STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
) SCHOOL BOARD OF DADE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 89-2607
)
CAROLYN COLEBROOK, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on May 23-24, 1990, 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
DuFresne and Bradley
2929 Southwest Third Avenue Suite One
Miami, Florida 33129 PRELIMINARY STATEMENT
The issue presented is whether Respondent committed the acts alleged in the Notice of Specific Charges, and,', if so, whether Respondent should be dismissed from employment with Petitioner.
On April 26, 1989, Petitioner took action to suspend and initiated proceedings to terminate Respondent for just cause. On June 22, 1989, Petitioner served upon Respondent a Notice of Specific Charges specifying the factual allegations and legal grounds on which Petitioner's action is based. The Specific Notice of Charges alleges that Respondent's actions constitute willful absence without leave, misconduct in office, moral turpitude and immorality.
The matter was set for hearing and subsequently continued several times, resulting in the selection the hearing date noted above. On May 21, 1990, the case was transferred to the undersigned from the previous Hearing Officer, William R. Dorsey, Jr.
At the hearing, Petitioner presented the testimony of seven witnesses and offered seven exhibits which were received into evidence. Respondent testified on her own behalf and offered six exhibits which were also received into
evidence. Respondent also objected to the qualification of Petitioner's witness who was tendered as an expert. Respondent's counsel represented that recent case law would support her argument. However, Respondent's counsel could not produce a citation to the case law at the hearing. Counsel requested leave to file a post-hearing memorandum in support of her objection. Ruling on the objection was reserved pending receipt of the memorandum. Consideration has been given to Respondent's memorandum and the testimony supporting the qualification of Petitioner's witness. Respondent's objection is overruled.
A transcript of the proceeding was filed on June 18, 1990, and proposed recommended orders were due on June 25, 1990. Both parties timely filed proposed recommended orders. A ruling has been made on each proposed finding of fact and is reflected in the appendix to this recommended order.
FINDINGS OF FACT
At all times material hereto, Respondent, Carolyn Colebrook, was employed by Petitioner, School Board of Dade County, as a paraprofessional in the school system of Dade County, Florida. At the time of the incident which precipitated Petitioner's action against Ms. Colebrook, she was assigned to Bunche Park elementary school.
In 1960, prior to emigrating from the Bahamas, Ms. Colebrook visited the United States for the first time, after graduating from high school in Hatchet Bay, in the Bahamas. She visited the Unites States with four girlfriends who also went shopping together. At the time of the visit in 196o, Ms. Colebrook was eighteen years old.
During her American holiday, after a shopping trip with her companions, Ms. Colebrook was found to be carrying stolen merchandise of minimal value in her straw tote bag. Ms. Colebrook does not know how the merchandise came to be in her bag, but surmises that it was placed there, as a spiteful act, by one of her travelling companions to whom she refused to lend money. Nevertheless, Ms. Colebrook was arrested on charges of petty larceny and held for eighteen days until her parents could come for her, travelling from their residence in Hatchet Bay, Bahamas. Arriving with an attorney, Ms. Colebrook's parents arranged her release and thereafter accompanied her immediately to the airport, and back to their home in the Bahamas. Ms. Colebrook's parents told her that her record had been sealed or expunged.
In 1972, Ms. Colebrook immigrated to the United States along with her family. As part of the immigration process, she underwent fingerprinting and other investigation procedures which she understood to be supervised by the American counsel. No problems or criminal records of any kind blocked Ms. Colebrook's immigration, and she entered the United states permanently in 1972. After that, Ms. Colebrook was under the reasonable impression that the incident surrounding her arrest in 1960 had, indeed, been removed from her record, if any existed.
Six months after her arrival, Ms. Colebrook was hired by Petitioner. Petitioner's employment application contained a question asking whether the applicant had ever been arrested. In response to this question, Ms. Colebrook answered "no". In making that representation, she had no intention to deceive or misrepresent the fact that she had been arrested. Instead she was relying on her reasonable impression that her arrest in 1960 had been expunged and was of no consequence.
On the morning of March 7, 1989, during the breakfast period, Ms. Colebrook was quietly summoned to the school office by Mr. Footman, a security employee at Bunche Park. Mr. Footman told Ms. Colebrook she had an emergency telephone call.
Ms. Colebrook's specific duty at that time was to care for a student who was an autistic child and profoundly mentally retarded. The child required the full time care of Ms. Colebrook and was dependent upon her. Ms. Colebrook and the child were in a classroom setting with other students including a teacher and another paraprofessional. When Ms. Colebrook was unable to assist the student, one of the other adults in the classroom assumed the responsibility along with their existing assignments.
When Mr. Footman approached Ms. Colebrook, her student charge had finished her meal, and Ms Colebrook started toward the office, taking the child with her. However, seeing the approach of her colleague, Spelma Williams, Ms. Colebrook, as was the custom, asked Ms. Williams to take charge off the child to free Ms. Colebrook to take the phone call. Ms. Williams agreed, and Ms. Colebrook proceeded to the office, leaving her student in the care of Ms. Williams, who is a teacher's aide in Ms. Colebrook's classroom.
Arriving in the school office, Ms. Colebrook took the emergency call, which was from her sister. During the phone call, Ms. Colebrook was notified that two detectives were "coming for" her at school. Ms. Colebrook did not wish to be approached or interrogated by these detectives while at her school for both personal and professional reasons. Specifically, she did not want to be personally embarrassed, nor did she wish to bring further embarrassment upon her school, which had just begun a widely reported program of School Based Management. In reaching her decision, Ms. Colebrook was sensitive to the fact that a shooting, involving a teacher, had taken place on Campus in the recent past and was concerned that the potential disruption caused by her impending arrest would interfere with the learning environment.
After Ms. Colebrook ended her conversation with her sister, she asked for her principal and was told that she was out. Advising members of the office staff that she had an emergency at home, and had to leave, she left the office. At the entrance of the office, Ms. Colebrook saw her assistant principal, Dr. Schultz, standing with another administrator. As she passed him, Ms. Colebrook told Dr. Schultz that she had an emergency and had to leave right away. Ms. Colebrook hurried to her classroom where she told another individual about her emergency and her need to leave immediately. Thereafter, Ms. Colebrook left the school. The school policy requires that all personnel sign out before leaving the school. In previous emergency situations, the assistant principal has signed out personnel. Ms. Colebrook did not take the time to complete the necessary paper work which would have signed her out, and no other school personnel, including the assistant principal did it for her.
After Ms. Colebrook left Bunche Park on the morning of March 7, 1989, she immediately telephoned the detectives and the courthouse, and was notified of three warrants issued in her name. Thereafter, she hired an attorney to represent her, and resolved, without criminal conviction, all criminal charges against her.
The first charge, Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, Criminal Case NO. 83-11822, involved an arrest for the receipt and cashing of unemployment checks while employed. At the hearing, Ms. Colebrook represented that before she had cashed the checks she
contacted the unemployment compensation office and asked what to do with the checks now that she was employed. Ms. Colebrook stated that a representative from the unemployment compensation office had told her the checks were hers and to cash them. The representative of the unemployment compensation office was not present to testify at the hearing. Nevertheless, a finding of guilt based on a plea of nolo contendere was entered against her, but adjudication was withheld, resulting in no conviction. Ms. Colebrook was placed on probation on June 7, 1984. Ms. Colebrook's probation was conditioned on her payment of restitution in the amount of $2,400 and the completion of 500 hours of community service. Ms. Colebrook failed to meet the requirements of her probation. At the hearing, Ms. Colebrook said that the reason she stopped making the payments was that she had suffered personal problems which created financial difficulty. However, she did not make an attempt to clarify the matter with the judicial system. As a result, a warrant was issued for her arrest in July, 1985.
However, after she was made aware of the warrant following the March 7, 1989 incident, Ms. Colebrook made full restitution, and her probation was terminated on May 11, 1989.
Her failure to timely address her financial situation with the court demonstrated irresponsibility and a failure to sustain the highest degree of ethical conduct. Whether Ms. Colebrook's actions had an effect on the respect and confidence of her colleagues, her students, the students' parents or other members of the educational community, or on her awareness of the importance to maintain such confidence was not demonstrated at the hearing however. In fact, she did ultimately make full restitution, and the matter was resolved.
The second charge, Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, Criminal Case NO. 84-66132, involved a check for forty dollars cashed at Winn Dixie. The check was not paid by the bank and was returned to Winn Dixie. When Ms. Colebrook was notified by Winn Dixie, she promptly made full payment of the check plus the service charge for returned checks. However, unknown to Ms. Colebook, the criminal file on the matter was not closed until she inquired after the incident on March 7, 1989. She appeared in criminal court, and the case was dismissed for lack of prosecution on May 26, 1989.
The third incident involved Ms. Colebrook's refusal to pay for unacceptable auto repair. Ms. Colebrook had a car accident and sought repair of the automobile. Neither Ms. Colebrook nor her creditor were satisfied with the repair. Ms. Colebrook had written a check for the repair, but when her creditor indicated that the repair was not satisfactcry, she stopped payment on the check. Again, a criminal case was opened against Ms. Colebrook, Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, Criminal Case NO. 89-7942, by the auto repair man when Ms. Colebrook stopped payment on the check. When Ms. Colebrook was made aware of the action against her, again, as a result of the incident on March 7, 1989, she made full restitution in open court and nolle pros was entered May 9, 1989. She made the payment to resolve the matter even though she felt the car was not properly repaired.
After Mr. Colebrook left Bunche Park on March 7, 1989, Detectives Angelica and Gonzalez arrived at the school to serve Ms. Colebrook with the three arrest warrants. The officers were dressed in plain clothes, went as directly as possible to the principal and did not discuss the matter with other personnel. All matters regarding Ms. Colebrook were discussed in the principal's office, with the door closed. Nonetheless the circumstances
surrounding the officers' visit to the school became known by school personnel, other than the ones in attendance at the private meeting.
Following her meeting with the officers and her assistant principal, the principal Ruby Johnson telephoned the school Board's Office of Professional standards to report the incident and request direction. She was told that Ms. Colebrook was prohibited from returning to school until she was cleared for return by Dr. Monroe of the Office of Professional standards. Ms. Johnson relayed this message to Ms. Colebrook then she called the school later in the day on March 7, 1989. Ms. Johnson gave Ms. Colebrook Dr. Monroe's office telephone number.
Immediately, Ms. Colebrook began to telephone Dr. Monroe's office to gain clearance to return to school. She telephoned, but was only able to leave messages with a secretary. When Ms. Colebrook finally reached Dr. Monroe on March 28, 1989, he set up an appointment to see her on April 11, 1989, over one month after the Bunche Park incident. At Dr. Monroe's suggestion, Ms. Colebrook agreed to bring any and all documents with her which related to the criminal charges against her.
On April 11, 1989, Ms. Colebrook met with Dr. Monroe for a formal conference for the record. During the conference, Ms. Colebrook produced receipts for Dr. Monroe's inspection, proving that she had taken significant steps to resolve her difficulties. Dr. Monroe did not find these documents acceptable because they were not, in his opinion, sufficient to satisfy "the legal mandates".
The documents which Ms. Colebrook offered in satisfaction of her criminal charges, on less that two weeks notice, were a copy of a cashiers check to the Department of Unemployment in the amount of $2,174 and a receipt for the check from the Florida Department of Labor and Employment security. She also presented a cashier's check for $1,000 payable to the auto repair man. Dr. Monroe expected Ms. Colebrook to bring court disposition documents, although she had no power to compel immediate court review. Further, at this point, Dr. Monroe believed Ms. Colebrook to be a "fleeing felon", upon the representation by principal Ruby Johnson, and had absolutely decided, by the end of the conference, to recommend Ms. Colebrook for termination. Repeatedly, throughout the meeting, Ms. Colebrook reiterated her desire to return to work.
Notwithstanding his immediate decision, Dr. Monroe also testified that, if Ms. Colebrook had satisfied the "legal mandates," he would have given her employment status "due consideration".
Dr. Monroe, also, gave Ms. Colebrook the reasonable impression that she would be able to go back to work after she paid the last of the restitution required in a criminal case involving the stop payment on the check issued to the auto repair man and that she could return to work after the spring recess.
In reliance upon what she believed to be her agreement with Dr. Monroe, Ms. Colebrook promptly resolved the remaining problem and left substantiating documentation with Dr. Monroe's secretary. Dr. Monroe did not receive the documents. Thereafter, she called Ruby Johnson to advise her that she would return to school after the spring break. Again, Ms. Johnson told Ms. Colebrook she could not return to school until Dr. Monroe had sent word to the school site; Ms. Johnson had not received notice of such clearance.
Immediately, Ms. Colebrook telephoned Dr. Monroe's office and learned that he was on vacation. She ccntinued to attempt to reach Dr. Monroe until she received notice of her termination, ordered by the School Board of Dade County, pursuant to Dr. Monroe's recommendation, on April 26 1989, and before the final court dates on the three outstanding criminal charges.
From 1972 until April of 1989, except for a brief time, Ms. Colebrook continued in the employ of the Dade County Public Schools. Until the Bunche Park incident, she presented the school system with no problems whatsoever, and Was considered to be a valuable asset, in the opinion of her colleagues and a supervisor at Bunche Park Elementary.
Ms. Colebrook is a dedicated and valuable employee. She is a credible individual who has suffered some hard times and been a victim of circumstance since she came to the United States. The judicial system has cleared her of all charges and she met Dr. Monroe's "legal mandates" within a reasonable amount of time.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.
Section 231.36(6), Florida Statutes, authorizes Petitioner to suspend and dismiss a member of the instructional staff, such as Respondent, for just cause. Just cause is defined in Section 231.36(1)(a), Florida Statutes, as including, but not limited to, misconduct in office, incompetency, willful neglect of duty, or conviction of a crime involving moral turpitude.
Since Petitioner seeks only to dismiss Respondent as an employee, it need only prove the allegations set forth in the Notice of Specific Charges by a preponderance of the evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. i987).
Specifically, Count I of the Notice of Specific Charges alleges that Respondent is guilty of misconduct in office since she allegedly made deliberate and false statements on her written application concerning her conviction record and that such misrepresentation is a violation of Paragraph (3) of Rule 6B-4.009 and Rule 6B-1.006(5)(h), Florida Administrative Code. Paragraph (3) or Rule 6B- 4.009(3) defines misconduct in office as a violation of both Rule 6B-1.006 and Rule 6B-1.001. The allegations in Count I charge Petitioner with a violation of Rule 6B-1.006 only and not with an infraction of Rule 6B-1.001. Without an allegation and proof of violation of the corollary Rule 6B-1.O01, a finding of misconduct in office under Rule 6B- 4.009 cannot be made. Accordingly, Petitioner has failed to sustain its burden as to Count I of Notice of Specific Charges.
Count II of the Notice of Specific Charges alleges that Respondent was absent without leave when she left the school on March 7, 1989 without signing out and that her absence without leave was willful in violation of Section 231.44, Florida Statutes. Section 231.44 subjects a school board employee to termination and loss of compensation from the time of the absence if the employee's absence without leave is willful. Respondent stipulated that she did not sign out before she left the school, but the proof failed to demonstrate that Respondent's action was a willful absence without leave. Instead, the credible evidence indicates that although she did not go through the formal procedure of signing out, she did inform the assistant principal of her
emergency as she did some of her coworkers. Although the assistant principal is under no obligation to sign out employees, by his own admission, he has followed that procedure in cases of emergency. Ms. Colebrook informed him that the nature of her hurried departure was due to an emergency and contacted the school as soon as the emergency had subsided. Ms. Colebrook's actions, under the circumstances, were reasonable and did not demonstrate a willful intent on her part to be absent from duty. Accordingly, the Petitioner had failed to prove that Respondent violated Section 231.44.
Count III of the Notice of Specific Charges alleges that Respondent is guilty of misconduct in office by alleging that her activities concerning the alleged worthless check, unemployment fraud, absence without leave, falsification of employment application, and neglect of duty to the child in her care constitute a violation of Rule 6B-1.001(3)#1 / and her flight from the police officers constitutes a violation of Rule 6B- 1.006(3)(a). As stated above, Rule 6B-4.009(3) defines misconduct in office as a violation of Rule 6R-
1.001 and Rule 6B- 1.006. Rule 6B-1.001(3) provides the following:
(3) Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Rule 6B-1.001(3) requires educational professionals, such as Respondent, to sustain the highest degree of ethical conduct. To demonstrate a violation of Rule 6B-1.001(3), Petitioner must prove by a preponderance of the evidence that Respondent failed to maintain the highest degree of ethical conduct, and that her conduct demonstrated a failure of Respondents awareness of the importance of maintaining the respect and confidence of her students, their parents and her coworkers.
The allegations concerning the worthless checks involve two incidents and two criminal cases which were opened against Respondent. The first, Circuit Court of the Eleventh Judicial Circuit of Florida in and for Dade County, Florida, Criminal Case NO. 84-66132, involved a check for forty dollars cashed at Winn Dixie. The check was not paid and was returned to Winn Dixie. When Winn Dixie notified her of the problem, Respondent promptly made full payment of the check plus the service charge for returned checks. However, unknown to Respondent, the criminal file on the matter was not closed until she inquired after the incident at Bunche Park in 1989. She appeared in criminal court and the case was dismissed for lack of prosecution on May 26, 1989.
The second incident involved Respondent's refusal to pay for unacceptable auto repair. Again a criminal case was opened against Respondent, Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, Criminal Case NO. 89-7942, by the auto repair man when Respondent stopped payment on the check. When Respondent was made aware of the action against her, she made full restitution in open court and nolle pros was entered May 9, 1989. She made the payment to resolve the matter even though she felt the car was not properly repaired.
Petitioner argues that the mere fact that the criminal charges were filed against Respondent was sufficient to make her actions unethical. Petitioner's argument is not persuasive without a finding of guilt. Here, no such conclusion can be made.
The allegation as to the receipt and cashing of unemployment checks after she was employed is a more troublesome charge, however. It involves another criminal action against Respondent, Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County, Florida, Criminal Case NO. 83- 11822. Here, there is a finding of guilt based on a plea of nolo contendere, but adjudication was withheld resulting in no conviction, and Respondent was placed on probation on June 7, 1984. Respondent's probation was conditioned on her payment of restitution and the completion of 500 hours of community service. Respondent failed to meet the requirements of her probation. At the hearing, Respondent said that the reason she stopped making the payments was that she had personal problem which resulted in financial difficultly. Although she had financial difficulty, she did not make an attempt to clarify the matter with the judicial system. As the result, a warrant was issued for her arrest in July, 1985. However, after she was made aware of the warrant following the Bunche Park incident in 1989, Respondent made full restitution, and her probation was terminated on May 11, 1989.
Her failure to timely address her financial situation with the court demonstrated irresponsibility and a failure to sustain the highest degree of ethical conduct. Whether Respondent's actions had an effect on the respect and confidence of her colleagues, her students, the students' parents or other members of the educational community or her awareness of the importance to maintain such confidence was not demonstrated at the hearing, however. In fact, she did ultimately make full restitution, and the matter was resolved. It is recognized that her action did, however, effect the respect and confidence of the official who issued the arrest warrant. However, reading the rule under the doctrine of ejusdem generis, the rule contemplates that the phrase, "of other members of the community," be limited to members of the community which are associated with the educational process. Under this reasonable construction and although Respondent's behavior did not reach the highest degree of ethical conduct, Petitioner failed to prove by a preponderance of the evidence that Respondent's action demonstrated a lack of awareness of the importance of maintaining the respect and confidence of the educational community and failed to demonstrate a breach of Rule 6B-1.001.
Respondent's alleged absence without leave was addressed above. Although the standard under Section 231.44 requires a showing of willfulness and under Rule 61-1.001(3) the proof must address whether Respondent's actions were a breach of the highest degree of ethical conduct, Petitioner also has failed to maintain that Respondent's absence is a violation of Rule 6B- 1.001(3).
Instead, the proof demonstrated that Respondent's actions were reasonable, not unethical.
Concerning the alleged falsification of Respondent's employment application, the proof demonstrated that Respondent's application was filed on October 24, 1972. On the application is a question which asks whether the applicant has ever been arrested, to which Respondent replied "NO." The only arrest to which Respondent had been subjected prior to that time occurred when she was visiting the United States in 1960. At the time of her application, Respondent was under the reasonable impression that the arrest had been expunged from her record. Petitioner alleged that Respondent intended to deceive or
misrepresent a material fact to the School Board through her answer. Instead, her action was reasonable and not unethical. Petitioner has failed to prove that those allegations were violation of Rule 1.001(3).
Petitioner, also, alleged that Respondent neglected her duty to the child in her care when she left the school during the Bunche Park incident in 1989. To the contrary, the proof demonstrated that Respondent made every reasonable effort to provide for the care of the student in her absence. Initially, she planned to take the student with her to the office. When she saw her coworker, she asked the coworker to take charge, as was the custom when a professional must be absent. She had every intent of returning to the school as soon as she determined the nature of the problem with the police. It was the school administration which prevented her return. Respondent's actions were far from unethical or a violation of Rule 6B-1.001(3).
Accordingly, Petitioner has failed to sustain its burden that Respondent violated Rule 6B-1.001(3).
As to the second prong of misconduct in office - violation of Rule 6B- 1.006, Petitioner alleged that Respondent's departure from the school site violated Rule 6B-1.006(3)(a). Rule 6B-1.006(3)(a) states the following:
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning or to health and safety.
Instead of showing the Respondent failed to make reasonable efforts to protect the students from conditions which could impair their learning or health and safety, on balance, the weight of the evidence demonstrated the contrary.
Again, as stated above, Respondent's made reasonable efforts to provide for the care of the student in her charge. In addition, when Respondent left the school she did so to protect the students from the possible confusion and threats to their safety which might have occurred if they had witnessed her arrest on school grounds. Petitioner argues that Respondent was a fleeing felon when she left the school grounds. The competent substantial proof, however, failed to demonstrate that she was convicted or charged with committing a felony or that she was avoiding the consequences of any criminal activity on her part.
Having failed to prove a violation of ,both Rule 6B-1.001(3) and Rule 6B-1.006, Petitioner has failed to prove that Respondent has committed misconduct in office under Rule 6B- 4. 009.
Count IV of the Notice of Specific Charges alleges that Respondent was found guilty of petit larceny in 1960 and, as a result, has violated Rule 6B- 4.009(6). Rule 6B-4.009(6) defines moral turpitude and provides as follows:
(6) Moral turpitude is a crime that is evidenced by an act of baseness,
vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to
society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
In this instance, no competent substantial proof that Respondent was convicted of petit larceny was presented or received at the hearing. Regardless of whether petit larceny is a crime involving moral turpitude or not, Section 231.36(1)(a) requires proof of a conviction to constitute just cause.
Accordingly, Petitioner has failed to sustain its burden as to Count IV.
The final count, Count V, of the Notice of Specific Notice of Charges alleges that Respondent's actions relative to the alleged worthless checks, unemployment fraud, absence without leave, falsification of employment application and neglect of duty constitute a violation of Rule 6B-4.009(2) Rule 6B-4.009(2) defines immorality and reads 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.
The allegations relating to the alleged worthless checks, unemployment fraud, absence without leave, falsifying employment application and neglect of duty have been addressed above. To prove a violation of Rule 6B-4.009(2), Petitioner must show by a preponderance of credible, competent substantial evidence that the conduct alleged, in addition to being inconsistent with the standards of public conscience and good morals, generated sufficient notoriety as to bring Respondent or the profession into public disgrace or disrespect and impair the individual's service to the community. The only notoriety addressed at the hearing involved Respondent's alleged neglect of duty. Testimony was received which indicated that Respondent's leaving the school and the arrival of the police officers was of common knowledge throughout the school. However, balance, the weight of the credible, competent substantial evidence failed to prove that the notoriety from the Bunche Park incident was sufficient to bring either Respondent or the education profession into public disgrace or disrespect and impair the individual's service to the community. Accordingly, Petitioner has failed to sustain its burden as to Count V also.
Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the school Board of Dade County, Florida issue a Final
Order reinstating Respondent with full back pay and benefits retroactive to April 26, 1989.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th of June, 1990.
JANE C. HAYMAN
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 29th day of June, 1990.
APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2607
The following represents the Hearing Officer's rulings on the proposed findings of fact submitted by the parties. The rulings are listed by paragraph within the proposed findings of fact and indicate the paragraph in the findings of fact section of the attached recommended order which addresses the proposed finding of fact, if deemed appropriate.
PETITIONER
Rejected as conclusion of law.
Adopted in paragraph 1.
Adopted, in part, in paragraph 2:; rejected, in part, as not supported by competent substantial evidence.
Adopted, in relevant part, in paragraph 5; in part, rejected as not supported by competent substantial evidence.
Adopted in paragraph 12.
Adopted, in part, in paragraph 12; in part, rejected as not supported by competent substantial evidence.
Adopted in relevant part in paragraph 12.
Adopted in relevant part in paragraph 12.
Adopted in paragraph 12.
Adopted, in part, in paragraph 14; in part, rejected as not supported by competent substantial evidence.
Rejected as not supported by competent substantial evidence.
Adopted in paragraph 14.
Adopted in paragraph 14.
Adopted in paragraph 15.
Adopted in paragraph 15.
Adopted in relevant part in paragraph 16.
Adopted in paragraph 9.
Rejected as not supported by competent substantial evidence.
Adopted in paragraph 10.
Rejected, in part, as not supported by competent substantial evidence adopted, in part, in paragraph :16.
Adopted in paragraph 16.
Adopted in paragraph 16.
Adopted in paragraph 7.
Rejected as not supported by competent substantial evidence.
Adopted as subordinate to the findings of fact.
Adopted as subordinate to the findings of fact.
Adopted as subordinate to the findings of fact.
RESPONDENT
Adopted in relevant part in paragraph 1.
Adopted in paragraph 2.
Adopted in paragraph 3.
Adopted in paragraph 4.
Adopted in relevant part in paragraph 5.
Adopted in paragraph 5.
Adopted in paragraph 25.
Adopted in paragraph 6.
Adopted in paragraph 8.
Adopted in paragraph 9.
Adopted in paragraph 9.
Adopted in paragraph 10.
Adopted as subordinate to the findings of fact.
Adopted in paragraph 11.
Adopted in paragraph 16.
Adopted in paragraph 17.
Adopted in paragraph 18.
Adopted in paragraph 19.
Adopted in paragraph 21.
Adopted, in part, in paragraph 22; in part, rejected as not supported by competent substantial evidence.
Adopted in paragraph 21.
Adopted in paragraph 24.
COPIES FURNISHED:
Jaime C. Bovell, Esquire 1401 Ponce de Leon
Coral Gables, Florida 33134
Lorraine C. Hoffman, Esquire DuFresne and Bradley
2929 S.W. 3rd Avenue, Suite One Miami, Florida 33129
Paul W. Bell Superintendent of Schools Dade County Public Schools
1450 Northeast Second Avenue Miami, Florida 33132
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32399-0400
| Issue Date | Proceedings |
|---|---|
| Jun. 29, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 25, 1990 | Agency Final Order | |
| Jun. 29, 1990 | Recommended Order | Respondent reinstated with back pay. Petitioner failed to prove bad checks, fraud, neglect of duty and flight from police was misconduct. |
RALPH D. TURLINGTON, COMMISSIONER OF EDUCATION vs. OTIS WARD CARROLL, 89-002607 (1989)
DADE COUNTY SCHOOL BOARD vs. MACTAVIS L. BURROWS, 89-002607 (1989)
MONROE COUNTY SCHOOL BOARD vs. GORDON COLLINS, 89-002607 (1989)
HAZEL BOWDOIN vs. SCHOOL BOARD OF GILCHRIST COUNTY, 89-002607 (1989)
SCHOOL BOARD OF DADE COUNTY vs. FRANCES MARCUS, 89-002607 (1989)
