STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS ) COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-4086

)

DAVID SPALTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a formal hearing in this case on October 16, 1991, in Gulfport, Florida.

APPEARANCES

For Petitioner: Bruce P. Taylor, Esquire

Post Office Box 2942 Largo, Florida 34649-2942

For Respondent: Lawrence D. Black, Esquire

650 Seminole Boulevard

Largo, Florida 34640-3625 STATEMENT OF THE ISSUES

Whether or not Respondent engaged in inappropriate conduct warranting his dismissal, to wit, gross insubordination and misconduct in office in violation of Subsection 231.36(6)(a), Florida Statutes.

PRELIMINARY STATEMENT

By letter dated June 24, 1991, Petitioner, the School Board of Pinellas County, advised Respondent, David Spalty, that at the regularly scheduled school board meeting for July 10, 1991, Petitioner's superintendent, J. Howard Hinesley, would recommend his dismissal effective July 11, 1991. Petitioner's recommendation was based on allegations that: (1) Respondent chewed tobacco in the classroom, at baseball practice and games and on the bus transporting the baseball team to and from games; (2) Respondent allowed students to chew tobacco on the bus, at baseball games and at practice, despite directives from an administrator that such activity was to cease; (3) Respondent used vulgar and profane language in the presence of students, in the classroom and on the playing field; (4) Respondent made vulgar, untruthful remarks of a personal nature about female faculty members in the presence of students on the baseball team; (5) Respondent pulled his pants down and exposed his bare buttocks through the window at the back of a bus transporting the baseball team back to school after a game; (6) Respondent was untruthful when discussing the above incident

with district staff and school administrators; and (7) Respondent failed to follow district financial procedures regarding monies raised and collected for the baseball program at Boca Ciega High School. Petitioner concluded that such conduct constituted gross insubordination and misconduct and amounted to just cause for Respondent's dismissal pursuant to Section 231.36(6)(a), Florida Statutes. Respondent denied the charges and on June 26, 1991, the matter was transferred to the Division of Administrative Hearings for the assignment of a Hearing Officer to conduct a formal hearing.

On August 19, 1991, the matter was initially scheduled for hearing for September 18, 1991, and was continued. It was rescheduled on August 26, 1991 and was heard on October 16, 1991.

At the final hearing, Petitioner presented the testimony of student witnesses Sharon Liss, Ryan Mullin, Shane Casser, Matthew Weaver, John Bolick, Jr., Monique Jerew, Kim Brasher and employees Stan Lambert, Shirley Notnagle, Ellen Waters, Allyn Romker, Patricia Clay, Barbara Panesso, Stephen Crosby and superintendent, J. Howard Hinesley. Respondent testified on his behalf.

Petitioner's exhibits 1-11 were offered and received in evidence at the hearing. The parties submitted proposed recommended orders which were considered in preparation of this Recommended Order. Petitioner's proposed findings are substantially incorporated in this Recommended Order. Respondent's proposed memorandum is in the form of a legal argument and was considered as such.

FINDINGS OF FACT

1. Respondent, David Spalty, holds a teaching certificate issued by the State of Florida, and at all times relevant hereto was employed by Petitioner, the School Board of Pinellas County as a teacher by means of a professional service contract. Respondent earned a Bachelor of Science degree in Business Education and has a background in accounting.

   
   

2. Respondent was assigned to Boca Ciega High School in the Pinellas County School System for approximately three (3) years and during the 1990-91 school year, was also the head baseball coach.

   
   

3. At the outset of his employment, Respondent was provided a copy of the Code of Student Conduct which is utilized by Petitioner as a guide for directing its instructional employees to ensure that students practice proper conduct.

   The code prohibits students from using tobacco products and from using vulgar and/or profane language.

   
   

4. Respondent allowed students on the baseball team to use smokeless tobacco despite the fact that he was aware that such was prohibited conduct and was in contravention of the Code of Student Conduct. Although Respondent initially told students to stop using tobacco, he made it clear to such students that he would not strictly enforce the policy. In fact, on more than one occasion, Respondent openly used tobacco in the student's presence and on one occasion borrowed tobacco from a student.

   
   

5. The Florida High School Athletic Association (FHSAA) published a set of rules for baseball during the 1990-91 school year which prohibited coaches, such as Respondent, from using tobacco products during a game or in the vicinity of the playing field.

6. Petitioner has adopted an athletic policy which, inter alia, requires head coaches, such as Respondent, to be responsible for carrying out athletic policies of the department, county and state.

   
   

7. Respondent was advised of these rules by Petitioner's employees.

   
   

8. During the 1990-91 school year, Respondent was observed by Stanley LaBoss, an assistant principal at Boca Ciega High School, openly allowing a student to use smokeless tobacco in his presence. Respondent failed to take any steps to prevent the student from engaging in such conduct.

   
   

9. Respondent, during the 1990-91 school year, both in the classroom and in his capacity as baseball coach, frequently used vulgar and/or four-letter profane language in the presence of students.

   
   

10. Respondent was observed, by several students in one of his classes, using smokeless tobacco. The students questioned Respondent about his conduct whereupon he put his finger to his lips indicating that they should keep quiet about it.

    
    

11. On April 22, 1991, Respondent while enroute from a baseball game with his students who were being transported by bus, pulled downs his pants in the presence of his students and/or team members, and exposed his bare buttocks ("mooning").

    
    

12. On several occasions, Respondent told students at Boca Ciega High School that he had an intimate sexual relationship with a female instructional employee at Boca Ciega High School, which statement was false.

    
    

13. Rumors about Respondent and the female instructional employee was a continuous source of gossip among students on the baseball team and other students who took a class from Respondent. Although Respondent was aware of the rumors, he did nothing to curtail them. The rumors became so prevalent that the situation forced the affected female employee to approach Respondent as it was affecting her ability to control her students who were gossiping and making cynical remarks about the rumors.

    
    

14. Respondent, as baseball coach, was in charge of concessions (at baseball games) and for other fund raising activities which were utilized by Petitioner to defray some of the expenses of the baseball team.

    
    

15. Petitioner has adopted rules for managing internal fiscal accounts which require, among other things, that adequate auditable financial records be maintained. Respondent failed to maintain and produce to Petitioner the financial records of the baseball team and its support organizations when requested to do so by the principal at Boca Ciega High School. Although Respondent produced a checkbook and subsequently an inventory of the property, he failed to produce receipts for transactions which were journaled in the financial records.

    
    

16. Respondent admitted that he collected money for ads in the school's baseball program brochure which were not included in the program and that monies were taken from the concession stand without a proper accounting.

    
    

17. Adverse publicity concerning Respondent's behavior, including the exposing of his buttocks, appeared in at least two local newspapers in Pinellas County which has a daily circulation in excess of 290,000.

    CONCLUSIONS OF LAW

    
    

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

    
    

19. The parties were duly noticed pursuant to Chapter 120, Florida Statutes.

    
    

20. The authority of the Petitioner is derived from Chapter 231, Florida Statutes.

    
    

21. A teacher employed by a public school system under a professional services contract may be dismissed for just cause, which includes, but is not limited to, misconduct in office, incompetency, gross insubordination and willful neglect of duty.

    
    

22. Just cause exists for the Petitioner to impose discipline on Respondent, including David Spalty's use of vulgar and profane language in the presence of students which evidences less than a professional attitude towards students and a poor role model; indifference towards the use of tobacco both by himself and his students/team members; by "mooning" in front of students on April 22, 1991; demonstrating total disregard for the teacher/pupil relationship of his co-workers by making false statements to students about sexual relations with a co-worker which had the affect of reducing his effectiveness as a teacher and of potentially reducing the affected teachers' effectiveness all of which conduct amounted to his demonstration of less than a professional relationship with his students and peers; and Respondent's various bookkeeping irregularities which made it impossible for the Petitioner's accountant to verify the disbursement of funds derived from fund raising activities despite the fact that he (Respondent) has an accounting background.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:

Petitioner enter a Final Order dismissing Respondent from his employment relationship as a teacher with the Pinellas County School Board.

DONE and ENTERED this 26th day of November, 1991, in Tallahassee, Leon County, Florida.

JAMES E. BRADWELL

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 26th day of November, 1991.

COPIES FURNISHED:

Bruce P. Taylor, Esquire Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2642

Lawrence D. Black, Esquire 650 Seminole Boulevard

Largo, Florida 34640-3625

J. Howard Hinesley, Ed.D. Superintendent of Schools Pinellas County School Board Post Office Box 2942

Largo, Florida 34649-2942

Betty Castor

Commissioner of Education The Capitol

Tallahassee, Florida 32399

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: 91-004086

Orders for Case No: 91-004086