STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BETTY CASTOR, as Commissioner ) of Education, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4799

)

DEWEY B. MCKINNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 16, 1992, in Starke, Florida.

APPEARANCES

For Petitioner: Robert J. Boyd, Esquire

Bond & Boyd, P.A. Post Office Box 26

Tallahassee, Florida 32302

For Respondent: Terence M. Brown, Esquire

Post Office Box 40

Starke, Florida 32091-0040 STATEMENT OF THE ISSUES

Whether the Education Practices Commission (hereinafter referred to as the "EPC"), may revoke or suspend Dewey B. McKinney's Florida teaching certificate for violations alleged in an Administrative Complaint entered June 9, 1992?

PRELIMINARY STATEMENT

On or about June 9, 1992, the Petitioner, Betty Castor, as Commissioner of Education, filed, on behalf of the EPC, an Administrative Complaint against the Respondent, Dewey B. McKinney. Pursuant to the Administrative Complaint, the EPC charged Mr. McKinney with violations of Florida law related to his Florida teaching certificate which he allegedly committed while employed by the Bradford County, Florida, School Board.

On or about July 31, 1992, Mr. McKinney filed an election of rights denying the allegations of the Administrative Complaint and requesting a formal administrative hearing to contest the charges against him. The request for administrative hearing was filed with the Division of Administrative Hearings on August 6, 1992.

Prior to the filing of this case, the Superintendent of Bradford County Schools (hereinafter referred to as the "Superintendent"), notified Mr. McKinney that the Superintendent was filing a Petition for Suspension with the Bradford County School Board (hereinafter referred to as the "School Board"), seeking suspension of Mr. McKinney's employment with the School Board. On or about April 14, 1992, the School Board entered an Intermediate Order approving the Petition for Suspension.

On or about May 1, 1992, Mr. McKinney served Respondent's Answer, Affirmative Defenses, and Request for Administrative Hearing with the School Board contesting the School Board's actions. On June 10, 1992, the School Board entered an Amended Petition for Suspension and/or Dismissal. The request for administrative hearing was filed with the Division of Administrative Hearings by the Superintendent on June 19, 1992. That request was assigned case number 92- 3643.

The final hearing of this case was scheduled for December 15, 1992, by Notice of Hearing entered September 18, 1992. The previously assigned Hearing Officer denied a motion to consolidate this case with the School Board case, case number 92-3643. It was agreed, however, that the hearing of case number 92-3643 would commence on December 15, 1992, and the hearing this case would

immediately follow that hearing. It was also agreed that the evidence presented in case number 92-3643 would be considered in reaching a decision in this case.

The parties in this case filed unilateral prehearing statements. To the extent that there are relevant stipulated facts in those statements, they have been incorporated into this Recommended Order.

At the final hearing the EPC presented the testimony of Catherine R. Rosier, Kathy Whitehead, Vickie L. Turner, Finley J. Duncan, Edna Allen, Geraldine Tomlinson and Marie Thornton. The EPC also offered seven exhibits which were accepted into evidence.

Mr. McKinney testified on his own behalf and presented the testimony of Carmella M. Johnson, Mary C. Gissy, Cynthia R. Rowe, Virginia L. Walkup, Helen

1. Haverty and Shirley M. Bagwell. Mr. McKinney also offered thirteen exhibits which were accepted into evidence.

   
   

   At the final hearing the parties requested, and were given, permission to file their proposed recommended orders within twenty days after the transcript was filed. The transcript of the hearing was filed on January 26, 1993.

   Therefore, proposed recommend orders were to be filed on or before February 10, 1993. On February 9, 1993, at the request of the EPC, an Order Extending Time to File Proposed Recommended Order was entered extending the time to file proposed recommended orders until February 25, 1993. On March 8, 1993, a Second Order Granting Motion to Extend Time to File Proposed Recommended Order was entered granting Mr. McKinney's request that the time for filing proposed recommended orders be extended until March 5, 1993.

   
   

   On February 25, 1993, the EPC filed a proposed recommended order containing proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

   
   

   On March 22, 1993, the EPC filed a Motion to Strike Respondent's Proposed Recommended Order. Noting that the deadline for filing proposed recommended

   orders was March 5, 1993, and that no proposed recommended order had been filed by Mr. McKinney before that date, the EPC requested that, if any proposed recommended order was subsequently filed by the Mr. McKinney in this case, it should not be considered. No proposed recommended order has been filed by Mr. McKinney in this case.

   
   

   FINDINGS OF FACT

   
   

   1. The Parties.

      
      

      1. The Petitioner, Betty Castor, as Commissioner of Education, through the EPC, is authorized to discipline Florida teaching certificates.

         
         

      2. The Respondent is Dewey McKinney, who, at all times relevant to this proceeding, held Florida teaching certificate number 163503. Mr. McKinney is qualified to teach physical education and to be a school principal. Mr. McKinney's certificate is valid through June 30, 1993.

         
         

      3. From approximately November, 1988, to October 14, 1991, Mr. McKinney served as a school principal for the Bradford County School Board (hereinafter referred to as the "School Board"). Mr. McKinney was employed as "principal" pursuant to a Continuing Contract of Employment for Instructional Personnel of the Public Schools entered into between Mr. McKinney and the School Board on or about March 5, 1974.

         
         

   2. Mr. McKinney's Requests to Lula Marie Thornton for Prescription Drugs.

      
      

      1. Lula Marie Thornton was hired in 1976 by Mr. McKinney as school secretary at Starke Elementary School. Ms. Thornton worked for Mr. McKinney from 1976 to 1977 and from 1988 until 1991.

         
         

      2. In September or October, 1989, Ms. Thornton fractured her elbow.

         
         

      3. Ms. Thornton's physician prescribed Tylenol III, which contains codeine, a controlled substance.

         
         

      4. Ms. Thornton took the Tylenol III to school with her the day after injuring her arm in case the pain became severe.

         
         

      5. Mr. McKinney noticed Ms. Thornton's injury and inquired about it. Mr. McKinney specifically asked Ms. Thornton what medications her physician had prescribed. Ms. Thornton told Mr. McKinney that she had been prescribed Tylenol III and showed him the prescription bottle.

         
         

      6. Mr. McKinney told Ms. Thornton that he had been experiencing severe headaches at night. Mr. McKinney asked Ms. Thornton if he could take a couple of her Tylenol III pills so that he could take them at night to help him sleep. Mr. McKinney also told Ms. Thornton that he had taken Tylenol III for his headaches before. Ms. Thornton was aware that Mr. McKinney had a history of migraine headaches and that he took prescription medication. Mr. McKinney's testimony that he told Ms. Thornton that he was experiencing a migraine headache at the time he requested the medication is not credible.

         
         

      7. Ms. Thornton acquiesced to Mr. McKinney's request and Mr. McKinney took a couple of the pills from the bottle. Ms. Thornton did not see Mr. McKinney take any of the pills she gave him.

      8. Ms. Thornton was aware that it was improper to give the prescription medication to Mr. McKinney. Even so, she gave him the pills because he was her boss and she considered him a friend. Mr. McKinney was Ms. Thornton's immediate supervisor and Ms. Thornton knew he would have a great deal of influence in the decision of the Superintendent as to whether her annual employment contract was renewed. She also knew that Mr. McKinney signed her annual contract. Consequently, she did not refuse Mr. McKinney's request.

         
         

      9. Because Ms. Thornton was aware that it was improper to give another person her prescription medications, Ms. Thornton felt very uncomfortable about Mr. McKinney's request and her acquiescence to his request. She did not take the medication back to school after this incident.

         
         

      10. A couple of nights after Ms. Thornton allowed Mr. McKinney to take some of the Tylenol III, Mr. McKinney telephoned her at her home. This was the first time that Mr. McKinney had ever telephoned Ms. Thornton at her home.

          
          

      11. Mr. McKinney informed Ms. Thornton that he was experiencing severe headaches, that Tylenol III helped him sleep and asked her whether she still had any of her Tylenol III left. Ms. Thornton told Mr. McKinney that she had some of the medication left.

          
          

      12. Mr. McKinney then asked Ms. Thornton if she would bring him some of Tylenol III the next day. Despite the fact that Ms. Thornton believed that it was wrong to give anyone else her prescription medications, she told Mr. McKinney that she would bring him some of her Tylenol III.

          
          

      13. Ms. Thornton again acquiesced to Mr. McKinney's request because he was her immediate supervisor. She felt very uncomfortable, however, with Mr. McKinney's request.

          
          

      14. The next morning, Ms. Thornton intentionally left the Tylenol III at home and told Mr. McKinney that she had forgotten to bring it. Mr. McKinney replied, "okay." Lying to Mr. McKinney made her feel very uncomfortable.

          
          

      15. In both incidents, Ms. Thornton was concerned about the possibility of losing her job if she refused Mr. McKinney's request. She was also aware that it was improper to give Mr. McKinney drugs that had been prescribed for her use. These mixed feelings, brought on by Mr. McKinney's requests, caused Ms. Thornton to feel uncomfortable, nervous and upset.

          
          

      16. Mr. McKinney did not request medication from Ms. Thornton at any other time not reflected in the foregoing findings of fact. Nor did Mr. McKinney act aggravated or express any displeasure toward Ms. Thornton.

          
          

      17. Mr. McKinney realized that Ms. Thornton felt uncomfortable with his request after she told him that she had forgotten to bring her medication the day after Mr. McKinney's telephone call to her.

          
          

   3. Mr. McKinney's Request to Ms. Thornton to Pick Up Medication.

      
      

      1. While principal at Starke Elementary, Mr. McKinney asked Ms. Thornton to go to the store and buy Donnagel PG for him. This occurred at least 5 to 8 times.

      2. Donnagel PG is intended for the treatment of diarrhea. It contains paregoric, a pain reliever. Donnagel PG is not a prescription medication. In order to purchase it, however, the purchaser is required to sign for the medication and list their name, address and the date on a log.

         
         

      3. Ms. Thornton felt uncomfortable purchasing the Donnagel PG for Mr. McKinney because she did not like signing for medication she was not purchasing for herself. She agreed to Mr. McKinney's requests, however, because he was her boss and she felt intimidated.

         
         

      4. When questioned about these incidents by the Superintendent, Mr. McKinney agreed not to ask anyone to purchase Donnagel PG for him again.

         
         

   4. Mr. McKinney's Requests to Edna Allen for Prescription Drugs.

      
      

      1. Edna Allen has been employed at Starke Elementary School since 1970. She worked in the same general area as Ms. Thornton. During 1991, Ms. Allen's immediate supervisor was Mr. McKinney.

         
         

      2. In April or May, 1991, Ms. Allen went to the dentist because of an abscessed tooth. The dentist prescribed a controlled substance, hydrocodone, to relieve Ms. Allen's pain.

         
         

      3. After receiving the pain medication, Ms. Allen was explaining her dental problem to Ms. Thornton and Geraldine Tomlinson, a clerical employee at Starke Elementary School. Ms. Allen told Ms. Thornton and Ms. Tomlinson what medication she had been given and showed them the bottle. Mr. McKinney was in the same room at the time that Ms. Allen was talking to Ms. Thornton and Ms. Tomlinson.

         
         

      4. After returning to her desk, Ms. Allen noticed Mr. McKinney come into her area and go into a closet where student awards were kept. Mr. McKinney made several trips in and out of the area. Ms. Allen had not seen Mr. McKinney go into the closet before and she became nervous.

         
         

      5. After making several trips into the closet, Mr. McKinney stopped at Ms. Allen's desk. He began to tell her that he had a severe headache and asked her for some of her pain pills. Ms. Allen acquiesced and gave him four pills.

         
         

      6. Ms. Allen felt very nervous and upset over Mr. McKinney's request for her prescription medication. She knew that it was wrong to give him the pills but she also knew that he was her boss. Ms. Allen was worried about the possible adverse consequences to her employment and her evaluations if she declined to give Mr. McKinney the pills.

         
         

      7. Based upon Mr. McKinney's testimony that he sensed that Ms. Tomlinson felt uncomfortable about his second request for some of her medication, Mr. McKinney has little excuse for placing Ms. Allen in the position he placed her in when he asked for her prescription medication.

         
         

      8. Ms. Allen told Ms. Thornton and Ms. Tomlinson about the incident. They told Ms. Allen that she should not bring prescription pain medication to the office because of Mr. McKinney. Therefore, Ms. Allen only brought one pill with her the next day in her purse.

      9. The next morning, Mr. McKinney again asked Ms. Allen for some of her pain pills. Ms. Allen lied to Mr. McKinney and told him that she had not brought any medication with her. Ms. Allen felt very upset and nervous as a result of Mr. McKinney's request.

         
         

      10. The foregoing events caused Ms. Allen to be distracted from performing her job fully for a day or two.

          
          

      11. Other than the incidents described in the foregoing findings of fact, Mr. McKinney did not ask Ms. Allen for any medications.

          
          

   5. Mr. McKinney's Failure to Insure that Student Medications Were Safely Stored.

      
      

      1. Prior to Mr. McKinney's employment as principal of Starke Elementary School, student medications at Starke Elementary School were kept in a vault in the administrative offices of the school. The medications were kept on a shelf in the vault. The vault was left open during the school day.

         
         

      2. The practice of keeping medications in the school vault on a shelf was continued after Mr. McKinney became principal of Starke Elementary School.

         
         

      3. Three employees were designated by Mr. McKinney to administer medications to students: Ms. Thornton, Geraldine Tomlinson, a member of the clerical staff, and Ms. Allen. A commonly dispensed medication was Ritalin, a medication taken by children for attention deficit disorder.

         
         

      4. Parents left medications which their children were required to take with only the three employees who were authorized to dispense the medications, the medications were kept in the vault, the three employees dispensed the medications to the students and the three employees informed the parents when the supply of medications was running low and needed to be replaced.

         
         

      5. Kathy Whitehead, a parent of a child that took Ritalin, informed Ms. Tomlinson that her child's medication, which she carefully counted, was running out too fast. As a result of concern over whether medications were being taken by someone, Ms. Tomlinson decided to stop keeping student medications on the shelf in the vault. Instead, Ms. Tomlinson decided to keep the medications in an unlocked tin cookie can. She also placed the can in an unlocked file cabinet and began keeping a log of the amount of medications left by parents and dispensed to students. Mr. McKinney's testimony that it was his idea to no longer keep student medications on the shelf is not credible.

         
         

      6. In addition to student medications, school supplies and student records were maintained in the vault.

         
         

      7. At all times relevant to this proceeding, the vault in which student medications were stored was left unlocked and open during school hours. The vault was accessible to all teachers and other employees of Starke Elementary School.

         
         

      8. During the 1990-1991 school year Catherine Rosier, mother of a student taking Ritalin, noticed that her child's medication bottle contained two different colored pills: light blue pills which contained Ritalin and white pills which Ms. Rosier had not seen before. It was subsequently determined that the white pills were not Ritalin.

      9. Mr. McKinney was present when Ms. Rosier noticed the white pills. Mr. McKinney reported the incident to the police and an Assistant Superintendent of Bradford County Schools. Mr. McKinney also took some of the white pills to a pharmacist.

         
         

      10. As a result of Ms. Rosier's discovery, Mr. McKinney instructed Ms. Thornton to purchase a lock box with two keys and begin to store the medications in the lock box. Mr. McKinney gave one key to Ms. Thornton and the other key to Ms. Tomlinson.

          
          

      11. The evidence failed to prove that Mr. McKinney took any of the missing medications at Starke Elementary School. Mr. McKinney did not, however, take adequate precautions to secure student medications until after problems had occurred. By leaving the vault open and accessible to all employees and faculty to keep student medications under lock and key, student medications were tampered with.

          
          

   6. Mr. McKinney's Removal as Principal of Starke Elementary School.

      
      

      1. As a result of the incident involving student medications described in findings of fact 36-46, Finley J. Duncan, Superintendent of Bradford County Schools from January, 1985, until November, 1992, recommended to the School Board that Mr. McKinney be transferred to Bradford High School as Assistant Principal. Mr. Duncan also notified the State Attorney's office of the incident. At the time of this recommendation, Mr. Duncan believed that Mr. McKinney could meet the responsibilities of assistant principal.

         
         

      2. Mr. Duncan's recommendation to the School Board was rejected. Mr. Duncan then decided, and Mr. McKinney agreed, that Mr. McKinney should be transferred to the position of Director of General Services, the position that Mr. Duncan currently holds. This agreement between Mr. Duncan and Mr. McKinney was intended to resolve the matter involving the missing medications. It was not intended, however, to resolve any of the other charges which are the subject of this proceeding.

         
         

      3. At the time of Mr. Duncan's recommendation to the School Board that Mr. McKinney be assigned as an assistant principal, Mr. Duncan had been told of accusations against Mr. McKinney concerning requests for medications from coworkers. Assistant Superintendent of Bradford County Schools, Wayne McLeod, had reported to Mr. Duncan that he had been hearing comments concerning Mr. McKinney requesting medications from coworkers. Mr. Duncan, however, took the position that he had no direct evidence that Mr. McKinney had requested medications from coworkers, i.e., no person told him that they had been asked for medications. Consequently, Mr. Duncan did not take any action against Mr. McKinney.

         
         

      4. While the information that Mr. Duncan had received concerning Mr. McKinney may have been sufficient to warrant further investigation, the evidence failed to prove that any information concerning Mr. McKinney's possible solicitation of medications should have been relied upon by Mr. Duncan to take any action against Mr. McKinney. Nor did the evidence prove that Mr. Duncan, in deciding that Mr. McKinney could effectively fulfill the responsibilities of the position of Director of General Services in the fall of 1991, should have considered the rumors concerning Mr. McKinney.

   7. Criminal Charges Against Mr. McKinney.

      
      

      1. In March, 1992, Mr. Duncan learned from the State Attorney's Office of the extent of the investigation of Mr. McKinney. This was the first time that Mr. Duncan learned of the requests for medications from Mr. McKinney to Ms. Thornton and Ms. Allen.

         
         

      2. On or about April 1, 1992, Mr. McKinney was arrested and charged by information in the Circuit Court for Bradford County with twelve felony counts. Two of those counts involved Mr. McKinney's request for prescription drugs from Ms. Thornton and Ms. Allen. Mr. McKinney has reluctantly admitted that he committed those violations although he still questions whether he did anything illegal.

         
         

      3. The other ten counts against Mr. McKinney involve allegations that Mr. McKinney obtained prescription medications from two different physicians without divulging that he was seeing both physicians. The evidence failed to prove whether these charges are correct.

         
         

      4. The criminal charges are still pending. A Pretrial Intervention Agreement has, however, been entered into to resolve the charges against Mr. McKinney.

         
         

      5. Pursuant to the Pretrial Intervention Agreement, Mr. McKinney agreed to, among other things, the following:

         
         

         11) The Defendant agrees, at his expense, to enroll in a facility and submit to and comply with reasonable procedures or requirements employed by such a facility or a facility to which the Defendant is referred by such facility, including but not necessarily to providing urine samples at random times and to maintain a true and accurate log of all substances ingested or otherwise consumed and to not take nor undertake any action inconsistent with the goals referred to in Section I, paragraph 10) of this Agreement.

         
         

      6. Mr. McKinney has, in conformity with paragraph 11 of the Pretrial Intervention Agreement, referred himself to Vista Pavilion for evaluation and treatment for prescription medication abuse.

         
         

      7. At the time of the final hearing of this case, Mr. McKinney was attending another drug rehabilitation program pursuant to the Pretrial Intervention Agreement.

         
         

   8. The Impact of Mr. McKinney's Actions on His Ability to Perform His Duties Effectively.

1. As a result of the charges against Mr. McKinney, Mr. Duncan filed a petition in April, 1992, with the School Board seeking to suspend Mr. McKinney as an employee of the School Board. The petition was amended in June, 1992, to seek Mr. McKinney's dismissal from employment with the School Board.

   
   

2. While serving as Principal and as Director of General Services, Mr. McKinney received relatively high ratings for his performance. Those ratings,

   however, did not take into account all of the specific actions which are the subject of this proceeding.

   
   

3. Mr. Duncan made several statements during his testimony which, if considered alone, may indicate that his recommendation that Mr. McKinney be dismissed and his opinion's concerning whether Mr. McKinney can effectively continue to work for the School Board, is based upon the total number of felony counts Mr. McKinney has been charged with. Mr. Duncan's testimony must be considered as a whole, however. A consideration of all of Mr. Duncan's testimony does not support a finding that his opinions concerning Mr. McKinney's effectiveness are based upon the total number of felony counts Mr. McKinney was charged with. Based upon all of Mr. Duncan's testimony, Mr. Duncan has recommended Mr. McKinney's dismissal, and has concluded that Mr. McKinney can no longer effectively carry out his responsibilities with the School Board as a principal because of his solicitation of controlled substance from subordinate employees.

   
   

4. Mr. McKinney solicited controlled substances from Mr. Thornton and Ms. Allen. As a consequence of these actions, Mr. McKinney placed subordinate employees in an untenable position. His actions also constituted the improper use of Mr. McKinney's position and power for his own personal gain.

   
   

5. Mr. McKinney requested that Ms. Thornton and Ms. Allen, persons under his immediate supervision, provide him with controlled substances in possible violation of criminal laws of the State of Florida. These actions have impaired Mr. McKinney's ability to have effective working relationships with persons under his supervision.

   
   

6. Mr. McKinney's effectiveness as a teacher and principal has also been impaired when the nature of the events involving Mr. McKinney's use of drugs as described in this Recommended Order is considered. Although Mr. McKinney has testified that he does not believe he has a drug problem, the weight of the evidence indicates otherwise. While it is true that the evidence failed to prove that Mr. McKinney misused drugs to the extent that he was not able to continue to be a productive member of society and the evidence failed to prove that Mr. McKinney meets some stereo type image of a drug user, Mr. McKinney has had difficulty with drug use. First, Mr. McKinney admittedly has suffered from a number of medical problems which have necessitated fairly significant treatment with medications. Secondly, Mr. McKinney has admittedly requested persons under his supervision for controlled substances in violation of State law; he has, therefore, solicited controlled substances. Thirdly, Mr. McKinney has sent employees to the drug store to pick up medications for him. Although this action alone may not be sufficient to conclude any significant wrongdoing, it is consistent with other problems. Lastly, Mr. McKinney has attended, and was attending at the time of the final hearing of this case, a drug rehabilitation program.

   
   

7. Several witnesses were called by Mr. McKinney who testified about Mr. McKinney's good character. Some of these witnesses also indicated that they did not believe that Mr. McKinney had done anything terrible wrong or that he had lost his effectiveness in their minds. The testimony of Mr. McKinney's witnesses has been considered but found not to be persuasive in light of all the evidence presented in this proceeding.

   
   

8. Mr. McKinney has caused public disrespect for himself and the education profession.

9. The evidence failed to prove that Mr. McKinney's effectiveness as a principal or teacher have been impaired because the State Attorney investigated Mr. McKinney, because Mr. McKinney was arrested and charged with twelve felony counts, or because Mr. McKinney was suspended by the School Board.

CONCLUSIONS OF LAW

1. Jurisdiction.

   
   

   1. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1992 Supp.).

      
      

2. The EPC's Charges.

   
   

   1. The EPC has alleged that Mr. McKinney failure to adequately secure student medications violated Section 232.46(1)(b), Florida Statutes, and Rule 7.412, Bradford County School Board Rules.

      
      

   2. The EPC has also alleged that Mr. McKinney has violated Sections 231.28(1)(c), (f) and (h), Florida Statutes and Rules 6B-1.006(3)(a), (4)(c) and (5)(e), Florida Administrative Code.

      
      

3. Burden of Proof.

   
   

   1. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue of the proceeding. Antel v. Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988); Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA 1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

      249 (Fla. 1st DCA 1977).

      
      

   2. In this proceeding it is the EPC that is asserting the affirmative. Therefore, the burden of proving the elements of Mr. McKinney's alleged violation was on the EPC.

      
      

   3. This proceeding, which involves possible revocation of Mr. McKinney's license, is penal in nature. See Kozerowitz v. Florida Real Estate Commission,

      289 So.2d 391 (Fla. 1974); and Bach v. Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1979). The evidence in support of the EPC's charges must be clear and convincing. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

      
      

4. Failure to Secure Student Medications.

   
   

   1. Section 232.46(1)(b), Florida Statutes, requires school boards to adopt rules governing the administration by school personnel of student medications. Among other things, rules must be adopted providing that "[w]hen the medication is not in use, it shall be stored in its original container in a secure fashion under lock and key in a location designated by the principal."

      
      

   2. In compliance with Section 232.46(1)(b), Florida Statutes, the School Board has adopted Rule 7.412, Bradford County School Board Rules. Rule 7.412 requires that student medications be kept under lock and key.

   3. Section 231.28(1)(h), Florida Statutes, provides the following:

      
      

      1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person

         the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

         * * *

         (h) Has otherwise violated the provisions of law or rules of the State Board of Education, the penalty for which is the revocation of the teaching certificate.

         
         

   4. Finally, Rule 6B-1.006(3)(a), Florida Administrative Code, requires that the following obligation to students be met by persons holding teaching certificates in Florida:

      
      

      (a) Shall make a reasonable effort to protect the student from conditions harmful to learning or to health or safety.

      
      

   5. The evidence proved that Mr. McKinney failed to insure that student medications were kept under lock and key as required by Rule 7.412, Bradford County School Board Rules and Section 232.46(1)(b), Florida Statutes.

      Therefore, Mr. McKinney "violated the provisions of law" in violation of Section 231.28(1)(h), Florida Statutes.

      
      

   6. The evidence also proved that, by failing to adequately secure student medications, student medications were tampered with. Therefore, Mr. McKinney failed to make a reasonable effort to protect students from conditions harmful to their health or safety in violation of Rule 6B-1.006(3)(a), Florida Administrative Code.

      
      

   7. It was not until after Mr. McKinney learned that student medications had been taken and replaced with some other pills that he instructed personnel to acquire a box that the medications could be kept under lock and key.

      
      

5. Other Alleged Violations.

   
   

   1. Section 231.28, Florida Statutes, provides, in pertinent part, the following:

      
      

      1. The Education Practices Commission shall have authority to suspend the teaching certificate of any person defined in s. 228.041(9) or (10) for a period of time not to exceed 3 years, thereby denying that person

         the right to teach for that period of time, after which the holder may return to teaching as provided in subsection (4); to revoke

         permanently the teaching certificate of any person; or to impose any other penalty provided by law, provided it can be shown that such person:

         * * *

         (c) Has been found guilty of gross immorality or an act involving moral turpitude;

         * * *

         (f) Upon investigation, has been found guilty of personal conduct which seriously reduces

         that person's effectiveness as an employee of the school board;

         
         

   2. The term "immorality" is defined in Rule 6B-4.009(2), Florida Administrative Code, as follows:

      
      

      (2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

      
      

   3. The EPC has suggested that Mr. McKinney's actions in soliciting controlled substances, asking employees to purchase Donnagel PG for him, and his arrest on twelve felony counts constitutes immorality in violation of Section 231.28(1)(c), Florida Statutes. The EPC has also alleged that Mr. McKinney's actions in soliciting controlled substances, his arrest on twelve felony counts, his suspension by the School Board and the surrounding publicity about his arrest and suspension seriously reduced his effectiveness as an employee of the School Board in violation of Section 231.28(1)(f), Florida Statutes.

      
      

   4. The evidence proved that Mr. McKinney requested prescription medications which contained controlled substances from Ms. Thornton and Ms. Allen. The evidence also proved that Mr. McKinney's actions were wrong and even illegal. The evidence also proved that Mr. McKinney asked employees, primarily Ms. Thornton, to purchase Donnagel PG for him. Mr. McKinney asserts, however, that the evidence failed to prove that his actions were "sufficiently notorious to bring [him] or the education profession into public disgrace or disrespect and impair [his] service in the community."

      
      

   5. In determining whether Mr. McKinney's actions constitute "immorality" it is difficult to determine the extent of the notoriety caused by the specific incidents involving Ms. Thornton and Ms. Allen from the notoriety caused by the fact that Mr. McKinney was charged with ten other felony counts. There is little doubt that the fact that Mr. McKinney was charged with other criminal matters has impacted the community's opinion of Mr. McKinney. It is the incidents which have been proved to have occurred in this proceeding, and those incidents alone, that have been considered in determining whether Mr. McKinney's actions were "sufficiently notorious to bring [him] or the education profession into public disgrace or disrespect and impair [his] service in the community."

      
      

   6. The testimony of Mr. Duncan, when considered as a whole, causes the undersigned to conclude that Mr. McKinney's solicitation of controlled substances and his drug problem as described in finding of fact 63 constitute immorality as defined in Rule 6B-4.009(2), Florida Administrative Code. The

      solicitation of controlled substances involved criminal conduct by Mr. McKinney. Mr. McKinney's actions also involved the use of his position for his own personal gain and the placing of subordinates in an untenable and uncomfortable position--to obey the law but refuse a request of their boss. The public's awareness of these actions supports Mr. Duncan's testimony that Mr. McKinney and the education profession have been publicly disgraced and that Mr. McKinney's service in the community has been impaired.

      
      

   7. Although Mr. Duncan did not testify as to Mr. McKinney's effectiveness as a teacher, his testimony was based upon the fact that he had not seen Mr. McKinney teach. Whether a person may carry out the general task of teaching is not, however, the issue. The issue is whether, given the nature of a teacher's immoral conduct, was the conduct notorious enough to cause the teacher's effectiveness to be impaired. Based upon the nature of Mr. McKinney's conduct, involving his misuse of drugs, it is concluded that Mr. McKinney's effectiveness as a teacher has also been impaired.

      
      

   8. Mr. McKinney's solicitation of controlled substances from employees and his drug problem constitute immorality in violation of Section 231.28(1)(c), Florida Statutes, and conduct that seriously reduced Mr. McKinney's effectiveness as an employee of the School Board in violation of Section 231.28(1)(f), Florida Statutes.

      
      

   9. The mere fact that Mr. McKinney has been charged with twelve felonies does not support a conclusion that Mr. McKinney is guilty of immorality in violation of Section 231.28(1)(c), Florida Statutes, or that he is guilty of conduct which seriously reduces his effectiveness as an employee of the School Board in violation of Section 231.28(1)(f), Florida Statutes. While the underlying facts for the charges, if proved to be true, would support the violations of Sections 231.28(1)(c) and (f), Florida Statutes, the evidence failed to prove that the underlying facts to support ten of those charges are true.

      
      

   10. The fact that Mr. McKinney requested that Ms. Thornton purchase Donnagel PG for him also does not support a conclusion that Mr. McKinney is guilty of immorality in violation of Section 231.28(1)(c), Florida Statutes, or that he is guilty of conduct which seriously reduces his effectiveness as an employee of the School Board in violation of Section 231.28(1)(f), Florida Statutes. The EPC failed to prove that such a request, however distasteful to Ms. Thornton, was inconsistent with the standards of public conscience and good morals or that the public was aware that Mr. McKinney has made such requests of Ms. Thornton. The evidence also failed to prove that these requests were sufficiently notorious to bring Mr. McKinney or the education profession into public disgrace or disrespect.

       
       

   11. The fact that the School Board suspended Mr. McKinney does not support a conclusion that Mr. McKinney is guilty of conduct which seriously reduces his effectiveness as an employee of the School Board in violation of Section 231.28(1)(f), Florida Statutes. Nor does the publicity surrounding Mr. McKinney's arrest and suspension support such a conclusion. It is only the actions that caused the suspension and publicity which the EPC has proved to be true in this proceeding which support a conclusion that Mr. McKinney's effectiveness has been seriously reduced. In other words, to the extent that a person is suspended or is the subject of adverse publicity only for acts that the EPC fails to prove are true, that person cannot be found to be guilty of personal conduct that has effectively reduced his or her effectiveness.

   12. The EPC has also charged Mr. McKinney with violating Rules 6B- 1.006(4)(c) and (5)(e), Florida Administrative Code:

       
       

       1. The following disciplinary rule shall constitute the Principals of Professional Conduct for the Education Profession in Florida and shall apply to any individual holding a valid Florida teacher's certificate.

          * * *

          1. Obligation to the public requires that the individual:

             * * *

             (c) Shall not use institutional privileges for personal gain or advantage.

             * * *

          2. Obligation to the profession of education requires that the individual:

          * * *

          (e) Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.

          
          

   13. The EPC has suggested that Mr. McKinney's solicitation of controlled substances violates Rules 6B-1.006(4)(c) and (5)(e), Florida Administrative Code. The EPC has also argued that his request to Ms. Thornton to purchase Donnagel PG for him violates Rule 6B-1.006(4)(c), Florida Administrative Code.

       
       

   14. The evidence proved that Mr. McKinney used his position as principal of Starke Elementary School and his authority as supervisor of two subordinate employees to obtain prescription medications for his own personal use. In so doing, Mr. McKinney caused his employees to violate state law and to lie to him. He also caused employees to pick up Donnagel PG for him. He placed his employees in an uncomfortable position, causing them to fear for their jobs. These acts constitute a violation of Rule 6B-1.006(4)(c), Florida Administrative Code.

       
       

   15. The evidence, however, failed to prove that Mr. McKinney violated Rule 6B-1.006(5)(e), Florida Administrative Code. Mr. McKinney's solicitation of controlled substances from subordinate employees did not involve "professional judgments of colleagues."

       
       

6. Appropriate Penalty.

1. Section 231.28, Florida Statutes, specifically authorizes the suspension or revocation of a teaching certificate or the imposition of any other penalty provided by law, for violations of Section 231.28, Florida Statutes. The EPC has requested that Mr. McKinney's certificate be revoked for six years, that Mr. McKinney be permanently restricted from being an administrator and that, upon his re-employment as a teacher, he be placed on three years probation, given random drug tests and a psychological evaluation prior to commencing his employment.

   
   

2. Mr. McKinney has a long record of satisfactory to above-satisfactory service as a teacher and administrator. The events for which he has been charged are limited in scope. The solicitation of medication from Ms. Allen did not occur until more than two years after his solicitation of medication from Ms. Thornton.

3. On the other hand, Mr. McKinney's actions placed his own well-being over that of subordinate employees, no matter how briefly, and constituted an abuse of the power and trust placed in him by the School Board. Mr. McKinney has shown a lack of consideration for his subordinate employees and the laws of this State.

   
   

4. Most importantly, Mr. McKinney's actions involve the misuse and illegal solicitation of controlled substances. This case does not involve a request for over-the-counter pain killers or even general prescription drugs. This case involves the solicitation of controlled substances by the principal of an elementary school at the school. Mr. McKinney admits, however reluctantly, that he has violated the laws of this State governing the use of controlled substances. Mr. McKinney has participated in a drug rehabilitation program. In short, Mr. McKinney has a drug problem. In another environment, one which does not involve the education of children, Mr. McKinney's actions may be viewed less harshly. But as the principal of an elementary school, Mr. McKinney's actions are unacceptable.

   
   

5. Based upon the foregoing, Mr. McKinney's certificate should be revoked for five years. He should also be placed on probation for three years and required to undergo random drug testing upon his re-employment. The evidence does not, however, support permanently restricting Mr. McKinney from being an administrator or a psychological evaluation prior to commencing employment.

RECOMMENDED ORDER

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

guilty of violating Sections 231.28(1)(c), (f) and (h), and 232.46(1)(b), Florida Statutes, Rule 6B-1.006(3)(a), (4)(c), Florida Administrative Code, and Rule 7.412, Bradford County School Board Rules. It is further

RECOMMENDED that Mr. McKinney's certificate be revoked for a period of five

(5) years. Upon re-employment as a teacher or administrator, Mr. McKinney should be placed on probation for a period of three (3) years and given random drug tests.

DONE AND ENTERED this 1st day of April, 1993, in Tallahassee, Florida.

LARRY J. SARTIN, 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 1st day of April, 1993.

APPENDIX

The EPC has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. McKinney did not submit a proposed recommended order.

The EPC's Proposed Findings of Fact

1. Accepted in 2.

2. Accepted in 3.

3 See 36-46.

1. Accepted in 40.

2. Accepted in 42.

3. Accepted in 42.

4. Accepted in 40.

5. Accepted in 43.

6. Hereby accepted.

10 See 42..

1. See 40 and 45.

2. Accepted in 45. 13-14 See 40.

15 See 45.

16-17 Not relevant.

1. Hereby accepted.

2. Not relevant.

3. Not supported by the weight of the evidence.

4. Not relevant.

5. Accepted in 47. The second sentence is not relevant.

6. See 48.

24-26 Accepted in 60.

27-28 Accepted in 56.

29 See 4-20 and 25-35.

30 Accepted in 4 and 9-10. 31-32 Accepted in 8.

1. Accepted in 6.

2. Accepted in 9-10.

3. Accepted in 11.

4. Accepted in 12. The last two sentences are not supported by the weight of the evidence.

5. Accepted in 13-15.

6. Accepted in 16.

7. Accepted in 17.

8. Accepted in 18.

9. Not supported by the weight of the evidence. Hearsay.

56-59 These proposed findings of fact are generally correct.

This testimony, however, is not sufficient to support the ultimate finding that these proposed findings suggest-- that Mr. McKinney was on drugs at the times referenced in these findings.

1. Not relevant.

2. Accepted in 52.

3. Accepted in 53.

4. Accepted in 52.

5. Accepted in 54. 65-66 Accepted in 58.

67 Hereby accepted.

COPIES FURNISHED:

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Karen Barr Wilde Executive Director Department of Education

301 Florida Education Center

325 W. Gaines Street Tallahassee, Fl 32399-0400

Syndey H. McKenzie, Esquire General Counsel

Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

Robert J. Boyd, Esquire Post Office Box 26 Tallahassee, Florida 32302

Terence M. Brown, Esquire Post Office Box 40

Starke, Florida 32091-0040

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.

=================================================================

DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF

DEWEY B. McKINNEY, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Appellant, DISPOSITION THEREOF IF FILED

BETTY CASTOR, as CASE NO. 93-3858

Commissioner of Education, DOAH CASE NO. 92-4799

Appellee.

/ Opinion filed December 4, 1995.

An appeal from a final order of The Education Practices Commission.

Terence M. Brown of Brown & Christopher, Starke, for Appellant. Robert J. Boyd and Ronald G. Stowers, Tallahassee, for Appellee.

ZEHMER, C.J.

Dewey B. McKinney, an administrator and former principal with the Bradford County School Board for the past 20 years, appeals a final order of the Education Practices Commission suspending his teaching certificate, permanently restricting him from occupying any position as a "building-level administrator," and placing him on a 3-year probationary period beginning on the date of his re7employment as an educator. McKinney argues, among other things, that the Commission erred by adjudging him guilty of the charges on less than competent and substantial evidence. We agree and reverse.

The final order approved in significant part the hearing officer's findings of fact and adopted his conclusion that McKinney was guilty of misconduct under the following charges:

1. Failure to secure student medications in violation of subsections 231.28(1)(h) and 232.46(1)(b) Florida Statutes, and Bradford County School Board Rule 7.412, and to make reasonable effort to protect student from harmful conditions in violation of Department of Education Rule 6B-1.006(3)(a), Florida Administrative Code;

2. Solicitation of controlled substances from two employees amounting to gross immorality as defined in rule 6B-4.009(2), in violation of subsection 231.28(1)(c), Florida Statutes, which conduct seriously reduced

   McKinney's effectiveness as an employee of the school board in violation of subsection 231.28(1)(f); and

3. Solicitation of controlled substances and directing an employee to' purchase medication for McKinney's personal use, which conduct violated rule 6B-1.006(4)(c), prohibiting one holding a valid Florida teacher's certificate from using institutional privileges for personal gain or advantage.

The proceeding before the Commission, which involved the potential revocation of McKinney's license, was penal in nature. The Commission was required to prove the charges by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The applicable standard of appellate review is set forth in section 120.68(10), Florida Statutes (1993):

If the agency's action depends on any fact found by the agency in a proceeding meeting the requirements of s. 120.57, the court shall not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. The court shall, however, set aside agency action or remand

the case to the agency if it finds that the agency's action depends on any finding of fact that is not supported by competent substantial evidence in the record.

Applying this standard, we conclude that the evidence is legally insufficient to support the above charges.

First, the record lacks competent, substantial evidence to support the charge of failing to secure student medications and failing to make reasonable effort to protect students from harmful conditions. Subsection 232.46(1)(b) requires district school boards to adopt rules governing the administration by school personnel of student medications and to include in its policies and procedures a rule providing that [w]hen the medication is not in use, it shall be stored in its original container in a secure fashion under lock and key in a location designated by the principal." In compliance with subsection 232.46(1)(b), the Bradford County School Board adopted rule 7.412 requiring that student medications be kept under lock and key.

The evidence established that prior to McKinney's employment as principal of Starke Elementary School, student medications at the school historically had been stored on a shelf in the vault located in the school's administrative offices. The vault was left open during the school day and also housed school supplies. The practice of keeping student medications in the school vault was continued by McKinney after he became principal.

Three employees were designated by McKinney to administer the medications to the students. One of the medications commonly dispensed was Ritalin, a medication taken by children for attention deficit disorder. when several parents began noticing that their children's supplies of Ritalin were being depleted too quickly or had been tampered with, McKinney instructed one of his employees to purchase a lock box with two keys in which to store the medications. Although finding that the evidence failed to prove that McKinney

tampered with the Ritalin, the hearing officer did find that McKinney had not taken adequate precautions to secure student medications by leaving the vault open and accessible to all employees and faculty. Yet, there is no suggestion in the record that the school vault did not meet the technical requirements of the statute and board rule. In fact, the only evidence presented on this point was the testimony of a former principal at Starke Elementary who admitted that he had kept the student medications in the Same manner and was of the opinion that the keeping Of student medications in the school vault (even if open during the school day) complied with both the statute and administrative rules on securing student medications. Further, while there was evidence that the vault was open during the day, there was no evidence that the vault was left unsupervised at any time.

Whether a particular action constitutes a violation of a rule in this situation "is a factual question to be decided in the context of the alleged violation." Lanagston v. Jamerson, 653 So.2d 489, 491 (Fla. 1st DCA 195), citing to Forehand v. School Board of Gulf County, 600 So.2d 1187 (Fla. 1st DCA 1992)(court engaged in factual analysis regarding circumstances and manner in which teacher used alleged profane language). Given the historic use of the vault to keep medications, we conclude there was no record evidence to legally support the ultimate finding of fact that McKinney's conduct in keeping the student medications in the school vault failed to meet the requirement that medications be kept under lock and key, or that he did not make a reasonable effort to protect the student population from conditions that might be harmful to its health and safety. 1/

Likewise, the record lacks competent and substantial evidence to support the charge that McKinney's conduct in soliciting medication from two employees amounted to gross immorality and conduct impairing his effectiveness in violation of subsections 231.2S(1)(c) and (1)(f). The evidence adduced to support these charges showed that on two isolated occasions in 1989 and 1991, McKinney requested from two separate employees a couple of their prescription pain pills to alleviate the pain he was suffering from severe migraine headaches. The hearing officer found that McKinney's actions in soliciting the controlled substances (Tylenol III and hydrocodone) constituted gross immorality and conduct that seriously reduced McKinney's effectiveness as an employee of the school board.

The term "immorality" is defined in rule 6B-4.009(2), Florida Administrative Code, which states:

(2) Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair

the individual's service in the community.

In the present case, there was a dearth of record evidence to support a finding that McKinney's conduct of soliciting the medication twice in two years was "sufficiently notorious" to bring McKinney and the education profession "into public disgrace or disrespect and impair [McKinney's] service in the community," or that McKinney's conduct seriously reduced his effectiveness as an employee of the school board. Apart from conclusory statements made by the school board superintendent who filed the original charges against McKinney, there was no clear and convincing evidence presented by the Department of Education or the

Bradford County School Board suggesting that the request McKinney made to his employees impaired his effectiveness as a school board employee. In contrast, there were numerous witnesses who offered unrebutted testimony that McKinney's effectiveness remained intact.

Finally, the evidence was legally insufficient to support a finding of guilt on the last charge alleging that McKinney's solicitation of the pain medication and his request of an employee to purchase Donagel PG for him at a local drug store violated rule 6B-1.006(4)(c). Rule 6B-1.006(4)(c) prohibits an individual holding a Florida educator's certificate from "using institutional privileges for personal gain or advantage." There is no showing that McKinney used his position to get these employees to give him some of their pain medication or to pick up medication for him. The employees did testify that they felt somewhat uncomfortable in complying with his requests, but when they ultimately informed McKinney that they would not comply with his further requests, there was no evidence of retribution on McKinney's part; indeed, their testimony establishes that McKinney accepted their decision not to comply with no showing of displeasure.

For the reasons stated above, we hold that the findings adopted in the final order are not supported by competent and substantial evidence.

Accordingly, the appealed order is reversed and the cause is remanded with instructions that the charges be dismissed.

REVERSED and REMANDED.

DAVIS, J., and WENTWORTH, Senior Judge, CONCUR.

ENDNOTE

1/ we would also point out that the duty created by subsection 232.46(1)(b) to promulgate rules to secure student medications is imposed on the district school boards and has no bearing on McKinney's alleged conduct in the instant matter.

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA

BETTY CASTOR, as Commissioner of Education,

Petitioner,

EPC CASE NO. 92-0126-RA

vs. CASE NO. 92-4799

EPC INDEX NO. 93-131-FOF

DEWEY B. MCKINNEY,

Respondent.

/

FINAL ORDER

Respondent, DEWEY B. MCKINNEY, holds Florida educator's certificate no.

163503. Petitioner filed an Administrative Complaint seeking suspension, revocation, permanent revocation or other disciplinary action against the certificate.

Respondent requested a formal hearing and such was held before a hearing officer of the Division of Administrative Hearings. A Recommended Order issued by the Division Hearing Officer on April 1, 1993 was forwarded to the Commission pursuant to Section 120.57(1), F.S. (copy attached to and made a part of this Order).

A panel of the Education Practices Commission (EPC) met on September 23, 1993 in Tampa, Florida, to take final agency action. Petitioner was represented by Robert J. Boyd, Esquire. Respondent was represented by Terrence M. Brown, Esquire. The panel reviewed the entire record in the case.

Respondent filed thirty-eight exceptions to the Recommended Order and submitted 67 paragraphs of proposed findings of fact which he requested be included in the final order.

The Commission first considered each of the exceptions to the Recommended Order and ruled on each respective numbered exception as follows:

1. Exception 1 is denied because the first sentence of paragraph 3 is supported by competent, substantial evidence.

   
   

2. Exception 2 is denied because the hearing officer is the sole judge of the credibility of witnesses appearing before him.

   
   

3. Exception 3 is denied because the record contains competent, substantial evidence supporting those findings which Respondent seeks to have stricken.

   
   

4. Exception 4 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

   
   

5. Exception 5 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

   
   

6. Exception 6 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

   
   

7. Exception 7 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

8. Exception 8 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

   
   

9. Exception 9 was withdrawn by Petitioner.

   
   

10. Exception 10 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

11. Exception 11 addressed to paragraph 31 of the Recommended Order is accepted because the finding of said paragraph is not supported by competent, supportive evidence.

    
    

12. Exception 12 addressed to the second sentence of paragraph 32 is accepted in that the finding of said sentence is not supported by competent, substantial evidence.

    
    

13. Exception 13 was withdrawn by the Respondent.

    
    

14. Exception 14 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

15. Exception 15 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

16. Exception 16 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

17. Exception 17 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

18. Exception 18 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

19. Exception 19 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

20. Exception 20 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

21. Exception 21 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

22. Exception 22 is denied because the finding of the hearing officer to which the objection is addressed is supported

23. Exception 23 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

24. Exception 24 addressed to paragraph 63 is accepted in that said paragraph is not supported by competent, substantial evidence.

    
    

25. Exception 25 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

26. Exception 26 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

27. Exception 27 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

28. Exception 28 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

29. Exception 29 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

30. Exception 30 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

31. Exception 31 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

32. Exception 32 addressed to paragraph 84 of the proposed order is accepted to the limited extent of striking from said paragraph the words "and his drug problem as described in Finding of Fact No. 63" which words are not supported by competent, substantial evidence. Otherwise said exception is denied because the remainder of said paragraph is supported by competent, substantial evidence.

    
    

33. Exception 33 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

    
    

34. Exception 34 addressed to paragraph 86 of the proposed order is granted to the extent of striking from paragraph 86 the words "and his drug problem" which words are not supported by competent, substantial evidence. Otherwise the said exception is denied because the remainder of said paragraph is supported by competent, substantial evidence.

    
    

35. Exception 35 is denied because the finding of the hearing officer to which the objection is addressed is supported by competent, substantial evidence.

36. Exception 36 addressed to paragraph 92 of the Recommended Order is granted to the extent of striking from said paragraph 92 the words "to violate state law and" which words are not supported by competent, substantial evidence. Otherwise the said exception is denied because the remainder of said paragraph is supported by competent, substantial evidence.

    
    

37. Exception 37 addressed to paragraph 97 of the proposed order is granted to the extent of striking from said paragraph 97 the word "illegal" in the second line thereof and striking therefrom the sentence "In short, Mr. McKinney has a drug problem." which words are not supported by competent, substantial evidence. Otherwise the said exception is denied because the remainder of said paragraph is supported by competent, substantial evidence.

Respondent's proposed additional findings of fact were rejected by the Commission upon a finding that those proposed findings should have been submitted to the hearing officer.

Based upon the foregoing, the Commission orders as follows:

1. Respondent's teaching certificate is suspended for a period of three years from the date of this order.

   
   

2. Respondent is permanently restricted from occupying any position as a building-level administrator.

   
   

3. In the event of Respondent's reemployment as an educator, he shall be placed upon a three year probationary period beginning on the date of such reemployment; the conditions of said probation being:

1. arrange for his immediate supervisor to submit performance reports to the EPC at least every three months.

   
   

2. submit true copies of all formal observation/evaluation forms within ten days of issuance.

   
   

3. submit to random blood and urine testing, for the purposes of ascertaining the presence or absence of controlled substances, at the direction of the EPC or the employing school district and authorize direct reporting of results to both agencies.

This Order may be appealed by filing notices of appeal and a filing fee, as set out in section 20.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within 30 days of the date of filing.

DONE AND ORDERED, this 20th day of October, 1993.

COPIES FURNISHED TO:

Jim Gatlin, Presiding Officer

Jerry Moore, Program Director Professional Practices Services

Rivers Buford, Jr.

Attorney General's Office I HEREBY CERTIFY that a copy

of the foregoing Order in the

Barbara J. Staros matter of BC vs. Dewey B.

General Counsel McKinney was mailed to Terrance M. Brown, Esq., P.O.

Florida Admin. Law Reports Box 40, Starke, FL 32091-0040,

this 2nd day of November,

Joann Rowe, Supt. 1993, by U.S. Mail. Bradford County Schools

582 N. Temple Avenue

Starke, FL 32091 KAREN B. WILDE, Clerk

Wayne McLeod, Director Personnel

Bradford County Schools

Robert J. Boyd Attorney at Law

711 E. College Ave. Tallahassee, Florida 32301

Docket for Case No: 92-004799

Orders for Case No: 92-004799