vs. ) CASE NO. 90-3623
Respondent. )
Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, a duly designated Hearing Officer, on January 23 and 24, 1991, in Panama City, Florida. The appearances were as follows:
For Petitioner: William G. Harrison, Jr., Esquire
P. O. Box 1579
For Respondent: Pamela L. Cooper, Esquire
The issues in this case concern whether the Petitioner, School Board of Bay County, should terminate the Respondent from his position of employment and his status as a continuing contract teacher for allegedly committing "misconduct in office."
This cause arose upon the filing of an Administrative Complaint by the Petitioner agency upon a recommendation of the Superintendent for the Bay County School system, Jack Simonson. The dismissal of the Respondent was recommended for the alleged misconduct in office. As alleged in the Administrative Complaint, the factual bases for the allegation of misconduct in office concern the Respondent allegedly making sexually suggestive remarks and offensive gestures to female students, allegedly behaving in an offensive and embarrassing manner toward female students by chasing them while wearing a "Freddie Kruger" Halloween mask, behaving in an offensively embarrassing unethical manner in his classroom in the students' presence by his allegedly vulgar actions with a speeding ticket he had received, and making demeaning and profane statements concerning an assistant principal in the presence of his students.
The cause came on for hearing as noticed. The Petitioner produced the testimony of seven witnesses. The Respondent presented ten witnesses and Respondent's exhibits one and two were admitted into evidence. At the conclusion of the proceedings the parties ordered the transcript thereof and elected to file Proposed Recommended Orders containing proposed findings of fact and conclusions of law. Those proposed findings of fact have been addressed in this Recommended Order and specifically ruled upon again in the Appendix attached hereto and incorporated by reference herein.
The Respondent, Robert Wayne Davidson, has been employed by the School Board of Bay County since 1983. Respondent obtained a continuing contract with the County School Board in accordance with terms of Section 231.36, Florida Statutes, approximately one year after his first employment. He has worked in various instructional positions at Rosenwald Middle School since becoming employed by the Bay County School Board. He has received an extra salary supplement for being a team leader, a position with supervision over other teachers, has served as the chairperson of the English Department at Rosenwald Middle School, and has worked in many voluntary extracurricular activities. The Respondent has received above satisfactory performance evaluations since his employment with the School Board.
During the 1989-90 school year the Respondent taught an alternative program known as P.A.S.S. The P.A.S.S. or P.A.S.S. Program is designed to help students who have been retained, and who may be experiencing academic or emotional problems, or both. Having never taught in that program, the Respondent initially took a lenient approach to both his teaching and his classroom management. Sometime during the middle of November 1989, however, he recognized that some students were taking advantage of the less structured classroom atmosphere to the detriment of their own and classmates' academic and social progress. Consequently, Mr. Davidson sought advice from a colleague who recommended that he employ a more tightly structured class program and procedure. He was advised to maintain discipline and keep the students busy. He implemented these changes, and some students did not thereafter perform as well and rebelled against the imposition of more structure and discipline.
Students in the alternative program P.A.S.S. could either be "mainstreamed" or "promoted" in accordance with their academic progress in that program. Sixth grade students in the P.A.S.S. Program could be promoted midyear to the seventh grade under certain exceptional circumstances with a strong recommendation from the classroom teacher. Seventh and eighth grade students could not be promoted midyear, but could be promoted for two years at the end of the school year in the P.A.S.S. Program. According to Ida Conner, the current
P.A.S.S. teacher at Rosenwald Middle School, it would be unusual for a student to be promoted midyear and virtually impossible without the recommendation of that student's primary teacher.
Soon after the imposition of more structure and discipline on his
P.A.S.S. students, two students, April Holland and Theresa Cooley, initiated complaints against the Respondent immediately prior to the Christmas holidays in 1989. They were seventh grade students and both Theresa Cooley and April Holland had started off the year successfully. They initially performed well in the Respondent's classes. With the changes the Respondent imposed regarding structure and discipline in November 1989, which required more accountability of the students, Theresa and April began to receive "zeros" for failing to turn in work, so much so that at the time the Respondent was suspended from his duties
both April and Theresa had enough zero grades for simply failing to turn in required work that their earlier A averages had declined to "Cs or Ds." Those two students never completed the missed assignments, and informed the Respondent that they had no intent to complete the assigned work.
On January 11, 1990, the Respondent was suspended from Rosenwald Middle School. The two primary complaining students were Theresa Cooley and April Holland. Shortly thereafter they were promoted in midyear without the recommendation of the Respondent. For unknown reasons these students were offered the unique opportunity, unlike any other seventh grade students, to take a test in order to determine eligibility for midyear promotion.
On the day of Halloween in the fall of 1989, teachers and students alike at Rosenwald School dressed in costume. The Respondent dressed in costume and wore a "Freddie Kruger" mask to jokingly frighten students. Respondent stood behind the door and grabbed students by the shoulder and shouted "boo" as they entered the room. Most of the students viewed the behavior as in a spirit of fun and were not embarrassed or scared by his actions. It was only in late December that Theresa Cooley and April Holland first indicated that they were allegedly upset by the Respondent's actions. Prior to that time not one student, including those two girls, ever complained about the incident. Indeed, Theresa Cooley even asked to borrow the mask on that occasion.
April Holland testified that the Respondent hugged her from "the side" during this incident. Theresa Cooley also testified that the Respondent "sort of like" hugged April.
Another student, Amy Sims, stated she had never observed the Respondent touch another student, or make any advances which could be construed as sexual advances. At the hearing, Theresa Cooley in her testimony impugned her earlier claim that the Respondent had attempted to touch her improperly with his tongue. Theresa confirmed that she had also discussed her testimony as to this issue with her cohort, April Holland, prior to the hearing. Indeed, at hearing, Theresa could not with specificity state when or where the incident allegedly occurred. She reported that when she and April discussed the matter, she thought she said it occurred in the classroom, but April believed that she had said it occurred in the lunchroom. Significantly, not one other student observed the alleged misconduct either in the classroom or the lunchroom on Halloween, or any other day for that matter. Finally, Theresa admitted that the Respondent did not say anything "out of the way" on Halloween, and that she borrowed the mask on that same day.
According to the Respondent, one day during Study Hall, April Holland asked him if he ever had "dirty thoughts" about his students. Mr. Davidson responded that to do so would make him a "dirty old man." His only comment was directed toward thoughts of disciplining certain students.
The inherit inconsistencies in the testimonies of Theresa and April on this issue result in that testimony being insufficient to establish their claim as it relates to the factual conduct and legal violation with which the Respondent is charged. Although the students reviewed one another's statement immediately prior to testifying by their own admission, neither could recall when the incident allegedly occurred and who may have been present. According to April, the incident in all likelihood occurred in Amy Sims' presence. Amy Sims, however, did not corroborate this claim in any way. So too, Theresa Cooley stated that the incident may have occurred in class. However, no other student confirmed the incident in any way.
The testimony regarding allegations that Respondent made sexually suggestive remarks and offensive gestures is equally unreliable. Theresa Cooley and April Holland referred to an incident involving another student who did not testify at hearing. They alleged that the Respondent directed the student named "Brandy" not to sit on a desk because he was "going through a divorce and like sex eight to ten times a week." Theresa Cooley and April Holland testified essentially exactly the same regarding this alleged incident.
These statements were supposedly made in the classroom in the presence of the entire class. Amy Sims, another witness for the Petitioner, was initially called to corroborate Theresa and April's claims. On cross- examination, however, she admitted that her statement on direct examination was false and that in fact Mr. Davidson did not make the statement as alleged by Theresa and April.
The most plausible explanation was proffered by the Respondent who stated that he informed Brandy that the manner in which she was seated was not ladylike. Upon making this statement, he observed a student giving him "the bird" and responded to that student that the gesture did not bother him because he was use to getting it eight to ten times a week.
Students Mike Everett, Mike Nobles, Rayfus Williams, Jack Pardue, Katrina Harris, and Marlena Bullock all testified that they never heard the Respondent make any inappropriate or sexually suggestive remarks during class. None of these students received any promise of or derived any actual benefit by their testimony.
Also, the testimonies of April and Theresa are not credible as they relate to allegations that the Respondent made other improper comments and gestures. Respondent indicated that the same students first initiated a discussion of "three on one," apparently part of a discussion in slang terms of certain sexual activity. Later, in an attempt to chastise them for their conduct, he rebuked them while seated at his desk in his classroom during the school day. The Respondent did not make the comment as alleged by April and Theresa. No other witnesses corroborated these allegations. Moreover, it is extremely unlikely that the Respondent would have made such comments when the alleged incident was said to have occurred during regular school hours when students and adults could have been present at any time. Finally, none of these students reported the alleged incident at the time, but rather waited until December to make the allegations known.
Teachers and students alike testified as to April's and Theresa's reputations for credibility in their school community. Both girls do not have good reputations for telling the truth, especially as viewed by fellow classmates. The Respondent, on the other hand, was considered by his former supervisor and colleagues to have an excellent reputation for telling the truth.
When coupled with the testimony relative to the girls' reputations in the school for being untruthful, the inherent inconsistencies of their statements, their own admissions that at times their stories were not accurate and, finally, the improbability of the assertions as compared with undisputed facts, the most favorable inferences rest in favor of the Respondent.
Certain students allege that the Respondent used derogatory language in oral and written form in referring to Assistant Principal Carol Love. Hereto, the inconsistencies in the stories of April and Theresa undermine their reliability. Kim White, another student who testified that the Respondent made these statements, admitted on cross-examination that the allegations were untrue. Indeed, she acknowledged that in fact that another student, Jennifer Schiedel, was responsible for writing the "swear words" on the board. The Respondent acknowledged that the words had been written on the board, but that he had no knowledge who wrote them, and upon seeing the words he erased them without comment. More importantly, many other students from almost all of the Respondent's classes testified that the Respondent did not use derogatory language in addressing the students and testified that this type of behavior
would be inconsistent with the conduct and decorum he normally presented to them in class.
Concerning the other allegations, the Respondent has no knowledge of them and his testimony is credited in light of the discrepancies in testimony and the questions of creditability raised as to some of the Petitioner's witnesses. The Respondent received better than satisfactory evaluations since his employment with the School Board of Bay County. His former principal and colleagues testified that he was an effective and dedicated teacher. Further, his students referred to him as a caring and conscientious teacher. There is no testimony presented by the Petitioner regarding any lack of effectiveness in the classroom.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to these proceedings pursuant to Section 120.57(1), Florida Statutes (1989).
The issues in this case concern whether the School Board of Bay County should terminate the Respondent from his position of employment as a continuing contract teacher. Section 231.36, Florida Statutes, states in pertinent part that the School Board may suspend or dismiss a continuing contract teacher provided that the charges demonstrate that the teacher is "guilty of misconduct in office."
The charges brought by the Superintendent cannot be sustained because the credible evidence of record, as reflected in the above findings of fact, does not establish that the Respondent was guilty of some act which constitutes "misconduct in office." The applicable definition of misconduct in office appears in Rule 6B-4.009, Florida Administrative Code:
Misconduct in office is defined as a violation
of the Code of Ethics of the education profession as adopted in 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.
Where the School Board, as here, seeks to dismiss a teacher from employment based upon misconduct in office, it must establish each and every element of the charge. See Jenkins v. State Board of Education, 399 So.2d 103,
105 (Fla. 1st DCA 1981); Smith v. School Board of Leon County, 405 So.2d 183,
185 (Fla. 1st DCA 1981); Wray v. Dept. of Professional Regulation, 435 So.2d 312, 315 (Fla. 1st DCA 1983).
In Boyette v. State PPC, 346 So.2d 598, 600 (Fla. 1st DCA 1977), the Court made it clear that each element of the charge required independent proof:
In addition to requiring substantial and competent proof in support of the conduct charged, Section 231.28(1) also requires such proof supporting the conclusion that the commission of such misconduct seriously
reduced Boyette's effectiveness as an employee of the school.
Id., at p. 600.
In consideration of the above findings of fact, it must be concluded that none of the essential elements of the charge have been established in this case. The facts fail to support the claim by the School Board that the Respondent made sexually suggestive remarks and offensive gestures to students, behaved in an offensive and embarrassing manner toward female students while wearing the mask, committed vulgar acts with a speeding ticket, or make derogatory, demeaning, and profane statements about an assistant principal in the presence of his students.
The petitioner has also failed to establish how the Respondent's conduct, even if it had occurred as charged, which it did not, actually affected his employment or effectiveness as a teacher in the community apart from the notoriety created from the Petitioner's own investigation. See, Sherburne v. School Board of Suwannee County, 455 So.2d 1057 (Fla. 1st DCA 1984); Baker v. School Board of Marion County, 450 So.2d 399 (Fla. 5th DCA 1984). Those cases stand for the proposition that the fact of the notoriety at the Respondent's school which results from the bringing of charges and the investigation of such charges of the School Board is not sufficient standing alone to establish impaired effectiveness and therefore a charge of misconduct in office.
In this case, the only evidence on the issue of effectiveness was presented by the Respondent. Several teachers who had an opportunity to observe the Respondent and his teaching practice, as well as his former principal, not only testified that the Respondent had a reputation for being a truthful person but also that he was an exemplary, effective teacher. His former principal without hesitation stated that Mr. Davidson was an effective instructor and competent teacher.
The Respondent has asserted a claim for attorney's fees and costs which he maintains he is entitled to if he proves to be the prevailing party in this proceeding. Respondent maintains he is entitled to an evidentiary hearing to determine whether he is entitled, as the prevailing party, to costs and fees for this action, and, if so, the amount thereof. See, Section 448.08, Florida Statutes, providing for recovery of attorney's fees and actions involving claims for lost wages as well as Section 230.234, Florida Statutes, and Section 57.041, Florida Statutes. See also, Greene v. School Board of Hamilton County, 501 So.2d 50 (Fla. 1st DCA 1987); Doyal v. School Board of Liberty County, 415 So.2d 791 (Fla. 1st DCA 1982); Ferry v. XRG Int'l, Inc., 492 So.2d 1101 (Fla. 4th DCA 1986); Gulf Solar, Inc. v. Westfall, 447 So.2d 363 (Fla. 2nd DCA 1984); Metropolitan Dade County v. Stein, 384 So.2d 167 (Fla. 3rd DCA 1980); Sulcer v. McFatter and the School Board of Broward County, 497 So.2d 1349 (Fla. 4th DCA
1986). The above statutory and case authority shows that a prevailing party in such a action with the School Board can be awarded attorney's fees and costs by the School Board which is the agency which must render final agency action in a proceeding such as this. The Respondent has timely asserted his claim for attorney's fees and costs resulting from this proceeding and is entitled to an evidentiary hearing on the issue to entitlement to attorney's fees and costs as well as the amount of such which are proven to be due from the School Board.
Consequently, it is concluded that the School Board should render a Final Order finding in favor of the Respondent in accordance with the above Findings of Fact and Conclusions of Law, and the School Board should remand the matter to the Division of Administrative Hearings for further proceedings on the claim for attorney's fees and costs, should the parties be unable to resolve the issue among themselves.
Having considered the foregoing findings of fact and conclusions of law, the evidence of record, and the candor demeanor of the witnesses, it is, therefore,
RECOMMENDED that a final order be entered by the School Board of Bay County finding that the Petitioner failed to establish any ground for the dismissal of the Respondent from his continuing contract status and from his position as teacher pursuant to Section 231.36, Florida Statutes; that the charges filed by the Superintendent should be denied and dismissed; that the Respondent should be reinstated to his position of employment on continuing contract status; that the Respondent should be made whole for economic and other measurable losses caused by the action of the Superintendent and the Board, including but not limited to payment to him of the amount of his full back pay and attendant benefits withheld from the date of his suspension without pay to the date of his effective reinstatement, plus interest thereon and reimbursement of all other economic losses directly resulting from his suspension without pay; that the Respondent has duly requested and is entitled to a hearing to determine entitlement and amount of the costs and reasonable attorney's fees incurred in defense of this action by the Board; and that by its Final Order, the Board should award attorney's fees and costs or, should agreement not be reached, should reserve jurisdiction on the issue of attorney's fees and costs and should remand the matter for the above-referenced determination on those issues by a Hearing Officer of the Division of Administrative Hearings.
P. MICHAEL RUFF Hearing Officer
William G. Harrison, Jr., Esq.
P. O. Drawer 1579 Panama City, FL 32401
Pamela F. Cooper, Esquire
Mr. Jack W. Simonson, Superintendent Bay County School Board
P. O. Drawer 820
Hon. Betty Castor Commissioner of Education The Capitol
Sydney H. McKenzie, Esquire The Capitol, PL-08 Tallahassee, FL 32399-0400
All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
