STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE )

COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 89-6947

)

JAMES W. HAMILTON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 2, 1990, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances at the hearing were as follows:

APPEARANCES

For Petitioner: Jaime C. Bovell, Esquire

1401 Ponce de Leon Boulevard Coral Gables, Florida 33134

For Respondent: (No appearance at hearing)

STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent committed certain acts alleged by the School Board and, if so, whether those acts constitute immorality or misconduct in office and thereby constitute just cause for the suspension and termination of the Respondent's employment as a continuing contract visiting teacher.

PRELIMINARY STATEMENT

The hearing in this case was scheduled to commence at 11:00 a.m. on May 2, 1990. At the scheduled commencement time, the Petitioner was present through counsel, but there was no appearance by or on behalf of the Respondent. The Hearing Officer waited until 11:30 a.m. to commence the hearing. At that time the hearing was commenced and was conducted to conclusion without any appearance by the Respondent. At the conclusion of the hearing, the Petitioner requested fifteen days from the filing of the transcript within which to file a proposed recommended order, which request was granted. On May 16, 1990, the Petitioner served a Notice of Filing which advised the Respondent that the transcript had been sent to the Hearing Officer. On May 21, 1990, the transcript was filed with the Hearing Officer.

On May 21, 1990, the Hearing Officer also received a telephone call from the Respondent. The Respondent stated that he had not appeared at the hearing in this case because he did not think an appearance was necessary in view of his having been found not guilty in the related criminal proceedings. He inquired as to whether certain evidence had been submitted and as to whether he could submit additional evidence. The Hearing Officer advised the Respondent that the evidence inquired about had not been offered, that no additional evidence would be received unless a motion to reopen the record was filed and granted, and that he would be well advised to consult a lawyer and talk to the School Board attorney.

On May 22, 1990, the Hearing Officer sent a memorandum to all parties advising them that the transcript had been filed and that the deadline for the filing of the parties's proposed recommended orders was June 5, 1990. The Respondent has not filed a proposed recommended order, nor has he filed any other post-hearing documents. The Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The substance of all facts proposed by the Petitioner has been included in the findings of fact which follow.

FINDINGS OF FACT

1. The Respondent, James W. Hamilton, was employed by the School Board of Dade County pursuant to a continuing contract and was assigned to Region One of the school system as a visiting teacher. As a visiting teacher, the Respondent held a valid teaching certificate and he had the option of being a classroom teacher. As a visiting teacher, his duties here primarily related to identifying and helping to resolve home problems that adversely affected the school attendance or school performance of students in the Region One schools. Visiting teachers are held to the same standards of conduct as those expected of classroom teachers.

   
   

2. For many years, including the 1989-90 school year, there has been in place throughout the Dade County School System an ongoing, continuous anti-drug program. The program is designed to prevent the use of unlawful drugs by public school students.

   
   

3. At about 10:00 p.m. on the night of October 27, 1989, Officers Warren Emerson and Willie Wiggins, together with several other law enforcement officers of the Broward County Sheriff's Office were in the process of conducting a reverse sting operation in the 4600 block of Southwest 20th Street, a neighborhood in West Hollywood, Florida, known as Carver's Ranches. Officer Wiggins was working as an undercover operative, posing as a street level narcotics dealer offering to sell rock cocaine to anyone who was interested in buying it. Other officers waited nearby to arrest all of Officer Wiggins' customers. The Carver's Ranches area is known to be a high-level street narcotics area where many offenses occur, such as burglaries, robberies, thefts, shootings, and an array of crimes related to narcotics activity.

   
   

4. At approximately 10:00 p.m. on the night of October 27, 1989, the Respondent approached the location of the reverse sting operation and stopped his vehicle beside where Officer Wiggins was standing. Officer Wiggins walked over to the Respondent's vehicle, whereupon a conversation took place between the Respondent and Officer Wiggins. Officer Wiggins then handed a small plastic baggie containing rock cocaine to the Respondent. Immediately thereafter,

   Officer Wiggins removed his cap, which was a signal to the other law enforcement officers involved in the reverse sting operation that a narcotics transaction had taken place and that the Respondent was in possession of rock cocaine.

   
   

5. Other officers promptly moved in and arrested the Respondent. At the time of his arrest the Respondent was holding in his left hand a small plastic baggie containing rock cocaine. The baggie containing the rock cocaine was seized by the arresting officers and was turned over to a forensic chemist for analysis. Scientific analysis of the contents of the baggie taken from the Respondent confirmed that the baggie contained cocaine. Scientific analysis also confirmed that it was the same cocaine that had been distributed by Officer Wiggins, because all cocaine distributed by Officer Wiggins was specially marked.

   
   

6. Shortly after the Respondent was arrested for possession of rock cocaine that information was reported to the School Board of Dade County. The school system initiated investigative proceedings and the facts became known to various school system administrators. The fact of the Respondent's arrest also became known to clerical staff, to other personnel who handle confidential matters, and to agencies that are customarily involved in these types of matters. The Respondent's arrest for possession of cocaine was also reported on two occasions in the Miami Herald, a Dade County newpaper of wide circulation.

   
   

7. The Respondent's possession of cocaine constitutes a breach of various duties imposed on instructional personnel, including the following: (a) the duty to strive to achieve and sustain the highest degree of ethical conduct, (b) the duty to maintain the respect and confidence of colleagues, students, parents, and other members of the community and (c) the duty to make reasonable efforts to protect students from conditions that would be harmful to either learning, health, or safety. The Respondent's possession of cocaine is inconsistent with standards of public conscience and good morals and is sufficiently serious as to impair the Respondent's services in the community and his effectiveness in the school system. Such conduct also constitutes a violation of School Board rules relating to employee misconduct and conduct unbecoming a School Board employee pursuant to Rules 6Gx13-4A-1.21 and 6Gx13-4C- 1.01.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes.

   
   

9. Section 231.36(4)(c), Florida Statutes, authorizes the suspension or dismissal of any member of the instructional staff under continuing contract on charges that include "immorality" and "misconduct in office." The terms "immorality" and "misconduct in office" are defined in the Florida Administrative Code as follows:

   
   

   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. Fla. Admin. Code Rule 6B-4.009(2)

   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. Fla. Admin. Code Rule 6B- 4.009(3)

   
   

10. Unlawful possession of a controlled substance, without more, has been held to constitute "immorality" within the meaning of Chapter 231, Florida Statutes. See Adams v. State Professional Practices Council, 406 So.2d 1170 (1st DCA 1981); Baker v. School Board of Marion County, 450 So.2d 1194 (5th DCA 1984). The facts in this case demonstrate that the Respondent's conduct has impaired his service in the community. Accordingly, the Respondent is guilty of "immorality" within the meaning of Section 231.36(4)(c), Florida Statutes.

    
    

11. With regard to the charge of "misconduct in office," it is obvious that the Respondent's possession of cocaine is a violation of the Code of Ethics of `the Education Profession and of the Principles of Professional Conduct for the Education Profession in Florida. See Rules 6B-1.001 and 6B- 1.006, Florida Administrative Code. The facts in this case demonstrate that the Respondent's conduct is so serious as to impair his effectiveness in the school system. Accordingly, the Respondent is guilty of "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the School Board of Dade County, Florida, enter a final order in this case concluding that the Respondent is guilty of - "immorality" and "misconduct in office" within the meaning of Section 231.36(4)(c), Florida Statutes, and terminating the Respondent's employment.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 18th day of July 1990.

MICHAEL M. PARRISH

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990.

COPIES FURNISHED:

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

Mr. James W. Hamilton

505 N.W. 177th Street Apartment 120

Miami, Florida 33169

Dr. Patrick Gray Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132

Madelyn P. Schere, Esquire

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

The Honorable Betty Castor Commission of Education The Capitol

Tallahassee, Florida 32399-0400

Sydney H. McKenzie General Counsel Department of Education The Capitol PL-08

Tallahassee, Florida 32399-0400

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

AGENCY FINAL ORDER

================================================================= IN THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

SCHOOL BOARD OF DADE COUNTY,

Petitioner,

1. DOAH CASE NO. 89-6947

   
   

   JAMES W. HAMILTON,

   
   

   Respondent.

   /

   FINAL ORDER

   OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

   
   

   THIS CAUSE having come on for hearing before The School Board of Dade County, Florida, at its regular meeting of August 22, 1990, upon the Hearing Officer's recommended order, recommending that James W. Hamilton be dismissed from employment with The School Board of Dade County, Florida, and the Board having been fully advised in the premises, it is thereupon ordered by The School Board of Dade County, Florida, that:

   
   

   1. The Hearing Officer's findings of fact, conclusions of law and recommendation, attached hereto, be and the same are hereby adopted as the final order of The School Board of Dade County, Florida;

      
      

   2. James W. Hamilton be and is hereby dismissed from has employment with The School Board of Dade County, Florida, and shall forfeit all compensation from December 6, 1989.

DONE AND ORDERED this 22nd day of August, 1990.

THE SCHOOL BOARD OF DADE COUNTY, FLORIDA

By: Chairman

Filed with the Clerk of The School Board of Dade County, Florida, this 22 day of August, 1990.

APPEAL OF FINAL ORDER

This Order may be appealed by filing notices of appeal and a filing fee, as set out in section 120.68(2), Florida Statutes, and Florida Rule of Appellate procedure 9.110(b) and (c), within thirty (30) days of the date of the rendition of this Order.

Docket for Case No: 89-006947

Orders for Case No: 89-006947