STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2939

)

RAYMOND DILLON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on October 8, 1993, in Fort Myers, Florida.

APPEARANCES

For Petitioner: Daniel H. Kunkel, Esquire

Suite 785, 1800 Second Street

Sarasota, Florida 34236

For Respondent: Anthony D. Demma, Esquire

Post Office Box 1547 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether just cause, as set forth in the Petition for Termination of Employment, exists for the Petitioner to terminate the employment of the Respondent, employed under a professional services contract.

PRELIMINARY STATEMENT

Respondent Raymond Dillon was employed by the Lee County School Board as a teacher at the Mariner High School.

By letter dated March 30, 1993, the Respondent was notified that the Lee County School superintendent had determined that cause existed to terminate the Respondent from his position as a teacher. The letter stated that the superintendent's decision was "based on your insubordination, intimidation and harassment of students, poor judgement and inappropriate and unprofessional conduct." The letter informed the Respondent that the superintendent would recommended at the April 13, 1993 meeting of the School Board that the Respondent be dismissed from his position.

By Petition for Termination of Employment dated April 9, 1993, the Respondent was notified of the specific misconduct allegations of which he was charged. The Respondent requested a formal administrative hearing. The matter was referred to the Division of Administrative Hearings for further proceedings.

At the hearing, the Petitioner presented the testimony of eleven witnesses and had exhibits numbered 1-2 admitted into evidence. The Respondent presented the testimony of thirteen witnesses, testified on his own behalf and had exhibits numbered 1-5 and 8 admitted into evidence. A prehearing stipulation filed by the parties was admitted into evidence as a Hearing Officer's exhibit.

A transcript of the hearing was filed on December 2, 1993. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, Raymond Dillon (Respondent) was a teacher at Mariner High School (Mariner) and the holder of a professional services contract with the Lee County School Board.

   
   

2. Michael McNerney has been employed as the principal at Mariner during the period of the Respondent's employment.

   
   

3. On October 8, 1992, a written reprimand was issued to the Respondent related to alleged inappropriate classroom conduct. On November 11, 1992, the Respondent requested that the matter be submitted for arbitration. As of the date of the hearing, the matter has not been arbitrated or resolved. The Respondent asserts that the written reprimand is inaccurate.

   
   

4. On February 1, 1993, the Mariner principal and the Respondent met informally to discuss several complaints regarding alleged classroom behavior and to address the Respondent's questions regarding union representation at certain conferences. During the meeting, the principal raised allegations that the Respondent had discussed the pending arbitration in class and that students were uncomfortable about the situation.

   
   

5. The Petitioner asserts that at the February 1 meeting the Respondent was specifically directed to refrain from discussing the arbitration matter with students. The Respondent recalls that the Mariner principal stated that such discussions were not appropriate but that the prohibition was not directly stated. The recollection of the Respondent is credited.

   
   

6. On February 23, 1993, the superintendent, responding to complaints, initiating an investigation into the matter. Subsequent to completion of the investigation, the Respondent was notified that a predetermination conference would be held.

   
   

7. A predetermination conference was held on March 8, 1993, attended by the Respondent, the School Board's personnel director, the Mariner principal, and the executive director of the local teachers union.

   
   

8. At the conference, the superintendent informed the Respondent that the School Board would be advised to suspend the Respondent without pay and benefits at its next meeting, and that the Respondent could appear at the meeting with a representative or attorney to contest the recommendation.

   
   

9. By letter dated March 30, 1993 and effective on that date, the superintendent of the Lee County Schools suspended the Respondent with pay.

10. A Petition for Termination of Employment was issued on April 9, 1993. In relevant part, the Petition for Termination of Employment sets forth the charged offenses as follows:

    * * *

    1. The Superintendent has conducted an investigation of allegations made against Mr. Dillon by students and parents of misconduct occurring in the presence of students, including insubordination, intimidation and harassment of students, poor judgement and inappropriate and unprofessional conduct.

    2. This misconduct occurred following a meeting between Mr. Dillon and Michael McNerney, Principal of Mariner High School, on February 1, 1993, in which Mr. Dillon advised Mr. Dillon that he had received complaints from students and parent that Mr. Dillon was discussing in his classes an investigation and upcoming arbitration hearing and advised Mr. Dillon that such behavior was unprofessional and uncomfortable for students. During that meeting, Mr. McNerney directed Mr. Dillon to refrain from discussing the investigation and the scheduled arbitration hearing during his classes. Mr. Dillon acknowledged the instructions at that time.

    3. The Superintendent's investigation revealed that subsequent to the February 1, 1993 meeting, and despite Mr. McNerney's instructions, in all but his third period classes, and on at least one or two occasions in each class, Mr. Dillon discussed his upcoming arbitration hearing during class time. Specifically, Mr. Dillon discussed the nature of the hearing, namely that it involved allegations by students concerning his use of profanity in the classroom; discussions and negative comments about the students who made allegations against him concerning his use of profanity, (this occurred in the presence of at least one of the students who had brought the allegations); discussing the possibility that some of the students present would be called to testify either for or against him in the arbitration hearing; and direct or indirect solicitation of support from students who might be called to testify.

    4. Misconduct on the part of Mr. Dillon also included inappropriate criticism of the

       school administration, namely referring to administration as "gestapo"; as using "gestapo tactics"; and as "crazy"; and words to the effect that Principal McNerney did not know how to do his job. Mr. Dillon was also insubordinate in that he wrote "f-rt" on the

       classroom blackboard in the presence of students after being specifically directed not to use that, as well as other inappropriate words, in a written reprimand issued by Dr. Jerry Baker, on October 8, 1992....

       * * *

       
       

11. At the April 13, 1993 meeting of the School Board, the Board terminated the employment of the Respondent.

    
    

12. The Petition for Termination of Employment does not allege that the Respondent's teaching performance has been substandard. The 1992-93 assessment, completed on the day the Respondent received notice that the Superintendent intended to pursue termination of the Respondent's employment, indicates several areas of unacceptable performance. Prior to the 1992-93 school year performance assessment, the Respondent's evaluations had been acceptable. There had been no prior unacceptable ratings.

    
    

13. Allegations related to conduct prior to February 1, 1993 are not addressed in the Petition for Termination and are outside the scope of this Recommended Order. However, the greater weight of the evidence offered at hearing fails to establish the factual allegations related to the arbitration.

    
    

14. The evidence establishes that after the Respondent was directed to refrain from saying "fart" in class, he returned to the classroom and wrote "f- rt" on the chalkboard, explaining to his students that he was not allowed to say the word. He had previously identified to the students a list of words which were not permitted to be spoken in the classroom. The evidence fails to establish that "fart" is an obscene or offensive word.

    
    

15. The evidence establishes that on February 1, 1993, the Mariner principal opined that discussions of the pending arbitration matter in the classroom were inappropriate, but did not specifically prohibit them.

    
    

16. The evidence fails to establish that he discussed the specific allegations of the case or that he directly or indirectly solicited support from his students. The evidence fails to establish that he made negative or derogatory comments about any students in his classes or that he identified or provided information leading to the identity of the students complaining about his alleged behavior. There is no evidence that students were harassed or intimidated by the Respondent.

    
    

17. Subsequent to the February 1 meeting, students, among whom the matter was apparently common knowledge, would attempt to inquire as to the status of the case or as to the identities of the accusing students. The Respondent generally refrained from such discussions other than to tell the students that, if called to testify, they should do so honestly. The evidence fails to establish that even had the Respondent been directed to refrain from such discussions, such remarks in response to student curiosity would be inappropriate.

    
    

18. There is no evidence that the Respondent offered criticism of the school administration, that he referred to the administration as "gestapo," using "gestapo tactics" or as "crazy." There is no evidence that the Respondent suggested to students that the principal did not know how to do his job.

19. Other than as set forth herein, the evidence offered at hearing fails to establish that the Respondent used the language set forth in written reprimand of October 8, 1992.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

21. Section 231.36(1)(a), Florida Statutes, provides that a member of an instructional staff employed under a professional services contract may be dismissed during the term of the contract only for just cause. Just cause includes, but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude." In this case, the Petitioner asserts that the Respondent's actions constitute misconduct in office and insubordination.

    
    

22. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system. Rule 6B-4.009(3), Florida Administrative Code.

    
    

23. Gross insubordination or willful neglect of duties is defined as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority. Rule 6B-4.009(4), Florida Administrative Code.

    
    

24. In order to prevail, the Petitioner must establish by a preponderance of the evidence that the Respondent's behavior constitutes misconduct in office or gross insubordination sufficient to warrant the Respondent's termination. Allen v. Dade County School Board, 571 So.2d 568 (Fla. 3rd DCA 1990).

    
    

25. The evidence fails to establish that the Respondent's behavior constitutes misconduct in office so serious as to impair the individual's effectiveness in the school system.

    
    

26. As to the insubordination, the evidence establishes only that after being directed not to say "fart" in class, he returned to the classroom and wrote "f-rt" on the chalkboard. Such action is unprofessional and unnecessary, but hardly rises to the level of gross insubordination.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Lee County School Board enter a Final Order rescinding the termination of Raymond Dillon.

DONE and RECOMMENDED this 1st day of February, 1994, in Tallahassee, Florida.

WILLIAM F. QUATTLEBAUM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2939

The following constitute rulings on proposed findings of facts submitted by the parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

2. Rejected, irrelevant except as otherwise specifically addressed in the Petition for Termination of Employment which is directed towards alleged misconduct which occurred after the February 1, 1993 meeting. The arbitration matter is irrelevant to this proceeding. The referral of the matter to the Florida Department of Education is immaterial.

3-4. Rejected, irrelevant.

14. Rejected, unnecessary.

15-26. Rejected, irrelevant except as otherwise specifically addressed in the Petition for Termination of Employment which is directed towards alleged misconduct which occurred after the February 1, 1993 meeting.

28-32. Rejected, contrary to the greater weight of credible and persuasive evidence.

33-35. Rejected, as to use of "offensive" language prior to February 1, 1993, immaterial. As to Subsequent to February 1, 1993, evidence fails to establish that such "offensive" language was used. As to use of "fart," "f-rt" and "poop," evidence fails to establish that such language was contextually offensive.

Respondent

The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:

3-5, 11-13. Rejected, subordinate.

6-9. Rejected, cumulative.

14-17, 20-26. Rejected, unnecessary or irrelevant.

29-30. Rejected, unnecessary.

38-44. Rejected, goes to weight of evidence.

COPIES FURNISHED:

Dr. James A. Adams, Superintendent School Board of Lee County

2055 Central Avenue

Fort Myers, Florida 33901-3988

Marianne Kantor, Esquire School Board of Lee County 2055 Central Avenue

Fort Myers, Florida 33901-3988

Daniel H. Kunkel, Esquire Kunkel & Hament

Suite 785, 1800 Second Street

Sarasota, Florida 34236

Anthony D. Demma, Esquire 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302

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 ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-002939

Orders for Case No: 93-002939