r STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BETTY CASTOR, as Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 92-6921
)
JOHN N. PILLA, )
)
Respondent. )
) SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 93-1227
)
JOHN N. PILLA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was conducted in these consolidated cases at Miami, Florida, on June 29 and 30, 1993, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
For Petitioner in Case No 92-6921:
Margaret E. O'Sullivan, Esquire 1/ Professional Practices Services
352 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
For Petitioner in Case No. 93-1227
Jaime C. Bovell, Esquire 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134
For Respondent in both cases:
William Du Fresne, Esquire
2929 Southwest 3rd Avenue, Suite One Miami, Florida 33129
STATEMENT OF THE ISSUES
In Case No. 92-6291 the Petitioner seeks the revocation or suspension of the Respondent's teaching certificate, or other administrative penalty, on the basis of allegations of misconduct set forth in an Amended Administrative Complaint. The general nature of the charges against the Petitioner are that he engaged in certain criminal conduct, was found guilty of certain criminal conduct, failed to disclose information about his criminal record on his applications for employment and for a teaching certificate, on various occasions improperly touched several female students, and on one occasion used unnecessary force to discipline a male student.
In Case No. 93-1227 the Petitioner seeks to suspend and terminate the Respondent's employment as a teacher with the Dade County School Board on the basis of allegations of misconduct set forth in an Amended Notice of Specific Charges. The general nature of the charges brought by the School Board is essentially the same as the allegations in Case No. 92-6291, although there are some differences in the specific details alleged.
PRELIMINARY STATEMENT
In view of the similarity of the factual and legal issues raised in these cases, the cases were consolidated for formal hearing. At the formal hearing on June 29 and 30, 1993, the two Petitioners presented the testimony of the following witnesses: Freddie F. Pittman (Principal of North Miami Middle School), Sally Blonder (Principal of Madie Ives Elementary School), L. A. K. 2/ (Mother of student S. K.), S. K. (Student), Dr. Joyce Annunziata (Director of the Office of Professional Standards in Dade County), Peter Rossi (Police Officer for Dade County School Board), and Dr. Desmond Patrick Gray (Associate Superintendent for the Bureau of Professional Standards and Operations). The Petitioners also offered 16 exhibits into evidence.
At the formal hearing on June 29 and 30, 1993, the Respondent testified on his own behalf and also presented the testimony of the following witnesses: Dr. Lawrence Dayton (Clinical Psychologist), Alfred A. Crawford (Teacher at Biscayne Elementary School), and Roy Amzek (Teacher at Madie Ives Elementary School).
The Respondent did not offer any exhibits.
By agreement of the parties, all parties were allowed to take some post- hearing depositions and file the transcripts of the depositions as late-filed additions to the record of the formal hearing. 3/ It was originally contemplated that all post-hearing depositions would be completed within sixty days from the close of the formal hearing. At the request of the Petitioners, the time for taking the depositions was twice extended, the last deadline being October 29, 1993. Ultimately, the Petitioners filed post- hearing transcripts of the depositions of the following witnesses: Vera McCartney (School Counselor), L. C. (Parent of student M. C.), M. C. (Student), K. L. (Former student), C. G. (Student), Carlos Fernandez (Principal of Biscayne Elementary School), and E. N. S. (Former student). The Respondent filed a transcript of his own post-hearing deposition taken on August 13, 1993.
By order issued on November 29, 1993, all parties were allowed until December 30, 1993, within which to file their proposed recommended orders. All parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. Specific rulings on all proposed findings of fact submitted by all parties are contained in the appendix to this Recommended Order.
On January 10, 1994, the Petitioner School Board filed a motion seeking leave to file an additional memorandum of law on the issue of laches. By order issued on January 21, 1994, the motion was granted and the Respondent was allowed ten days within which to file a reply memorandum. No reply memorandum was filed.
To facilitate an understanding of the reasons for the Findings of Fact which follow and, perhaps more importantly, an understanding of the reasons many of the proposed findings are not included in the Findings of Fact which follow, it is first noted that much of the testimony of the student witnesses who testified at the formal hearing in this case was found to be inherently unreliable, untrustworthy, and not worthy of belief. This evaluation of the evidence is based in large part on the fact that, for reasons set out at further length in the appendix, much of the student witness testimony was expressed in vague, imprecise, and uncertain terms, much of the testimony was fraught with inconsistencies, and some of the testimony was inconsistent with prior statements by the same witness. Because of the generally unreliable nature of most of the testimony of the student witnesses, very few findings of fact have been made on the basis of that testimony. 4/
FINDINGS OF FACT
Background and introductory matters
The Respondent currently holds Florida teaching certificate number 286698, covering the areas of physical education and health education. The Respondent's certificate is valid through June 30, 1998.
At all times material to this proceeding, the Respondent, John N. Pilla, was employed by the School Board of Dade County. He was initially employed as a Teacher Aide in January of 1969 and continued to work for the School Board of Dade County in several capacities through the 1977-78 school year. Following the 1977- 78 school year, the Respondent worked for other employers for several years. In 1984 he again applied for employment with the School Board of Dade County and was hired as a Substitute Teacher for the 1984-
85 school year. He was rehired in that capacity for the 1985-86 school year. After a break in service of several months, the Respondent was reinstated as a Substitute Teacher in October of 1986. In December of 1986 the Respondent was hired as a Teacher and he continued to be employed as a Teacher until the date of his suspension and termination from employment on February 17, 1993.
As noted in more detail in some of the findings which follow, the Respondent was on several occasions given instructions or directives to the effect that he should avoid improper touching of students. Those instructions and directives were always qualified or modified in some way, so that the essence of the instructions and directives given to the Respondent was that he should avoid improper touching, or unnecessary touching, or touching not required by his teaching duties. The Respondent was never given an unqualified order that he was not to touch students under any circumstances. 5/
It has been a policy of the Dade County School Board at all times material to this proceeding that teachers are prohibited from engaging in inappropriate physical contact with students. The Respondent was aware of that policy.
Events during the 1976-77 school year
During the 1976-77 school year, the Respondent was employed as a teacher at North Miami Junior High. His principal at that school was Freddie Pittman. During the course of that school year several complaints were made to the effect that the Respondent had engaged in inappropriate conversations with female students and that he had engaged in inappropriate physical contact with female students. Mr. Pittman sought authorization to have those complaints investigated and shortly thereafter an investigation was conducted by School Board investigators. Several of the complaining students were interviewed and reported various instances of inappropriate conversations and inappropriate touching. 6/ The Respondent was interviewed by the investigators and denied all allegations of misconduct. The parents of all of the complaining students were advised of the investigation. All of the parents declined to press charges.
Several weeks after the conclusion of the investigation, a conference was conducted on April 29, 1977, at which time Mr. Pittman and an Area Director met with the Respondent, reviewed with him the student allegations that had prompted the investigation, and then issued four directives to the Respondent. Those directives were reiterated in a memorandum to the Respondent dated May 2, 1977, as follows:
You should refrain from any physical contact with your students unless it is required as part of your teaching duties.
You should refrain from any conversations with your students that could be construed as improper, having sexual connotations or could cause the student to be embarrassed.
You should refrain from inviting students to your home or to accompany you on personal trips without prior permission of the parent(s) or legal guardian(s).
You should refrain from a display of affection towards your students such as holding hands, caressing, walking arm-in-arm, etc.
The memorandum of May 2, 1977, also reminded the Respondent that: "It was stated emphatically that strong disciplinary action will be taken if the above directives or their intent are breached."
The 1984 application for employment
On March 21, 1984, the Respondent signed an Application for Instructional - Instructional Support Employment seeking reemployment with the Dade County Public Schools. The application included the following question: "Have you ever been convicted of anything other than a minor traffic violation?" The Respondent checked the "No" box in response to that question. The Respondent's answer of "No" appears to have been truthful. 7/
In connection with that same application for reemployment, on March 21, 1984, the Respondent also signed a form titled Security Check Authorization And Waiver Of Confidential Records. That form included a question as to whether the Respondent has ever been ". . . convicted, fined, imprisoned, or placed on probation in a criminal proceeding?" In response to that question, the Respondent checked the "No" box. Immediately above the Respondent's signature
the form included a statement that "the above entries are true, complete, and correct to the best of my knowledge and belief. . . ," and ended with the following statement: "I understand that a knowing and willful false statement on this form may result in immediate dismissal."
For reasons discussed below, the Respondent's "No" answer on the form titled Security Check Authorization And Waiver Of Confidential Records was untrue. At the time the Respondent gave that untrue answer he knew his answer was untrue. He gave an untrue answer because he feared that disclosure of the truth would jeopardize his employment prospects.
The 1988 application for educator's certificate
On May 11, 1988, the Respondent signed an Application For Educator's Certificate for the purpose of renewing his teaching certificate. The application included the following question:
Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation, or are there any criminal charges now pending against
you other than minor traffic violations? If yes, you must give complete details for each charge.
Please attach a separate sheet if additional space is needed.
The Respondent checked the "No" box in response to that question and did not provide any details about any criminal charges. Immediately above the Respondent's signature the application included the following language:
I understand that Florida Statutes provide for revocation of an educator's certificate if evidence and proof is established that the certificate has been obtained by fraudulent means. I further certify that all information pertaining to this application is true, correct and complete.
For reasons discussed below, the Respondent's "No" answer on the Application For Educator's Certificate was untrue. At the time the Respondent gave that untrue answer he knew his answer was untrue. He gave an untrue answer because he feared that disclosure of the truth would jeopardize the issuance of his certificate.
The Respondent's criminal record
In 1982 the Respondent was arrested for misdemeanor trespass as a result of an altercation that took place between himself and his ex-wife's boyfriend in front of the ex-wife's house. On September 29, 1982, the Respondent entered a plea of nolo contendere to the charge of trespass in the Circuit Court of Broward County, Florida. By order issued that same day, the court withheld adjudication of guilt and placed the Respondent on six months of non-reporting probation.
On May 15, 1984, the Respondent was arrested and charged with the following violations: (a) leaving the scene of an accident with injuries in violation of Section 316.027, Florida Statutes; (b) culpable negligence in violation of Section 784.05(2), Florida Statutes, and (c) driving on a revoked
driver license in violation of Section 322.34(2), Florida Statutes. On May 24, 1984, a two-count information was issued against the Respondent. Count One charged him with leaving the scene of an accident with injuries in violation of Sections 316.027(1) and (2), and 316.062, Florida Statutes. Count Two charged him with driving while license is revoked or suspended (misdemeanor) in violation of Section 322.34, Florida Statutes. The Respondent went to trial on the charges in the information and on August 8, 1984, was found not guilty of Count One and guilty of Count Two. On September 6, 1994, the Respondent was sentenced to two years in prison, an enhanced sentence which was based on prior uncounseled convictions. 8/ The Respondent appealed and on November 6, 1985, the appellate court reversed the sentence and remanded the case for resentencing. On January 17, 1986, the trial court resentenced the Respondent to 30 days time served.
Events during the 1989-90 School Year
During the 1989-90 school year, the Respondent was employed by the School Board of Dade County as a physical education teacher at Biscayne Elementary School. His Principal at that school was Carlos Fernandez. Near the beginning of that school year, as a result of complaints from two parents, Principal Fernandez had a conference with the Respondent during which he told the Respondent that he should be careful dealing with the female students.
Later during that same school year (toward the end of February) three female students sent notes to the Principal's office in which they mentioned either than the Respondent had touched them or they had witnessed the Respondent touch someone else. Once again Principal Fernandez had a conference with the Respondent and told him again that he should be careful dealing with the female students and stressed that allegations of improper touching were very serious matters that could have very serious consequences. Neither of the Principal's conferences with the Respondent were reduced to a written directive. The purpose of the two conferences seems to have been primarily to warn the Respondent to be more careful when he was around female students. 9/ The essence of Principal Fernandez' comments on these two occasions was that the Respondent should be more careful to avoid any touching that could be misconstrued as improper touching. Principal Fernandez did not direct the Respondent that he should never touch any of the female students.
Later that same school year, on April 20, 1990, three female students went to the Principal's office and reported that the Respondent had touched one of them on her private parts and that the other two had witnessed it. The matter was reported to several outside agencies, including the local police. The police commenced a criminal investigation, which generated a great deal of publicity about the incident. On or about April 24, 1990, the Respondent was assigned to an alternate work position which did not involve student contact.
He remained in that position while the allegations of April 20, 1990, were being investigated. On June 15, 1990, the Respondent was arrested and was charged with three counts of lewd and lascivious assault on a child. The Respondent posted $15,000 bond and was released. His arrest was widely publicized in television and newspaper coverage. On June 28, 1991, the State Attorney dismissed all of the criminal charges against the Respondent. The School Board conducted an internal investigation and concluded that the allegations that formed the basis for the Respondent's arrest were unfounded. The Respondent was returned to a teaching position in the summer of 1991.
Events during the 1991-92 school year
For the 1991-92 school year the Respondent was assigned to teach a split shift at two schools, Parkway Elementary School and Madie Ives Elementary School. The Principal at Parkway was Jack Silberman. The Principal at Madie Ives was Sally Blonder.
During the 1991-92 school year, Principal Silberman met with the Respondent and told him that he should not touch any students in any improper manner and went on to emphasize that the Respondent should watch himself and make sure he did not touch any students in an improper way.
In February of 1992 several students at Madie Ives Elementary School complained that the Respondent had touched them improperly or in a manner which they found to be offensive. During the 1991-92 school year there were no such complaints at Parkway
Elementary School.
One of the students who complained in February of 1992 was S. K. On one or more occasions during the 1991-92 school year the Respondent placed his hands on S. K.'s shoulders 10/ and turned her around in line when she was facing the wrong way. In doing so, the Respondent did not touch S. K.'s breasts, nor was there anything else improper about the manner in which he touched her. The act of turning S. K. around in line was a reasonable act under the circumstances and was within the scope of the Petitioner's duties as a teacher.
One of the other students who complained in February of 1992 was M. C. On one occasion during that school year, M. C. walked up behind the Respondent, who was at that time busy watching some other students. M. C. stood quietly behind the Respondent waiting for an opportunity to ask him a question. The Respondent did not know that M. C. was standing behind him. The Respondent took a step backward and accidentally stepped on M. C.'s foot. The Respondent immediately (without looking around behind himself) reached out behind himself with one hand and instinctively tried to prevent himself and whoever he had stepped on from falling down. In doing so, his hand touched M. C. somewhere in the general area of her low back, hip, or buttocks. This touching of M. C. was entirely accidental. The Respondent did not grab, squeeze, or fondle M. C.'s buttocks, nor did he engage in any other improper touching of M. C.
On another occasion during that school year, M. C. walked off of the soccer field with a severe limp. The Respondent, concerned that she might have a serious injury, told M. C. to sit down on the sidelines and he asked her where it hurt. She indicated the shin area of one leg, just above the ankle. The Respondent touched her shin to determine whether there was any palpable injury. He did not feel any indication of a serious injury. Thereupon, he suggested that M. C. rub the injured area with her fingers and briefly demonstrated what he was suggesting. The Respondent's actions of touching and rubbing S. K.'s shin was a reasonable act under the circumstances and was an act that was within the scope of the Respondent's teaching duties or, if not technically within his duties, was an act which it was reasonable for him to believe was within the scope of his teaching duties. There was nothing improper about the manner in which the Respondent touched M. C.'s shin.
Pending an investigation of the February 1992 allegations, the Respondent was reassigned to teach only at Parkway Elementary School. The
Respondent continued to teach at Parkway Elementary School without incident until sometime in mid-April of 1992, when a television station filmed the Respondent and broadcast a news story about the then-pending allegations and the Respondent's prior arrest on charges of lewd and lascivious conduct. A local newspaper also published a story about the pending allegations, prior allegations, and the prior arrest on charges of lewd and lascivious conduct. As a result of the television coverage and pressure from parents, in mid-April of 1992 the Respondent was reassigned to work in a position that did not involve contact with students. He continued to work in that position until February 17, 1993, when the School Board suspended the Respondent and initiated dismissal proceedings against him.
CONCLUSIONS OF LAW
A few general observations
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57(1), Fla. Stat.
In a case of this nature, the School Board Petitioner has the burden of establishing by a preponderance of the evidence the allegations against the Respondent. Dileo v. School Board of Dade County, 15 FLW 2781 (Fla. 3d DCA Nov. 13, 1990); Allen v. School Board of Dade County, 16 FLW 69 (Fla. 3d DCA Jan. 4, 1991). In order to be sustained, the charges brought by the Commissioner of Education must be proved by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence is discussed in such cases as Slomowitz v. Walker, 429 So.2d 797 (Fla. 4th DCA 1983), and Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988).
Section 231.28, Florida Statutes, reads as follows, in pertinent part:
The Education Practices Commission shall have authority to suspend the teaching certificate of any person as 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 the teaching certificate of any person, thereby deny- ing that person the right to teach for a period of time not to exceed 10 years, with reinstatement subject to the provisions of 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:
Obtained the teaching certificate by fraudulent means;
* * *
(e) Has been convicted of a misdemeanor, felony, or any other criminal charge, other than a minor traffic violation;
* * *
(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.
The plea of guilty in any court, the decision
of guilty by any court, the forfeiture by the teaching certificateholder of a bond in any court of law, or
the written acknowledgment, duly witnessed, of offenses listed in subsection (1) to the superintendent or a duly appointed representative or to the school board shall be prima facie proof of grounds for revocation
of the certificate as listed in subsection (1) in the absence of proof by the certificateholder that the plea of guilty, forfeiture of bond, or admission of guilt was caused by threats, coercion, or fraudulent means.
Rule 6B-1.006(5), Florida Administrative Code, reads as follows, in pertinent part:
Obligation to the profession of education requires that the individual:
(a) Shall maintain honesty in all professional dealings.
* * *
Shall not submit fraudulent information on any document in connection with professional activities.
Shall not make any fraudulent statement or fail to disclose a material fact in his application for a professional position.
Allegations of improper conduct with students
With regard to the allegations that the Respondent engaged in improper conduct with students, the quality of the evidence in this case is in many ways similar to the quality of the evidence discussed in such cases as Texton v. Hancock, 359 So.2d 895 (Fla. 1st DCA 1978), and Laney v. Board of Public Instruction, 153 Fla. 728, 15 So.2d 748 (1943). In both of those cases instructional employees (a teacher and a principal, respectively) were the subjects of termination proceedings on the basis of allegations of various incidents of scandalous and outrageous behavior. And in both of those cases the reviewing courts found that the evidence was insufficient to support the charges and ordered the reinstatement of the employees. With regard to such evidence, in Laney, supra, the Florida Supreme Court said, at 753:
The general rule is that administrative findings, in order to be upheld by the courts, must be supported by substantial evidence. This means that there must be evidence which supports a substantial basis of fact from which the fact in issue can be reasonably inferred. It must do more than create a suspicion of the fact to be established, and must
be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.
The foregoing language from Laney was quoted with approval by the First District Court of Appeal in Texton, supra, where the court also concluded, at 897:
The problem with the great bulk of the evidence here is that it was simply not of such relevant character
as a reasonable mind would accept as adequate to support the conclusions reached.
For reasons mentioned in the Preliminary Statement, in the Endnotes, and in the Appendix, the evidence presented against the Respondent on the subject of improper conduct with students was unpersuasive and was insufficient to establish the allegations of such misconduct set forth in either the Commissioner of Education's Amended Administrative Complaint or in the School Board's Amended Notice of Specific Charges. As addressed with greater specificity below, because the evidence is insufficient to establish any of the allegations that the Respondent engaged in improper conduct with students, the charges against the Respondent based on those allegations should be dismissed. 11/
Allegations regarding false statements in application documents
The Commissioner of Education's Amended Administrative Complaint charges the Respondent with making fraudulent statements in two documents; a Dade County School District Security Check Authorization form signed on March 21, 1984, and an application for a Florida Teacher's Certificate signed on May 11, 1988. The evidence is sufficient to establish both of those allegations. The consequences of those fraudulent statements are discussed more specifically below.
The School Board's Amended Notice of Specific Charges charges the Respondent with making a fraudulent statement on one document; a Dade County School District employment application form signed on March 21, 1984. 12/ The evidence is insufficient to establish that the Respondent made any fraudulent statements on that document. The consequences of that evidentiary insufficiency are discussed more specifically below.
Allegations regarding conviction of a crime
The Commissioner of Education's Amended Administrative Complaint charges the Respondent with having been convicted of a criminal charge other than a minor traffic violation. The evidence is sufficient to establish that allegation. The consequences of that conviction are discussed more specifically below.
The specific violations charged in Case No. 92-6921
The Commissioner of Education's Amended Administrative charges the Respondent with eleven specific violations set forth in twelve separate counts. 13/ Counts One, Five, Ten, Eleven, and Twelve all relate to the allegations that the Respondent made fraudulent statements on two documents, one related to his certification and one related to his employment. The evidence establishes that the Respondent willfully gave false answers on both of those documents and his answers are, therefore, fraudulent. Count One charges that those fraudulent statements constitute a violation of Section 231.28(1)(a), Florida Statutes. Count Five charges that those fraudulent statements constitute a violation of Section 231.28(1)(h), Florida Statutes. Counts Ten, Eleven, and Twelve charge, respectively, that those fraudulent statements constitute violations of paragraphs (a), (g), and (h) of Subparagraph (5) of Rule 6B-1.006, Florida Administrative Code. All of the charges in Counts One, Five, Ten, Eleven, and Twelve are established by the evidence.
Count Three of the Commissioner of Education's Amended Administrative Complaint charges that, by reason of the Respondent's conviction of a criminal charge other than a minor traffic violation, the Respondent has violated Section 231.28(1)(e), Florida Statutes. This charge is also established by the evidence.
Counts Two, Four, Seven, Eight, and Nine all relate to the allegations that the Respondent engaged in improper conduct with students. For reasons discussed above, the evidence is insufficient to establish that the Respondent engaged in such conduct. Accordingly, all of the violations charged in these paragraphs should be dismissed.
The specific violations charged in Case No. 93-2723
The School Board's Amended Notice of Specific Charges is set forth in four counts, Count One of which charges the Respondent with "immorality." The quoted term is defined by Rule 6B-4.009(2), Florida Administrative Code, as follows:
Immorality is defined as conduct that is incon- sistent 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.
The factual predicate for the immorality charge consists of the Respondent's alleged improper conduct with young female students or the Respondent's alleged fraudulent statements on his 1984 application for reemployment. For the reasons mentioned in the Preliminary Statement, in the Endnotes, and in the Appendix, the evidence presented against the Respondent was unpersuasive and insufficient to establish any of the allegations regarding improper conduct with young female children. Because the evidence was insufficient to establish any of those allegations, all charges based on those allegations must be dismissed. With regard to the Respondent's alleged fraudulent statement on his 1984 application for reemployment, the evidence is again insufficient to establish that the Respondent made any fraudulent statement on that document because the evidence fails to show that the Respondent had been "convicted" of any violation other than a minor traffic violation as of the date on which that document was signed. While it is true that the evidence in this case establishes that the Respondent made fraudulent statements on other documents, those other fraudulent statements cannot be used by the School Board as a basis for its proposed termination of the Respondent because the School Board never charged the Respondent with making those other statements. See MacMillan v. Nassau County School Bd., 629 So.2d 226 (Fla. 1st DCA 1992), and cases cited therein.
Count Two of the School Board's Amended Notice of Specific Charges charges the Respondent with "misconduct in office." Paragraphs 25 through 33 under Count Two itemize numerous rule and statutory provisions the Respondent is alleged to have violated. As with Count One, all of the alleged violations itemized under Count Two have as a factual predicate either the Respondent's alleged improper conduct with young female children or the Respondent's alleged fraudulent statement on his 1984 application for reemployment. As noted in the discussion of Count One, immediately above, because the evidence was insufficient to establish any of those allegations, all charges based on those allegations must be dismissed.
Count Three of the School Board's Amended Notice of Specific Charges charges the Respondent with "gross insubordination." By way of factual predicate for the charge of insubordination it is alleged that "[d]espite the specific directives and [R]espondent's actual knowledge of the School Board Rules, he continued to engage in lewd and lascivious conduct with young female students." As noted in the discussion of Counts One and Two above, because the evidence was insufficient to establish the allegations that the Respondent engaged in lewd and lascivious conduct with any students, all charges based on those allegations must be dismissed.
With regard to the insubordination issue, at hearing the School Board appeared to be attempting to also establish that the Respondent had been instructed or directed at various times that he was not at any time to touch any student in any way, and that by reason of those instructions or directions, any touching of any kind would constitute insubordination. That theory of the case also fails for lack of proof, because the greater weight of the evidence is to the effect that the Respondent was never given an unqualified order that he was not to touch students under any circumstances.
Count Four of the School Board's Amended Notice of Specific Charges charges the Respondent with "Incompetency Due To Inefficiency." The factual predicate for the charge of incompetency due to inefficiency is alleged to be that "[b]y failing to comply with the duties prescribed by law and repeatedly brought to [R]espondent's attention, he violated a duly prescribed rule of the School Board and thereby committed an act which constitutes incompetency due to inefficiency. . . ." This charge is similar to the gross insubordination charge in that in order for it to be sustained, it must be established that the Respondent engaged in the alleged improper touching of students. As explained at length above, because the evidence is insufficient to establish any of those allegations, all charges based on those allegations must be dismissed.
On the basis of all of the foregoing it is RECOMMENDED that in Case Number 92-6921, a Final Order be issued to the following effect:
Dismissing the charges set forth in Counts Two, Four, Seven, Eight, and Nine;
Concluding that the Respondent is guilty of the charges set forth in Counts One, Three, Five, Ten, Eleven, and Twelve; and
Imposing the penalty of revocation of the Petitioner's teaching certificate.
On the basis of all of the foregoing, it is RECOMMENDED that in Case No.
93-2723, the Dade County School Board issue a Final Order in this case concluding that the evidence is insufficient to establish any of the charges in the Amended Notice of Specific Charges and dismissing all charges against the Respondent.
DONE AND ENTERED this 15th day of November, 1994, at Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
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 15th day of November, 1994.
ENDNOTES
1/ Subsequent to the formal hearing Jill M. Boyd, Esquire, was substituted as counsel for the Petitioner in Case No. 92-6291. Jill M. Boyd, Esquire, submitted the proposed recommended order on behalf of the Petitioner in Case No. 92-6291.
2/ All students and all parents of students are referred to in this Recommended Order by their initials. For those who need to now, the full names are contained in the transcript of the hearing or in the transcripts of the several depositions that were filed post-hearing.
3/ See the order of June 25, 1993, setting forth the procedures and deadlines for the taking and filing of the post-hearing depositions.
4/ After protracted and through review of the evidence the Hearing Officer is convinced that the majority of the testimony presented by the student witnesses, both at hearing and in the depositions filed post-hearing, was a morass of vague uncertainty and imprecision. Such testimony is simply an insufficient basis upon which to make findings of fact. It is not reliable, it is not persuasive, and it is not substantial because it is not the type of evidence that a reasonable mind would accept as adequate to support conclusion.
5/ Although there is some evidence to the contrary, the greater weight of the persuasive evidence is as reflected in this finding of fact.
6/ In this regard it is important to note that this finding of fact is limited to the fact that complaints of misconduct were made against the Respondent. For reasons explained elsewhere in this Recommended Order, the Hearing Officer has not found that the Respondent actually engaged in any misconduct during the
1976-1977 school year; only that students complained and their complaints were investigated.
7/ The signature on this application was prior to the Respondent's August 8, 1994, conviction for driving with a suspended or revoked driver's license.
There is no competent substantial evidence in the record of this proceeding that prior to March 21, 1984, the Respondent had been convicted of anything other than a minor traffic violation.
8/ The nature of the other convictions is not revealed in the record of this case. The other convictions may have all been "minor traffic violations."
9/ The Principal does not appear to have placed much credence in the allegations that caused him to have these two conferences with the Respondent. See the exhibit attached to the transcript of the deposition of Principal Carlos Fernandez.
10/ In this regard I find the Respondent's testimony to be more credible than
S. K.'s testimony that he placed his hands on her upper chest and back to turn her around. The hand placement described by S. K.'s testimony that he placed his hands on her upper chest and back to turn her around. The hand placement described by S. K. would be a very awkward and unlikely way try to turn someone around.
11/ The evidence is sufficient to cause a reasonable person to suspect that the Respondent may have engaged in some inappropriate conduct with his students, but, as noted in Laney v. Board of Public Instruction, 153 Fla. 728, 15 So.2d 748 (1943), suspicions are an insufficient basis for fact finding.
12/ It is important to note that the School Board's Ammended Notice of Specific Charges does not allege that the Respondent made fraudulent statements on either of the two documents specifically mentioned in the Commissioner of Education's Amended Administrative Complaint. At hearing, after the presentation of the School Board's case in chief, the School Board moved to further amend its Amended Notice of Specific Charges in order to add allegations to Amended Notice of Specific Charges in order to add allegations to the effect that the Respondent also made fraudulent statements on the form titled Security Check Authorization And Waiver Of Confidential Records. The motion was denied. (See pages 209-213 of the transcript of the hearing.)
13/ Count Six of Amended Administrative Complaint summarizes the legal effect of Section 231.28(2), Florida Statutes, but does not charge the Respondent with a separate violation of any specific statutory or rule provision.
APPENDIX
The following are the specific rulings on all proposed findings of fact submitted by all parties.
Findings submitted by Petitioner Castor:
Paragraph 1: First sentence accepted. Second sentence accepted with exception of the date; the date should be 1998.
Paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 10: Accepted in substance. Paragraph 11: Rejected as irrelevant to the charges brought by the
Commissioner of Education because the facts proposed here are not alleged in the Amended Administrative Complaint. (Additional reasons for rejecting similar proposed findings are discussed below in the rulings addressing Paragraph 2 of the School Board's proposed findings of fact.)
Paragraph 12: First sentence accepted in part and rejected in part. Accepted that Mr. Pittman received complaints. The remainder of the first sentence is rejected in part because it is not fully supported by the evidence and in part because the Respondent has not been charged with "excessive socialization" in either charging document, which makes any such finding irrelevant. The second sentence is rejected as both inaccurate and irrelevant.
It is inaccurate because Mr. Pittman did not make any "findings" regarding the accuracy or inaccuracy of the students' complaints against the Respondent; he may have felt that the Respondent was guilty, but he did not make any findings in that regard. The second sentence is irrelevant because how Mr. Pittman felt about the matter is irrelevant to the issues in this case.
Paragraphs 13, 14, 15, and 16: Accepted.
Paragraph 17: Rejected for several reasons. First, there is no testimony that any student on the scales was grabbed on the behind; the testimony is that she was grabbed from behind. Second, the proposed facts in this paragraph are not supported by credible, persuasive evidence. The only testimony consistent with what is proposed here is the testimony of the student C. G., which testimony is unreliable and not worthy of belief for several reasons. First, the events testified to by C. G. are highly unlikely and implausible. Second,
C. G. was obviously hostile towards and defiant of the Respondent. Third, C. G. had difficulty remembering certain details of the alleged incident. The Respondent's denial of this incident is more worthy of belief than C. G.'s testimony.
Paragraph 18: Rejected for several reasons. First, the Respondent is not charged in either of the charging documents with any of the acts described in this paragraph, so the proposed findings are irrelevant to the issues in these cases. Second, for reasons mentioned in the immediately preceding paragraph, the testimony of student C. G. has been found to be inherently unreliable.
Finally, the testimony in this regard was simply too vague and incomplete to be meaningful.
Paragraphs 19, 20, and 21: Accepted.
Paragraphs 22, 23, 24, 25, and 26: The vast majority of what is proposed in these paragraphs is rejected as not being supported by persuasive competent substantial evidence. The sole support for the vast majority of the facts proposed in these paragraphs is the testimony of the student S. K., whose testimony has been given very little credence for the following reasons. The testimony of this witness with regard to any touching by the Respondent was vague, sketchy, and incomplete. Her testimony to the effect that the Respondent touched her breasts was limited to answering "yes" to the leading question:
"Did Mr. Pilla touch your breasts?" She provided no other details. She did not testify as to when, where, in what manner, or how many times the Respondent allegedly touched her breasts. She did not describe any circumstances surrounding any such alleged touching other than to mention that she did not know if he did it intentionally. The most that could be said of her testimony on the subject of breast touching is that some time during the school year the Respondent touched her breast, but she doesn't know whether he did so accidentally, but even that much of a finding is not warranted by the totality of the evidence, especially when note is taken of the fact that on the day S. K. decided to complain to the school authorities about the Respondent's alleged conduct she prepared a written statement in which there is no assertion that the Respondent touched either her breasts or her buttocks. The witness S. K. provided even less information about the assertion that the Respondent once touched her buttocks. Most of her information about the buttocks incident was based on hearsay information. With regard to the several instances on which she said the Respondent turned her around, there is nothing in that testimony that suggests that the Respondent was acting beyond the reasonable scope of his role of physical education instructor. Nothing in the testimony about the turning incidents suggests any conduct of a sexual or immoral nature. Finally, I have credited the Respondent's version of the turning incident, which was to the effect that the Respondent placed his hands on the student's shoulders and did not at any time touch the student's breasts or buttocks.
Paragraph 27: First sentence is accepted in substance, with some additional facts to clarify that any touching of M. C.'s buttocks was completely
accidental. (Further, to the extent of any conflicts in the testimony on this subject I have tended to credit the testimony of the Respondent over that of the witness M. C.) The second sentence is rejected for several reasons. First, it is rejected as irrelevant because the Respondent is not charged with "dirty" smiles in the Amended Administrative Complaint. Second, and more importantly, the testimony about the way the Respondent smiled and the way in which the witness interpreted the smile is totally subjective and unexplained and is simply insufficient information upon which to make any meaningful finding of fact. For all the record shows about the matter, the Respondent may have had a pained or strained smile because he was annoyed but was nevertheless trying to be pleasant about the matter.
Paragraph 28: Accepted in substance, with some additional facts to clarify that the Respondent's conduct appears to have been reasonable under the circumstances. (Further, to the extent of any conflicts in the testimony on this subject I have tended to credit the testimony of the Respondent over that of the witness M. C.)
Paragraph 29: Rejected as irrelevant because the conduct described here is not charged in the Amended Administrative Complaint. Further, the unexplained assertion that the Respondent looked at girls "differently" than he looked at boys is so vague and unexplained as to be meaningless, and the fact that two students might have been on some occasion touched on their lower backs is of no significance in the absence of additional details regarding the circumstances of any such touching.
Paragraph 30: Rejected as irrelevant, because the fact that the student was uncomfortable or that the student had nightmares is irrelevant to the disposition of this case in the absence of proof of some misconduct by the Respondent that caused her to be uncomfortable and caused her to have the nightmares.
Paragraph 31: Accepted to the extent that it is asserted that several students complained to Ms. Blonder that the Respondent had engaged in inappropriate touching. Any implication that the complaints were accurate is rejected as not supported by persuasive competent substantial evidence.
Paragraph 32: Rejected as subordinate and unnecessary details. Paragraph 33: Accepted.
Paragraph 34: First sentence rejected as unnecessary repetition. Second sentence rejected as irrelevant because of insufficient information about the circumstances of the mentioned arrests.
Paragraphs 35 and 36: Rejected as subordinate and unnecessary details about matters which were not alleged in the charges brought by either Petitioner. (The details recited in these paragraphs have, of course, been considered along with the other evidence in the course of making determinations regarding conflicts in the evidence and the credibility of witnesses.)
Findings submitted by Petitioner School Board:
Paragraph 1: Accepted in substance, with some additional clarifying details.
Paragraph 2: Almost all of the proposed findings in this paragraph are rejected for the following reasons. The portion of the first sentence dealing with "otherwise known to flirt" and all of the second sentence are rejected as irrelevant because they address matters not alleged in the Amended Notice of Specific Charges. Similarly, the reference in the first sentence to "very touchy feely person" is rejected as irrelevant because it is not alleged in the charging document. Regarding the reference to "nice peaches," under all of the circumstances it is found that the Respondent's denial is more persuasive than the testimony in K. L.'s deposition. (K. L. testified that the Respondent was a "cool" teacher with whom the girls enjoyed hanging around. It is most unlikely
that the girls would have thought the Respondent was very "cool" if he was making admiring remarks about their breasts.) With regard to the hands on hips and buttocks portion of this paragraph, I find the Respondent's version to be more credible than the deposition testimony of E. N. S., and reject the proposed finding that the Respondent put his hands on students' buttocks. (In this regard it is noted that at several places in her testimony E. N. S. makes it clear that while she has a vague, general recollection of the Respondent's demeanor during the 1976-77 school year, she does not have any present recollection of any specific details. Vague recollections of events that happened fifteen or sixteen years in the past are not persuasive competent substantial evidence.) Regarding the pinched bottoms portion of this paragraph, I find the Respondent's denial to be more persuasive than the testimony of K. L. Regarding the portion of this paragraph dealing with invitations to visit his home and to take trips, with the exception of the trip to his parents' home to retrieve keys, there is no persuasive evidence of any invitations to students to visit the Respondent's home or to go on trips. I have accepted the Respondent's version regarding the trip to retrieve keys, but have not described that trip in the findings of fact because it was an innocuous event that did not involve any misconduct.
Paragraph 3: With regard to the first sentence it is accepted and has been found that Mr. Pittman received several complaints during the subject school year; the other details in this sentence are either incorrect or unnecessary.
The second sentence is rejected as irrelevant and unnecessary for two reasons; first, because the Respondent has not been charged with the conduct described here and, second, because nothing in Mr. Pittman's testimony about this incident suggested that it involved any misconduct by the Respondent. (See page 21 of the hearing transcript where Mr. Pittman describes what he observed as follows: "Well, I perceived it to be just a social conversational setting, but being a former physical education teacher, I just felt that it was to Mr. Pilla's advantage not to be out there at that hour.")
Paragraph 4: First sentence rejected as irrelevant and as a mischaracterization of Mr. Pittman's comments. Second sentence rejected as unnecessary editorializing or argument. Last sentence accepted in substance.
Paragraphs 5 and 6: Accepted in substance.
Paragraph 7: Rejected for the same reasons set forth above for the rejection of Paragraphs 17 and 18 of the Petitioner Castor's proposed findings.
Paragraph 8: Rejected as irrelevant or as subordinate and unnecessary details.
Paragraphs 9, 10 and 11: Accepted in substance.
Paragraph 12: Rejected for the same reasons as those given above in the rulings on Paragraphs 22 through 30 of the findings proposed by Petitioner Castor.
Paragraph 13: Accepted in substance with the deletion of certain argumentative and editorial details.
Paragraph 14: The majority of this paragraph has been rejected because the majority of the opinions testified to by Dr. Gray were based on facts he assumed to be true, which facts were not proved at the final hearing in this proceeding. Expert opinions based on facts different from those proved at hearing are not a proper basis for fact-finding. See Roberts v. Castor, 629 So.2d 311 (Fla. 1st DCA 1993), and Tenbroeck v. Castor, 19 FLW D1656 (Fla. 1st DCA 1994).
Findings submitted by Respondent:
Paragraphs 1, 2, 3, and 4: Accepted in substance.
Paragraph 5: First sentence accepted in substance. Second sentence rejected as constituting a proposed conclusion of law, rather than proposed findings of fact. (The proposal in the second sentence is addressed in the Conclusions of Law portion of this Recommended Order.)
Paragraph 6: First sentence omitted as an unnecessary statement of a party's position. The last two sentences are accepted in substance, with some additional details in the interest of clarity and accuracy.
Paragraph 7: Rejected, because the Respondent's explanation in this regard is simply not plausible or persuasive. He was arrested by police officers as a result of his conduct. He later appeared before a Circuit Court Judge, personally entered a plea of nolo contendere to the criminal charges, and was placed on probation. Under those circumstances the Respondent could hardly have had any doubts about the fact that he was involved in a criminal case.
Paragraph 8: First sentence is accepted. The second sentence is rejected as contrary to the greater weight of the evidence. For the reasons discussed in the immediately preceding paragraph, the Respondent's explanation is not persuasive.
Paragraph 9: Accepted is substance, with numerous details added in the interest of clarity and accuracy.
Paragraph 10: First sentence is accepted. Regarding the second sentence, it is accepted that the Respondent answered "no," but the rest of this sentence is rejected because the Respondent's explanation is neither plausible nor persuasive. Driving with a suspended or revoked driver license is a serious traffic violation. Any traffic violation that results in a 30-day period of incarceration is a serious traffic violation. Last sentence omitted as an unnecessary statement of a party's position.
Paragraph 11: First sentence rejected as argument. Second sentence omitted as an unnecessary statement of a party's position. Third sentence rejected because the Respondent's testimony in this regard is neither plausible nor persuasive. Fourth sentence rejected as contrary to the greater weight of the evidence.
Paragraph 12: Omitted as an unnecessary statement of a party's position.
Paragraphs 13 and 14: These two paragraphs are both rejected as comprising unnecessary summaries of testimony, rather than findings the Respondent wishes to have made.
Paragraph 15: Rejected as comprising argument or conclusions of law, rather than proposed findings of fact. (This argument is addressed in the Conclusions of Law portion of this Recommended Order.)
Paragraphs 16 and 17: Accepted in substance.
Paragraphs 18 and 19: These two paragraphs are both rejected as comprising unnecessary summaries of testimony, rather than findings the Respondent wishes to have made. (As noted above in the rulings on Paragraphs 17 and 18 of the proposals submitted by Petitioner Castor, the testimony summarized in these paragraphs has not been credited.)
Paragraphs 20 and 21: The Respondent's denial of the subject incident has been credited. The rest of the details in these two paragraphs have been omitted as subordinate and unnecessary.
Paragraph 22: This paragraph is rejected as comprising an unnecessary summary of testimony, rather than findings the Respondent wishes to have made. (As noted above in the rulings on Paragraphs 22 through 26 of the proposed findings submitted by Petitioner Castor, the testimony summarized in this paragraph as not been credited.)
Paragraph 23: First sentence omitted as unnecessary details. Second sentence accepted.
Paragraph 24: This paragraph is rejected as comprising an unnecessary summary of testimony, rather than findings the Respondent wishes to have made.
Paragraph 25: This paragraph is rejected as being comprised of argument about the weight and sufficiency of the evidence, rather than the findings of fact the Respondent actually seeks to have made. (It is noted that, as discussed elsewhere, the argument has been accepted.)
Paragraphs 26, 27, 28, 29, 30, 31, and 32: Rejected as subordinate and unnecessary details. (The evidence on which these proposals are based was considered during the formulation of the findings that have been made, but these additional details are unnecessary in view of other findings.)
Paragraphs 33, 34, and 35: Rejected as subordinate and unnecessary details. Also rejected as comprising an unnecessary summary of testimony.
Paragraphs 36 and 37: These two paragraphs are rejected as being comprised of argument about the weight and sufficiency of the evidence, rather than the findings of fact the Respondent actually seeks to have made. (It is noted that, as discussed elsewhere, the arguments have been accepted.)
COPIES FURNISHED:
Jill M. Boyd, Esquire Bond & Boyd, P.A.
411 East College Avenue Post Office Box 26 Tallahassee, Florida 32302
Jaime C. Bovell, Esquire 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134
William Du Fresne, Esquire 2929 S.W. 3rd Avenue
Suite One
Miami, Florida 33129
Octavio J. Visiedo, Superintendent Dade County School Board
1450 Northeast Second Avenue Miami, Florida 33132
Madelyn P. Schere, Esquire Assistant School Board Attorney
School Board Administration Building 1450 Northeast Second Avenue
Miami, Florida 33132
Karen Barr Wilde Executive Director
301 Florida Education Center
325 West Gaines Street Tallahassee, Florida 32399-0400
Honorable Douglas L. Jamerson Commissioner of Education
The Capitol
Tallahassee, Florida 32399-0400
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period 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.
================================================================= JOINT MOTION TO CORRECT CLERICAL ERROR
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SCHOOL BOARD OF DADE COUNTY, ) FLORIDA, )
)
Petitioner, )
)
vs. ) CASE NO. 93-1227
)
JOHN N. PILLA, )
)
Respondent. )
)
JOINT MOTION TO CORRECT CLERICAL ERROR
The Respondent, John N. Pilla, through undersigned counsel together with the School Board of Dade County, jointly move that the Recommended Order in this cause be corrected and would show:
The correct case number assigned by the Division of Administrative Hearings to the above styled case is 93-1227.
That case number appears on all of the pleadings up until the Recommended Order.
The case number appearing on the Recommended Order 93-2723 is not related to this case and appears to be a clerical error.
The attorneys for the Respondent and the Petitioner have both noted this error and agree that the Recommended Order should be changed to reflect the correct case number of 93-1227.
WHEREFORE, both the Petitioner and the Respondent move that the clerical error be corrected.
Respectfully submitted,
WILLIAM DU FRESNE, ESQ.
Du Fresne and Bradley, P.A. 2929 Southwest Third Avenue Suite One
Miami, Florida 33129
(305)854-3040
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the above and foregoing will be mailed the 5th day of December, 1994 to Patricia D. Bass, Esquire, Dade County School Board, 1450 Northeast Second Avenue, Suite 301, Miami, Florida 33132.
WILLIAM DU FRESNE, ESQ.
================================================================= ORDER GRANTING JOINT MOTION TO CORRECT CLERICAL ERROR
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BETTY CASTOR, as Commissioner ) of Education, )
)
Petitioner, )
)
vs. ) CASE NO. 92-6921
)
JOHN PILLA, )
)
Respondent. )
) SCHOOL BOARD OF DADE COUNTY, )
)
Petitioner, )
)
vs. ) CASE NO. 93-1227
)
JOHN N. PILLA, )
)
Respondent. )
)
ORDER
On December 7, 1994, the parties to Case No. 93-1227 filed a Joint Motion To Correct Clerical Error. The clerical error addressed by the motion is the use of an incorrect case number in the Recommended Order issued on November 15, 1994. Review of the Recommended Order reveals several instances in which an incorrect case number was inadvertently used. Accordingly, it is ORDERED:
That the Joint Motion To Correct Clerical Error is GRANTED and the Recommended Order issued on November 15, 1994, is hereby corrected by substituting the number 93-1227 in each place in which the number 93-2723 appears.
DONE AND ORDERED this 12th day of December 1994 in Tallahassee, Florida.
MICHAEL M. PARRISH
Division of Administrative Hearings The Oakland Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1994.
COPIES FURNISHED:
Jill M. Boyd, Esquire Bond & Boyd, P.A. Post Office Box 26
Tallahassee, Florida 32302
Jamie C. Bovell, Esquire 3211 Ponce de Leon Boulevard Coral Gables, Florida 33134
William Du Fresne, Esquire 2929 Southwest Third Avenue Suite One
Miami, Florida 33129
Octavio J. Visiedo, Superintendent Dade County School Board
1450 Northeast Second Avenue Miami, Florida 33132
Madelyn P. Schere, Esquire
School Board Administration Building 1450 Northeast Second Avenue
Miami, Florida 33132
Karen B. Wilde, Executive Director Education Practices Commission
The Florida Education Center Room 301 Tallahassee, Florida 32399
Honorable Douglas L. Jamerson Commissioner of Education
The Capitol
Tallahassee, Florida 32399-0400
================================================================= AGENCY FINAL ORDER (DADE COUNTY SCHOOL BOARD)
================================================================= IN THE SCHOOL BOARD OF DADE COUNTY, FLORIDA
SCHOOL BOARD OF DADE COUNTY,
Petitioner,
vs. DOAH CASE NO. 92-6921
JOHN N. PILLA,
Respondent,
/
FINAL ORDER
OF THE SCHOOL BOARD OF DADE COUNTY, FLORIDA
THIS CAUSE having come on for hearing before the School Board of Dade County, Florida, at its regular meeting of February 8, 1995, upon the Hearing Officer's Recommended Order, recommending that the charges against John N. Pilla be dismissed, Respondent's Corrected Exceptions to the Hearing Officer's Recommended Order, Respondent's Corrected Memoranda in Opposition to Petitioner's Exceptions to Recommended Order, and the School Board's Corrected Exceptions to Recommended Order, and the Board having reviewed the record, heard argument of counsel and been otherwise fully advised in the premises, it is thereupon ordered by The School Board of Dade County, Florida, that:
The hearing officer's findings of fact, conclusions of law and recommendation, attached hereto, be and the same are hereby adopted as the Final Order of The School Board of Dade County, Florida, except as modified below;
The Respondent's and Petitioner's Corrected Exceptions to the Recommended Order are ruled upon as follows:
The School Board's Corrected Exceptions are adopted, as follows:
This case was consolidated with the Commissioner of Education's case. As part of the Commissioner's case, Respondent had to defend against charges that he falsified two documents, one related to his certification and one related to his employment. Respondent had full notice of these charges and a full opportunity to defend against them.
During the hearing, the School Board moved to amend its Amended Specific Notice of Charges to add these same allegations. The hearing officer denied this motion.
Fla. R. Civ. P. 1.190 provides for the liberal amendment of pleadings. Even at trial, "the court may allow an amendment to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will
prejudice the objecting party. (emphasis
added).
Since Respondent was already in a position to defend against these charges, there was no prejudice to him. In denying the motion to amend, the hearing officer abused his discretion and was clearly erroneous in his ruling.
The hearing officer's ruling denying leave to amend is overturned.
Respondent's Corrected Exceptions are denied, as follows:
In view of the ruling in "B (1)" above, charges have been sustained against Respondent.
Since Respondent is suspended without pay and dismissed from all employment, he is not entitled to back salary.
John N. Pilla's suspension without pay be and is hereby affirmed; and
John N. Pilla be and is hereby dismissed from his employment with The School Board of Dade County, Florida and should forfeit all compensation from February 17, 1993.
DONE AND ORDERED this 8th day of February, 1995.
THE SCHOOL BOARD OF DADE COUNTY, FLORIDA
By: Betsy H. Kaplar
Chairperson
Filed with the Clerk of The School Board of Dade County, Florida, this 9th day of February, 1995.
APPEAL OF FINAL ORDER
This Order may be appealed by filing notices of appeal and a filing fee, as set out in section 120.68(2), Florida Statutes, and Florida Rules of Appellate Procedure 9.110(b) and (c), within thirty (30) days.
================================================================= AGENCY FINAL ORDER (EDUCATION PRACTICES COMMISSION)
=================================================================
BEFORE THE EDUCATION PRACTICES COMMISSION OF THE STATE OF FLORIDA
FRANK BROGAN, as
Commissioner of Education, Petitioner,
vs. EPC CASE NO. 92-178-RT
DOAH CASE NO. 92-6921
JOHN N. PILLA, 93-2723
EPC INDEX NO. 95-012-FOF
Respondent.
/
FINAL ORDER
Respondent, JOHN N. PILLA, holds Florida educator's certificate no. 286698.
Petitioner's predecessor in office 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 November 15, 1 994, 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 January 20, 1995 in Orlando, Florida, to take final agency action. Petitioner was represented by Robert J. Boyd, Attorney at Thaw. Respondent was represented by William DuFresne, Attorney at Law. The panel reviewed the entire record in this case.
Neither Petitioner nor Respondent filed exceptions to the Recommended Order.
FINDINGS OF FACT
The Commission adopts as its Findings of Fact paragraphs 1 through 22 of the hearing officer's Findings of Fact.
CONCLUSIONS OF LAW
The Commission adopts paragraphs 23-39 in the hearing officer's Conclusions of Law as its Conclusions of Law.
The Commission has jurisdiction of the parties and subject matter of this cause pursuant to Section 120.57 and Chapter 231, F.S.
Based upon the foregoing findings of fact and conclusions of law, the charges set forth in Counts Two, Four, Seven, Eight and Nine of the Amended Administrative Complaint are hereby DISMISSED.
Based upon the foregoing findings of fact and conclusions of law, the Respondent is guilty of violating the charges set forth in Counts One, Three, Five, Ten, Eleven and Twelve of the Amended Administrative Complaint, to wit: violating Section 231.28(1)(a), F.S., by obtaining a Florida educator's certificate by fraudulent means; Section 231.28(1)(e), F.S., by having been convicted of a misdemeanor, a felony, or a criminal charge other than a minor traffic violation; Section 231.28(1)(i) [formerly 231.28(1)(h)], F.S., by having violated Rule 6B-1.006(5)(a), F.A.C., in that Respondent failed to maintain honesty in all professional dealings; Rule 6B-1.006(5)(g), F.A.C., in that Respondent submitted fraudulent information on documents in connection with professional activities; Rule 6B-1.006(5)(h), F.A.C., in that Respondent made a fraudulent statement and failed to disclose material facts in his application for a professional position; and 231.28(2), F.S.; for all of which the Commission may impose discipline pursuant to Sections 231.262(6), and 231.28, F.S.
WHEREFORE, it is ORDERED AND ADJUDGED that Respondent is guilty of the violations set forth in the foregoing conclusions of law; and
It is further Ordered that Respondent's educator's certificate be suspended for a period of three years from the date of this Order. Upon reemployment in a position requiring a Florida educator's certificate, Respondent shall be placed on a three-year probation.
The terms of probation shall be that:
Notify EPC immediately upon employment as an educator in any public or private school in the State of Florida.
Arrange for immediate supervisor to submit performance reports to the EPC at least every three months.
Submit true copies of all formal observation/evaluation forms within ten days of issuance.
Complete a three hour college level course in ethics.
Pay $1000 fine to the EPC during the period of probation.
All costs incurred in fulfilling the terms of probation will be borne by the Respondent.
This Order may be appealed by filing notices of appeal and a filing fee, as set out in Section 120.68(2), F.S., and Florida Rule of Appellate Procedure 9.110(b) and (c), within thirty days of the date of filing.
DONE AND ORDERED, this 14th day of February, 1995.
Brenda Wallace, Presiding Officer
I HEREBY CERTIFY that a copy of the foregoing Order in the matter of Brogan vs. John Pilla, was mailed to Wm. DuFresne, Esquire, 2929 Southwest Third Avenue, Suite One, Miami, Florida 33129, this 16th day of February, 1995, by U. S. Mail.
KAREN B. WILDE, Clerk
COPIES FURNISHED TO:
Kathleen Richards, Program Director
Professional Practices Services
Rivers Buford, Jr. Attorney General's Office
Florida Administrative Law Reports
Ida Whipple, Executive Director Professional Standards
Dade County Schools 1500 Biscayne Boulevard
Suite 114
Miami, Florida 33132
Dr. Patrick Gray Assistant Superintendent Office of Professional
Standards
Dade County Schools
Robert J. Boyd Attorney at Law
2121 Killarney Way Suite G Tallahassee, Florida 32308
Michael M. Parrish Hearing Officer
Division of Administrative Hearings 1230 Apalachee Parkway
Tallahassee, Florida 32399-1250
=================================================================
DISTRICT COURT OPINION
=================================================================
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.
JOHN N. PILLA, IN THE DISTRICT COURT OF APPEAL OF FLORIDA
Appellant, THIRD DISTRICT
JANUARY TERM, A.D. 1995
vs.
CASE NO. 95-621
THE SCHOOL BOARD OF DADE DOAH CASE NO. 92-6921 COUNTY, FLORIDA, etc.,
Appellee.
/ Opinion filed June 14, 1995.
An appeal from The School Board of Dade County, Florida.
Du Fresne and Bradley and William Du Fresne, for appellant. Madelyn P. Schere, for appellee.
Before BARKDULL, COPE and GREEN, JJ. PER CURIAM.
John N. Pilla appeals an order terminating his employment. We reverse.
Pilla was employed as a teacher by the appellee School Board of Dade County, Florida. In 1992 the Commissioner of Education filed an administrative complaint against the teacher, seeking revocation or suspension of his teaching certificate. In 1993 the School Board terminated the teacher's employment and the teacher requested a formal administrative hearing. The two administrative proceedings were consolidated with each other, and were heard by an administrative hearing officer assigned by the Division of Administrative Hearings.
Insofar as pertinent here, the School Board alleged that the teacher gave an untruthful answer on his March 21, 1984 employment application to a question which asked, "Have you ever been convicted of anything other than a minor traffic violation?" The teacher answered "no" to that question.
The Commissioner of Education charged the teacher with giving an untruthful answer on a different document submitted on March 21, 1984, entitled "Security Check Authorization And Waiver Of Confidential Records." That form asked whether the teacher had ever been "convicted, fined, imprisoned, or placed on probation in a criminal proceeding?" The teacher answered "no."
The Commissioner of Education also charged the teacher with giving an untruthful answer on an "Application For Educator's Certificate" submitted May 11, 1988. That application asked, "Have you ever been convicted of or had adjudication withheld in a criminal offense other than a minor traffic violation
...?" The teacher again answered "no."
At the administrative hearing, the evidence showed that prior to the 1984 application, the teacher had entered a plea of nolo contendere to the misdemeanor charge of trespass arising out of a domestic dispute with his former wife. The teacher was placed on six months' nonreporting probation. Since adjudication of guilt had been withheld, the hearing officer found that the teacher had responded truthfully on his 1984 employment application submitted to the School Board. The hearing officer reasoned that since adjudication had been withheld, the teacher had not been convicted and thus, the teacher could properly give a negative answer to the question on the employment application.
This was the only false statement with which the School Board had charged the teacher.
The documents as to which the Commissioner of Education had charged the teacher with making false statements requested different information- -which resulted in a different finding by the hearing officer. The March 21, 1984 Security Check Authorization And Waiver Of Confidential Records specifically asked whether the teacher had ever been, among other things, "placed on probation in a criminal proceeding?" Since the teacher had been placed on probation in the misdemeanor trespass case, the hearing officer found that the teacher's "no" answer was untruthful.
The evidence also showed that in May, 1984 the teacher had been found guilty of driving with a suspended or revoked license in violation of section 322.34, Florida Statutes. He was sentenced to 30 days. Since the teacher's 1988 Application For Educator's Certificate requested disclosure of any conviction or adjudication withheld in a criminal offense other than a minor traffic violation, the teacher's answer to this question was also found to be untruthful.
During the administrative hearing, at the conclusion of its case, the School Board requested leave to amend its administrative complaint so as to add the same charges which the Commissioner of Education had alleged: untruthful answer on the Security Check Authorization And Waiver Of Confidential Records form, and untruthful answer on the Application For Educator's Certificate. The hearing officer denied leave to amend.
At the conclusion of proceedings, the hearing officer entered a recommended order. The hearing officer found in favor of the Commissioner of Education on the false statement charges and certain other charges. The portions of the recommended order pertaining to the Commissioner of Education were subsequently acted on by that agency, and the Commissioner of Education suspended the teacher's license for three years.
In the recommended order the hearing officer found that the School Board's charges had not been established. The hearing officer recommended dismissal of the School Board's charges.
Counsel for the School Board filed exceptions to the recommended order. In one of the exceptions, counsel argued that the hearing officer had abused his discretion by denying leave to amend the administrative complaint.
The School Board sustained this exception, ruling that the motion for leave to amend should have been granted, and that the administrative complaint would be treated as having been amended. The School Board then ruled that, as amended, the charges of false statement against the teacher had been sustained. The School Board dismissed the teacher from employment. The teacher has appealed, and we reverse.
It appears that the administrative hearing was conducted under the Model Rules of Procedure. See Fla. Admin. Code Ch. 28-5. Rule 28-5.202 provides in part, "The petitioner may amend its petition after the designation of the presiding officer only upon order of the presiding officer." See Beckum v.
Department of Health & Rehab. Servs., 443 So.2d 227, 228 n.3 (Fla. 1st DCA 1983). We agree with the School Board that allowance of amendments is governed by an abuse of discretion standard.
The pending proceeding was brought against the teacher by the School Board to discharge him from employment. Plainly, in such circumstances the teacher must have fair notice and an opportunity to be heard on each of the charges against him. Here, after the School Board had already completed its case-in- chief, it sought leave to amend to add two additional charges to its administrative complaint. We agree with the hearing officer that this request for amendment came too late.
It is true that the two charges the School Board sought to add were the same as charges already brought by the Commissioner of Education, and it is true that the two cases had been consolidated.
The problem is that the belated addition of these two additional charges on the part of the School Board did not allow the teacher a fair opportunity to develop a defense thereto vis-a-vis the School Board. One important area of inquiry would have been to ascertain what the School Board's actual employment policy would have been had the teacher given a truthful answer to the two questions at
issue. Obviously, the teacher cannot prepare a defense or conduct discovery if the charges are added at the end of the School Board's case, rather than at a reasonable interval in advance of the administrative hearing. We see no abuse of discretion in denial of leave to amend at that extremely belated point in the administrative proceedings.
Consequently, the final order is, reversed and the cause remanded with directions to enter a final order in accordance with the hearing officer's recommended order.
Reversed and remanded.
| Issue Date | Proceedings |
|---|---|
| Oct. 06, 1995 | Final Order filed. |
| Jul. 17, 1995 | Amended Final Order of the School Board of Dade County, Florida filed. |
| Jul. 17, 1995 | (Petitioner) Amended Final Order of the School Board of Dade County, Florida w/cover letter filed. |
| Jun. 21, 1995 | Third DCA Opinion filed. |
| Mar. 06, 1995 | Letter to O. Visiedo from SLS sent out. (RE: response to letter of 2/6/95; issuance of recommended order in a timely manner) |
| Feb. 17, 1995 | Final Order filed. |
| Feb. 13, 1995 | Final Order of the School Board of Dade County, Florida filed. |
| Feb. 08, 1995 | Letter to S. Smith from Octavio J. Visiedo (cc: hearing officer) re: Concerns in excessive delay in issuance of recommended order filed. |
| Dec. 12, 1994 | Respondent`s Corrected Exceptions to the Hearing Officer`s Recommended Order filed. |
| Dec. 12, 1994 | Order sent out. (joint motion to correct clerical error is granted) |
| Dec. 07, 1994 | Petitioner`s Corrected Exceptions To Recommended Order filed. |
| Dec. 07, 1994 | Joint Motion to Correct Clerical Error (filed in 93-1227) filed. |
| Dec. 07, 1994 | Petitioner`s Corrected Exceptions to Recommended Order (filed in 93-1227) filed. |
| Dec. 07, 1994 | Letter to Pat Wright from MMP sent out. (RE: enclosing transcript, deposition transcripts and exhibits in the cases) |
| Dec. 05, 1994 | Respondent`s Memoranda in Opposition to Petitioner`s Exceptions to Recommended Order filed. |
| Nov. 28, 1994 | Respondent`s Exceptions to the Hearing Officer`s Recommended Order filed. |
| Nov. 15, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held June 29 and 30, 1994. |
| Apr. 09, 1993 | Order of Consolidation sent out. (Consolidated cases are: 92-1787, 92-6921, 93-1227) |
| Apr. 09, 1993 | Case No/s 92-1787, 92-6921: unconsolidated. |
| Jan. 14, 1993 | Order of Consolidation sent out. (Consolidated cases are: 92-1787, 92-6921) |
| Jan. 04, 1993 | (Respondent) Response to Administrative Complaint filed. |
| Dec. 15, 1992 | Notice of Hearing sent out. (hearing set for March 17, 18 and 19, 1993; 9:00am; Miami) |
| Dec. 10, 1992 | (Petitioner) Response to Initial Order filed. |
| Dec. 01, 1992 | Initial Order issued. |
| Nov. 20, 1992 | Agency referral letter; Amended Administrative Complaint; Election of Rights filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 14, 1995 | Opinion | |
| Feb. 08, 1995 | Agency Final Order | |
| Nov. 15, 1994 | Recommended Order | Willfull false answers on application for teacher certificate warrants revocation of teacher certification Teacher can not be terminated for misconduct not charged |
DEPARTMENT OF EDUCATION, EDUCATION PRACTICES COMMISSION vs. JACK FERRELL, 92-006921 (1992)
PROFESSIONAL PRACTICES COMMISSION vs. MOSES GREEN, 92-006921 (1992)
RALPH D. TURLINGTON, COMMISSIONER OF EDUCATION vs. MILTON AARON WETHERINGTON, 92-006921 (1992)
TOM GALLAGHER, AS COMMISSIONER OF EDUCATION vs WILLIE C. GREEN, 92-006921 (1992)
JOHN WINN, AS COMMISSIONER OF EDUCATION vs MARC BURT WILSON, 92-006921 (1992)
