase a gun at a large discount over the retail price, indicating the gun was "hot" or stolen in the robbery of a truckload of weapons.

   
   

4. Respondent knew Roth was prone to exaggeration and didn't believe that Roth could obtain such a weapon. Nevertheless, Respondent decided to proceed with these discussions and, if Roth ever procured such a weapon, Respondent would call in the FBI. At no time did Respondent ever give Roth money to purchase a weapon, nor had Roth ever before purchased such a weapon.

   
   

5. Respondent is a member of the Coast Guard Reserve and apparently considers himself a federal law enforcement officer, despite the fact that Coast Guard jurisdiction in law enforcement is limited to the navigable waters of the United States and then only to active duty personnel. Nevertheless, Respondent purported to conduct his own investigation.

   
   

6. During the time Roth bragged to Respondent about his ability to acquire a Baretta pistol which had been stolen, and therefore, cheap, the Pinellas County Sheriff's Office was conducting an undercover investigation at Largo High School principally to find out if drugs were being dealt at school. They had an agent posing as a student. This agent, detective Wojciechowski, armed with a body recorder, taped several of the conversations in which Respondent, Roth and other students discussed the purchase of a stolen or hi-jacked gun or guns.

   
   

7. The taped conversations were not transcribed and, although the undersigned devoted nearly two hours listening to this tape (Exhibit 3), the speakers were not identified and, without devoting an inordinate amount of time to the project, the speakers cannot be identified. Accordingly, from the posture of the evidence presented, Respondent's specific participation in the purported acquisition of a Baretta pistol cannot be determined.

   
   

8. When confronted with the undercover deputy sheriff's tape of his conversations relative to the purchase of a stolen gun, Respondent acknowledged that he had engaged in such discussions for the purpose of discovering if the students actually had access to stolen weapons, but not for the purpose of acquiring such a gun. Had the student been able to get possession of a stolen weapon, Respondent would promptly notify the FBI (Exhibit 6).

   
   

9. Respondent never notified his principal, Ms. Westfall, or the campus police regarding his "investigation" because he really didn't believe the student could obtain possession of such a weapon and he had insufficient evidence to support such an allegation.

10. In the summary of the conference (Exhibit 6) between Respondent, the school principal, the school personnel officer and the PCTA member, prepared by Steve Crosby, the Director, Personnel Services, and signed by Respondent, the latter is reported to have acknowledged: If the student had been able to get the gun, he [Respondent] would have had him bring it to him at school, rather than taking a chance in meeting him alone. In his testimony at these proceedings, Respondent stated that he never intended for Roth to bring the pistol to school, only to bring some evidence that Roth could obtain such a weapon. If a weapon was to be delivered, Respondent would have arranged for an off-campus place of delivery and then notified authorities. Respondent's testimony is accepted as the factual version of this proposed transfer.

    
    

11. It is significant in assessing the seriousness of the allegations that the closest any participant in the "plot" to purchase a gun ever came to a gun was a picture of a gun in a magazine. No money was ever exchanged, no fixed price for a gun was ever established and, in fact, no actor in this play had any real knowledge that the stolen gun or guns was available to be purchased.

    
    

12. In his handling of the discussions pertaining to the purchase or acquisition of a presumed to-be-stolen-pistol, Respondent exercised poor judgment in failing to alert local authorities to these discussions. However, since no hard evidence was available that any student had access to such a weapon there was little to investigate; and it is unlikely that the police would have taken action other then ask Respondent to keep them advised of developments.

    
    

13. Petitioner's expert witnesses opined that, by failing to report these conversations to school authorities and in planning the delivery of a gun on school premises, Respondent exercised poor judgement. This, in their opinion, created doubt of his ability to make a proper judgment at school and thereby impaired his effectiveness as a teacher. That part of these opinions predicated upon Respondent negotiating with a student for the purchase of a stolen gun to be delivered to the school premises did not have factual support and is disregarded.

    
    

14. Respondent has been a certified teacher for fourteen years and, although he doesn't hold a bachelor's degree, he holds a teacher's equivalency. He has been employed by the Pinellas County school system on a continuing contract since 1979. At no time during the Respondent's tenure in the Pinellas County school system has he been subjected to disciplinary action as a result of charges being brought against him for an infraction of statute or rule.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

16. Section 231.36(4)(c), Florida statutes, provides in pertinent part:

    
    

    Any member . . . 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 or willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

17. Although Respondent is here charged with immorality, misconduct in office, and gross insubordination, only evidence respecting the latter two charges was presented.

    
    

18. Rule 6B-4.009, Florida Administrative Code, provides in pertinent part:

    
    

    1. 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.

    2. Gross insubordination or willful neglect of duties is described as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.

       
       

19. Rule 6B-1.001, Florida Administrative Code, provides general ethical standards to which a teacher should aspire such as worth and dignity of a person, pursuit of truth, the development of the student's potential, to strive for professional growth, and maintain respect and confidence of students, parents, and colleagues.

    
    

20. Rule 6B-1.006, Florida Administrative Code, establishes rules, the violation of which shall subject the individual to revocation or suspension of a teacher's certificate. Under "obligation to the student" the individual is required, inter alia, to protect the student from conditions harmful to health, learning, or safety; and shall not exploit a professional relationship with a student for personal gain or advantage. Under "obligations to the public," applicable here, are included the requirement that an individual shall not use institutional privileges for personal gain or advantage, or accept a gratuity or gift that might influence personal judgment. Under "obligations to the profession of education" is included: maintain honesty in all professional dealings and report to appropriate authorities any known violation of Florida School Code or State Board of Education rules.

    
    

21. Petitioner contends that Respondent intended to violate Pinellas County School Board Policy 6GX52-5.22 which proscribes bringing deadly weapons upon school premises. In view of the finding that Respondent had no such intent, this policy was not violated.

    
    

22. Violation of rules can constitute misconduct in office. However, unless the violation of the rule is so serious as to impair the individual's effectiveness in the school system, a teacher may not be disciplined for such violation. School Board of Pinellas County v. Munafo, 8 FALR 3337.

    
    

23. The only evidence that Respondent's effectiveness in the school system was impaired was the opinion presented by Petitioner's two experts. Inasmuch as these opinions were predicated upon an unproven fact the evidence does not support the conclusion that Respondent's effectiveness in the school system was impaired.

24. With respect to the charge of gross insubordination, Respondent did not refuse to obey any direct order, and his actions were not constant and continuous as required to reach the level of gross insubordination. Cf. Smith

    v. School Board of Leon County, 405 So.2d 183 (Fla. 1st DCA 1981).

    
    

25. Although this case is not a license revocation proceeding, the consequences to the Respondent is equivalent to a certificate revocation proceeding, the same evidence is required to dismiss a continuing contract teacher as revoke his certification, and the actions warranting revocation of certification is the same as warranting dismissal. Accordingly, the burden of proof in these proceedings is upon the Petitioner to prove the charges by clear and convincing evidence, Ferris v. Turlinton, 510 So.2d 292 (Fla. 1987).

    
    

26. From the foregoing it is concluded that Petitioner has failed to prove, by clear and convincing evidence, that Respondent is guilty of immorality, gross insubordination or misconduct in office.

RECOMMENDATION

It is recommended that the charges of immorality, gross insubordination, and misconduct in office preferred against Walter Phillips be dismissed, his suspension vacated, that he received back pay for the period his pay has been suspended, and that he be restored to his former status as a continuing contract teacher with the Pinellas County School Board.

DONE AND ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida.

K. N. AYERS 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 7th day of July, 1989.

COPIES FURNISHED:

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688

Clearwater, Florida 34618-4688

Sydney H. McKenzie General Counsel The Capitol, PL-08

Tallahassee, Florida 32399-0400

Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618

Lawrence D. Black, Esquire

152 Eighth Avenue, SW Largo, Florida 34640

================================================================= AMENDED RECOMMENDED ORDER

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1164

)

WALTER PHILLIPS, )

)

Respondent. )

)

AMENDED RECOMMENDED ORDER

By letter dated August 16, 1989, Petitioner in the above styled case forwarded a Partial Final Order remanding the case to this Hearing Officer to comment on the proposed findings submitted by the parties.

A review of the file discloses that, due to administrative oversight, the Appendix referred to in the initial Recommended Order was not attached thereto.

Remand is hereby accepted to correct this error.

The Appendix referred to in the Recommended Order dated July 7, 1989, is forwarded herewith to be included with and attached to the July 7, 1989 Recommended Order.

DONE and ORDERED this 23rd day of August, 1989, in Tallahassee, Florida.

K. N. AYERS 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 23rd day of August, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1164

Treatment Accorded Petitioner's Proposed Findings: 1-3. Included in HO Conclusions of Law.

4. Included in HO #1.

5-7. Included in HO #2.

1. Included in HO #3.

2. Accepted insofar as included in HO #3, otherwise rejected.

3. Rejected as unsupported by credible evidence.

4. Included in HO #5 and #8.

5. Rejected as contrary to credible evidence. See HO #10.

6. Included in HO #6.

7. Rejected insofar as the accuracy of the tape recording is concerned. See HO #7.

8. Accepted as probably true. However, since this was not done, it is mere speculation.

9. Same as 15.

10. Rejected as immaterial and ambiguous. Also, see HO #7. 18-20. Accepted.

21. Accepted. Partially included in HO #10. Treatment Accorded Respondent's Proposed Findings:

Respondent submitted no proposed findings of fact in his Proposed Recommended Order. Most of the argument there presented is covered in HO Conclusions of law.

COPIES FURNISHED:

Honorable Betty Castor Scott N. Rose, Ed.D. Commissioner of Education Superintendent of Schools Department of Education Post Office Box 4688

The Capitol Clearwater, Florida 34618-4688 Tallahassee, Florida 32399-0400

Sydney H. McKenzie Bruce P. Taylor, Esquire General Counsel Post Office Box 4688 The Capitol, PL-08

Clearwater, Florida 34618 Tallahassee, Florida 32399-0400

Lawrence D. Black, Esquire

152 Eighth Avenue, South West Largo Florida 34640

Docket for Case No: 89-001164

Orders for Case No: 89-001164