STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF ESCAMBIA COUNTY, )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-1581

)

DAVID W. MADISON, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Diane Cleavinger, a duly designated Hearing Officer of the Division of Administrative Hearings, on January 9, 1992.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

17 W. Cervantes Street Pensacola, Florida 32501

For Respondent: Mark S. Levine, Esquire

245 E. Virginia Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Respondent committed any acts which would subject him to termination of employment as an annual contract teacher of the School Board of Escambia County.

PRELIMINARY STATEMENT

On February 12, 1991, Respondent, David W. Madison, was advised, by letter, that the Superintendent for the Escambia County School Board would recommend to the School Board that Respondent's employment as a second grade teacher be terminated and his annual contract cancelled. Attached to this letter was a Petition for Dismissal. The Petition for Dismissal alleged that Respondent had engaged in conduct resulting in an arrest and criminal charges the notoriety of which adversely impacted the educational environment of the school at which Respondent was teaching. Specifically the Petition for Dismissal alleged that Respondent was guilty of committing a crime involving moral turpitude in violation of Section 231.36(1)(a), Florida Statutes; immoral conduct in violation of Section 231.36(1)(a), Florida Statutes and failing to maintain good moral character in violation of Section 231.02(1), Florida Statutes. Respondent disputed the allegations of the Administrative Complaint and requested a formal administrative hearing. Pursuant to the Respondent's request, the Administrative Complaint was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called three witnesses and introduced four exhibits into evidence. Respondent testified in his own behalf and called two additional witnesses. Respondent also introduced five exhibits into evidence and offered the deposition testimony of Susan Guttman and Dr. Pete Payton.

Objections to the depositions are overruled.

Petitioner and Respondent filed Proposed Recommended Orders on February 21, 1992, and February 25, 1992, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative, or subordinate. Specific rulings on the parties' Proposed Findings of Fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In 1988, Respondent, David Madison, received his degree in elementary education. In 1989, Mr. Madison worked as a third grade elementary school teacher at Montclair Elementary School in Escambia County, Florida. Later during the school year, Mr. Madison transferred to the fourth grade drop out prevention program at Montclair Elementary School. While at Montclair, Mr. Madison received excellent reviews of his teaching ability and received the superintendent's recommendation for renewal of his annual contract for the 1990-

   91 school year. The school board followed the recommendation of the superintendent and renewed Mr. Madison's annual contract. The term of Mr. Madison's contract ran from August 20, 1990 through June 12, 1991.

   
   

2. Mr. Madison's contract provided that a teacher could not be dismissed from his or her employment "except for just cause as provided in Section 231.36(1)(a), Florida Statutes." The contract also incorporated by reference the collective bargaining agreement which had been negotiated between the school board and the Escambia Education Association for 1990-1993 (the master contract). Portions of the master contract governed and in some cases restricted the type of conduct which could be recognized as subjecting a teacher to discipline, as well as, the procedure and type of discipline, including dismissal or termination, which might be imposed regardless of whether that discipline arose out of violations under the terms of a teacher's contract or had its basis in Chapter 231, Florida Statutes.

   
   

3. The master contract provided in Article II, Section L as follows:

   
   

   L. The Board shall not discriminate against any member of the unit because of marital status, religion, race, sex, lifestyle, national origin, age or medical or physical handicap as a condition of employment or continued employment.

   The master contract also provided at Article V, Section E as follows:

   
   

   E. No action against a teacher shall be taken on the basis of a complaint by a parent, student, or other individual unless the matter is first reported to the teacher in writing by the principal within ten

   (10) days of the complaint. No records shall be kept concerning anonymous complaints.

   
   

   and at Article XXVI, Sections A and B:

   
   

   1. Disciplinary Action shall be defined as any action that includes:

      warning conference, verbal reprimand, written reprimand, suspension with pay, suspension without pay, and/or dismissal.

   2. Any disciplinary action shall be administered only by the appropriate immediate administrator. All disciplinary action shall be progressive, fair, and non- discriminatory. Disciplinary action which involves the more severe discipline of written reprimand, suspensions or dismissal shall be for proper cause.

   
   

4. In August 1990, Mr. Madison was hired to teach second grade at the Helen Cairo Elementary School. Helen Cairo Elementary School was a new elementary school opening in Escambia County and had a student population of about 725 students for the 1990-91 school year. Mr. Madison was hired along with a group of teachers as additional staff for the school since student enrollment greatly exceeded that which was predicted for the opening of the school. The school year had been in session for approximately 3 to 4 weeks before Mr. Madison began teaching at Helen Cairo Elementary School.

   
   

5. The students which were selected for Mr. Madison's second grade class came from other second grade classes which had already been in session. Mr. Madison's class consisted of approximately 23 or 24 students. The Petitioner met with the students and parents prior to beginning his teaching at Helen Cairo and established a rapport with approximately ten sets of parents out of an approximate 20 student class.

   
   

6. November 20 was Mr. Madison's birthday. In 1990, Mr. Madison's birthday fell on Thursday, the middle of the work week. Mr. Madison would be 25 years old. Because Mr. Madison had to teach the day after his birthday, he elected not to celebrate his birthday on November 20 but would celebrate the following Friday evening since he did not have any teaching duties over the weekend.

   
   

7. On the evening of November 21, 1990, Mr. Madison celebrated his birthday at Chan's and McGuire's, two of the local bars in Pensacola. Mr. Madison, in youthful exuberance, overindulged in alcoholic drink. To the best

   of Mr. Madison's recollection of his birthday celebration, which memory is very limited, he had at least 5 or 6 shooters during the evening of the 21st.

   
   

8. Around 10:00 p.m., in a highly intoxicated state, although driving reasonably well, Mr. Madison left McGuire's and proceeded home. On the drive home, Mr. Madison had to urinate and stopped in the parking lot of a bar known as the Chimney. A few parking spaces away from where Mr. Madison parked were two undercover police officers in an unmarked car. The police officers were part of the Vice and Intelligence Division of the Pensacola Police Department. The police officers had stopped at the Chimney because it is an area allegedly known for illegal sexual transactions, mostly involving homosexual males.

   
   

9. Mr. Madison exited his vehicle and made a beeline for the woods which are located close to the Chimney. He walked by the unmarked police car and around the corner of the Chimney's building on his way to the woods. Within a few seconds of Mr. Madison walking by the unmarked police car, Officer Paul Kelley exited the police car in order to follow Mr. Madison to see if he could catch him in some crime. The officer's egress from the car occurred well within Mr. Madison's hearing and Mr. Madison more than likely knew someone was following him through the parking lot and around the corner towards the woods. No other people were in the area and the area could not be seen from the more public areas of Chimney's surroundings.

   
   

10. The police officer was dressed in plain clothes and judging from his appearance at the hearing would have fit the stereotypical image of a "pretty" male homosexual.

    
    

11. Mr. Madison went into the woods, relieved himself, and came back out of the woods. As Mr. Madison left the woods he saw the police officer standing by himself watching him obviously waiting for Mr. Madison to exit the woods. Mr. Madison stopped about 10 feet away from the officer. The officer and Mr. Madison exchanged eye contact back and forth. During the exchange, Mr. Madison rubbed the outside front of his pants in the area of the genitals. The officer testified that such behavior is a common signal of interest among homosexuals and is part of the homosexual lifestyle and way of communicating with each other. The police officer continued to exchange looks with Mr. Madison. The police officer did not move away from Mr. Madison and allowed him to approach.

    Mr. Madison walked over to the police officer, and they exchanged greetings with each other. Clearly such behavior on the police officer's part was an invitation by the police officer to Mr. Madison to make further overtures.

    After all the police office was there in an attempt to entice such sexual propositions in order to determine if any crime, such as prostitution, would ensue. Mr. Madison again began rubbing the front of his pants in the area of his genitals while the officer stood watching. Mr. Madison then reached over and touched the officer's clothing in the area of his genitals. The officer took a step back, said no and Mr. Madison desisted in his advance. To the officer, Mr. Madison looked confused and surprised by the officer's response. Mr. Madison immediately left and returned to his vehicle to leave. The officer followed Mr. Madison back towards his vehicle and indicated to his partner, by pointing at Mr. Madison, that Mr. Madison should be arrested. Mr. Madison was subsequently arrested on a first degree misdemeanor charge of simple battery which is not, in and of itself, a crime involving moral turpitude.

    
    

12. In that regard, none of the above facts support a finding that Mr. Madison is an immoral person or committed an immoral act. Indeed, the best that can be said about the above facts is that Mr. Madison attempted to interact socially with someone he reasonably believed was of the same persuasion. His

    behavior was common among the homosexual community as a means of communicating with another homosexual. It was the officer who had followed Mr. Madison and stood waiting for him when no one else was around. In this case, the officer's consent was non-verbally communicated to Mr. Madison by a police officer who was fully cognizant of the impact his own action or lack of action would have. Mr. Madison desisted from his advances as soon as the officer's consent was withdrawn. Mr. Madison's actions did not involve a battery, sexual battery, lewd and lascivious conduct or any other criminal activity. The incident involved no children, did not occur during working hours, and did not involve or have any relevance to Mr. Madison's ability to teach or otherwise utilize his teaching skills.

    
    

13. Unfortunately, the battery arrest was picked up by the local newspaper, and some details from the police officer's report were published in the local newspaper. Articles involving the arrest incident ran at least 3 times in the local newspaper on December 1, 1990, January 17, 1991 and February 8, 1991.

    
    

14. Mr. Madison, after taking approximately 9 days off, returned to teaching his second grade class. During the time he taught his students, he could discern no impact on the children and their progress in his class. Likewise, there was no impact on Mr. Madison's ability to teach his class. In fact, teaching was a release from the stress created by the publication and subsequent reaction of a few parents who did not have children in his class.

    
    

15. On February 7, 1991, Mr. Madison pled no contest to the simple battery charge, received six months probation and paid a $150 fine. Adjudication was withheld. The probation was terminated after three months. Mr. Madison pled to the charges because he could not remember any of the incident the police officer claimed happened and could not admit or deny any of the allegations of the officer. However, Respondent's entry of a plea of no contest does not constitute proof of immorality, moral turpitude or lack of moral character when such characteristics are absent from the underlying facts of the charge to which he is pleading.

    
    

16. Apparently, based on the articles in the newspaper, some of the parents at Helen Cairo School became aware of the incident involving Mr. Madison's arrest. The parents who reacted did not necessarily have students in Mr. Madison's class. Parental reaction was evenly divided among those who cared to react. Some parents were supportive, and others were not supportive. Intolerant, incorrect and prejudicial statements such as "we don't want those type of people teaching our children" and "homosexuals are child molesters," were communicated to the principal by these unsupportive parents. For the most part, the negative comments about Mr. Madison involved not the criminal charge, but the homosexual nature of the event. In essence, it was a reaction of total intolerance on those parents' part as to homosexuality. However, even with these intolerant parents, the evidence did not support a loss of parental support for the school save for one or two very vocal persons of morality who engaged in a campaign to have Mr. Madison terminated because they believed he was an immoral person and a potentially bad influence to children. These two parents kept things stirred up in the sense that the school board had to deal with the two parents. Neither parent had a child in Mr. Madison's class.

    
    

17. Mr. Madison taught his second grade class until February 12, 1991, when he was suspended without pay from his teaching position. On March 25, 1991, Mr. Madison was terminated from his position as a school teacher. Before this incident, Mr. Madison had never received any disciplinary action during his

    time as a teacher in Escambia County. Mr. Madison's discipline was based solely on the notoriety of the case and not necessarily on the fact that a criminal charge had been filed resulting in a plea. The evidence did not demonstrate that the overall reputation of the school had been so diminished by Mr. Madison's conduct that it could no longer deliver an appropriate instructional program to the children at the elementary school. In fact, the evidence demonstrated that the school did deliver such instructional programs since the school students all scored within the average of the county.

    Similarly, other than some hearsay testimony about what a substitute told the principal, there is no credible evidence to suggest that Mr. Madison's ability to teach had been impaired or that the students in Mr. Madison's class had in any way had their academic potential affected. There was also no evidence that the students at Helen Cairo had lost respect for Mr. Madison or otherwise would refuse to submit to his authority. In fact, the better evidence in relation to student attitudes was that Mr. Madison's students were very concerned about his well being, cared a great deal about their teacher and wanted him to return.

    
    

18. Finally, the evidence affirmatively demonstrated that Mr. Madison's ability to teach was not impaired by the events of November 21, 1990 or the subsequent agitation of a few parents. The evidence only showed that Mr. Madison felt embarrassed and down about what had happened. However, as a well adjusted person, he handled those feelings, went on with his life and performed his duties until prohibited from doing so by the school board.

    
    

19. In short, none of the charges in the Petition for Dismissal have been supported by the evidence. Additionally, discipline based on a persons lifestyle is clearly prohibited by the master contract. Moreover, the Board failed to follow its own policy and contractual agreement regarding progressive disciplinary penalties. Mr. Madison, therefore, is entitled to reinstatement under the terms of his annual contract with back pay to February 12, 1991.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

21. In this case, the charges against Respondent stemmed solely from the events of November 21, 1990, and the alleged negative impact caused by the notoriety of those events on the school or on Respondent's ability to teach. The authority of the school board to impose any discipline upon Respondent is governed by the terms of Mr. Madison's teaching contract, the master contract and Florida Statutes.

    
    

22. Chapter 231, Florida Statutes, is the chapter governing teacher contracts and teacher discipline. Section 231.36(1)(a) and (g), Florida Statutes, provides that each person employed as a member of the instructional staff in any school district shall be employed pursuant to a written contract specified in Chapter 230 and that all such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract "only for just cause". The statute defines just cause as follows:

    
    

    Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude. Section 231.36(1)(a).

23. Section 231.02(1), Florida Statutes, provides that to be eligible for appointment in any position in any school district, "a person shall be of good moral character".

    
    

24. Chapter 231, Florida Statutes, does not define "misconduct in office", "good moral character", "moral turpitude" or "immorality". However, The Department of Education in Rule 6B-4.009, Florida Administrative Code, has defined "immorality" and "misconduct in office" 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 educational profession into public disgrace or disrespect and impair the individual's service in the community." 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, FAC, and the Principals of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, FAC, which is so serious as to impair the individual's effectiveness in the school system." Rule 6B-4.009(3)

    
    

25. Clearly, the above definitions are broad and are intended to maintain a high moral standard for teachers. Ford v. Bay County School Board, 253 So.2d 728 (Fla. 1st DCA 1971); Adams v. State Professional Practices Council, 406 So.2d 1170 (Fla. 1st DCA 1981); Negrich v. Dade County Board Public Instruction, 143 So.2d 498 (Fla. 3rd DCA 1960); and Rule 6B-1.001(3), Florida Administrative Code. However, consensual sexual acts, including the prelude to consensual sexual activity has never been considered immoral activity for purposes of determining a persons fitness to practice his or her profession. Sherburne v. School Board of Suwanee County, 455 So.2d 1057 (Fla. 1st DCA 1984); Clark v. School Board of Lake County, 17 FLW D804 (Fla. 5th DCA March 27,1992); and Florida Board of Bar Examiners Re N.R.S., 403 So. 2d 1315 (Fla. 1981).

    
    

26. In Sherburne, a case similar to the instant action, the Board proposed to reject the superintendent's recommendation for a continuing contract based on the Board's conclusion that the teacher had stayed approximately one month with a member of the opposite sex in that person's residence. The Board did not offer any direct proof of improper, premarital sexual conduct on the part of the teacher but based its conclusions on speculations that such conduct did occur and reflected adversely upon the teacher's "morality" and upon the school. The First District Court of Appeal held that private off-campus conduct involving consensual sexual relations between a teacher and an adult of the opposite sex cannot, in itself, provide "good cause" for a school board's rejection of a teacher nominated for employment by the Superintendent, unless it is shown that such conduct adversely affects the ability to teach. That Court went on to say that the Board only speculated that the pre-marital sexual activity had an adverse affect upon the students. The Court looked at such factors as testimony from the Assistant Principal and Principal, who attested to the Appellant's excellence as a teacher and the total absence of any parental or other complaint regarding any adverse affect upon the teacher's students. Further, the Court found that there was nothing in the record which suggested that the teacher might or did attempt to inject her views regarding sexual morality into the classroom or into private conversations with the teacher's students. The

    court further noted the record was "devoid of evidence" that any conduct by the teacher had an adverse effect on her students or the effectiveness of the teacher.

    
    

27. In this case, the evidence demonstrated that Mr. Madison's effectiveness as a teacher was not impacted. The record is devoid of any suggestion that Mr. Madison attempted to inject his views regarding any sexual preference into the classroom or into private conversations with students. The evidence did not show any significant impact on the school or the school's reputation. Indeed the only evidence regarding a lowering of the school's reputation was speculation on the part of the Escambia County School Board based on the intolerant views of a few parents about a person's lifestyle. Such intolerance has no place in determining whether a teacher should be subjected to termination or other discipline especially when, as in this case, the master contract prohibits such discrimination. More importantly, however, is the fact that the record does not support a finding that Mr. Madison engaged in any misconduct in office, immoral conduct, or otherwise lacks moral character. Admittedly, this case has a unique set of facts for a charge of battery.

Battery usually involves hitting another person with some force. However, the facts of this case, the subsequent press coverage and negative parent reaction leaves the clear impression that none of the press, negative reaction or discipline would have happened if the events of November 21, 1990, had involved a male attempting to pick up a female instead of a male attempting to pick up a male. In fact, one criminal charge which resulted in a plea involved a female, Escambia County teacher who struck a male police officer for stopping her. the teacher's conduct resulted in only a reprimand and did not result in press coverage beyond the standard report in the crimes section of the Pensacola News Journal. Because the evidence failed to establish That Mr. Madison was guilty of any crime or any acts of immorality and otherwise failed to establish that the events of November 21, 1990, impaired his ability to teach, impaired the schools ability to provide an adequate education to its students or significantly impacted the school's reputation, Mr. Madison is entitled to reinstatement to annual contract status with back pay.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, It is accordingly,

RECOMMENDED:

That the School Board of Bay County enter a Final Order reinstating Respondent with back pay.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of April, 1992.

DIANE CLEAVINGER, 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 23rd day of April, 1992.

APPENDIX TO RECOMMENDED ORDER

1. The facts contained in paragraphs 1, 2, 3 and 6 of Petitioner's Findings of Fact are adopted in substance, insofar as material.

   
   

2. The facts contained in paragraphs 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 21, 22, 23 and 24 of Petitioner's Proposed Findings of Fact are subordinate.

   
   

3. The facts contained in paragraph 15 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

   
   

4. The facts contained in the first sentence of paragraph

   16 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was subordinate

   
   

5. The facts contained in the last sentence of paragraph 17 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was subordinate

   
   

6. The facts contained in the last sentence of paragraph 25 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The remainder of the paragraph was legal argument.

   
   

7. The facts contained in the first sentence of paragraph

   26 of Petitioner's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence.

   
   

8. The facts contained in paragraphs 1, 2, 4, 9, 26, 27, 28, 29 and 30 of Respondents' Proposed Findings of Fact are adopted in substance, in so far as material.

9. The facts contained in paragraphs 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and

25 of Respondents' Proposed Findings of Fact are subordinate.

COPIES FURNISHED:

Joseph L. Hammons, Esquire

17 W. Cervantes Street Pensacola, FL 32501

Mark S. Levine, Esquire

245 E. Virginia Street Tallahassee, FL 32301

Honorable Betty Castor Commission of Education The Capitol

Tallahassee, FL 32399-0400

Pete Payton Superintendent

Escambia County School Board Post Office Box 1470 Pensacola, FL 32597

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: 91-001581

Orders for Case No: 91-001581