STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF EDUCATION, EDUCATION ) PRACTICES COMMISSION, )

)

Petitioner, )

)

vs. ) CASE NO. 89-3969

)

REUBEN BERNARD LECOUNT, )

)

Respondent. )

) SCHOOL BOARD OF DUVAL COUNTY, )

)

Petitioner, )

)

vs. ) CASE NOS. 89-4211

)

REUBEN BERNARD LECOUNT, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to due notice, this cause came on for formal hearing before P. Michael Ruff, Hearing Officer of the Division of Administrative Hearings, on February 13, 1989, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Lane Burnett, Esq. (Department) 331 East Union Street, Suite 2

Jacksonville, Florida 32202

For Petitioner: Gail A. Stafford, Esq. (School Board) Assistant Counsel

421 W. Church Street, Suite 715 Jacksonville, Florida 32202

For Respondent: David A. Hertz, Esq.

1601 Atlantic Boulevard

Jacksonville, Florida 32207 STATEMENT OF THE ISSUES

The issues to be determined in this proceeding concern whether the Respondent should be discharged or otherwise disciplined, with regard to his employment as a teacher in the Duval County public school system, for alleged violations of Section 4(a) of the Duval County Teacher Tenure Act (Chapter 21197, Laws of Florida, as amended by 72-576, Laws of Florida) for commission of alleged immoral conduct and for alleged violation of Section 4(d) of the Duval

County Teacher Tenure Act (Chapter 21197, Laws of Florida, as amended by 72-576, Laws of Florida, and 89-489, Laws of Florida, respectively). Embodied within that general issue is the question of whether he has been convicted of a felony, based upon his plea of nolo contendere to a felony charge and the entry of an order by the circuit court of competent jurisdiction withholding adjudication on that charge and imposing a sentence of probation.

PRELIMINARY STATEMENT

The above issues placed before the Hearing Officer for adjudication as a result of the notice of charges filed against the Respondent by the Petitioner School Board stem from an arrest of the Respondent on a felony charge involving the possession of cocaine. The Respondent entered a plea of nolo contendere to that charge and the circuit court withheld adjudication on the charge, and sentenced the Respondent to eighteen (18) months probation, attendance at a substance abuse rehabilitation program, and the payment of court costs.

The fact of the charge and the circumstances underlying it became known to the School Board of Duval County and its administrators such that the instant charges were brought against the Respondent charging him with immoral conduct and conviction of a felony, as the term "conviction" has been defined by the statutory authority set forth in the above Statement of the Issues. Case number 89-3969 involving the Complaint of the Education Practices Commission, has been informally resolved and voluntarily dismissed.

This cause ultimately came on for hearing on those issues, as noticed. At the hearing, the Petitioner called witnesses Joseph Max Harbin, Reuben Bernard LeCount, Dennis Graham, Peggy Brown Williams, Jerry Gugel, and James W. Ragans. The Petitioner also adduced exhibits 1 through 10, which were admitted into evidence. The Respondent testified in his own behalf and called Walter H. White as a witness. The Respondent did not present any exhibits for admission into evidence.

At the conclusion of the proceeding, the parties elected to have it transcribed and to submit proposed findings of fact and conclusions of law, concomitantly requesting an extended briefing schedule, which was granted. The parties' proposed findings of fact and conclusions of law, in the form of Proposed Recommended Orders were timely filed. The proposed findings of fact contained therein have been treated in this Recommended Order and are specifically ruled on again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner herein, the School Board of Duval County, is, in relevant part, the local government agency charged with employing teachers, establishing teacher practice standards by enactment of its own rules, as well as enforcement of the practice standards contained in the Duval County Teacher Tenure Act, cited elsewhere herein. It is charged with enforcing compliance with those professional practice standards. The Respondent, at times pertinent hereto, was a public school teacher licensed by the State of Florida in the area of physical education. He was employed by the Petitioner as a tenured teacher.

   
   

2. During the 1988/1989 school year, the Respondent was assigned to teach physical education at Southside Junior High School. The principal of that school, his supervisor, was Dr. Gugel.

3. On March 31, 1989, the Respondent was stopped while driving his vehicle for driving without headlights. Patrol Officer Harbin, of the Office of Sheriff of Duval County, approached his vehicle and, as the Respondent exited the vehicle, he was observed by Harbin to reach back inside the vehicle to place something beneath the front seat. He subsequently appeared to have placed the same items in his jacket pocket. Officer Harbin searched the Respondent's person and found a vial containing what proved to be powdered cocaine. He then searched the inside of the vehicle and found four marijuana cigarettes. The Respondent admitted to the officer that the cocaine and marijuana belonged to him. He admitted to the officer that he had been using illegal drugs for approximately two years. The Respondent was thereupon arrested and charged with possession of cocaine and possession of less than 20 grams of cannabis.

   
   

4. Following the arrest, when his superiors learned of it, the Respondent was removed from his classroom duties at Southside Junior High School. The arrest and the underlying factual circumstances leading to it did not occur on or about the premises of any Duval County school or other School Board employment location. They did not involve conduct by the Respondent while engaging in his employment activities as an educator in Duval County.

   
   

5. Subsequent to the arrest, the Respondent entered a plea of nolo contendere to a felony charge of possession of cocaine; and the court withheld adjudication of guilt and imposed a sentence of eighteen (18) months probation, including the condition that the Respondent attend a substance abuse rehabilitation program and pay court costs. The substance abuse program attended by the Respondent was at the Jacksonville Rehabilitation Center. At the time he entered the Center, the Respondent did so because the court ordered him to; and, at the time, he felt he did not have a real problem with drugs. His treating therapist testified, however, and established that there is a substantial likelihood that he will remain drug-free in the future after undergoing treatment. The Respondent has agreed to undergo urinalysis for drug testing at such times and as frequently as the Petitioner desires, should he be rehired.

   
   

6. Prior to his apprehension by Officer Harbin, the Respondent had been using cocaine and marijuana approximately once every two weeks for the past two years. While he was employed as a physical education teacher with the Petitioner during that two-year period, he had used illegal drugs and admitted that other employees of the School Board had observed him illegally using cocaine and marijuana.

   
   

7. Dr. Gugel has been the principal at Southside Junior High School for the past six years. He was principal during the 1988/1989 school year when the Respondent was arrested. Shortly after the Respondent's arrest, Dr. Gugel received information from the personnel department of the School Board of Duval County to the effect that the Respondent had been arrested for possession of illegal drugs. After his arrest, he was removed from the classroom and assigned to work at the media center. This is a non-instructional employment position.

   
   

8. Ms. Peggy Williams has been the vice-principal at Southside Junior High School for the past six years, including the year the Respondent was arrested. Both Dr. Gugel and Ms. Williams testified that there has been an active, anti- drug campaign conducted at Southside Junior High School, including the time when the Respondent taught there. Dr. Ragans testified that the intensive anti-drug program at the school is characteristic of the anti-drug campaigns existing on a system-wide basis in Duval County schools. The primary goal of the program is to teach students not to use drugs because of the harmful effects on the

   students and the fact that it is against the law. The anti-drug program consists of several elements, including, but not limited to, teaching the students the negative effects of using drugs, workshops for teachers to help them identify and help students involved with drugs, as well as workshops for parents related to halting the use of illegal drugs. There is also a joint effort between the schools and the police department to stop the use of illegal drugs in the schools. The parent/teacher organizations have made a strong commitment to inform students regarding the dangers of substance abuse.

   Students are provided a whole unit of instruction on substance abuse, and the school regularly has guest speakers, through the physical education department itself, to discuss problems associated with substance abuse. There is a committee at the school which regularly plans activities and speakers to inform students as to the dangers associated with using illegal drugs. There are posters throughout the school advising students as to the dangers of drugs and a slogan contest to warn students about drug abuse. The intensive anti-drug campaign leads up to an anti-drug day in May of each year to advise students concerning the dangers of drug abuse. When students are found to have abused illegal substances at school, they are disciplined. Students found possessing drugs at school are not permitted to continue attending that school. The anti- drug campaigns in the schools within Duval County are an important aspect of the professional and educational lives of students and staff members and an important facet of the educational program. The intense anti- drug programs in the school system require teachers to be actively involved in teaching students about the dangers of drug abuse.

   
   

9. In order to effectively teach students not to use drugs, it is imperative that a teacher set a good example by personally refraining from the use of them. A teacher who consumes illegal drugs sends a contradictory message to students. A teacher who advocates lawfulness and the harmful effects of drugs and then breaks the laws prohibiting them obviously has a difficult time motivating impressionable students to obey those laws.

   
   

10. Teachers serve as role models for the students within the school system, as did the Respondent. In order to effectively advocate substance abuse abstinence, role models are expected to obey anti-drug laws and to refrain from using illegal drugs. Role models who fail to obey laws become ineffective role models. This is especially true of a teacher who acts in the capacity of a physical education or team-sport coach because, as the Respondent himself admits, the position of a coach is a high- profile position in any school; and students often strive to emulate their coaches.

    
    

11. Both students and teachers at Southside Junior High School and throughout the school system became aware of the fact that the Respondent was involved with illegal drugs and that he was removed from his teaching position because of his arrest for using illegal drugs. They became aware of this through various news stories which became publicized after the Respondent's arrest. Indeed, uncontradicted testimony established that the Respondent himself had actually discussed the matter with some of his fellow teachers. The widespread knowledge of the Respondent's altercation with law enforcement authorities, and the fact that it was due to illegal drug use, has greatly diminished his effectiveness as a role model. The Respondent has been a very effective physical education teacher and basketball coach. His high level of skill could still be an asset to the Duval County school system; however, his use of illegal drugs and his arrest and sentence for such conduct will certainly diminish his ability to motivate students and to enjoy their confidence and respect, as well as that of his fellow professional teachers and School Board

    employees. The enjoyment of such confidence, respect and ability as a motivator of students are important elements in the effectiveness of any teacher. That effectiveness has been substantially diminished.

    
    

12. Dr. Ragans established that the School Board of Duval County has a policy to the effect that possession and use of illegal drugs is deemed to be immoral conduct. It has a policy of normally dismissing teachers for immoral conduct. It also has a policy for dealing with teachers who come forward voluntarily and admit to a substance abuse problem, voluntarily seeking rehabilitation. These cases are treated differently from the situation where a teacher does not voluntarily admit to a substance abuse problem prior to being apprehended and exposed. In cases where a teacher voluntarily admits such a problem prior to being apprehended and seeks to overcome that substance abuse dependency voluntarily, it is deemed by the Petitioner that a teacher, voluntarily seeking corrective treatment, displays a certain strength of character not exhibited by teachers whose wrongdoing becomes public knowledge as a result of an arrest, before rehabilitation efforts are undertaken. The School Board typically does not dismiss teachers who voluntarily seek rehabilitation.

    
    

13. Mr. Walter White testified on the Respondent's behalf in addition to the Respondent, himself. Mr. White was an instructor with the Duval County school system until his retirement in 1985. He hired the Respondent as an employee for the "Red Cap Program" for the summer of 1989. That is a program sponsored by the Jacksonville Private Industry Council. It is not a Duval County school system program, although it is a jointly sponsored effort between the Council and the Duval County school system. This is apparently a summer program with emphasis on recreation. The Duval County school system refers students to the program and they are transported to and from that program by the Duval County school system. The Respondent was hired, subsequent to his arrest, plea and imposition of sentence, in the summer of 1989, to supervise those students, including a significant number from Southside Junior High School. During his employment in this effort that summer, the Respondent supervised students in a satisfactory manner and functioned as a good role model, showing strong managerial skills and motivational talents. He maintained a good rapport with students and was able to motivate them, according to witness White.

    
    

14. In the time that has elapsed since the Respondent's arrest and sentence, the notoriety surrounding his arrest and use of illegal drugs has subsided. The Respondent explained that during the period of time he was using drugs, he was undergoing great financial difficulties and marital discord. This has been alleviated greatly because his wife has become employed and they have both been baptized; and, with his wife's guidance, he has redirected his life according religious principles. The Respondent appears genuinely remorseful for the conduct he engaged in which brought about this disciplinary proceeding. He believes, perhaps with some justification, that his effectiveness could be restored or enhanced by his functioning as an example to students of what can occur when one disobeys laws regarding the use of illegal substances.

    
    

15. A companion case to the instant proceeding, Department of Education v. Reuben Bernard LeCount, DOAH Case No. 89-3969, has been resolved, after the hearing and before entry of this Recommended Order. The case was heard informally before the Education Practices Commission on March 29, 1990, by agreement of the parties. The Commission imposed a penalty of five years probation, verification of completion of a drug treatment and rehabilitation program, with quarterly reports by a supervisor to the Commission, concerning the Respondent's conduct, and random blood and urine testing at the Respondent's expense. The Respondent was allowed to retain his teaching certificate.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989). Chapter 81-372, Laws of Florida, amending Section 5 of Chapter 21197, Laws of Florida, (1941); Chapter 21197, Laws of Florida, (1941) being the Teacher Tenure Act for teachers employed by the Duval County school system.

    
    

17. The Teacher Tenure Act ("TTA") provides that tenured teachers employed by the School Board of Duval County may be discharged or demoted for: (1) immoral conduct, and/or (2) conviction of a felony or any crime involving moral turpitude.

    
    

    Section 4. Causes for the discharge or the demotion of a teacher shall be:

    1. immoral character or conduct, insubordination, or physical or mental incapacity to perform the duties of the employment...

       (d) dishonesty while employed, chronic illness, or conviction of a felony or any crime or any ordinance involving moral turpitude.

       
       

18. Conviction has been defined at 89-489, Laws of Florida, to include a plea of nolo contendere when an adjudication of guilt is withheld.

    
    

    Section 5.2. For the purposes of Sections 4 and 5.1 of this act, the terms `conviction' and `convicted' shall mean:

    1. any of the following when an adjudication of guilt has been withheld:

       1. a plea of guilty,

       2. a plea of nolo contendere

    
    

19. The Respondent has been charged with immoral conduct, pursuant to the above authority, while he was employed as a teacher for the Petitioner. The School Board has not adopted rules defining "immorality", but in that circumstance, relies on the rules of the Florida Administrative Code, in accordance with the opinion in Smith v. School Board of Leon County, 405 So.2d

    183 (Fla. Appeals 1st DCA 1981). Immorality is defined at Rule 6B-4009, Florida Administrative Code, as follows:

    
    

    (2) `Immorality' is defined as conduct that is inconsistent with the standard 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.

20. There is no factual dispute concerning the Respondent's illegal possession of cocaine and marijuana. He admitted his possession of them at the hearing and at the time he was arrested. He admitted using cocaine and marijuana for approximately two years.

    
    

21. The Respondent's conduct in using and possessing illegal substances has, according to the unrefuted evidence of record, impaired his ability to act as an effective role model to students as a classroom teacher and coach, as well as an instructor in the specific School Board anti-drug campaign conducted throughout the Duval County school system. The Petitioner, like other school systems, uses its curriculum to educate its students regarding the hazards of illegal drugs. Teachers are charged with the duty of educating students regarding harmful effects of drugs and their illegality. In essence, they must attempt to convince the students that illegal drug consumption is wrong and will not be tolerated by society. The fact that the Respondent was arrested, charged with, and admitted to engaging in the very conduct he has been employed to help discourage, makes him largely an ineffective role model in performing that educational function. Given the role that teachers play in combatting the use of illegal drugs, it is as serious a matter for a teacher to possess and consume illegal drugs as it would be for a policeman who is charged with enforcing the laws pertaining to drug possession and use.

    
    

22. The evidence has established, in terms of the above- quoted definition of "immorality", that, indeed, the Respondent's conduct was sufficiently notorious and publicly reported to cause the Respondent to lose the respect of his colleagues, his students, their parents and members of the general public. It has impaired his service to the community in terms of his effectiveness as an educator. Thus, his conduct has met that definition of "immorality".

    
    

23. Immorality has been further defined by case law. The possession of cocaine and marijuana has been specifically held to constitute immoral conduct, justifying dismissal of a teacher in School Board of Dade County v. Brown, 10 FALR 5744 (1988), wherein it was held by the Hearing Officer to constitute gross immorality and moral turpitude, justifying dismissal. That case, like the instant one, involved possession of illegal drugs; and, based upon the knowledge of the arrest of that respondent, Mr. Brown, by his principal, as well as his colleagues, and the notoriety attached to the arrest and suspension related in newspaper accounts, the Hearing Officer deemed the matter to have reached sufficient notoriety to constitute immorality, as well as misconduct in office, as defined in the rule quoted above. It is noteworthy that the Hearing Officer recited the well-known principle concerning the high ethical standards which teachers must adhere to when he stated:

    
    

    The possession of marijuana has been held to constitute immorality under Chapter 231, Florida Statutes. See, Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981). Florida educators are traditionally held to high moral standards in the community; and, by statute, they are required to provide leadership and to maintain their effectiveness as teachers. Mr. Brown's actions in purchasing rock cocaine constituted immorality under Section 231.28(1)(c) and conduct which has

    seriously reduced his effectiveness as a school board employee under Section 231.28(1) (f), Florida Statutes (1985).

    
    

    The Hearing Officer in that case went on to recommend that the license be permanently revoked. See, also, Negrich v. Dade County Board of Public Instruction, 143 So.2d 498 (Fla. 3rd DCA 1962). That decision was referenced by the court in the Adams case when it discussed the case of Pearl v. Florida Board of Real Estate, 394 So.2d 189 (Fla. 3rd DCA 1981), wherein the court ruled that possession of a controlled substance does not establish moral turpitude within the purview of Section 475.25(1)(e), Florida Statutes, pertaining to realtors.

    The court, in Adams, citing Negrich, supra, held that the moral standards to which teachers are held are different from those of realtors, since teachers are charged, under Chapter 231, with providing leadership of impressionable students and maintaining effectiveness as teachers. By virtue of their leadership capacity, teachers are traditionally held to a high moral standard in a community according to the court in Adams. The court, in the Adams case, found that there was substantial evidence in that case, as there is in the instant case, that the appellant's possession of illegal drugs had received widespread news media publicity and that many people were aware of the underlying facts.

    The evidence in that case also indicated that, in that community, as in Duval County, possession of illegal drugs was considered a very serious, morally wrongful offense and that the teachers involved had had their effectiveness seriously impaired. The court, thus, found that the possession of marijuana resulted in those appellants not fulfilling their duties of providing leadership as teachers and that they had lost their effectiveness. Other cases holding the possession of illegal drugs to constitute immoral conduct are: Baker v. School Board of Marion County, 450 So.2d 1195 (Fla. App. 5th Dist. 1984); Ford v. Bay County School Board, 253 So.2d 728 (1st DCA 1971); and Walton v. Turlington, 444 So.2d 1082, 1083 (1st DCA 1984).

    
    

24. There is no question that the Respondent's conduct with regard to his arrest and his possession of illegal substances achieved sufficient notoriety through the public media so as to bring the Respondent into a condition of disrespect amongst students, parents and colleagues. Given the high standard of ethics and morality to which public school teachers are held, and given the Respondent's position as a role model for students and colleagues; and especially due to the fact that the Duval County school system conducts an active campaign against the use of illegal drugs, the arrest and possession of illegal drugs by the Respondent, given the public notoriety attending it, has significantly impaired the Respondent's ability to serve his community through his practice as a teacher in the Duval County school system for purposes of the above-cited rule. The conduct does constitute immorality, as defined in that rule and as envisioned by the above-cited statutory authority.

    
    

25. The Respondent entered a plea of nolo contendere to the felony charge and was sentenced to eighteen (18) months probation in order to enter a substance abuse program, as well as pay court costs, which he did. Section 89- 489, Laws of Florida, which amends the Duval County Teacher Tenure Act, provides that a plea of nolo contendere constitutes a conviction for purposes of Section

    4 of the TTA, which states that a teacher convicted of a felony may be dismissed.

    
    

26. Statutes which treat pleas of nolo contendere as convictions have been challenged successfully as constituting a violation of the Separation of Powers Doctrine and as violative of due process and equal protection. See, Ayala v. Department of Professional Regulation, 478 So.2d 1116 (1st DCA 1985). In that

    decision, however, the first district held that a plea of nolo contendere may be considered a conviction for purposes of a regulatory statute if, when it is equated to a conviction, the convicted person is given an opportunity at hearing to prove he is not actually guilty of the crime to which he entered the nolo contendere plea, that is, for instance, when the plea was a "plea of convenience", to avoid the anguish of a trial.

    
    

27. In the context of the Ayala decision, however, it would seem that the Respondent's admission of his illegal possession of cocaine and marijuana, on the occasion when he was arrested and at hearing in the proceeding would allow his plea of nolo contendere to the felony charge involving such possession to be considered as a conviction for purposes of his discipline under Section 4 of the TTA.

    
    

28. The problem with that analysis and result, however, is that the statute, 89-489, Laws of Florida, which amends the TTA, to provide that the plea of nolo contendere constitutes a conviction, became effective on June 29, 1989. The Respondent was arrested for illegal possession of cocaine and marijuana on March 31, 1989 and entered his plea and had sentence imposed for said possession on May 22, 1989. Thus, at the time he was arrested, charged, entered his plea, had sentence imposed, and had the case finally adjudicated, the statute rendering a plea of nolo contendere to be a conviction was not yet law. Accordingly, to apply the statute to the Respondent's conduct at the time it was committed and at the time he entered the subject plea and was punished for that conduct, would be to apply the statute in a constitutionally impermissible, ex post facto fashion. Thus, the fact that he pled nolo contendere to a felony charge and was placed on probation without adjudication of guilt cannot be used to equate to a conclusion that he was convicted of the felony at issue for purposes of the above-cited provision of the TTA.

    
    

29. The evidence of record, supportive of the above Findings of Fact does establish, however, his illegal possession of cocaine and marijuana and the fact, given the widespread public notoriety of his use and possession of illegal drugs and ultimate arrest for that conduct, that he has been guilty of immoral conduct for purposes of the above-cited statutory and regulatory authority.

    That conduct justifies the Petitioner in terminating his employment as a teacher in the Duval County school system.

    
    

30. The Respondent testified that his trouble with drugs and the resulting arrest arose out of his financial and marital difficulties during a time when his wife was unemployed. Since that time, his wife has become employed and her Christian principles and lifestyle have influenced him to also join their church and become active in church work. Their domestic life is much more tranquil and rewarding, and he feels no compunction to return to the use of drugs, as his rehabilitation therapist also testified. The Respondent also feels that he could use his unfortunate experience with the legal system and the use of illegal drugs to advantage in becoming an even more effective role model for students in the area of drug education. The Respondent contends that his loss of effectiveness has been ameliorated by the passage of time and the dissipation of the public notoriety, which publication in the media of his drug and legal problems engendered. The Respondent, thus maintains that while he may be deserving of demotion and probationary status under various conditions, he should not be terminated from his employment.

    
    

31. The Hearing Officer is mindful of these circumstances and has given them careful consideration. It is the conclusion of the Hearing Officer, however, albeit reluctantly, that the Respondent should be terminated from

employment as a teacher in the Duval County school system. The Respondent's loss of effectiveness is clearly shown by the evidence of record and the above Findings of Fact in terms of the impairment of his ability to adequately serve the community through his function as an educator in the Duval County school system for purposes of the above-quoted authority. The widespread notoriety which the Respondent's drug problem and arrest received in Duval County, even if it has ameliorated since that time, would immediately be recalled in the minds of many colleagues, students and parents, were the Respondent rehired as a teacher in the Duval County school system. The Respondent has been allowed to retain his teaching certificate as the result of the informal disposition of the comparison case, and thus, the Respondent is not precluded from practicing his livelihood in another school system. While the Respondent may be genuinely sorry for his miscreant conduct and willing to never engage in any activity which might impugn his effectiveness and status as a successful teacher in the future, the fact remains that he was guilty of poor judgment. When one engages in the profession of a teacher, he is obviously held to a higher standard of moral conduct and ethical behavior by the community than members of other professions. Central to the successful practice as a teacher, both in terms of ethics and professional competence, is the possession of clear, sound judgment. The Respondent has demonstrated flawed judgment which resulted in such public notoriety as to cause him to lose effectiveness as a teacher in the Duval County school system. While that loss of effectiveness through notoriety may appear to have waned in recent months, it is also true that the Respondent is not now employed as a teacher. The loss of respect in the minds of his colleagues, students, parents and the general public would likely come to the forefront, once again, were the Respondent rehired as a teacher. An important portion of the educational curriculum in the Duval County school system, and the Respondent's job duties, were directed at combatting illegal use of drugs. It is quite unlikely that the Respondent's loss of respect because of his own illegal use of drugs could be overcome so that he could become an effective role model for students, especially in this area of the curriculum. Consequently, it is sadly concluded that the Respondent should be terminated.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that a Final Order be entered by the School Board of Duval County terminating the Respondent as a tenured teacher.

DONE AND ENTERED this 5th day of July, 1990, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 1990.

APPENDIX TO RECOMMENDED ORDER CASE NOS. 89-3969 AND 89-4211

Petitioner, School Board of Duval County's Proposed Findings of Fact: 1-5. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on

   this subject matter.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter; and the second sentence is rejected, as contrary to the preponderant weight of the evidence.

9-14. Accepted.

15-19. Accepted.

20. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

21-30. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and to some extent, constituting a conclusion of law instead of a proposed finding of fact.

2. Accepted.

3. Accepted.

(There are no proposed findings numbered 34, 35 or 36.)

1. Accepted.

2. Accepted.

(There are no proposed findings numbered 39 through 46.)

1. Accepted.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

Respondent's Proposed Findings of Fact: 1-7. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on

   this subject matter, and as contrary to the greater weight of the evidence.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

3. Accepted.

4. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

5. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

6. Accepted.

7. Accepted, but not itself materially dispositive.

8. Accepted.

COPIES FURNISHED:

Gail A. Stafford, Esq. Assistant Counsel

421 W. Church Street, Suite 715 Jacksonville, FL 32202

Lane Burnett, Esq.

331 East Union Street, Suite 2 Jacksonville, FL 32202

David A. Hertz, Esq. 1601 Atlantic Boulevard

Jacksonville, FL 32207

Dr. Larry Zenke, Superintendent Duval County School Board

1701 Prudential Drive

Jacksonville, FL 32207

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, FL 32399-0400

Docket for Case No: 89-003969

Orders for Case No: 89-003969