STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 91-1978
)
WILLIAM LONG, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in this case on September 12 and October 16, 1991, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Madelyn P. Schere, Esquire
1450 Northeast Second Avenue Suite 301
Miami, Florida 33132
For Respondent: William Du Fresne, Esquire
Du Fresne and Bradley
2929 Southwest Third Avenue Suite One
Miami, Florida 33129 STATEMENT OF THE ISSUES
Whether Respondent committed the offenses described in the Notice of Specific Charges filed in the instant case?
If so, what action should be taken against him?
If not, what relief should he be afforded?
PRELIMINARY STATEMENT
Effective March 20, 1991, Respondent's employment as a continuing contract teacher was suspended by the Dade County School Board (Board), which thereupon instituted proceedings to dismiss Respondent "for gross insubordination, immorality, misconduct in office, and conviction(s) of crime(s) involving moral turpitude, upon such conviction(s)." Respondent timely requested a formal hearing and on March 27, 1991, the matter was
referred to the Division of Administrative Hearings. Thereafter, on April 24, 1991, the Board filed a Notice of Specific Charges detailing those acts allegedly committed by Respondent which, it contended, warranted a finding that Respondent should be dismissed on the grounds of "gross insubordination, immorality, misconduct in office, conviction(s) of crime(s) involving moral turpitude and incompetency."
At the outset of the final hearing in this matter, the Board announced that it was not going to pursue the allegation made in the Notice of Specific Charges that Respondent was guilty of immorality and conviction of a crime involving moral turpitude as a result of his having been arrested "on or about June 12, 1976, for a hit and run accident involving an injury."
During the evidentiary portion of the final hearing, the Board presented the testimony of ten witness: Terri Lynne, Arnold Pakula, Virginia Valdes, and Betty Kravitz, all of whom were fifth grade teachers at Highland Oaks Elementary School during the 1988-89, 1989-90 and 1990-91 school years; Virginia Boone and Barbara Cobb, the Principal and Assistant Principal, respectively, of Highland Oaks Elementary School; Doretha Mingo, the Coordinating Principal for those schools, including Highland Oaks Elementary School, located in the Board's Region II; James Monroe, a former Director of the Board's Office of Professional Standards; Joyce Annunziata, who succeeded Monroe as the Director of the Office of Professional Standards; and Desmond Patrick Gray, Jr., the Board's Assistant Superintendent of Schools who oversees the Office of Professional Standards. In addition to the testimony of these ten witnesses, the Board offered, and the Hearing Officer received, 39 exhibits into evidence.
Respondent testified on his own behalf. He presented no further testimony, but did offer three exhibits into evidence. All three exhibits offered by Respondent were received by the Hearing Officer.
Following the close of the evidentiary portion of the final hearing, the Hearing Officer advised the parties on the record that post-hearing submittals had to be filed no later than 20 days following the Hearing Officer's receipt of the entire transcript of the hearing. The Hearing Officer received a copy of the entire hearing transcript on December 6, 1991. On December 23, 1991, the parties filed proposed recommended orders. The parties' proposed recommended orders have been carefully considered by the Hearing Officer. The proposed findings of fact set forth in these proposed recommended orders are specifically addressed in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon the record evidence, the following Findings of Fact are made:
Respondent is 45 years of age. He is married and has two children.
In 1968, following his graduation from college, Respondent began his career as a classroom teacher with the Dade County School Board. He remained with the Board until 1974, when he went to work for the Xerox Corporation.
Respondent was rehired by the Board during the 1987-88 school year and assigned to teach sixth grade at Highland Oaks Elementary School in North Miami Beach.
Virginia Boone has been the Principal of Highland Oaks for the past 27 years. At all times material hereto, Barbara Cobb has been her Assistant Principal.
Respondent was reassigned to the fifth grade at Highland Oaks at the beginning of the 1988-89 school year. He taught fifth grade for the remainder of his stay at Highland Oaks, which ended during the 1990-91 school year.
As a fifth grade teacher at Highland Oaks during the 1988-89, 1989-90 and 1990-91 school years, Respondent was a member of a team consisting of four other fifth grade teachers: Terri Lynne, Arnold Pakula, Virginia Valdes and Betty Kravitz. Each member of the team had a home room class and was responsible for teaching math and language arts to the students in that class. In addition, each team member was assigned a special subject, such as health, science, social studies, maps/globes or spelling/handwriting, to teach to all of the fifth graders. All such instruction took place simultaneously in a large open area shared by the five fifth grade teachers, rather than in separate rooms.
In accordance with the Board's Teacher Assessment and Development System (TADS), principals and their designees have the authority to formally observe and evaluate teachers at their school and to prescribe remedial activities designed to improve the teachers' performance. The categories of classroom performance that are assessed are preparation/planning, knowledge of subject matter, classroom management, techniques of instruction, teacher-student relationships and assessment techniques. Under TADS, a teacher is also rated in a seventh area, that of professional responsibility, which encompasses matters that go beyond the teacher's performance in the classroom.
For the 1987-88 and 1988-89 school years, Respondent received an acceptable rating in all seven assessment categories on the TADS annual evaluations he received.
There was a precipitous decline, however, in Respondent's overall performance, which began during the first half of the 1989-90 school year and continued the following school year until his suspension.
Respondent's attendance was irregular at best. He was frequently absent. When he was not absent, he often came late and left early. As a result, he did not participate with his team members in a number of early morning and late afternoon parent-teacher conferences that were held during his scheduled workday.
Respondent did not adequately plan his lessons as directed.
His failure to prepare sufficient written lesson plans was a particular problem because of his frequent absences. Without such plans, substitutes were unable to provide Respondent's students with any substantial continuity in instruction.
Respondent also failed to grade and record his student's work and to prepare progress reports and report cards as directed.
On a daily basis, Respondent would leave his class unattended without notifying any of his team members. Invariably, the students would become boisterous in Respondent's absence and disrupt the instruction that was taking place in the other fifth grade classes.
Very little instruction occurred in Respondent's classroom. He appeared more interested in amusing his students with his antics than in teaching them. He sang, danced, told jokes, balanced boxes on his head, hung bags from his ears, made guttural noises and engaged in other childish behavior unbecoming a teacher. The laughter these antics generated made it difficult for the students in the other fifth grade classes to learn.
Respondent regularly ate in the classroom in front of his students when he was supposed to be instructing them, notwithstanding that such conduct was clearly prohibited. To make matters worse, he often did not clean up after eating.
At times, Respondent fell asleep in class and had to be awakened by his students.
Although it was his responsibility to do so, Respondent frequently failed to pick up his students in a timely manner from their physical education, art and music classes which were held in areas of the school outside the fifth grade pod.
Respondent's dereliction of his responsibilities placed an additional burden on the other fifth grade teachers. They tried to offer him advice and counsel, but Respondent was not receptive.
Principal Boone and Assistant Principal Cobb, who received complaints about Respondent from his team members and from the parents of his students, also met with Respondent in an effort to make him a more productive member of the fifth grade team. During these meetings, they reminded Respondent of what was required of him as a teacher at Highland Oaks. Respondent, however, defied their directives and continued to act irresponsibly.
Among the conferences that Boone had with Respondent was one held on October 26, 1989. Cobb, as well as Respondent's union steward, were also present. During this conference, Boone specifically directed Respondent to record for each of his students a minimum a three grades per week per subject, to prepare appropriate lesson plans for substitute teachers to use during Respondent's absences, to prepare daily lesson plans reflecting the day's activities, to ensure that his students were under supervision at all times and to participate in scheduled parent-teacher conferences.
On December 1, 1989, Boone referred Respondent to the Board's Employee Assistance Program (EAP), which is a program designed to help employees who are having personal problems that are interfering with their work performance. On the form she submitted to the Coordinator of the EAP, Boone indicated that the referral was being made because of the following: "excessive absences;" "excessive tardiness;" "absences on Mondays and/or Fridays;" "changes in personal appearance;" "marked changes in mood;" "marked changes in activity level;" "frequent trips to restroom;" "poor judgment:" and "assignment failures" on Respondent's part. On the bottom of the form, Boone added the following comments:
Mr. Long has not set the world on fire with his teaching since he came to our school, but he did receive acceptable evaluations. However, this year presents a different story. He has been absent 16 days out of 60 since 9/5/89, papers are not graded, tests are not given, lesson plans are not done and, if they are, very little. His discipline is poor, pals with students telling jokes. He has a long list of excuses for being late to work or not coming at all. I know I have given him every inch of rope I can. I must have someone who cares about the students to teach.
On December 6, 1989, Respondent slept throughout a faculty meeting at which the Board's "Drug Free Workplace" rule was discussed. Following this meeting, Boone met with Respondent and reiterated the directives she had issued during their October 26, 1989, meeting.
On the following day, Cobb attempted to conduct a formal observation of Respondent's classroom teaching. Cobb noted many deficiencies in Respondent's performance, including his failure to have a written lesson plan. She left after only sixteen minutes in the classroom. Instead of completing a formal post-observation report with prescriptions and handing it to Respondent, Cobb spoke with Respondent after the observation and informed him of those things that he needed to do to improve his performance.
On December 12, 1989, Cobb reviewed Respondent's grade book. Her review revealed that Respondent still had not complied with the specific directives concerning grading that Boone had first issued Respondent on October 26, 1989, and had reiterated on December 6, 1989. Cobb therefore ordered Respondent to comply with these directives by January 2, 1990.
Cobb reexamined Respondent's grade book on January 2, 1990. She found that the directed improvements had not been made by Respondent.
On January 12, 1990, while in the cafeteria with his students, Respondent playfully held a straw to his nose as one would do if he was snorting cocaine. This incident was reported to Boone. It was further brought to Boone's attention that Respondent had been derelict in his responsibility to properly supervise his class that day. Boone reacted by relieving Respondent of his duties for the day.
On June 18, 1990, a conference-for-the record was held. In attendance were Respondent, his union representative, Boone, Doretha Mingo, the Coordinating Principal for the Board's Region II and, as such, Boone's supervisor, and James Monroe, who, at the time, was the Director of the Board's Office of Professional Standards. Respondent was advised of the various complaints that had been made against him. Among the matters discussed was the January 12, 1990, incident with the straw, Respondent's repeatedly falling asleep in class and at meetings, his failure to properly supervise his students, his refusal to record student assessment data in accordance with established procedures and grading criteria, his lack of planning and preparation of written lesson plans, his erratic attendance and his unwillingness to attend scheduled conferences as required. Another subject of discussion was an incident that had occurred the month before during which Respondent had conducted a search, in contravention of Board policy, of two students on school property. Respondent had been aware of this Board policy at the time he conducted the search.
At the June 18, 1990, conference-for-the-record, Respondent was directed by Mingo to return his grade book to Boone no later than the following day. Respondent did not comply with this directive.
Directives were also issued by Monroe at the June 18, 1990, conference-for-the-record. He ordered Respondent to remain on alternate assignment at home, beginning the next day, and while on such assignment to be accessible by telephone during his seven-hour and five-minute workday between 8:15 a.m. and 3:20 p.m. Monroe further informed Respondent that Respondent was
required to undergo a medical examination and drug test to determine his fitness to perform his assigned duties.
On January 19, 1990, Monroe telephoned Respondent at home. He directed Respondent to report for his medical examination on January 22, 1990. He further instructed Respondent that, following the completion of the medical examination, Respondent was to remain at home during the remainder of the workday.
On January 19, 1990, Respondent submitted to a drug test. The results were positive for cocaine.
Respondent failed to appear for his medical examination on January 22, 1990. The examination was rescheduled for Saturday, January 27, 1990.
On January 23, 1990, and again on January 24, 1990, Monroe made various attempts to reach Respondent at home by telephone during the workday. Respondent, however, was not at home and therefore Monroe was unable to contact him.
Monroe finally got in touch with Respondent on January 25, 1990. He advised Respondent that Respondent was expected to report for his rescheduled medical examination on January 27, 1990, and to remain at home by the telephone during the rest of the workday. He further informed Respondent that he considered Respondent to have been insubordinate and that any further acts of noncompliance on Respondent's part would be deemed gross insubordination and result in a recommendation that Respondent's employment with the Board be terminated.
On Monday, January 29, 1990, Monroe received a report from the physician who was to have examined Respondent that Respondent had not kept his January 27, 1990, appointment. That day, January 29, 1990, and the next, Monroe tried telephoning Respondent at home during Respondent's scheduled work hours, but was unable to reach him. 1/
Monroe tried again on January 31, 1991. This time he was successful in reaching Respondent. He ordered Respondent to report immediately to a new alternate assignment at the Board's Region II administrative office. While on this assignment, Respondent was to be supervised by Mingo.
Respondent reported to the Region II administrative office later that day. He met with Mingo who provided him with the following written instructions:
Effective January 31, 1990 you are directed to report to the Region II office for your assignment. Your work schedule is from 8:15 a.m. to 3:20 p.m. You are to sign in upon arrival and sign out when leaving in the Region II office. If you are going to be absent, you are to call 891-8263 and report your absence to Mrs.
Escandell. You may take one hour for lunch between the hours of 11:30 a.m. to 1:00 p.m. You must be back from lunch by 1:00 p.m. You are not to make any personal calls. Requests to make emergency calls must be forwarded to Mrs. Escandell or any secretary in the front office during her absence. Any deviation from this schedule must be approved by Mrs. Mingo.
During the Conference for the Record with you on January 18, 1990, you were directed to return your grade book to your school on the following day, January 19, 1990. As per your principal, Mrs. Boone, you have failed to provide the school with the official grade book for your class as of this date. You are directed to turn your grade book in to this writer [Mingo] effective February 1, 1990. Additionally, you will be supplied with a box of ungraded papers from your class which are to be corrected and grades recorded while you are assigned to this office. A schedule for completing this task will be discussed with you on February 1, 1990.
Further, during this assignment, you are directed not to report to or call Highland Oaks Elementary School. If there is a need to communicate with anyone at the school, discuss the need with me.
Respondent turned in his grade book the following day.
That same day, Mingo established a deadline of February 6, 1992, for Respondent to complete his grading of the uncorrected papers with which he had been supplied.
On February 5, 1990, Monroe conducted another conference-for-the- record with Respondent.
As he had done during the previous conference-for-the-record, Monroe discussed with Respondent the provisions of the Code of Ethics of the Education Profession and Principles of Professional Conduct for the Education Profession in Florida and directed Respondent to comply with these provisions. He emphasized that it was imperative that Respondent maintain the respect and confidence of colleagues, students, parents and other members of the community, that he make every reasonable effort to protect his students from conditions harmful to learning and safety, and that he not expose students to unnecessary embarrassment or disparagement nor violate their legal rights.
Respondent was placed on authorized medical leave effective February 5, through June 21, 1990, to enable him to receive treatment for his drug abuse problem. He was advised that his failure to pursue such treatment would be grounds for dismissal.
At the time he was placed on authorized medical leave, Respondent had not completed the grading of the uncorrected papers he had been given.
Shortly after being placed on authorized medical leave, Respondent was admitted to Mt. Sinai Hospital where he participated as an inpatient in the hospital's 28-day drug abuse treatment program. He remained in the program for the entire 28 day period. After leaving Mt. Sinai, Respondent went to a halfway house, where he stayed until late April, 1990.
On April 26, 1990, Respondent enrolled as an inpatient in the drug abuse treatment program at Concept House. He transferred to Concept House's outpatient program three months later. As an outpatient, Respondent was required to meet with his counselor once a week and to attend group therapy sessions twice a week.
On August 21, 1990, the Board's Office of Professional Standards received a sworn statement from Respondent's counselor at Concept House that Respondent was "in treatment and [was] employable at this time."
That same day, Joyce Annunziata, Monroe's successor, gave Respondent clearance to return to work as a fifth grade classroom teacher at Highland Oaks. Respondent's continuing employment, however, was conditioned upon his remaining in treatment for his drug abuse problem.
It became evident, following Respondent's return to Highland Oaks, that he had not mended his ways. From the outset, he was embroiled in controversy. During the teacher planning days before the opening of school, Respondent loudly argued, without reason, with team members over his spelling/handwriting assignment and declined to participate with them in planning for the upcoming school year.
After school opened, Boone began receiving the same type of complaints about Respondent that she had received the previous year. There was no improvement on Respondent's part. If anything, his conduct and performance were worse than the 1989-90 school year. Particularly disturbing were the
disparaging remarks Respondent directed to individual students during class in front of their classmates.
On or about December 5 or 6, 1990, it was brought to Annunziata's attention that Respondent was no longer participating in the outpatient program at Concept House. He had been terminated from the program on December 3, 1990, because of noncompliance with his treatment plan. Respondent had started missing required individual and group counseling sessions in September. At the time of his termination from the program, he had not had any face-to-face contact with his counselor for at least 30 days.
On December 6, 1990, Annunziata prepared a memorandum directed to Respondent which read as follows:
At the conference in the Office of Professional Standards on August 21, 1990, you were cleared to return to full classroom duties at Highland Oaks Elementary School. This release was contingent upon your compliance with program requirements structured by the District's support agency.
It has been brought to my attention that you are not complying with program requirements and are thus jeopardizing your employment. Please be advised that if you do not contact the District's referral agency within forty-eight hours of receipt of this memorandum and prepare to contract with the District to participate in a structured program, this office will pursue disciplinary measures.
By copy of this memorandum, Ms. Boone is advised to provide to OPS all documentation relating to your performance during the 1990-91 school year.
Future noncompliance with program directives will be considered an exhaustion of assistance and engender district action.
Respondent received the memorandum on December 28, 1990.
On or about December 17, 1990, Respondent's behavior was such that he had to be relieved of his duties for the day. He sang and danced in the cafeteria during lunchtime and slept in the classroom when he was supposed to be teaching, despite a student's attempt to wake him. When awake, he was unable to stand to conduct his class. Instead, he remained slumped in his seat. While seated, he sucked on a candy cane and his fingers making loud, exaggerated noises. He also swung his arms and kicked his legs in all directions.
At the request of one of the other fifth grade teachers who reported that Respondent was "out of it," Cobb went to Respondent's classroom. After confirming that Respondent, who appeared glassy-eyed and unaware of his surroundings, was in no condition to continue teaching, she approached Respondent and told him that she wanted to speak with him in her office. In Cobb's office, Respondent told Cobb that he was tired because he had not gotten any sleep the night before. He then went on to tell Cobb a bizarre story about what had purportedly occurred at his house the prior evening. By all appearances, the story, which he repeated for Boone's benefit, was a product of Respondent's imagination.
Respondent was supposed to exchange student progress reports with the other fifth grade teachers on December 17, 1990. He was unprepared to do so, however, on this date.
On December 29, 1990, Respondent was arrested for possession of cocaine and drug paraphernalia. 2/ He remained in jail until January 18, 1990, when he was released on his own recognizance.
On Sunday, January 6, 1991, the day before classes were to resume after the winter holiday break, Respondent telephoned Cobb at home. He told her that he would be absent because he had to go out of town to attend his father- in-law's funeral and that he did not know when he would be able to return. He did not mention anything about his arrest and incarceration, which was the real reason he would be unable to report to work the following day. By misrepresenting his situation to Cobb, Respondent was laying the groundwork to obtain sick leave benefits to which he was not entitled. While Board employees are entitled to paid sick leave for absences resulting from the illness or death of their father-in-law, they are not entitled to such leave for absences resulting from their own incarceration.
On or about January 11, 1991, Annunziata reassigned Respondent from Highland Oaks to the Region II administrative office, where Respondent was to be under Mingo's supervision.
January 22, 1991, was Respondent's first day back to work after his arrest. He reported to the Region II office and met with Mingo. Mingo gave him the same instructions, which are recited in paragraph 38 above, that she had given him the prior school year when he had been assigned to her office.
On January 24, 1991, Annunziata conducted a conference-for-the record with Respondent to address issues relating to his continued employment with the Board. She informed Respondent during the conference that no final decision would be made until the matter was further reviewed.
On Friday, February 8, 1991, Respondent left the Region II office for lunch at 11:30 a.m. He did not return to work that day. It was not until around 2:00 p.m., well after he was supposed to be back from his lunch break, that he first called the office to advise that he was having car trouble.
Respondent was also absent the following workday, Monday, February 11, 1991. He telephoned the office to give notice of his absence that day.
On February 12, 1991, Respondent neither reported to work, nor telephoned the office to give notice of his absence.
Respondent returned to work on February 13, 1991. Upon his return, Mingo spoke with him. She reminded him of the directives she had previously given him regarding leave and attendance matters and made clear to Respondent that he was expected to comply with these directives. Furthermore, she indicated that Respondent would not be paid for the time he was away from the office on February 8, 1991, and February 12, 1991, because she considered his absences on these dates to have been unauthorized.
Mingo was concerned not only with Respondent's noncompliance with leave and attendance reporting requirements, but with his sleeping while on duty as well. She therefore directed him, at around 9:10 a.m. on February 13, 1991, to submit to a drug test. She referred him to the urine collection site nearest
the office and ordered him to report back to work after he had dropped off his urine sample. Respondent went to the collection site, 3/ but did not return to work that day as directed.
Respondent reported to work the next workday. Mingo had another meeting with him. She expressed her displeasure with his having again failed to comply with her directives regarding leave and attendance matters. She once again repeated what those directives were.
At around 11:05 a.m. that same day, February 14, 1991, Respondent left the office without authorization at approximately 11:05 a.m. He did not return until around 3:40 p.m. As Respondent was signing out for the day, Mingo confronted him about his unauthorized absence from the office that day. In response to Mingo's inquiry, Respondent told her that, after leaving the office that morning, he had spent the remainder of the day in his car in the parking lot outside the office.
Mingo conducted a conference-for-the-record with Respondent on February 20, 1991. She discussed with him his failure to comply with the directives she had given him. During the conference, she reiterated those directives and ordered Respondent to follow them.
A month later, on March 20, 1991, the Board took action to suspend Respondent and to initiate dismissal proceedings against him. At the time of his suspension, Respondent was serving under a continuing contract.
The directives referenced above that Cobb, Boone, Mingo, Monroe and Annunziata gave Respondent during the 1989-90 and 1990-91 school years and which Respondent refused to obey were reasonable in nature, consistent with Board rules and policies and within these administrators' authority to issue. Respondent's failure to comply with these directives was the product of his unwillingness, rather than a lack of capacity, to do so.
Although Respondent may not have received a TADS annual evaluation for the 1989-90 and 1990-91 school years, nor received at any time during these school years a TADS Post-Observation Report reflecting unacceptable performance, he was certainly put on notice by the administration through other means of his deficiencies and what he needed to do to cure these deficiencies. He was given a fair and reasonable opportunity to improve, but simply failed to take advantage of the opportunity.
During the 1989-90 and 1990-91 school years, Respondent did not teach effectively and efficiently in accordance with the prescribed curriculum.
As a result, his students suffered. They were deprived of the education to which they were entitled.
Respondent displayed little or no concern for the educational development and potential of his students. Nor did he appear particularly interested in protecting them against conditions harmful to their safety and general well-being.
Respondent's behavior in the classroom during the 1989-90 and 1990-91 school years was inconsistent with the standards of public conscience and good morals. It has brought him notoriety among his colleagues, students and their parents. Such notoriety can only serve to impair his effectiveness as a teacher.
CONCLUSIONS OF LAW
An instructor, like Respondent, who holds a continuing contract may be suspended or dismissed at any time during the school year pursuant to Section 231.36(4)(c), Florida Statutes, for "immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude."
"Incompetency," "immorality," "misconduct in office," "gross insubordination or willful neglect of duty," and "moral turpitude," as used in Section 231.36, Florida Statutes, are defined in Rule 6B-4.009(4), Florida Administrative Code, in pertinent part as follows:
Incompetency is defined as inability or lack of fitness to discharge the required duty as a result of inefficiency or incapacity. . . . [A finding of incompetency] shall be based on . . . one (1) or more of the following:
Inefficiency: (1) repeated failure to perform duties prescribed by law (Section 231.09, Florida Statutes); (2) repeated failure on the part of a teacher to communicate with and relate to children in the classroom, to such an extent that the educational program for which he or she is responsible is seriously impaired.
Incapacity: (1) lack of emotional stability;...
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.
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.
Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
* * *
(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 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.
Section 231.09, Florida Statutes, which is referenced in the definition of "incompetency" found in Rule 6B-4.009(1)(a), Florida Administrative Code, provides as follows:
Members of the instructional staff of public schools shall perform duties prescribed by rules of the school board. Such rules shall include, but not be limited to, rules relating to teaching efficiently and faithfully, using prescribed materials and methods, recordkeeping, and fulfilling the terms of any contract, unless released from the contract by the school board.
Rule 6B-1.001, Florida Administrative Code, which is referenced in the definition of "misconduct of office" found in Rule 6B-4.009(3), Florida Administrative Code, provides as follows:
The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nature of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.
The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Rule 6B-1.006, Florida Administrative Code, which is also referenced in the definition of "misconduct of office" found in Rule 6B-4.009(3), Florida Administrative Code, provides in pertinent part as follows:
The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.
* * *
Obligation to the student requires that the individual:
Shall make reasonable effort to protect the student from conditions harmful to learning or to health or safety.
* * *
Shall not intentionally expose a student to unnecessary embarrassment or disparagement.
Shall not intentionally violate or deny a student's legal rights.
In the instant case, the Notice of Specific Charges, as modified at hearing, (Notice) alleges that Respondent, a continuing contract teacher, should be dismissed pursuant to Section 231.36(4)(c), Florida Statutes, on the grounds of gross insubordination and willful neglect of duty (Count I), immorality (Count II), misconduct in office (Count III), convictions of crimes involving moral turpitude (Count IV) and incompetency (Count V).
It was the Board's burden to establish the existence of these alleged grounds for dismissal by a preponderance of the competent, substantial evidence adduced at hearing. See Allen v. School Board of Dade County, 571 So.2d 568,
569 (Fla. 3d DCA 1990); Ferris v. Austin, 487 So.2d 1163 (Fla. 5th DCA 1986), cause dismissed, 492 So.2d 1330 (Fla. 1986).
A review of the record evidence reveals that the Board met its burden of proof with respect to all of the counts of the Notice except Count IV. 4/
Accordingly, Respondent should be found guilty of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency, as charged in the Notice, and, based upon such findings of guilt, he should be dismissed pursuant to Section 231.36(4)(c), Florida Statutes.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the School Board of Dade County issue a final order sustaining the charges of gross insubordination and willful neglect of duty, immorality, misconduct in office and incompetency against Respondent and dismissing him from employment.
RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of February, 1992.
STUART M. LERNER
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 11th day of February, 1992.
ENDNOTES
1/ Respondent was not paid for those days that Monroe was unable to reach him by telephone at home.
2/ This was not the first time that Respondent had been arrested. Just three months before, on September 5, 1990, he had been arrested for allegedly purchasing crack cocaine from an undercover police officer. His arrest record also includes a 1980 arrest on drug charges.
3/ The results of the test were negative.
4/ While proof was submitted that Respondent was arrested once in 1980 and twice in 1990 on drug charges, the evidence does not establish that he was ever convicted of any of these charges.
5/ Respondent is not charged with willfully refusing to obey any direct orders given him by his fifth grade team members.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1978
The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties:
The Board's Proposed Findings of Fact
Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order
Rejected as a finding of fact because it is more in the nature of a statement of law, albeit a correct one, than a factual finding.
3-5. Accepted and incorporated in substance.
6-9. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
10-58. Accepted and incorporated in substance.
59. Rejected because it is not supported by persuasive competent substantial evidence.
60-71. Accepted and incorporated in substance.
72. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.
73-79. Accepted and incorporated in substance. Respondent's Proposed Findings of Fact
1-2. Rejected as findings of fact because they are more in the nature of statements of the case than factual findings.
3-7. Accepted and incorporated in substance.
To the extent that this proposed finding indicates that Respondent received satisfactory annual evaluations for the 1987-88 and 1988-89 school years, it has been accepted and incorporated in substance. To the extent that it suggests that Respondent also received such evaluations for the 1989-90 and 1990-91 school years, it has been rejected because it is not supported by persuasive competent substantial evidence.
Rejected as a finding of fact because it is more in the nature of a summary of testimony than a factual finding.
10-11. Accepted and incorporated in substance.
12. First sentence: Accepted and incorporated in substance; Second sentence: To the extent that this proposed finding states that Respondent "worked in a classroom situation . . . as a 'team member,'" it has been accepted and incorporated in substance. To the extent that it asserts that his situation was "unusual," it has been rejected because it is not supported by persuasive competent substantial evidence.
13-15. Accepted and incorporated in substance.
Rejected because it is contrary to the greater weight of the evidence.
Rejected because, contrary to the suggestion made in this proposed finding, Respondent was timely advised of his deficiencies, told what he needed to do cure these deficiencies and given a fair and reasonable opportunity to meet these requirements.
Rejected as unconvincing argument.
Second sentence: Accepted and incorporated in substance; Remaining sentences: Rejected as findings of fact because they are more in the nature of summaries of testimony than factual findings.
Rejected as a finding of fact because it is more in the
nature of a summary of testimony than a factual finding. Moreover, in this proposed finding, as well as the preceding one, Respondent has not accurately summarized the witnesses' testimony.
Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 5/
First sentence: Rejected as unconvincing argument; Second sentence: Rejected as a finding of fact because it is more in the nature of a statement of the case, albeit a correct one, than a factual finding; Third sentence: To the extent that this proposed finding makes reference to Respondent's testimony regarding his admission into Mt. Sinai Hospital's 28-day drug abuse treatment program, it has been rejected as a finding of fact because it is more in the nature of a summary of testimony than a factual finding. Otherwise, it has been accepted and incorporated in substance.
Accepted and incorporated in substance.
First sentence: Rejected as a finding of fact because it is more in the nature of a summary of testimony than a factual finding; Second sentence: Accepted and incorporated in substance.
Rejected because, even if true, it would have no bearing on the outcome of the instant case.
Accepted and incorporated in substance.
Rejected as unconvincing argument.
COPIES FURNISHED:
Madelyn P. Schere, Esquire Dade County School Board 1450 Northeast Second Avenue Suite 301
Miami, Florida 33132
William Du Fresne, Esquire Du Fresne and Bradley
2929 Southwest Third Avenue Suite One
Miami, Florida 33129
Octavio J. Visiedo Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue Miami, Florida 33132
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32399-0400
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 OF TIME 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.
| Issue Date | Proceedings |
|---|---|
| Mar. 23, 1992 | Final Order of The School Board of Dade County, Florida filed. |
| Mar. 23, 1992 | Final Order of the School Board of Dade County, Florida filed. |
| Feb. 12, 1992 | Letter to O J Visiedo from ELS sent out. (RE: Exhibits). |
| Feb. 11, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 9/12/91 & 10/16/91. |
| Dec. 23, 1991 | Respondent's Proposed Recommended Order filed. |
| Dec. 23, 1991 | Petitioner School Board's Proposed Recommended Order filed. |
| Dec. 16, 1991 | Letter to SML from Madelyn P. Schere (re: Mail correspondence to home during holiday season) filed. |
| Dec. 11, 1991 | CC Letter to William DuFresne from Madelyn P. Schere (re: confirming that the 3rd vol of transcript was received by DOAH on Dec. 6, 1991) filed. |
| Dec. 06, 1991 | Transcript filed. |
| Oct. 23, 1991 | Reporter's Errata Sheet for the Transcript filed. (From Madelyn P. Schere) |
| Oct. 21, 1991 | Errata Sheet filed. (From Frank Deperna) |
| Oct. 16, 1991 | CASE STATUS: Hearing Held. |
| Oct. 15, 1991 | Transcript (Vols 1&2) filed. |
| Sep. 18, 1991 | Notice of Taking Deposition filed. (From Madelyn P. Schere) |
| Sep. 17, 1991 | Order (Hearing will reconvene on October 16, 1991: 11:05 am: Miami) sent out. |
| Sep. 12, 1991 | CASE STATUS: Hearing Partially Held, continued to October 16, 1991: 11:00 am: Miami) |
| Sep. 09, 1991 | (Petitioner) Motion to Take Post-Hearing Deposition of Rebuttal Witness filed. (From Madelyn P. Schere) |
| Aug. 23, 1991 | CC Letter to William Dufresne from Madelyn P. Schere (re: Depositions); filed. |
| Aug. 21, 1991 | (Petitioner) Notice of Taking Deposition filed. |
| Aug. 20, 1991 | Order sent out. (Re: Joint motion for continuance, denied). |
| Aug. 19, 1991 | Notice of Withdrawal of Joint Motion For Continuance of Hearing filed. (From Madelyn P. Schere) |
| Aug. 12, 1991 | Joint Motion for Continuance of Hearing filed. |
| Jul. 11, 1991 | Request for Subpoenas filed. (From William Du Fresne) |
| Jul. 02, 1991 | Order Rescheduling Hearing sent out. (hearing rescheduled for Sept. 12, 1991; 8:30am; Miami). |
| Jun. 10, 1991 | (Petitioner) Motion to Continue Hearing filed. (From Madelyn P. Schere) |
| Apr. 24, 1991 | (Petitioner) Notice of Specific Charges filed. (From Madelyn P. Schere) |
| Apr. 23, 1991 | Notice of Hearing sent out. (hearing set for Sept. 3, 1991; 10:00am;Miami). |
| Apr. 12, 1991 | (Petitioner) Response to Initial Order filed. (From Madelyn P. Schere) |
| Apr. 02, 1991 | Initial Order issued. |
| Mar. 27, 1991 | Agency referral letter; Request for Administrative Hearing filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 18, 1992 | Agency Final Order | |
| Feb. 11, 1992 | Recommended Order | Preponderance of evidence proved teacher guilty of gross insubordination, willful neglect of duty, misconduct & incompetency; dismissal justified. |
