STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1725

)

MICHAEL DURRANT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on November 17, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Jaime C. Bovell, Esquire

1401 Ponce de Leon Boulevard Coral Gables, Florida 33134

For Respondent: Lorraine C. Hoffman, Esquire

2929 Southwest Third Avenue Suite One

Miami, Florida 33129 STATEMENT OF THE ISSUES

Whether Respondent's annual contract should be terminated by Petitioner and, if not, the relief, if any, to which Respondent is entitled.

PRELIMINARY STATEMENT

Respondent was employed as a classroom teacher by Petitioner on an annual contract basis for the 1988-89 school year. He was assigned to teach algebra and math to high school students at Miami Agricultural School, one of the schools in the Dade County public school system. On March 22, 1989, the School Board of Dade County, Florida, suspended Respondent without pay and initiated proceedings to terminate his annual contract, subject to his right to an administrative hearing. The School Board's actions were premised on Respondent's alleged immorality resulting from a domestic dispute in a public area, his subsequent arrest, and the four days he spent in jail before he could arrange his release. The criminal charges that were filed against Respondent were nolle prossed after Petitioner's actions on March 22, 1989. Respondent demanded a formal administrative hearing, and this proceeding followed. On June 13, 1989, Petitioner filed a Notice of Specific Charges which contains specific factual allegations and which specifically charges Respondent with immorality.

At the formal administrative hearing, Petitioner called as witnesses Yvonne Scott, Norma Talbott, Clifton Lewis, and Joyce Annunziata. Ms. Scott and Ms.

Talbott are school secretaries employed at the Miami Agricultural School. Mr. Lewis is the principal of Miami Agricultural School. Dr. Annunziata is the Supervisor of the Dade County School District's Office of Professional Standards. Dr. Annunziata was accepted as an expert witness in the area of performance assessments of teachers employed by Dade County. The Respondent testified on his own behalf, but called no other witnesses. Petitioner offered no documentary exhibits. Respondent offered one documentary exhibit which was accepted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 221-6.031, Florida Administrative Code. Rulings on the proposed findings of fact submitted by the Respondent can be found in the appendix to this recommended order. Petitioner's proposed recommended order was filed after the deadline set for the filing of post-hearing submittals.

Accordingly, no rulings are made on the proposed findings submitted on behalf of Petitioner.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent was employed by Petitioner as a classroom teacher on an annual contract basis.

   
   

2. For the 1988-89 school year, Respondent was assigned to teach algebra and general math at Miami Agricultural School, one of the schools in the Dade County public school system.

   
   

3. During a part of the 1988-89 school year, Respondent lived with Sandra Wilkenson and with the child they had parented. The child was two years old at the time of the hearing.

   
   

4. On November 21, 1988, Respondent and Ms. Wilkenson met at her place of employment at the Aventura Mall in Miami, Florida. Respondent was in a hurry because he had several errands to run in preparation for his planned trip to St. Croix, Virgin Islands, to visit his family and to attend to a family business matter. Respondent and Ms. Wilkenson planned for Respondent to return to the mall so that he could drive her to the apartment they shared after she had completed heir work day.

   
   

5. Later in the day of November 21, 1988, Respondent returned to the Aventura Mall to take Ms. Wilkenson to their apartment. Ms. Wilkenson met Respondent in the public parking area of the Mall where he had parked. For reasons unknown to Respondent, Ms. Wilkenson refused to ride to their home with him. This refusal made Respondent very angry and started a loud argument between them that lasted between five and ten minutes. Respondent tried to lead Ms. Wilkenson to the car by pulling her hand, but there was no evidence that he injured her in any way or that he committed any criminal act during the course of the incident. When she continued to refuse to accompany him, Respondent got in his car and left the parking area. A man in a uniform observed the dispute, but he did not speak to Respondent or attempt to intervene in the dispute.

6. After the incident at the Aventura Mall, Respondent travelled to St. Croix as he had planned. While in St. Croix, Respondent spoke to Ms. Wilkenson by telephone, but she did not indicate that she considered anything to be wrong.

   
   

7. While Respondent was in St. Croix, criminal charges stemming from the incident at the Aventura Mall were brought against him by Ms. Wilkenson. Respondent was charged with aggravated assault with a firearm, using a firearm during the commission of a felony, and battery on the person of Sandra Wilkenson.

   
   

8. While Respondent was still in St. Croix, three police officers visited the campus of Miami Agricultural School searching for Respondent. Two of the police officers were in plainclothes and one was in uniform. The police officers spoke to the Principal, Mr. Lewis and to the Secretary, Ms. Scott, in private. While the visit of the police officers aroused the curiosity of a one or two faculty members and a few students, the visit did not cause a disturbance or disrupt the educational process.

   
   

9. When Respondent returned to Miami from St. Croix, he found a note on his automobile asking that he contact the police detective who had left the note. Upon calling the police detective, Respondent learned that he was to be arrested. Respondent voluntarily surrendered himself to the police. Respondent spent four days in jail before he was arraigned. At arraignment, he entered a plea of not guilty. Respondent was released from jail after Ms. Wilkenson posted his bond.

   
   

10. Respondent informed the principal of Miami Agricultural School of his whereabouts while he was in jail.

    
    

11. After his release from jail, Respondent was transferred from his classroom to an administrative assignment away from the campus of Miami Agricultural School.

    
    

12. Several students and faculty members at Miami Agricultural School became curious because of Respondent's absence. Although one student indicated to the principal that he knew that Respondent had been in jail and the administration at the school had information as to what had happened, the incident and subsequent arrest did not become common knowledge at Miami Agricultural School or in the community. Respondent's conduct was not sufficiently notorious to bring either Respondent or the education profession into public disgrace or disrespect. His conduct did not impair his service to the community.

    
    

13. On March 22, 1989, Petitioner suspended Respondent without pay and instituted proceedings to terminate his annual contract. Respondent timely demanded a formal hearing of the matter

    
    

14. On April 25, 1989, all of the criminal charges that had been filed against Respondent were nolle prossed and the criminal case against him was closed.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of and tee parties to this proceeding. Section 120.57(1), Florida Statutes.

16. Section 231.36, Florida Statutes, provides for the dismissal for an annual contract teacher during the term of the contract for "just cause" as follows:

    
    

    (1)(a) ... 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.

    
    

17. Section 231.02, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. To be eligible for appointment in any position in any district school system, a person shall be of good moral character;...

       
       

18. Petitioner alleged in the Notice of Specific Charges that Respondent's conduct constituted immorality. Rule 6B-4.009(2), Florida Administrative Code, defines the term "immorality" as follows:

    
    

    (2) Immorality is 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.

    
    

19. Petitioner failed to establish by clear and convincing evidence that Respondent engaged in immoral conduct within the meaning of Rule 6B-4.009(2), Florida Administrative Code.

    
    

20. Section 231.36, Florida Statutes, provides, in pertinent part, as follows:

    
    

    * * * (6)(a) 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. ...

21. Petitioner has failed to establish that the facts of this case constitute good cause to terminate Respondent's employment. Pursuant to Section 231.36(6)(a) Florida Statutes, Respondent is entitled to reinstatement of his annual contract for the 1988-89 school year and to the payment of back pay.

RECOMMENDATION

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

RECOMMENDED that the School Board of Dade County, Florida, enter a final order which finds Respondent, Michael Durrant, not guilty of immorality, and which reinstates his annual contract for the 1988-89 school year with back pay.

DONE AND ENTERED this 30th day of January, 1990, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 f Administrative Hearings this 30th day of January, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-1725

The following rulings are made on the proposed findings of fact submitted by Respondent:

1. The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 of the Recommended Order. Those proposed findings of fact not adopted are rejected as being unnecessary to the conclusions reached.

2. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 2 of the Recommended Order.

3. The proposed findings of fact in paragraph 3 are rejected as being unnecessary to the conclusions reached.

4. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 3 of the Recommended Order.

5. The proposed findings of fact in paragraph 5 are adopted in part by paragraph 4 of the Recommended Order.

6. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 4 of the Recommended Order.

7. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 5 of the Recommended Order.

8. The proposed findings of fact in paragraph 8 are adopted in part by paragraphs 5 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached.

9. The proposed findings of fact in paragraph 9 are adopted in part by paragraph 5 of the Recommended Order and are rejected in part as being subordinate to the findings made.

10. The proposed findings of fact in paragraph 10 are rejected as being subordinate to the findings made or as being unnecessary to the conclusions reached.

11. The proposed findings of fact in paragraph 11 are adopted in part by paragraph 9 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached.

12. The proposed findings of fact in paragraph 12 are adopted in part by paragraph 14 of the Recommended Order, are rejected in part as being subordinate to the findings made, and are rejected in part as being unnecessary to the conclusions reached.

13. The proposed findings of fact in paragraph 13 are adopted in material part by paragraph 8 of the Recommended Order.

14. The proposed findings of fact in paragraph 14 are adopted in part by paragraph 10 of the Recommended Order, and are rejected in part as being unnecessary to the conclusions reached.

15. The proposed findings of fact in paragraph 15 are adopted in material part by paragraphs 11 and 14 of the Recommended Order.

16.-18. The proposed findings of fact in paragraphs 16, 17, and 18 are rejected as being subordinate to the findings made.

COPIES FURNISHED:

Madelyn P. Schere, Esquire

School Board of Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

Jaime C. Bovell, Esquire 1401 Ponce de Leon Boulevard Coral Gables, Florida 33134

Lorraine C. Hoffman, Esquire 2929 Southwest Third Avenue Suite One

Miami, Florida 33129

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Mr. Tee Greer

Acting Superintendent of Schools Dade County Public Schools Office of Professional Standards

1444 Biscayne Boulevard, Suite 215

Miami, Florida 33132

Docket for Case No: 89-001725

Orders for Case No: 89-001725