vs. ) CASE NO. 92-1573
Respondent. )
Pursuant to notice, final hearing in the above-styled case was held in Kissimmee and Orlando, Florida, on May 26 and June 5, 1992, respectively, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
The parties were represented at the hearing as follows: For Petitioner: Andrew B. Thomas
Rowland, Thomas & Jacobs, P.A.
1786 N. Mills Ave. Orlando, FL 32803
For Respondent: Joseph Egan, Jr.
Egan, Lev & Siwica, P.A.
P.O. Box 2231 Orlando, FL 32802
The issue in this case is whether Petitioner may terminate the continuing teaching contract of Respondent on the grounds that she has been guilty of misconduct in office, immorality, breach of contract, and other just causes for dismissal. Petitioner alleges that Respondent had in her possession two pipes for the purpose of smoking marijuana.
By Administrative Complaint dated March 3, 1992, Petitioner alleges that Respondent holds a continuing contract of employment as a teacher in Petitioner's school district. The Administrative Complaint alleges that, on or about December 21, 1991, Respondent had in her possession, at her residence, two marijuana pipes--one with marijuana and one with marijuana residue. As a result, the Administrative Complaint alleges that these actions impair the effectiveness of Respondent's service to the school district; pose a serious danger to the safety, health, and welfare of the students; and violate the Code of Ethics, including Rule 6B-1.001(2), Florida Administrative Code, concerning lack of judgment, and Rule 6B-1.001(3), concerning the failure to achieve and
sustain the highest degree of ethical conduct. The Administrative Complaint concludes that the actions constitute just cause for termination of the employment contract due to Respondent's misconduct in office, immorality, and breach of contract.
By letter dated March 3, 1992, Respondent requested a formal hearing.
At the final hearing, Petitioner called 5 witnesses and offered into evidence three exhibits. Respondent called 14 witnesses and offered into evidence four exhibits. All exhibits were admitted into evidence.
No transcript was filed. On July 16, 1992, the undersigned informed counsel, who indicated that a settlement was pending, that a recommended order would be issued on July 27, 1992, regardless whether a transcript or proposed recommended order had been filed. This notice was confirmed by letter dated July 16, 1992. Nothing further has appeared of record prior to July 27, 1992.
Respondent is a 37 year-old second-grade teacher. She has continuing contract status. She has taught continuously for 10 years in the Osceola County School District, until she was suspended in early January, 1992, as a result of the subject incident.
At the time of her suspension, she was completing her third year at Ventura Elementary School, which has only been open for three years. She taught the prior five years at Boggy Creek Elementary School.
Respondent has always had good relations with principals, fellow teachers, and parents. Her students stand out when they enter third grade. Respondent has a unique ability to maintain rapport and control in the classroom. She is an enthusiastic teacher who invests considerable energy in teaching.
Respondent has enjoyed excellent evaluations. The most revealing indicator of her exceptional value as a teacher rests in the fact that other teachers with children entering second grade select Respondent much more frequently than they select the other second-grade teachers. Respondent has consistently produced students better prepared than their counterparts to meet the academic and social demands of third grade.
Since being divorced several years ago, the center of Respondent's life has been teaching. About a year prior to the subject incident, Respondent met Richard Kenny. Mr. Kenny, who apparently lives out of town, shares Respondent's residence when he visits.
On December 20, 1991, Mr. Kenny and Respondent invited four casual acquaintances over to Respondent's home for a barbecue. Respondent invited her guests to make themselves at home. At some point after the party began, Respondent and Mr. Kenny re-entered the house. Respondent smelled burning marijuana and, although she saw no one smoking it, immediately informed her guests that she would not tolerate the consumption of marijuana in her home. Offended, the guests left.
The following day, Respondent and Mr. Kenny were cleaning the house. Winter break had already begun, and they were planning to drive to New Hampshire to visit Mr. Kenny's family. In the course of cleaning the living room,
Respondent found two marijuana pipes that had been left by her guests the prior day. There was no more than trace amounts of marijuana residue in the pipes so, without considerable thought, Respondent took them into her bedroom and placed them on the dresser.
It is unclear what Respondent intended to do with the pipes. Her focus at the moment was on completing a hurried housecleaning, so she and Mr. Kenny could get on the road and begin their vacation. She typically placed in her bedroom all misplaced items found during housecleaning.
On the evening of December 21, Respondent and Mr. Kenny went out to eat. When they returned, Respondent changed and went to the utility room to turn on the water heater, which she turned off when unneeded in order to save money. She noticed that a window had been broken in the utility room in an apparent attempt to burglarize her home.
Respondent called the police. A female sheriff's deputy arrived about five minutes before a male deputy arrived on the scene. The deputies, who are young and inexperienced, remained on the scene together.
The male deputy arrived while Respondent was showing the female deputy the utility room, which was at the other end of the house from Respondent's bedroom. Because the house was in the male deputy's territory, he assumed the primary responsibility of investigating and filling out the police report. The male deputy and Mr. Kenny sat down in the living room to fill out the police report.
Respondent went back to her bedroom to find a sweater and a lighter in order to smoke a cigarette. Unknown to her, the female deputy had followed her. Standing in the doorway, the deputy saw one of the pipes on the dresser.
Returning to the living room, the deputies conferred momentarily about the pipes. The female deputy returned to the bedroom, seized the pipes, brought them out to the living room, and confronted Respondent with them.
Respondent initially denied ownership of the pipes. In the course of questioning, Respondent became emotionally upset and, defying the instructions of the deputies, kept walking back into her bedroom. Exasperated, the male deputy, who is 21 years old and had been in law enforcement less than one year, handcuffed Respondent. He and possibly the female deputy expressed a concern, unfounded as it turned out, that Respondent might be returning to her bedroom to destroy evidence.
Neither deputy could give credible testimony as to when Respondent was given her Miranda rights. In fact, she was advised of her rights as the handcuffs were applied. The details are unclear as to how an investigation of a house burglary transformed into the arrest of the homeowner without any criminal record for possession of drug paraphernalia in the form of two empty pipes (except for residue) commonly available in the Central Florida area.
At some point prior to being handcuffed, Respondent "admitted" that the pipes were hers. But the admission was induced by what can be characterized as nothing less than a fraudulent inducement on the part of one or both deputes, who assured Respondent that if she admitted to ownership of the pipes, nothing would happen.
Numerous material inconsistencies exist between the stories of the two deputies. Based on all of the circumstances, the State Attorney's office agreed that Respondent could enter a pretrial diversion program designed to leave Respondent without a criminal record.
After being booked and obtaining release on bail, Respondent returned home in the early morning hours of December 22. She and Mr. Kenny proceeded to leave town on their trip.
When she returned, Respondent learned that Petitioner had been advised of her arrest. On the second day of school following Winter break (car trouble had delayed Respondent's return by one day), Petitioner informed Respondent that she was suspended without pay due to the incident.
Considerable evidence was produced at the hearing concerning a teacher's effectiveness following two versions of the subject facts. The first version is that Respondent possessed the pipes without any intent to smoke marijuana. This is the version adopted in the present case in which one or more guests had, without permission, lighted the pipes to consume marijuana, had been told to leave, and had left the pipes. There was no evidence that such innocent possession of the pipes, together with a subsequent arrest, would impair Respondent's effectiveness as a teacher, constitute immorality, jeopardize the welfare of Respondent's students, or establish other grounds for the cancellation of Respondent's contract.
The second version is that Respondent possessed the pipes with an intent to smoke marijuana. Petitioner has failed to establish such guilty possession.
Even if Respondent had been guilty of possession of the two pipes with an intent to smoke marijuana, Petitioner has failed to establish, absent any evidence suggesting that this would have been more than an isolated incident, that Respondent's effectiveness as a teacher would be impaired, the welfare of her students would be compromised, or that prevailing community standards of morality would be violated.
Petitioner has undertaken considerable efforts at eradicating drug abuse among students. Justifiably concerned that the subject incident could undermine these critically important efforts, Petitioner prudently decided to initiate a process that would trigger an administrative factfinding process in which both sides could present evidence for impartial consideration under principles of law.
Not surprisingly, there is no uniformity of opinion as to Respondent's fitness as a teacher had been she been proved to have had guilty possession of the two pipes in an isolated incident. However, several critical facts emerge. First, Respondent is an outstanding teacher. There is no evidence that any aspect of her personal life has ever had an adverse bearing on her ability to teach.
Second, Respondent's effectiveness as a teacher would be unaffected, even if Respondent were found guilty of possession of the two pipes with an intent to smoke marijuana in an isolated incident. Respondent has for many years maintained firm control of her classroom. There is no evidence that her effectiveness in this regard, especially given the tender age of her students, would be impaired if she were to return to the classroom, even after having been found guilty of possessing the pipes with an intent to smoke marijuana.
The majority of parents and fellow teachers would not be troubled by Respondent's return to the classroom even if she had possessed the pipes with an intent to smoke marijuana in an isolated incident. To the contrary, with the exception of managerial-level school administrators, the evidence suggests that all components of the relevant community would want Respondent to be able to bring her considerable talents back to the classroom even if she had been guilty of possessing the pipes with an intent to smoke marijuana in an isolated incident.
The willingness of the parents and teachers to receive Respondent back in the classroom, even if she had been proved guilty of wrongful possession of the pipes in an isolated incident, is based in part upon the recognition of her unique talents working with students. The opinions of many teachers and parents are informed by a willingness to tolerate a considerable separation between a teacher's private and public lives. These persons focus on the work of the person rather than aspects of her personality or personal life when these latter factors do not impact her teaching.
Parents and teachers offered a variety of explanations as to why Respondent should be allowed to return to the classroom, even if she were guilty of wrongful possession of the pipes. The most articulate explanation was offered by Elizabeth Williams, who had a daughter in Respondent's class during the 1991-92 schoolyear. She also has another daughter who will be in second grade in the 1993-94 schoolyear.
Explaining why Ms. Williams would want her younger daughter to be taught by Respondent, even if she were guilty of wrongful possession of the pipes in an isolated incident, Ms. Williams first described her older daughter's reaction when Respondent was abruptly suspended in January. The daughter told her mother that she wanted to quit going to school. As a mother residing in the neighborhood served by Ventura Elementary School and a teacher at Ventura, Ms. Williams explained that second graders, unlike older students, are not thinking about drugs.
Ms. Williams' attitude toward Respondent's return to the classroom, even if Respondent had possessed the pipes with an intent to smoke marijuana in an isolated incident, reflects conservative values prevalent in the community. Describing herself as a member of a conservative Christian denomination, Ms. Williams, while rejecting a repetitive cycle of sinning followed by repentance, emphasizes the importance of forgiveness in an isolated incident. Expressing this core aspect of the community's moral code, Ms. Williams testified that she would welcome Respondent back to the classroom and send her younger daughter to Respondent's class as long as there was no evidence that the guilty possession was other than an isolated incident.
The core community value of forgiveness was recently embraced by the administration in connection with a principal of another school in the district. He was arrested for driving under the influence of alcohol. Unlike Respondent, the principal was convicted of the offense. Petitioner decided in his case to impose a two-week suspension without pay and other relatively minor sanctions.
In part, the attitude of the administration, which is an important community with which Respondent must interact in order to be an effective teacher, appears to have been based on a misreading of the attitudes of other members of relevant communities, such as teachers and parents. For example, one
representative of Petitioner identified several teachers by name as opponents to Respondent's return to the classroom. But when these persons were called as witnesses, they testified differently.
In any event, there is no evidence that Respondent would have trouble working with any member of the administration if she were not found guilty of wrongful possession of the pipes. Even under the guilty-possession scenario, the weight of the evidence is that the administration is properly mindful of the vital need to protect students from the scourge of drug abuse, the support for Respondent from the parent and teaching communities, and the importance of maintaining exceptional teachers. After weighing these factors, even under the wrongful- possession hypothetical scenario, the evidence is that the administration would continue to work professionally with Respondent, despite in an isolated incident, as it has with the principal who was actually convicted of driving under the influence.
Petitioner has failed to establish that Respondent was guilty of possession of the two pipes with an intent to smoke marijuana. The evidence shows that she came into possession of the pipes under innocent circumstances so that, notwithstanding her arrest, there is no question surrounding her moral fitness and effectiveness as a teacher or the welfare and safety of her students.
Even if Petitioner had proved that Respondent possessed the pipes with an intent to smoke marijuana in an isolated incident, Petitioner failed to prove that, under the circumstances of this case, her contract should be terminated. Even under this scenario, the evidence fails to show that Respondent's effectiveness as a teacher would have been impaired, she would have been guilty of immoral behavior or moral turpitude, or that the safety, health, or welfare of her students would have been imperilled.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)
Petitioner is authorized to suspend, dismiss, or return to annual contract a teacher, but only on those grounds set forth in Chapter 231. Section 230.23(5)(f).
Section 231.26(4)(c) states that an administrator or teacher on continuing contract may be suspended or dismissed for "immorality, misconduct in office, incompetence, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude." The section states that the school board may immediately suspend a person so charged but, if the charges are not sustained, "he shall be immediately reinstated, and his back salary shall be paid."
Rule 6B-4.009(2) defines "immorality" as:
conduct that is inconsistent with the standards of public conscience and good morals. It is sufficiently notorious to
being the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.
Rule 6B-4.009(6) defines "moral turpitude" as 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.
Rule 6B-4.009(3) defines "misconduct in office" as a violation of the Code of Ethics set forth in Rule 6B-1.001 or the Principles of Professional Conduct for the Education Profession in Florida set forth in Rule 6B-1.006, "which is so serious as to impair the individual's effectiveness in the school system."
In a teacher dismissal case, the standard of proof is a preponderance of the evidence. Allen v. School Board of Dade County, 571 So. 2d 568 (Fla 3d DCA 1990).
Based on the facts set forth above, Petitioner has failed to prove that Respondent was guilty of wrongful possession of the pipes. Respondent is thus not guilty of any of the charges set forth in the Administrative Complaint.
Even if Petitioner had proved that Respondent were guilty of wrongful possession of the pipes, Petitioner failed to prove any of the charges set forth in the Administrative Complaint. Under the facts of this case, the evidence, even under the wrongful-possession scenario, fails to establish immorality or moral turpitude (and surely not, as required by the statute, conviction of a crime involving moral turpitude). Although the court in Adams v. Professional Practices Council, 406 So. 2d 1170 (Fla. 1st DCA 1981) held that possession of
52 marijuana plants by two teachers was evidence of gross immorality or moral turpitude, due in part to the vital leadership role of a teacher, the court also relied on proof of the local community standard and the teachers' impaired effectiveness. Such proof is lacking in this case, even if Petitioner had proved that Respondent possessed the pipes to smoke marijuana. Thus, even under the wrongful-possession scenario, the evidence likewise fails to establish misconduct in office because of the failure of the proof to show that Respondent's effectiveness in the classroom would have been impaired.
RECOMMENDED that the School Board of Osceola County enter a final order reinstating Lynn Epstein and awarding her full back pay for the time that she would normally have worked following her suspension.
Chris Colombo, Superintendent Osceola County School Board 817 Osceola Blvd.
Andrew B. Thomas
Rowland, Thomas & Jacobs, P.A. 1786 N. Mills Ave.
Joseph Egan, Jr.
Egan, Lev & Siwica, P.A.
P.O. Box 2231 Orlando, FL 32802
ROBERT E. MEALE
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.
