STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ESCAMBIA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1864

)

CLEON TADLOCK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on November 29, 1995, in Pensacola, Florida.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

For Respondent: H. B. Stivers, Esquire

Levine & Stivers

245 East Virginia Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether the Respondent engaged in conduct amounting to misconduct in office and immorality, within the meaning of Section 231.36(4)(c), Florida Statutes, and Rule 6B-4.009(2), Florida Administrative Code.

PRELIMINARY STATEMENT

This cause arose upon the filing of a petition for suspension without pay and termination of contract of employment filed by the Superintendent of Escambia County public schools on April 27, 1995. The Petitioner, the Escambia County School Board, acted upon that petition by suspending the Respondent, Cleon William Tadlock, without pay, and terminating his contract of employment. The Respondent denied that cause exists for termination of his continuing instructional contract and requested a hearing, pursuant to Section 120.57, Florida Statutes.

The cause came on for hearing, as noticed, on November 29, 1995. The Petitioner submitted Exhibits 1-A and 1-D and 2-A-J, all of which were admitted into evidence. The Respondent presented Exhibits 1 and 2, which were admitted into evidence. The Petitioner presented the testimony of six witnesses,

consisting of various Board employees with knowledge of the facts of the case and surrounding background facts, as well as Officer Michael Thompson of the Pensacola Police Department. The Respondent presented his own testimony.

Upon conclusion of the proceeding, the parties elected to order a transcription thereof. Pursuant to extensions requested by the parties, proposed findings of fact and conclusions of law, in the form of Proposed Recommended Orders, were timely submitted on or about February 7, 1996. The proposed findings of fact submitted in those documents have been addressed in this Recommended Order and again specifically in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is the Escambia County School Board (Board), a unit of local government charged with operation of the public school system in Escambia County, Florida, including the regulation of entry of teachers into employment in that system and the regulation of their professional practices and conduct while employed by the Board.

   
   

2. The Respondent is a school teacher in the Escambia County school system. He most recently was a fifth-grade teacher at Navy Point Elementary School. He was employed at that school for some 17 years, with an exemplary record in terms of his competency as a teacher.

   
   

3. In recent times, the Pensacola Police Department has received reports and experienced a number of instances of various forms of illegal conduct occurring at a public park area located on a scenic area of bluffs overlooking Escambia Bay, in Pensacola, Florida. The location is known as "the boardwalk" and is located on Scenic Highway. In an effort to alleviate potential public safety problems at this public park area, Officer Michael Thompson was dispatched to the area on the evening of March 1, 1995. He arrived there sometime after darkness had set in during that evening. He was on duty and patrolling in the area in plain clothes, rather than in uniform.

   
   

4. Officer Thompson arrived in the parking lot, got out of his car, and walked down the boardwalk toward a more wooded area in the direction of the Bay and away from the street and parking area. He engaged in a conversation with an elderly gentleman standing on the boardwalk next to the railing, his position being accurately depicted in the diagram contained in Exhibit 2-J, which reflects the park area. The officer's position is represented by the letter "A" on the diagram. While Officer Thompson was speaking with the elderly gentleman, an individual, which Officer Thompson identified at hearing as Mr. Tadlock, the Respondent, walked past them, stopping on the walk a few feet away. Shortly thereafter, Officer Thompson noticed the Respondent turning and facing him and the unidentified elderly gentleman. He asked Officer Thompson if he did not want to "have some fun", or words to that effect. He repeated that question and then pulled his pants down to about mid-thigh level and began masturbating his erect penis with his right hand. Shortly after this performance, the Respondent pulled his pants back up and walked past Officer Thompson and rubbed him on his buttocks with his hand.

   
   

5. The Respondent walked to the parking lot and paused in the vicinity of Officer Thompson's car. Officer Thompson walked back to his car and observed that the Respondent's apparent personal vehicle was parked two or three spaces away. The Respondent, at that point, was near Officer Thompson in the parking lot and asked Officer Thompson if he could perform oral sex upon him.

6. Immediately after that episode, the Respondent walked back to his car, after telling Officer Thompson to follow him because he had an apartment where they could meet nearby. Officer Thompson got into his car and followed the Respondent to his apartment. While he was in route, he radioed for a "uniformed police car" to meet him at the apartment and provide assistance. Shortly after arriving at the apartment, the police car, with Pensacola Police Department personnel, arrived at that address. Upon the arrival and at the behest of Officer Thompson, the Respondent was placed under arrest.

   
   

7. The Respondent was charged by the State Attorney, in and for the First Circuit, with the following criminal offenses: (1) lewd and lascivious acts;

   (2) battery; (3) soliciting for immoral purposes; and (4) exposure of a sexual organ.

   
   

8. The Respondent had been a teacher for some 17 years at the Navy Point Elementary School in Pensacola, Florida. He had been employed as an elementary school teacher for all of that time, most recently as a fifth-grade teacher at that school.

   
   

9. Following his arrest, and only several days later, the details of the offense charged, the arrest of the Respondent and his identity as a school teacher at Navy Point Elementary School was reported in the Pensacola News Journal. In fact, it was reported on March 4, 1995 and again on March 10, 1995. The Pensacola News Journal is a newspaper of general and major circulation in the Pensacola and Escambia County area. There was also coverage of this news event and incident by the television media in the television coverage area of Escambia County.

   
   

10. Because of its rapid publication in the public media, widespread public knowledge of the incident immediately occurred. There was thus substantial public notoriety and publicity surrounding the event. Members of the public, particularly parents of students at Navy Point Elementary School, promptly registered numerous complaints concerning the Respondent continuing to be a teacher because of the incident which prompted his arrest. A log of the complaints received was maintained by the Petitioner's Office of Human Resources.

    
    

11. After his arrest on March 1, 1995 and after the matter became the subject of widespread public knowledge, including that of parents of students at the school, people, including parents, began picketing at the school. They carried signs protesting his continued employment. The Parents and Teachers Association (PTA) also circulated a petition calling for his dismissal, signed by numerous members of the PTA, most of whom were parents of students enrolled at Navy Point Elementary School.

    
    

12. The students at the school also became aware of the circumstances surrounding the Respondent's arrest, because of the publicity and notoriety. At least one child brought articles from the Pensacola News Journal to the school. The students at the school, upon learning of the circumstances of the Respondent's arrest and his alleged conduct, became quite upset and concerned. Some expressed fear and distrust of the Respondent.

    
    

13. In order to address and alleviate the adverse effects on the students of the Respondent's arrest and the incident in which he was involved, counseling sessions were provided for students as a group, as well as individual counseling sessions. Ms. Julia Washington, the counselor at the school, has a masters

    degree in counseling and has been serving as a school counselor for several years. Based upon her experience with students generally as a counselor, and with regard to this incident in particular, and based upon her education, expertise, and other experience, she opined that the children at the school were upset and concerned and because of the incident, would substantially lose trust in the Respondent. They would, to some extent, also mistrust other faculty members, since they were suddenly, without warning, confronted with the shocking circumstance of a faculty member they also trusted being involved in such an incident.

    
    

14. The school district monitored the situation and reaction of students and parents on an ongoing basis after the incident became public knowledge in order to determine whether the school or the Respondent, as an instructor, would be adversely affected and whether the Respondent's effectiveness as an instructor would be impaired. In considering the negative impact on the school, its students, and the Respondent's colleagues, the district recognized that the Respondent had been arrested once before in 1991 for similar charges. He was charged in an Administrative Complaint by the Education Practices Commission concerning the 1991 incident, which was of a similar nature, and, as a result of a settlement agreement, was placed upon probation as to his licensure. As a consequence of that 1991 arrest, there had also been picketing at the school, complaints from parents and other members of the public, as well as substantial publicity and notoriety. Because this second incident was of a similar nature, the public outcry and objection to his continued employment became even more vehement and evinced an even greater indication of his loss of effectiveness as a teacher of the students, as a colleague of the other faculty members and members of his profession in Escambia County at large.

    
    

15. The Respondent had received a written reprimand due to the 1991 incident from the Education Practices Commission as a result of the settlement agreement with that agency. He was placed on probation for a period of two years for that incident. That probationary period had just expired in February of 1995, approximately one month before his arrest on March 1, 1995 for the conduct he committed, as described above.

    
    

16. The reprimand concerning that 1991 incident was in his personnel file, which is the customary practice under the Board's rules concerning such employment disciplinary records. It is a public record, and the Pensacola News Journal and the local television station had requested a copy of the previous reprimand and had been supplied it. The record does not reflect clearly how the Pensacola News Journal and the local television station received knowledge of the March 1, 1995 arrest at issue in this case, although the Pensacola Police Department reported the incident to the Board or the school Principal. The arrest report may have come to the attention of the public news media in that fashion. In any event, the record does clearly reflect that the public reporting of the incident in the newspaper and by electronic media occurred well before the Superintendent elected to recommend, and the Board elected to impose, the disciplinary measures at issue in this case. The widespread public notoriety concerning the incident was not created by the Petitioner's initiation of prosecution of this action.

    
    

    CONCLUSIONS OF LAW

    
    

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

18. The Respondent, Cleon William Tadlock, was employed by the Petitioner, Escambia County School Board, as an elementary school instructor, pursuant to a continuing contract. Such contractual employment is authorized by Section 231.36(a), Florida Statutes. A teacher employed pursuant to that section can only be terminated for cause, as is set forth in Section 231.36(4)(c), Florida Statutes. That section provides that the instructional contract of an employee may be terminated based upon guilt of immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

    
    

19. The Board's petition seeking the termination of the Respondent as a continuing contract teacher alleges that he is guilty of misconduct, immorality, and criminal conduct involving moral turpitude, as encompassed within Section 231.28, Florida Statutes. The petition further alleges that the misconduct, immorality, and acts involving moral turpitude charged have adversely impacted the educational program and the educational environment at Navy Point Elementary School and substantially impaired the Respondent's effectiveness as an instructor within the Escambia County school system.

    
    

20. Initially, it must be concluded that the reliance upon Section 231.28, Florida Statutes, by the Board herein is misplaced. Paragraph 6C of the petition alleges that the Respondent was involved in "criminal conduct involving moral turpitude in violation of Section 231.28(1)(c), Florida Statutes."

    Section 231.36(4)(c), Florida Statutes, the provision giving the Board disciplinary authority over one situated as the Respondent, does not recognize this Section 231.28, Florida Statutes, as a basis for suspension, termination or other discipline. In fact, Section 231.28, Florida Statutes, only grants authority to the Education Practices Commission of the State Department of Education to take disciplinary action against an individual's teaching certificate, not his employment status. The Petitioner has no authority to enforce the provisions of Section 231.28, Florida Statutes, as acknowledged by Dr. Garber, the Assistant Superintendent employed by the Board. Therefore, this cannot legally be grounds for discipline of the Respondent's employment status with the Petitioner.

    
    

21. The standards and criteria for suspension and dismissal of instructional personnel employed by continuing contract, enacted pursuant to Section 231.36, Florida Statutes, the Board's disciplinary jurisdictional basis, are contained in Chapter 6B-4, Florida Administrative Code. Rule 6B-4.009(2), Florida Administrative Code, defines "immorality" as conduct which is inconsistent with the standards of public conscience and good morals and which is sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and to impair the individual's service in the community. Rule 6B-4.009(3), Florida Administrative Code, defines misconduct in office as a violation of the Code of Ethics of the education profession as adopted by the State Board of Education (see Rule 6B- 1.001) and the principles of professional conduct for the education profession in Florida (see Rule 6B-1.006), which is so serious in nature as to impair the individual's effectiveness in the school system.

    
    

22. There is no question that the conduct of the Respondent on March 1, 1995, as set forth in the above Findings of Fact, supported by the preponderant evidence of record adduced at hearing, is clearly conduct sufficiently notorious to bring the Respondent into public disgrace and disrespect in the community, amongst students and their parents, with regard to the Navy Point Elementary School community, and in the Escambia County public school community at large. It is sufficiently notorious as to bring the education profession itself into

    public disgrace or disrespect if appropriate discipline for such conduct were not imposed. The conduct of which the Respondent has been proven to be guilty of involves the possible violation of criminal statutes involving unlawful sexual activity in a public park (although the final result of the related criminal proceeding is not of record in this case). The arrest for that alleged criminal conduct and the nature of the conduct immediately, as found above, became the object of widespread public knowledge and notoriety. It constitutes immoral conduct within the meaning of the rule.

    
    

23. The misconduct of the Respondent on March 1, 1995 in the incident in question, and as a result of the substantial publicity and notoriety concerning that incident, has negatively impacted the educational operations of the Navy Point Elementary School. It has impaired the effectiveness of the Respondent as an instructor in the Escambia County school system and, in particular, at the Navy Point Elementary School. To a lesser extent, it has brought the educational profession, in the person of the colleagues and other faculty members working with the students, who knew the Respondent and knew of the incident, into some measure of disrespect and distrust and, therefore, loss of effectiveness, as well. Thus, although the act itself did not occur on school premises, during school duty hours, or in the presence of students or employees, under the circumstances, it is misconduct in office.

    
    

24. The Respondent's misconduct on March 1, 1995, as determined above, is conduct sufficiently egregious as to support termination of his continuing instructional contract, as provided for in Section 231.36(4)(c), Florida Statutes, and State Board of Education Rules 6B-4.009(3) and 6B-1.006, Florida Administrative Code. The circumstances found and discussed above are shown to have been ones involving immoral conduct by the Respondent and misconduct in office. Thus, the charges made by the Petitioner, set forth in the petition, with the one above exception, have been sustained by the evidence, as shown by the above Findings of Fact. The Petitioner's termination of the Respondent's continuing instructional contract because of his conduct is an appropriate result.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Petitioner, Escambia County School Board, terminating the continuing instructional contract of the Respondent, Cleon William Tadlock.

DONE AND ENTERED this 29th day of March, 1996, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 29th day of March, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 95-1864

Petitioner's Proposed Findings of Fact 1-23. Accepted.

Respondent's Proposed Findings of Fact

1-3. Accepted.

4. Rejected, as contrary to the clear and convincing evidence of record.

5-8. Rejected, as contrary to the clear and convincing evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter.

9-14. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and not entirely in accord with the greater weight of the evidence.

2. Accepted, but not itself materially dispositive.

3. Rejected, as contrary to the clear and convincing evidence of record, and as subordinate to the Hearing Officer's findings of fact on this subject matter.

COPIES FURNISHED:

Joseph L. Hammons, Esquire Hammons & Whittaker, P.A.

17 West Cervantes Street Pensacola, FL 32501

H. B. Stivers, Esquire Levine & Stivers

245 East Virginia Street Tallahassee, FL 32301

Dr. William Maloy Superintendent

Escambia County School Board

P.O. Box 1470

Pensacola, FL 32597-1470

Frank T. Brogan Commissioner of Education Department of Education The Capitol

Tallahassee, FL 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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: 95-001864

Orders for Case No: 95-001864