STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 95-4127

)

PATRICIA H. LOCKE, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Largo, Florida, on July 25, 1996, before Carolyn Holifield, an Administrative Law Judge, with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keith B. Martin, Esquire

Pinellas County School Board

301 Fourth Street Southwest Largo, Florida 34649

For Respondent: Mark Herdman, Esquire

Suite 308

34650 U.S. Highway 19 North Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

Whether there is just cause to dismiss Respondent from her employment with the Petitioner.

PRELIMINARY STATEMENT

By letter dated August 8, 1995, Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools, advised Respondent, Patricia Locke, that she was suspended with pay from her teaching position, effective August 15, 1995, until August 23, 1995. According to the letter, at the August 23, 1995 Pinellas County School Board (Board) meeting, Dr. Hinesley would recommend that the Board sustain Respondent's suspension and dismiss her from employment as a teacher.

The superintendent's recommendation of dismissal alleged that Respondent was driving under the influence of alcohol (DUI) on February 4, 1989 and October 25, 1991; left the scene of an accident on February 13, 1991; and falsified her state application for recertification on May 26, 1989, and on April 19, 1990, by failing to report her plea of nolo contendere to the 1989 DUI charge. Finally, the letter recommending dismissal alleged that on May 22, 1995, Respondent was driving while intoxicated; caused property damage to two vehicles; left the scene of the accidents; and, after being arrested, offered a $1,000.00 bribe to

a police officer so that he would not charge her with DUI. The recommendation charges that the actions of Respondent are violations of School Board Policy 6GX52-5.31(1)(d),(f),(g),(i),(v), and (x), entitled Disciplinary Guidelines for Employees, and constitute just cause for her dismissal. Respondent timely requested a formal hearing on the proposed action and this hearing followed.

At the hearing, Petitioner presented the testimony of Douglas E. McMann, a corporal with the Florida Highway Patrol; James Barker, an administrator with the Office of Professional Standards with Pinellas County Schools; Dr. J. Howard Hinesley, Superintendent of Pinellas County Schools; the deposition testimony of William Parker, who witnessed the accidents; and the stipulated deposition testimony of Donald Gardner, who witnessed the accidents. Other than the deposition testimony, Petitioner offered and had fifteen exhibits entered into evidence.

Respondent testified on her own behalf and presented the testimony of Julie Hoover, a secretary at Respondent's school; Kyle Locke, Respondent's son; Dan Riegle, a neighbor of Respondent; the deposition testimony of Jim Thompson, a friend of Respondent; and the deposition testimony of Respondent's physician, Dr. Frank Vasey.

A transcript of the proceeding was filed on August 9, 1996. The parties requested and were permitted twenty days from the date the transcript was filed to submit proposed recommended orders. Both parties timely filed proposed findings of fact and conclusions of law under the extended time frame.

FINDINGS OF FACT

1. Respondent, Patricia Locke, is a teacher certified by the State of Florida, holding a professional service contract issued by the Pinellas County School Board. Respondent has been employed as a teacher at Palm Harbor Elementary School by the Pinellas County School Board since 1988.

   
   

2. On May 22, 1995, Respondent returned to work after being out two weeks due to illness. She stayed at work until around noon. Julie Hoover, the secretary/bookkeeper at the school, convinced Respondent to go home because she appeared strained and ill. Hoover drove Respondent home, made sure she got upstairs, and helped her get into bed. Hoover did not smell alcohol on Respondent's person at that time, and Respondent did not appear to be under the influence of alcohol.

   
   

3. Respondent slept most of the afternoon and remained in her apartment, where she was alone until her son, Kyle, returned home from school at approximately 2.45 p.m., and found his mother asleep. Kyle remained at home the rest of the afternoon until Respondent left the house at approximately 7:00 p.m. Respondent does not keep alcoholic beverages in her apartment and on May 22, 1995, Kyle did not see Respondent drink any alcoholic beverage nor did she appear to be under the influence of alcohol.

   
   

4. Respondent remained in her apartment the entire afternoon except for a short time around 5:00 p.m., when she went swimming in the apartment complex pool. While there, she spoke to Dan Riegle, a friend that lived in the complex. They spoke for a few minutes. Respondent was not drinking any alcoholic beverages at that time and did not appear to be under the influence of alcohol.

   
   

5. Sometime between 6:30 p.m. and 7:00 p.m., Respondent left her apartment in Palm Harbor to meet a friend, Jim Thompson, for dinner at Danny's Restaurant

   in Holiday, a city in Pasco County, north of Palm Harbor. They met at the restaurant between 7:30 p.m. and 8:00 p.m., and stayed there for between an hour and an hour and a half. At dinner Respondent drank one Michelob Lite and ordered a second one, but finished only half of that bottle. After dinner, Respondent told Thompson she was going home. Respondent did not appear intoxicated during or immediately following dinner.

   
   

6. On the evening of May 22, 1995, Respondent was not intoxicated when she arrived at Danny's Restaurant, nor when she left the restaurant.

   
   

7. Upon leaving the restaurant, Respondent became confused and disoriented. She went north on U.S. 19 instead of south toward her home in Palm Harbor. Respondent recalls looking for signs or anything familiar to give her an idea of where she was.

   
   

8. While driving north on U.S. 19, Respondent's car struck the rear of another car near Moog Road. After stopping for a moment, Respondent continued driving northbound on U.S. 19. Respondent was driving erratically, with large variations in speed, and her car was swerving. A short time later, at Jasmine Road, Respondent struck a second vehicle while driving northbound on U.S. 19. At that point the airbag in Respondent's car deployed and the right front tire blew out. Respondent also cut her forehead when it banged against the windshield. Respondent then drove another five to ten miles before she pulled off U.S. 19 into the parking lot of a bar near the Pasco-Hernando border.

   
   

9. William Parker had been driving northbound on U.S. 19 and observed the first accident in which Respondent's vehicle rear-ended another vehicle. After his observation, Parker followed Respondent's vehicle, driving a safe distance behind her until she pulled over. Parker observed both accidents and followed Respondent to the point where she pulled over. Both Respondent and Parker exited their cars. According to Parker, Respondent was in terrible shape and "could barely speak". In Parker's opinion, Respondent seemed intoxicated.

   
   

10. Shortly thereafter Corporal McMann from the Florida Highway Patrol arrived on the scene and found Respondent sitting on the curb. He approached Respondent, who appeared to be disoriented. Corporal McMann attempted to conduct a field sobriety test involving balance with Respondent. Respondent was unsteady and unable to complete any type of balance test. Corporal McMann conducted the "nystagmus gaze" test with Respondent. Respondent was unable to follow the object with her eyes.

    
    

11. Upon questioning by Corporal McMann, Respondent indicated she had consumed two drinks that evening and had taken a valium. Respondent also admitted that she was the driver of the vehicle that had been involved in two accidents on the evening of May 22, 1995.

    
    

12. Corporal McMann indicated that Respondent's behavior was not consistent with an individual that had consumed two drinks, but rather was indicative of somebody that was extremely intoxicated. He reported that Respondent had a strong odor of an alcoholic beverage. However, Corporal McMann acknowledged that the odor could be consistent with an individual having two beers. Corporal McMann has no training or experience with silicone poisoning or its effects

    
    

13. Corporal McMann determined that Respondent had a tremendous loss of critical judgment and decided that he had probable cause to take her into custody for driving under the influence.

14. At the jail, Corporal McMann requested that Respondent take a breath test, but Respondent refused. Corporal McMann then placed Respondent under arrest for DUI. At that time Respondent allegedly offered Corporal McMann

    $1,000 not to charge her with the crime. Respondent has no recollection of that event.

    
    

15. On or about February 6, 1996, Respondent pleaded no contest to charges of driving under the influence and leaving the scene of an accident for the May 22, 1995, accidents. Respondent paid a $1,000.00 fine, completed a 30-day in- house treatment program, was placed on supervised probation for one year, and had her driver's license revoked for ten years. Respondent was never charged with a crime related to offering $1,000.00 to Corporal McMann.

    
    

16. On February 4, 1989 and October 25, 1991, Respondent was arrested for driving under the influence. After being charged in both incidents, Respondent pleaded no contest to the charges. On February 13, 1991, Respondent left the scene of an accident and pled guilty to such charge. As a result of the February 4, 1989, and October 25, 1991, incidents, Respondent received a letter of reprimand from the Pinellas County School District on October 5, 1992.

    
    

17. On May 26, 1989, and on April 19, 1990, Respondent completed the state recertification application. Prior to completing the applications, Respondent contacted the Pinellas County School District Office (PSCDO) regarding a question on the form relating to arrest records and criminal charges and convictions and pleas related thereto. Respondent was told by someone at the PCSDO that traffic violations need not be reported. Based on information provided to her, Respondent failed to report her pleas of nolo contendere to the February 4, 1989 DUI and failure to yield right-a-way charges on her state recertification application.

    
    

18. As a result of Respondent's failure to report her pleas of nolo contendere of the February 4, 1989 charges, on or about May 12, 1993, the Commissioner of Education filed an Administrative Complaint against Respondent. The case was resolved pursuant to a Settlement Agreement executed on July 12, 1993. Under the terms of the Settlement Agreement, Respondent agreed to accept a written reprimand from the Education Practices Commission. A copy of the reprimand was to be "placed in the Respondent's certification file with the Department of Education and in her personnel file with the Pinellas County School District."

    
    

19. In 1985 or 1986, and prior to any of the subject traffic violations, Respondent had silicone breast implants placed in her body. Shortly thereafter, Respondent began having health problems which her doctor suspected may have resulted from the implants. In 1994, Respondent was diagnosed with silicone toxicity. This diagnosis was confirmed when the results of an MRI revealed that the left implant had ruptured. During surgery in 1994, to remove the left implant, it was discovered that the right implant had also ruptured. Both of the gel-filled implants were removed and replaced with saline-filled implants.

    
    

20. The ruptured implants caused the silicone to spread throughout Respondent's body and resulted in silicone toxicity.

    
    

21. Following the surgery to remove the gel-filled breast implants, Respondent has continued to suffer various effects. Those effects have taken the form of chronic fatigue syndrome, depression, hepatitis C, stressed kidneys, liver, and spleen. At times, Respondent has also become disoriented. During

    some of these episodes, Respondent becomes confused, suffers memory loss, and is unable to determine what is going on around her. When experiencing a mild case of disorientation, Respondent gets panicky and confused. During more severe cases of disorientation, Respondent cries, argues, loses sight of where she is or what is she is doing. Such episodes have been observed by Respondent's sixteen year old son.

    
    

22. Respondent has seen a variety of doctors over the years to deal with her condition. In 1994, after Respondent was diagnosed with silicone toxicity, Dr. Levin, Respondent's rheumatologist, referred her to Dr. Frank Vasey, M.D., a specialist in the field of silicone toxicity. Respondent was on the waiting list to see Dr. Vasey for over one year.

    
    

23. Respondent saw Dr. Vasey on June 19, 1995. The symptoms complained of by Respondent included dry eyes, dry mouth, rash, chronic fatigue, numbness in arms, and disorientation. These symptoms are consistent with those of individuals with silicone poisoning. Other major clinical manifestations of silicone poisoning are "peripheral neuritis which means the peripheral nerves are malfunctioning sending false messages", memory loss, swollen lymph nodes, muscle and joint pain, and bladder dysfunction. It is Dr. Vasey's opinion that the silicone poison has spread throughout Respondent's body.

    
    

24. Dr. Vasey's clinical experience includes working with 500 or more women suffering from silicone toxicity. Respondent's symptoms, including disorientation, memory loss, numbness, chronic fatigue, muscle and joint paint and peripheral neuritis, were consistent with symptoms found in the 500 women he had worked with in his clinical experience.

    
    

25. Dr. Vasey has observed that other women with silicone implants in Respondent's condition suffer disorientation in a manner that has adversely affected their driving. Based on his belief that Respondent had one to two beers on the night of May 22, 1995, Dr. Vasey believes with reasonable medical probability that Respondent's silicone illness coupled with head trauma suffered in the night of the accident is the more likely explanation for her actions than alcohol.

    
    

26. As a result of Respondent's condition, and the depression resulting therefrom, Dr. Vasey recommended that Respondent see a psychiatrist. On June 26, 1995, Respondent was admitted to the Fairwinds Treatment Center for major depression, alcoholism, and other illnesses attributable to the silicone poisoning.

    
    

27. Dr. Vasey is the Chief of Rheumatology at the University of South Florida, College of Medicine, in Tampa, Florida. His major research interest is the interaction of silicone breast implants and the immune system. He has written approximately ten articles, and given numerous speeches on the subject. In addition he has written a text on the subject of silicone implants.

    
    

28. James Barker is an administrator with the Office of Professional Standards, Pinellas County Schools. He conducts investigations regarding possible employee misconduct and makes recommendations to the superintendent regarding employee misconduct and employee discipline. He is an expert in the area of school administration and teacher conduct. It is his opinion that if Respondent's actions on May 22, 1995, resulted from the effects of silicone poisoning and not the abuse of alcohol, he would probably not recommend that Respondent be dismissed from her employment.

29. J. Howard Hinesley, Ed.D., is the Superintendent of Pinellas County Schools. Dr. Hinesley concurs with Mr. Barker's opinion that if Respondent's actions on May 22, 1995 were the result of the manifestations of her illness and not the result of the over-consumption of alcohol he may not seek her dismissal.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

31. The Superintendent of the Pinellas County School District has the authority to make recommendations for dismissal regarding school board employees as prescribed in Section 230.33(7)(e), Florida Statutes.

    
    

32. The School Board has the authority to dismiss school board employees pursuant to Section 230.23(5)(f), Florida Statutes. The School Board has the authority to dismiss instructional staff with professional service contracts at any time during the school year. However, the charges against the employee must be based on just cause. Section 231.36(6)(a), Florida Statutes.

    
    

33. The Florida Legislature, by defining just cause as including, but not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude, in Section 231.36(1)(a), Florida Statutes, gave school boards discretion to determine what actions constitute just cause for suspension or dismissal. Carl B. Dietz v. Lee County School Board, 647 So.2d 217 (Fla. 2nd DCA 1994).

    
    

34. Petitioner seeks to dismiss Respondent from her employment as a teacher for just cause pursuant to Section 231.36(6)(a), Florida Statutes. In order to prevail, Petitioner must carry its burden of proof by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3rd DCA 1990)

    
    

35. Petitioner has charged Respondent with committing or conviction of a criminal act, misdemeanor, or alcohol related offense; driving under the influence of alcohol; and falsification or alteration of employment paperwork, district forms or documents for certification. The acts, if proven, constitute violations of School Board Policy 6GX52-5.31(1)(d),(f),(g), and (i), Disciplinary Guidelines for Employees, Policy of Pinellas County School Board, which provides a penalty range from reprimand to dismissal.

    
    

36. Petitioner further charged Respondent with misconduct in office and failure to comply with school board policy, state law or appropriate contract agreement. School Board Policy 6GX52.531(1)(v) and (x), Disciplinary Guidelines for Employees, Policy Manual of Pinellas County School Board, provides a penalty range for these offenses from caution to dismissal.

    
    

37. Just cause for dismissal in this case exists if Petitioner proves by a preponderance of evidence that Petitioner was driving under the influence of alcohol on May 22, 1995, and as a result thereof, Respondent was involved in two automobile accidents involving property damage and attempted to bribe a law enforcement officer.

    
    

38. With respect to the evening of May 22, 1995, Petitioner has failed to prove by a preponderance of evidence that Respondent was driving under the influence of alcohol.

39. The only evidence offered suggesting Respondent was under the influence of alcohol came from William Parker and Corporal McMann, whose opinions were based on their observations. Corporal McMann also based his opinion on Respondent's inability to complete sobriety tests, her disorientation, and his perception of a strong odor of alcoholic beverage. However, there was no scientific evidence to support Parker's or Corporal McMann's opinion. Also, neither Parker nor Corporal McMann are knowledgeable in the area of silicone toxicity, and neither has had education or training in this area. Furthermore, they have had no experience with silicone poisoning or its effects.

    
    

40. The evidence shows Respondent's whereabouts throughout the day of May 22, 1995. All of the evidence shows that she consumed no alcohol between noon and 7:00 p.m. The evidence is clear that at dinner the evening of May 22, 1995, Respondent had one and one half beers at dinner, and immediately thereafter had the accidents that are the basis for this action.

    
    

41. The medical evidence is uncontroverted. Respondent has suffered and continues to suffer from the effects of silicone poisoning. Further the uncontroverted evidence shows that two of the symptoms of that illness are confusion and disorientation.

    
    

42. Corporal McMann testified that Respondent appeared to be very intoxicated, well beyond what would be expected from a person consuming less than two beers. Based on the evidence adduced at hearing, the reasonable explanation for Respondent's behavior on the evening of May 22, 1995, was that she was disoriented because of her illness.

    
    

43. With regard to prior alcohol related charges and convictions for which Petitioner seeks to dismiss Respondent, Petitioner has failed to meet its burden. No evidence was presented to prove the underlying facts giving rise to the charges relating to events which allegedly occurred on February 4, 1989, February 13, 1991, and October 25, 1991.

    
    

44. The law is well established that a judgment of conviction of a criminal offense, whether based on a plea of guilty or nolo contendere, is not admissible in a subsequent civil proceeding as proof of the facts on which it is based. Williams v. Castor, 613 So.2d 97 (Fla. 1st DCA 1993); State v. Dubose,

    152 Fla. 304, 11 So.2d 477 (1943). Thus, proof of the fact of Respondent's conviction by a copy of the criminal judgment is not legally sufficient to prove that Respondent is guilty of driving under the influence of alcohol on February 4, 1989, February 13, 1991, October 25, 1991, and/or May 22, 1995.

    
    

45. With regard to the charge that Respondent offered a bribe to a law enforcement officer, Petitioner has failed to meet its burden. The evidence at hearing shows that at the time of this incident on May 22, 1995, Respondent was in a state of confusion and was disoriented. Furthermore, no charges relative to this incident were filed against Respondent.

    
    

46. Petitioner has shown that Respondent falsified applications to the Department of Education by failing to report that she had entered a plea of nolo contendere to a 1989 charge of DUI. This matter was resolved by a settlement agreement with the Education Practices Commission on or about July 12, 1993. Under the terms of the Settlement Agreement, Respondent agreed to accept a written reprimand from the Educational Practices Commission. Pursuant to the Settlement Agreement, a copy of the reprimand was to be placed in Respondent's

    certification file with the Department of Education and in her personal file with the Pinellas County School District.

    
    

47. The recommendation of dismissal was made six years after the first falsification incident, five years after the second incident, and two years after the matter was formally settled by the Educational Practices Commission. Because the Settlement Agreement provided that a copy of the reprimand was to be placed in Respondent's Pinellas County School District personnel file, the district had notice of the matter. If additional discipline were deemed appropriate by the district, there was sufficient time for Petitioner to administer such discipline to Respondent. Given the time lapse, it is unreasonable to impose the most severe penalty available for this infraction.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss all charges against Respondent and reinstate her to a teaching position in Pinellas County School District.

DONE and ENTERED this 11th day of October, 1996, in Tallahassee, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996.

COPIES FURNISHED:

Keith B. Martin, Esquire Pinellas County School Board

301 Fourth Street Southwest Largo, Florida 34649

Mark Herdman, Esquire Suite 308

34650 U.S. Highway 19 North Palm Harbor, Florida 34684

Dr. J. Howard Hinesley, Superintendent Pinellas County School Board

301 Fourth Street Southwest Largo, Florida 34640-2942

Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Michael H. Olenick General Counsel The Capitol, PL-08

Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 95-004127

Orders for Case No: 95-004127