STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARASOTA COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-2367

)

WILLIAM KEITH STARK, )

)

Respondent. )

)

RECOMMENDED ORDER

On September 6, 1995, a formal administrative hearing was held in this case in Sarasota, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles E. Williams, Esquire

1900 Main Street, Suite 205

Sarasota, Florida 34236

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides

34650 US 19 North, Suite 308 Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue in this case is whether the School Board of Sarasota County should suspend the Respondent, William Keith Stark, without pay for ten days on charges that he violated F.A.C. Rule 6B-1.006(3)(a) by failing to make "reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety."

PRELIMINARY STATEMENT

On April 6, 1995, the School Board sent the Respondent a letter notifying him that he was being suspended without pay for ten days. The Respondent requested formal administrative proceedings, and the matter was referred to the Division of Administrative Hearings (DOAH) for assignment of a hearing officer. The referral letter stated that the request for hearing was made under Section 231.36(6), Fla. Stat. (1993).

On August 30, 1995, the parties filed a Pre-Hearing Stipulation stating that the factual issue to be litigated was whether the Respondent "allowed members of the Sarasota High School Band to change clothing in an area that was observable by way of a two way mirror, that [he] knew or should have known, invaded the privacy of the students who were changing in this area."

At final hearing, the School Board called seven witnesses and had Petitioner's Exhibits 1 through 14 admitted in evidence. The Respondent called eight witnesses and also testified in his own behalf. The parties stipulated to a description of one Respondent's exhibit in lieu of its actual introduction in evidence.

At the end of the hearing, the Respondent ordered the preparation of a transcript of the final hearing, and the parties were given ten days from the filing of the transcript in which to file proposed recommended orders. The transcript was filed on October 10, 1995. Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the Appendix to Recommended Order, Case No. 95-2367.

FINDINGS OF FACT

1. The Respondent, William Keith Stark, is the band director at Sarasota High School.

   
   

2. The Respondent's office is in an area of the school that houses both the band room and the chorus room, as well as the music library. The entrance to the Respondent's office is off a vestibule to the west of the office.

   
   

3. There is a storage/copy room directly behind (to the east of) the Respondent's office. It is the same width as the Respondent's office. The only access to the storage/copy room is through a door in the rear of the Respondent's office.

   
   

4. The music library is behind (to the east of) the storage/copy room, but it is only half the width of the Respondent's office and the storage/copy room. It is behind the southern half of the storage/copy room. Access to the music library is only through the band room; there is no access through the storage/copy room.

   
   

5. The band room is a large room that runs along, and shares a wall with, the south side of the Respondent's office, the storage/copy room, and the music library. The chorus room is an equally large room that runs along, and shares a wall with, the north side of the Respondent's office, the storage/copy room and another, unidentified room behind (to the east of) the northern half of the storage/copy room. The entrances to the band room and to the chorus room are off the same vestibule containing the entrance to the Respondent's office.

   
   

6. Since before the time the Respondent first came to Sarasota High School as an assistant band director in 1984, it has been the practice for band members to use the band and chorus rooms (and sometimes the music library) for changing clothes before practices and performances. If, for example, the boys used the chorus room, the girls in the band would use the band room, or vice versa. It was obvious and well known to anyone familiar with the band program that there was a window between the band room and what is now the storage/copy room. No privacy issue arose; apparently, appropriate steps were taken to insure the privacy of band members using the band room to change clothes.

   
   

7. In approximately 1985, band booster parents suggested putting a dark, reflective film on the band room side of the window between the band room and the storage/copy room so that, from the band room side, the window could be used as a mirror for grooming purposes. The band director concurred, and it was

   done. The addition of the reflective film was viewed as an improvement to the facility and was obvious and well known to anyone familiar with the band program.

   
   

8. Initially, there was no need to make a formal announcement as to the presence and nature of the reflective film. Although the dark film placed on the window was reflective, it was obvious and well known to anyone familiar with the band program that it was not a mirror. Band booster parents who chaperoned when the band room was being used as a dressing room before performances sometimes were in the storage/copy room and could see out the window into the band room. They also had access to and sometimes used the storage/copy room during monthly band booster parent meetings that were held in the Respondent's office. In addition, looking closely, it was possible under most conditions to see through the reflective film into the storage/copy room from the band room side. Even if vision was not clear, it would be possible to see shadows and movement. When a light was turned on in the storage/copy room (or, when the door between the two rooms was open, in the Respondent's office), it was easy to see into the storage/copy room from the band room side.

   
   

9. The Respondent became the band director in approximately 1986. Over the years, the presence and nature of the reflective film continued to be common knowledge that was acquired by new band members and their parents by personal observation or passed along to them from others by word of mouth. No formal announcements were made.

   
   

10. No privacy issue arose after the addition of the reflective film. First, as explained above, the presence and nature of the reflective film was obvious and well known. Second, as band director, the Respondent took appropriate steps to insure the privacy of band members using the band room to change clothes. He rarely was in his office, much less in the storage/copy room, while band members were using the band room to change clothes. When he was not in his office, it remained locked. In addition, the Respondent's wife is a full-time band volunteer, and she usually is stationed in the vestibule to control access to the band room and to the Respondent's office.

    
    

11. In October, 1994, a privacy issue concerning the reflective film was raised for the first time. A dancer in "Palms," a dance group that is part of the school band, mentioned to her mother in the course of conversation that it was possible to see through the reflective film into the storage/copy room from the band room. In testimony at final hearing, the daughter admitted that she had known about the nature of the reflective film since she became a "Palms" dancer in the spring of 1994 and that she "didn't think anything of it" until her mother "explained it to her." Her mother "explained" that the presence of the reflective film was an invasion of her daughter's privacy and that the Respondent at least should have made an announcement as to the presence and nature of the reflective film.

    
    

12. The complaining mother and daughter have been involved in ongoing disputes with the Respondent. One of their complaints was that the Respondent did away with the practice of having "Palms" team captains just before the daughter was to become a captain. Another complaint had to do with concerns about discipline within the "Palms" dance group. Perhaps, related to the discipline concern, the girl's mother also objected to the extent to which the Respondent's wife's was involved in the program. Eventually, she attempted to secure the school principal's promise to prohibit the Respondent's wife from further involvement in the program. When the principal refused to do so, the

    mother became angry and has been heard to vow that, before she was finished, she would have the Respondent fired.

    
    

13. After sending her daughter and another student on a "spy" mission to ascertain the presence and nature of the reflective film, the mother complained to the principal. From what the mother told him, the principal thought the window should be covered. He contacted the school's custodian and instructed him to cover the window so that it was impossible to see through it.

    
    

14. The next day, the Respondent saw the custodian as the custodian was getting ready to carry out the principal's instructions. When the Respondent asked the custodian what he was doing, and the custodian told him, the Respondent offered to do it himself.

    
    

15. The Respondent generally tries to do the routine custodial work required in the area of his office so as to relieve the custodian from having to do it. In this case, the Respondent had additional innocent motivation for offering to cover the window for the custodian. The custodian had health problems (cancer, from which he has since died), and the principal had discussed with the Respondent the need to find ways to reduce the custodian's workload. The Respondent thought that the principal would have wanted him to offer to cover the window himself.

    
    

16. The Respondent did not immediately get around to covering the window. But, in the meantime, and since approximately April, 1994, there had been a very large, stuffed, seated teddy bear on a shelf in front of the window. (Its shape was generally triangular, four feet wide at the base and four feet high. In the middle, it was about three feet wide.) There also were audio speakers on the shelf on either side of the teddy bear. These objects partially "covered" the window although it would still be possible to see around them.

    
    

17. Before the Respondent got around to doing anything else about covering the window, another parent complained to an assistant school superintendent about a week later that the window still had not been covered. The assistant superintendent reported the complaint to the school principal. The school principal inquired of the custodian, who reported his conversation with the Respondent. The school principal then telephoned the Respondent at his home over the weekend and ordered him to immediately cover the window. First thing Monday morning, the Respondent hung and taped a piece of vinyl and poster board over the window to cover it. Later, the window was boarded over permanently.

    
    

18. There was no evidence that anyone other than the vengeful mother and daughter, and the other parent who telephoned the school principal, ever has raised any privacy issue as to the window or the reflective film. All other band members and parents seem to fully support the Respondent and his wife. There is no evidence that any band or "Palms" member was unaware of the presence or nature of the reflective film on the window. Notwithstanding that there was no formal announcement as to the presence or nature of the reflective film on the window, it was not proven that the practice of using the band room for changing clothes invaded anyone's privacy, or that the Respondent failed to make reasonable effort to protect students from conditions harmful to learning and/or to their mental and/or physical health and/or safety.

    
    

    CONCLUSIONS OF LAW

    
    

19. Section 231.36(1)(a), Florida Statutes (1993), provides that, except for teachers on continuing contract under Section 231.36(4), a teacher can be

    dismissed during the term of an employment contract "only for just cause." It further provides: "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." (Emphasis added.)

    
    

20. Section 231.36(6)(a), Florida Statutes (1993), similarly provides that, except for teachers on continuing contract under Section 231.36(4), a teacher can be suspended or dismissed during the term of an employment contract for just cause as provided in paragraph (1)(a)."

    
    

21. In contrast, Section 231.36(4)(c), Florida Statutes (1993), provides that a teacher on continuing contract may be suspended or dismissed during the school year only on charges of immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude.

    
    

22. It is not clear from the evidence whether the Respondent is on continuing contract. However, the Board's letter referring the matter to the Division of Administrative Hearings stated that the request for hearing was made under Section 231.36(6), Fla. Stat. (1993). In any event, the parties have stipulated that the issue in this case is whether the Respondent violated F.A.C. Rule 6B-1.006(3)(a).

    
    

23. F.A.C. Rule 6B-1.006(3)(a) provides that an educator "[s]hall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety."

    
    

24. As found, the School Board did not prove that the Respondent violated

1. Rule 6B-1.006(3)(a) by "allow[ing] members of the Sarasota High School Band to change clothing in an area that was observable by way of a two way mirror, that [he] knew or should have known, invaded the privacy of the students who were changing in this area."

   
   

   RECOMMENDATION

   
   

   Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the School Board of Sarasota County enter a final order dismissing the charges against the Respondent and to require that he be fully compensated for any period of suspension which he might have served.

   
   

   RECOMMENDED this 24th day of October, 1995, in Tallahassee, Florida.

   
   

   
   

   J. LAWRENCE JOHNSTON 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 24th day of October, 1995.

   APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2367

   
   

   To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact:

   
   

   Petitioner's Proposed Findings of Fact.

   
   

   1. Accepted and incorporated.

2.-3. Rejected as not proven that it was a "mirror." Otherwise, accepted and incorporated.

1. Rejected as not proven that it was a "mirror" or that only "some" knew "or strongly suspected" the presence and nature of the reflective film on the window. Otherwise, accepted and incorporated.

2. First sentence, rejected as not proven that Baus did not know of the presence and nature of the reflective film on the window; otherwise, accepted and incorporated. Second sentence, accepted and subordinate to facts found.

3. Accepted and incorporated to the extent not subordinate or unnecessary.

4. Accepted and incorporated.

Respondent's Proposed Findings of Fact.

1.-12. Accepted and incorporated to the extent not subordinate or unnecessary.

13. Penultimate sentence, rejected as contrary to facts found, and to the greater weight of the evidence, to the extent that it implies that the Respondent covered the window immediately after his first conversation with the custodian. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

Charles Williams, Esquire 1900 Main Street, Suite 205

Sarasota, Florida 34236

Mark Herdman, Esquire Herdman & Sakellarides 34650 US 19 North Suite 308 Palm Harbor, Florida 34684

Dr. Charles W. Fowler, Superintendent School Board of Sarasota County

1960 Landings Boulevard

Sarasota, Florida 34231-6049

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the School Board of Sarasota County 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 consult with the School Board of Sarasota County concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 95-002367

Orders for Case No: 95-002367