STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7092

)

)

MICHAEL LAWLESS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on February 8, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

School Board of Dade County, Florida 1450 Northeast Second Avenue

Suite 301

Miami, Florida 33132

For Respondent: Jesse J. McCrary, Jr., Esquire

2800 Biscayne Boulevard, Suite 800

Miami, Florida 33137-4198 STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

By letter dated October 25, 1990, Petitioner advised Respondent that he was suspended from his employment effective as of the close of business on October 24, 1990, and that dismissal proceedings were being initiated against him based upon his conviction of a felony involving moral turpitude, misconduct in office, and immorality. Respondent timely requested a formal hearing regarding those allegations, and this cause was transferred to the Division of Administrative Hearings for the conduct of that formal proceeding. Petitioner subsequently filed a formal Notice of Specific Charges.

Petitioner presented the testimony of Joyce Annunziata and Desmond Patrick Gray, Jr. Additionally, Petitioner's Exhibits numbered 1-10 were admitted in evidence.

Respondent testified on his own behalf and presented the testimony of Steve Elliott, Laura Lloyd, Robert Keivers, David Cannella, Dr. Fred C. Rogers, and Jean Freedman. Additionally, Respondent's Composite Exhibit numbered 1 was admitted in evidence.

Only Petitioner submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been employed by Petitioner as a teacher pursuant to a continuing contract.

   
   

2. At all times material hereto, Respondent has been assigned to Miami Southridge Senior High School where he taught advanced mathematics courses, such as trigonometry, calculus, and math analysis.

   
   

3. At the request of a friend, on November 7, 1986, Respondent sent approximately two ounces of cocaine to his friend via United Parcel Service. He was subsequently indicted in the United States District Court for the Eastern District of Michigan. The indictment contained two counts alleging that Respondent was guilty of having committed a felony. The case was subsequently transferred to the United States District Court for the Southern District of Florida.

   
   

4. Respondent pled guilty to Count 1 of that indictment and not guilty to Count 2. He was adjudicated guilty of Count 1, use of a communication facility for the commission of a felony in violation of Title 21, U.S.C., Section 843(b). Count 2 was dismissed. On August 8, 1990, he was sentenced to two years of probation, residency in a community treatment center with a work-release program for a period of three months, a fine in the amount of $1,000, and court costs in the amount of $50.00.

   
   

5. The School Board of Dade County has demonstrated its concern for the problems created by drug abuse in the community. As a result of this concern, the School Board has established a drug-free work place policy, curricula for students, a trust counselor program, and an employee assistance program, all designed to combat drug abuse.

   
   

6. Dismissal from employment is not an automatic consequence of a teacher's involvement with illegal drugs. Nor does a conviction of a felony automatically require that a teacher be terminated. Circumstances are taken into consideration. Teachers who use drugs are referred to the employee assistance program for help in overcoming their drug use. Teachers who attend the employee assistance program are not necessarily discharged from employment even though notoriety may have surrounded their drug usage. There is no allegation or evidence that Respondent has ever used illegal drugs. Similarly, there is no evidence or allegation that Respondent had any involvement with illegal drugs other than the occasion on which he mailed cocaine to his friend.

   
   

7. Annual evaluations are performed on every teacher in the Dade County Public Schools. A teacher is rated either acceptable or unacceptable. Respondent has always been given an acceptable rating. On Respondent's 1984- 1985 annual evaluation, the principal of Miami Southridge Senior High School added the following comment: "Michael is a super teacher. Has outstanding relationships with students and peers. Contributes greatly to the school.

   Great!". On Respondent's 1985-1986 annual evaluation, his principal added the following comment: "Cooperative, positive and supportive. Encourages students to excel. Very competitive." On Respondent's 1986-1987 annual evaluation, which covered the time period when Respondent transmitted the cocaine to his friend, his principal wrote the following comment: "An outstanding teacher.

   Concerned and devoted." On Respondent's 1987-1988 annual evaluation, his principal wrote: "Displays confidence and poise in the classroom. Very devoted and conscientious." On Respondent's annual evaluation for 1988-1989 his principal wrote: "A very concerned and caring instructor. Contributes greatly to the overall operation of the school."

   
   

8. Former students of Respondent testified in this proceeding. Some were his students subsequent to the date that he committed his criminal act. Respondent has inspired those students to study math, has helped them to learn to the extent that they receive "As" in their college math courses, and has taught them a love for math such that they are currently majoring in math on their way to becoming math teachers. Some of these students did poorly in math before having Respondent as a math teacher. These students have recommended to others that they take math from Respondent and hope that Respondent will still be available to teach math to their children.

   
   

9. The principal at Miami Southridge Senior High School and the math department chairperson have no objection to Respondent being returned to that school to continue teaching math classes. The math department chairperson describes Respondent as a teacher who is excellent with children, far above the norm. She recognizes Respondent as having an unusual ability "to get difficult information across to the students" and have them enjoy it.

   
   

10. No notoriety attached to Respondent's criminal act which occurred in November of 1986. He continued to teach until September 28, 1990, when Petitioner removed him from the classroom. All notoriety concerning Respondent's criminal act was caused by the Petitioner itself. Respondent's attorney advised Respondent's principal of the criminal conviction, and Respondent's principal then notified other employees of the Dade County Public Schools. As a result of the principal's notification, Respondent was removed from the classroom, at which time other School Board employees became aware of the problem. Thereafter, Petitioner determined to suspend Respondent and initiate dismissal proceedings, which determination then caused additional notoriety. Petitioner admits that any notoriety at the school site was not caused by Respondent's criminal act but rather was due to Respondent's removal from his classroom assignment.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1990).

    
    

12. Section 231.36(4)(c), Florida Statutes, provides that a member of the instructional staff who is under continuing contract may be suspended or dismissed provided that the charges are based upon, inter alia, immorality or conviction of a crime involving moral turpitude. The definitions for those charges are contained in Rule 6B-4.009, Florida Administrative Code, which contains the criteria for suspension and dismissal. The Notice of Specific Charges filed in this cause charges Respondent only with immorality as defined

    by Rule 6B-4.009(2) and with conviction of a crime involving moral turpitude as defined in Rule 6B-4.009(6), Florida Administrative Code. Those acts are defined 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.

    * * *

    (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.

    
    

13. Petitioner has failed to prove Respondent guilty of immorality as defined in Rule 6B-4.009(2). That Rule requires conduct sufficiently notorious to impair the individual's service in the community. No notoriety attached to Respondent's conduct, and he continued to inspire students and to perform his teaching responsibilities in an outstanding manner for several years. When Petitioner determined to take action against Respondent, then and only then did any notoriety attach to Respondent's conduct. Petitioner cannot take action against Respondent for notoriety caused by Petitioner itself.

    
    

14. Respondent has, however, pled guilty to and been convicted of a crime involving moral turpitude. Respondent's conduct constitutes a felony, and transmitting cocaine via United Parcel Service does violate the accepted standards of our time.

    
    

15. Respondent does not dispute his conviction. What he does dispute is that suspension followed by termination is the appropriate action to be taken by Petitioner against him. Petitioner takes the position that the punishment to be imposed is within its discretion, and Respondent agrees with that position. However, as Respondent points out, and Petitioner admits, suspension and termination for Respondent's act is not automatic. The final hearing in this cause involved the presentation of aggravating and mitigating evidence.

    
    

16. Petitioner relies on its strong policy statements in favor of a drug- free school environment. Petitioner has proven its policy statements set forth in its rules, the contract between the Dade County Public Schools and the United Teachers of Dade, the Code of Ethics of the Education Profession in Florida, and the Principles of Professional Conduct for the Education Profession in Florida. However, Respondent has not been charged with violating any of Petitioner's rules, with violating the labor contract, or with violating the Code of Ethics of the Education Profession in Florida or the Principles of Professional Conduct for the Education Profession in Florida. Further, no discussion is warranted as to those rules which Petitioner alleges for the first time in its proposed recommended order that Respondent has violated since those additional allegations are not contained in the Notice of Specific Charges, and Respondent was not on notice that he was required to defend against them.

17. Petitioner admits that it permits some teachers to continue teaching after felony convictions even though there has been notoriety and that it permits other teachers to continue teaching as long as they participate in the employee assistance program to overcome their use of drugs. It is reasonable to assume that Petitioner takes stronger action against teachers who involve students in illegal drugs or who use drugs in the school environment than someone whose involvement with drugs occurred on one occasion away from the school environment and away from any children or students. It is undisputed that Respondent is an exceptional teacher, both before and after his criminal act. He continued, even after his act, to inspire students, to cause them to want to study math and to do well in math, and to go on to become math teachers themselves. It is obvious that Respondent is a good role model even though he admits that he made a serious mistake in 1986.

    
    

18. Respondent has been punished for his criminal activity by the Court responsible for disposing of that criminal charge. He was sentenced to two years of probation, was required to reside in a community treatment center with a work-release program for a period of three months, and was required to pay a fine in the amount of $1,000 and court costs in the amount of $50.00. There is no evidence that Respondent obtained any economic benefit from his criminal act. Although one of Petitioner's witnesses testified that Respondent told her he would do the same act again to help out a friend, that statement does not appear in that witness's report of the conference for the record conducted with Respondent by her. That conference report does, however, contain quotes of other statements made by Respondent to her during that conference and paraphrases Respondent's position regarding other matters discussed during the conference. Respondent has been suspended from his employment for almost five months and does seem to appreciate the serious consequences of his behavior.

    
    

19. The law is clear that Petitioner has discretion as to what action it should take against Respondent. It is recommended that Petitioner take into consideration the mitigating evidence presented during the final hearing in this cause and the penalties that Respondent has already suffered as a result of his action. It is recommended that Respondent's suspension be limited and that he then be returned to the classroom where he can continue to be an outstanding member of the teaching profession. Respondent was suspended near the beginning of the 1990-1991 school year. It is recommended that Respondent's suspension continue through the 1990-1991 school year and that Respondent be returned to the classroom at the beginning of the 1991-1992 school year.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered:

1. finding that Respondent has been convicted of a crime involving moral turpitude;

   
   

2. suspending Respondent without pay effective at the close of business on October 24, 1990, and continuing through the end of the 1990-1991 school year; and

   
   

3. reinstating Respondent as a classroom teacher effective at the beginning of the 1991-1992 school year.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of March, 1991.

LINDA M. RIGOT

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 12th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 2-7, and 13 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed findings of fact numbered 1, 8, 9, 12, and 14 have been rejected as not constituting findings of fact but rather as constituting conclusions of law, recitation of the testimony, or argument of counsel.

   
   

3. Petitioner's proposed finding of fact numbered 10 has been rejected as not being supported by the weight of the credible evidence in this cause.

   
   

4. Petitioner's proposed finding of fact numbered 11 has been rejected as being irrelevant to the issues under consideration in this cause.

COPIES FURNISHED:

Honorable Betty Castor Commission of Education The Capitol

Tallahassee, Florida 32399-0400

Madelyn P. Schere, Esquire

School Board of Dade County, Florida 1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

Jesse J. McCrary, Jr., Esquire 2800 Biscayne Boulevard, Suite 800

Miami, Florida 33137-4198

Octavio J. Visiedo, Superintendent Dade County Public Schools

School Board Administration Building 1450 Northeast Second Avenue

Miami, Florida 33132

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final order in this case concerning agency 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.

Docket for Case No: 90-007092

Orders for Case No: 90-007092