STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) CASE NO. 96-1429

)

STEPHEN OSTHOFF, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings (Division), held a formal hearing in this matter on July 17, 1996, in Bartow, Florida.

APPEARANCES

For Petitioners: Dabney L. Conner, Esquire

150 East Davidson Street Post Office Box 1578 Bartow, Florida 33831-1578

For Respondent: Mark Herdman, Esquire

34650 U.S. Highway 19 North, Suite 30 Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

Is Respondent guilty of immorality which impairs his effectiveness in the community sufficiently to justify his dismissal from employment with the Polk County School Board?

PRELIMINARY STATEMENT

By letter dated January 22, 1996, John A. Stewart, Superintendent of the Polk County Schools, advised Respondent Stephen Osthoff that he was being suspended with pay effective January 22, 1996, because the Polk County Sheriff's Department had arrested and charged him with soliciting another to commit lewdness. The Superintendent further advised Respondent that he would remain on suspension with pay until the Polk County School Board (Board) met on February 13, 1996, at which time the Superintendent would either recommend continued suspension without pay or other recommendation on Respondent's status if the internal investigation was complete at that time. By letter dated February 5, 1996, the Superintendent advised Respondent that he would recommend the termination of Respondent's employment to the Board at the its regular session on February 13, 1996. On February 13, 1996, the Board voted to approve the Superintendent's recommendation. On February 20, 1996, Respondent filed a Petition For Formal Request For Hearing. By letter dated March 15, 1996, the

matter was referred to the Division for the assignment of an Administrative Law Judge (Hearing Officer) and the conduct of a hearing.

At the hearing, the Petitioner presented the testimony of Stephen Peacock, a detective with the Bartow Police Department; William T. Young, a detective with the Polk County Sheriff's Department; David Lauer, Principal of George Jenkins High School; Dale McDonald, an investigator for the Polk County School Board; and Dennis Dunn, the Assistant Superintendent of Personnel Services for Polk County School Board. Petitioner's composite exhibits one and two were received as evidence. Respondent presented the testimony of Marcia Stille and Sisi Hedges, both members of the local community. Respondent's composite exhibit one, consisting of seven letters from members of the community, was received as evidence.

A transcript of this proceeding was filed with the Division on July 31, 1996. By letter dated July 31, 1996, Petitioner requested an extension of time to file proposed findings of fact and conclusions of law which was unopposed by Respondent. The request was treated as a motion and granted with the understanding that any time constraint imposed under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties timely filed their proposed findings of fact and conclusions of law under the extended time frame.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made:

1. Petitioner Polk County School Board is the county agency responsible for providing public primary, secondary and adult education in Polk County, and to facilitate that responsibility the Board hires certified teachers for classroom and administrative activity.

   
   

2. Respondent Stephen Osthoff has been employed in the Polk County School District for 23 years. Respondent holds a continuing contract of employment with the Polk County School District.

   
   

3. Mary Holland Park, located in Bartow, Polk County, Florida, is a city- owned facility with a playground, several picnic pavilions and a soccer field, ponds, and fishing areas, and is well used by the citizens of Bartow.

   
   

4. Detective Stephen Peacock of the Bartow Police Department was conducting an undercover investigation in Mary Holland Park on January 19, 1996, in conjunction with the Polk County Sheriff's Department in response to reports made to the City of Bartow about certain activity in the park.

   
   

5. On January 19, 1996, Detective William T. Young, was employed by the Polk County Sheriff's Department and assigned to the Vice Unit. On this date, Detective Young was conducting an undercover investigation in conjunction with the Bartow Police Department in response to reports made to the City of Bartow about certain activity at the park.

   
   

6. On January 19, 1996, Respondent drove into Mary Holland Park in Bartow, Florida. Respondent exited his car and walked towards an area referred to as a nature trail. As the Respondent made his way to the nature trail he made eye contact with Detective Young. Based on Respondent's actions, Detective Young believed Respondent was implying that Young join him on the nature trail. As

   Respondent proceeded down the trail he stopped and sat down upon a limb that had fallen in the trail. Young stopped within inches of Respondent with Young's genital area level with Respondent's face. After engaging in small talk, Respondent asked Young what the chances were of Respondent "seeing it". Young clarified with Respondent that he wanted to see Young's "cock". Young responded, "Well I don't think so, not right here". Either Young or Respondent (Young was not sure which) suggested that they go around the corner which was the area where Young's car was parked. Young and Respondent walked up to Young's car where Young identified himself to Respondent as a police officer.

   Young arrested Respondent and charged him with soliciting another to commit a lewd act.

   
   

7. During the book-in procedure at the City of Bartow Police Department, after being given his Miranda warning, Respondent stated that he recognized that he had a problem and would seek counseling.

   
   

8. There is no evidence in the record of what became of Respondent in the criminal process after his arrest.

   
   

9. From all accounts, Respondent is an excellent teacher.

   
   

10. David Lauer, Principal at George Jenkins High School where Respondent taught until this incident, testified that Respondent was an excellent teacher in the classroom, a team player, the kind of teacher administrators like to have and was good for the kids.

    
    

11. David Lauer opined that this incident would be detrimental to Respondent's effectiveness as a teacher at George Jenkins High School. Lauer's opinion is based on Respondent's arrest being reported in the Lakeland Ledger, a newspaper which is circulated in the community of George Jenkins High School, and that some twenty copies of the Lakeland Ledger are delivered to the George Jenkins High School for use by the teachers and students. There is no evidence that any copies of the Lakeland Ledger which carried the story of Respondent's arrest were delivered to the George Jenkins High School. Lauer's opinion was not supported by testimony from any teacher, student or other member of the George Jenkins High School community, to the effect that as a result of this incident Respondent's effectiveness as a teacher had been impaired at George Jenkins High School or any other school in Polk County. In fact, the testimony of the only teacher from George Jenkins High School to testify at the hearing, contradicted Lauer's testimony concerning impaired effectiveness.

    
    

12. After an investigation was completed by Dale McDonald, the report was submitted to the Administrative Review Team which, after reviewing the reports of the incident, recommended to the Superintendent that Respondent's employment be terminated because the evidence indicated that Respondent's effectiveness as a teacher in Polk County had been impaired. There is nothing in the record to indicate that at the time the Review Team made its recommendation that the Team had any evidence from members of the community to support its recommendation that Respondent's effectiveness as a teacher in the community had been impaired. Apparently, the recommendation was based on the fact that the incident was reported in the Lakeland Ledger. The article appearing in the Tampa Tribune did not appear until February 15, 1996, which was after the Team made its recommendation to the Superintendent and after the Board terminated Respondent's employment. Furthermore, there was no evidence that the Tribune article was widely circulated in the community of George Jenkins High School or generally in Polk County.

13. Based on the Review Team's recommendation, the Superintendent concluded that Respondent's actions had impaired his ability to effectively serve the community of Polk County and recommended to the Board that Respondent's employment be terminated. The Board accepted the Superintendent's recommendation and on February 13, 1996, voted to terminate Respondent's employment.

    
    

14. There is no evidence in the record from any member of the community unrelated to Petitioner to support the Petitioner's conclusion that Respondent's effectiveness as a teacher in the community has been impaired.

    
    

15. On the other hand, several members of the community, mostly fellow teachers, believe that Respondent was an excellent teacher up until the incident and would continue to be an excellent teacher if reinstated. Furthermore, these members of the community believe that Respondent's effectiveness as a teacher in the community has not been impaired, and if reinstated he would continue to be an asset to the school system and to the community

    
    

16. Respondent's conduct was not sufficiently notorious so as to bring the Respondent or the education profession into public disgrace or disrespect, and thereby impair the Respondent's service in the community of Polk County, notwithstanding the testimony of David Lauer and Dennis Dunn to the contrary.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

18. Petitioner seeks to dismiss Respondent from employment as a teacher on the basis of immorality. The Petitioner bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal. Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 2nd DCA 1990).

    
    

19. As a continuing contact teacher, Respondent can only be disciplined for the offenses enumerated in Section 231.36(4)(c) Florida Statutes, which in pertinent part provides:

    
    

    (c) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any principal, who is under continuing contract may be [suspended or dismissed] at any time during the school year; however, the charges against him or

    her must be based on [immorality], misconduct in office, incompetency, gross insubordi- nation, willful neglect of duty, drunken- ness, or conviction of a crime involving moral turpitude. . . . [Emphasis added]

    
    

20. Chapter 231, Florida Statutes, does not define immorality. However, the Department of Education Rule 6B-4.009(2), Florida Administrative Code, defines immorality as follows:

    6B-4.009 Criteria for Suspension and Dismissal. The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined:

    * * *

    (2) Immorality is defined as conduct that is inconsistent with the standards of public 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. [Emphasis added]

    
    

21. Thus, in order to dismiss a teacher for immoral conduct it must be concluded that: (a) the teacher engaged in conduct inconsistent with the standards of public conscience and good morals; and (b) the conduct was sufficiently notorious so as to disgrace the teaching profession and impair the teacher's service in the community. Richard McNeill v. Pinellas County School Board, 21 FLW 1880b (Fla. 2nd DCA 1996), citing McKinney v. Castor, 667 So.2d

    387 (Fla. 1st DCA 1995) and Sherburne v. School Board of Suwannee County, 455 So.2d 1057 (Fla. 1st DCA 1984).

    
    

22. The record is clear that Respondent expressed his desire to see Young's sexual organ on January 19, 1996, in Mary Holland Park in a somewhat secluded area of the park. But what is not clear from the record, is whether the expression of that desire constitutes a solicitation for Young to expose his sexual organ in a lewd manner as described in Section 800.03, Florida Statutes (1995). However, assuming arguendo that Respondent did solicit Young to commit a lewd act on January 19, 1996, in Mary Holland Park, the evidence is insufficient to show that Respondent's conduct was sufficiently notorious so as to bring the Respondent or the education profession into public disgrace or disrespect and impair the Respondent's service in the community. Therefore, the Petitioner has failed to meet its burden of proving, by a preponderance of the evidence, the elements of the offense charged.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law it is, accordingly,

Recommended that Respondent be reinstated as of the date of the final order and that Respondent be awarded back pay and benefits during the period of suspension without pay.

RECOMMENDED this 17th day of October, 1996, at Tallahassee, Florida.

WILLIAM R. CAVE

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) 921-66847

Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 1996.

COPIES FURNISHED:

Honorable John A. Stewart Superintendent of Schools Post Office Box 391

1915 South Floral Avenue Bartow, Florida 33830

Honorable Frank T. Brogan Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

Dabney L. Conner, Esquire

150 East Davidson Street Post Office Box 1578 Bartow, Florida 33831-1578

Mark Herdman, Esquire

34650 U.S. Highway 19 North

Suite 308

Palm Harbor, Florida 34684

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: 96-001429

Orders for Case No: 96-001429