vs. ) CASE NO. 96-2277
Respondent. )
Upon due notice, William R. Cave, Administrative Law Judge, Division of Administrative Hearings (Division), held a formal hearing in this matter on August 20, 1996, in Bartow, Florida.
34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684
Did the Polk County School Board have just cause to justify its termination of Respondent's employment?
By letter dated April 11, 1996, John A. Stewart, Superintendent of the Polk County Schools, advised Respondent Stephen Anderson that he was being suspended with pay effective April 12, 1996, because the Respondent had left his worksite without authorization prior to the end of the workday, and because he was arrested by the Polk County Sheriff's Department and charged with two counts of exposure of sexual organs and two counts of lewdness. The Superintendent further advised Respondent that he would remain on suspension with pay until the Polk County School Board met on April 23, 1996, at which time the Superintendent would either recommend continued suspension without pay or make another recommendation on Respondent's status if the internal investigation was complete at that time. By letter dated April 24, 1996, the Superintendent advised the Respondent that the School Board in its regular session on April 23, 1996, voted to approve the Superintendent's recommendation to terminate Respondent's employment effective April 24, 1996. By letter dated May 1, 1996, the Respondent requested an administrative hearing pursuant to Chapter 120, Florida Statutes. By letter dated May 8, 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 John McKinney and Phil Henry, both detectives with the Bartow Police Department; Dale McDonald, an investigator with the Polk County School System; Greg Bondurant, Principal at Bill Duncan Opportunity Center; Paul Wenz and James Lemanski, both teachers at the Bill Duncan Opportunity Center; and Dr. Neriah Roberts, a Deputy Superintendent with the Polk County Schools. Petitioner's exhibits one through seven were received as evidence. Respondent testified on his own behalf and presented the testimony of Glen Higgins, the senior army instructor at Lake Gibson High School in Polk County; James Dean, Principal of East Area Opportunity School in Polk County; Ben Carpenter, a teacher at Lake Region High School in Polk County; Larry Bruce, Paulette Hall, S. B. Hall and Connie Grahl, all citizens of Polk County; and Carol Anderson, Respondent's wife.
Respondent's exhibits one through five were received as evidence. Respondent's exhibit one was the deposition testimony of Robert H. Bevis, M. D., received in lieu of his live testimony at the hearing.
A transcript of this proceeding was filed with the Division on September 3, 1996. The parties timely filed their proposed findings of fact and conclusions of law.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made:
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.
Respondent Stephen Anderson has been employed in the Polk County School District for five years. Prior to his employment with the Polk County School District, Respondent taught school in the State of Massachusetts for 22 years. Respondent has a professional services contract of employment with the Polk County School District.
At all times pertinent to this proceeding, Respondent was a GED classroom instructor and work study coordinator at Bill Duncan Opportunity Center (Duncan Center). During Respondent's tenure at Duncan Center, his classroom responsibilities ended at 11:00 a.m., after which he acted as work study coordinator until the end of his workday at 3:15 p.m. However, at times Respondent's coaching duties at other schools required that he leave Duncan Center before the end of the workday.
On April 11, 1996, sometime between 12:00 noon and 1:00 p.m., Respondent left Duncan Center for the purpose of going to Lake Gibson High School (Lake Gibson) to sign award certificates for members of the Lake Gibson girls' basketball team that he coached. The award certificates were to have been presented at the banquet earlier that week, but the certificates were not delivered to the banquet for Respondent's signature as planned. Therefore, Respondent made arrangements to be at Lake Gibson between 1:30-1:45 p.m. in the afternoon of April 11, 1996, to sign the certificates.
Throughout his tenure at Duncan Center, Respondent had routinely left Duncan Center early to attend to his coaching responsibilities at Lake Gibson and another school where he had coached basketball earlier. Greg Bondurant, principal of Duncan Center, was fully aware of Respondent's practice of leaving Duncan Center early to attend to his coaching duties, which included times before and after the basketball season at Lake Gibson, notwithstanding the testimony of Greg Bondurant regarding times before and after the basketball season to the contrary, which I find lacks credibility. Furthermore, Respondent advised his teacher's aide, John R. Edwards, that he was leaving early the day in question for the purpose of going to Lake Gibson.
Although Respondent did not sign out on the afternoon of April 11, 1996, it appears from the record that signing out was not a procedure that either Respondent or other teachers at Duncan Center took seriously. In fact, Mr. Bondurant was aware that teachers at the Duncan Center were not signing out on a regular basis. Apparently, "signing out" was not a major concern at Duncan Center.
Upon leaving Duncan Center, Respondent proceeded down Reynolds Road in the direction of Highway 92. Upon arriving at Highway 92, Respondent turned right (east) on Highway 92 intending to go to Wizard Golf Store to possibly purchase a golf club. Upon approaching Wizard Golf Store, Respondent noticed a "closed" sign in the window, and did not stop. Thereafter, Respondent proceeded east on Highway 92 to the next left turn, which is Saddle Creek Road, intending to go through to Combee Road, which would take him to Lake Gibson. However, at this point, Respondent developed an urgent need to urinate.
Since sometime around June 1995, Respondent has suffered severe problems with his urinary tract, and has suffered from severe abdominal pains caused by an intense feeling of a need to urinate frequently. Respondent has difficulty in beginning the urine flow, as well as stopping the urine flow, which has resulted in Respondent urinating on himself on different occasions. At times, Respondent was required to stroke (milk) or shake his penis in order to start or stop the flow of urine or to drain the urine from his penis after urinating.
Robert Bevis, M. D., specializes in internal medicine, and has treated Respondent for his urinary tract problems since February, 1991. Dr. Bevis believes that Respondent could be required to stroke the shaft of his penis to empty his urinary tract. Dr. Bevis has treated Respondent with a variety of drugs, which have not been successful, and believes that surgery may be necessary.
Upon turning onto Saddle Creek Road, Respondent looked for a place to urinate. Although he saw the bait shop, Respondent did not attempt to go to the bait shop to urinate because it did not occur to him that the bait shop would have a public bathroom. Respondent did not see a portable public toilet across from the bait shop on Saddle Creek Road or anywhere else. While there was testimony of a portable public toilet being in the area four days after the incident, the portable public toilet had been removed prior to the hearing, and there was no evidence that the portable public toilet was present on April 11, 1996. Respondent proceeded on down Saddle Creek Road for approximately six tenths of a mile to an area of Saddle Creek Park that Respondent believed to be isolated, and would provide the necessary privacy. Respondent pulled into an area where he saw no cars or people. This area of the Saddle Creek Park is commonly referred to as the Point. Unbeknown to Respondent at that time, the
Point is an area of the park known by law enforcement officers and others in the community to be frequented by homosexuals seeking to engage in lewd activity.
Respondent exited his car and walked up a path with the intention of urinating. As Respondent walked up the path, he passed a male individual who was standing with his back toward Respondent just off the pathway, approximately
20 feet. Respondent did not talk to, or have any contact with, this individual, but proceeded on up the path pass this individual, following the path as it curved to the left, out of the individual's line of sight.
Upon reaching this area, Respondent unzipped his pants, took out his penis, and, after some time, began to urinate. As Respondent looked to his left he noticed a male individual come around the corner and stop. Respondent did not recognize this individual as the individual he had seen earlier because he had not seen that individual's face. Respondent stared at this individual because he was shocked to see this individual, and uncertain as to why the individual was there. Respondent then did what he needed to do to stop the flow of urine, placed his penis in his pants and zipped his pants. At that point the individual had walked away from Respondent back down the path.
As Respondent walked back down the path he noticed a vehicle pull up parallel to his vehicle. Respondent moved on down to the area where he saw the first individual. Although Respondent could see two individuals in conversation, one standing outside the vehicle and the other individual inside the vehicle, Respondent was partially secluded by a thicket. Not sure of what was going on, but still feeling the intense urge to urinate, Respondent began urinating while watching the two individuals over his right shoulder.
After Respondent finished urinating, he did what he needed to do to drain his penis of urine and zipped his pants. At that point, the two individuals were approaching Respondent.
The individuals identified themselves as undercover police officers and placed Respondent under arrest, charging him with two counts of exposing his sexual organs and two counts of lewdness. The charges were predicated on the officers' belief that Respondent was masturbating. The arrest occurred at approximately 1:30 p.m. Respondent was released later that day on his own personal recognizance.
Respondent protested his innocence to the arresting officers, explaining to the officers his problem with urinating, but was told that he was in the wrong place at the wrong time, and that they were arresting everything that moved.
Although the testimony of the police officers is not totally accepted, it is not found that their testimony was pure fabrication. Rather, it is found that, due to their mindset and expectations, the police officers misinterpreted much of the conduct they observed involving the Respondent on April 11, 1996.
On that day, the police officers were patrolling Saddle Creek Park, undercover, as part of a law enforcement effort to rid the park of illegal lewd and lascivious conduct and the solicitation of sex (primarily homosexual) activities for which Saddle Creek Park, specifically the Point, had become notorious to law enforcement and to others.
The police officers involved in this case expected users of park to know its reputation, and they expected to find homosexual men using the park for notorious purposes. As a result, knowing nothing about Respondent, they
misinterpreted innocent behavior of the Respondent as evidence of criminal conduct. They attributed little or no importance to the behavior of Respondent that was evidence of his innocence of criminal charges.
There is no evidence in the record of what became of Respondent in the criminal process after his arrest.
The headlines of the newspaper articles appearing in the Lakeland Ledger and the Tampa Tribune concerning the undercover operation and subsequent arrests were: Corrections superintendent charged in sting and Warden arrested in sex sting, respectively. The Respondent's arrest is covered in each article at the end of the article on the follow-up page. Apparently, the Correction Superintendent's arrest was more newsworthy than Respondent's arrest.
Greg Bondurant, Paul Wenz and James Lemanski, the principal and two teachers at Duncan Center, respectively, all concluded that Respondent's effectiveness as a teacher at Duncan Center had been seriously reduced or impaired by the notoriety of this incident. Their conclusions were reached on the basis of shock and disbelief, by students and teachers alike, that Respondent had been arrested; "jokes made and stuff about Saddle Creek Park, and stuff like that"; and that "everybody became the brunt of jokes." These witnesses considered this a normal reaction for students and teachers alike. Greg Bondurant testified that after a couple or three days "everything died down after that." Some members of Greg Bondurant's church questioned him about what was going on at Duncan Center. However, there was no direct testimony from students or members of the community, outside the school system, to support these witnesses' conclusion that Respondent's effectiveness as a teacher had been seriously reduced or impaired.
Respondent has been married for 30 years and has one child 29 years of age. Respondent was an exemplary employee for 22 years in Massachusetts, and has been an exemplary employee for the past five years in Polk County. Respondent was the 1994-95 teacher of the year at Duncan Center.
Respondent denies he is homosexual or bisexual, and claims he has never engaged in any homosexual behavior. The evidence supports those claims.
Respondent's wife has never witnessed Respondent engage in any homosexual behavior. Many of Respondent's friends testified that Respondent is a man of high moral character, and none has ever witnessed Respondent engage in any immoral or illicit behavior.
James Dean, principal at East Area Opportunity School in Polk County and past principal at Duncan Center during the first part of Respondent's tenure there, has had a personal and professional relationship with Respondent for five years. Dean considers Respondent to be a man of high moral character and given the opportunity would hire Respondent to teach at his school.
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 has been impaired or has been seriously reduced.
On the other hand, several members of the community, some of them fellow teachers, believe that Respondent was an excellent teacher up to 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 or seriously
reduced, and if reinstated he would be an asset to the school system and to the community.
From all accounts, Respondent is an excellent teacher.
Taken together, the evidence is clear that on April 11, 1996, the Respondent entered Saddle Creek park for the express purpose of relieving himself because of an intense desire to urinate caused by a prostate problem. Respondent's manner of starting and stopping the urine flow and the clearing of his penis of urine after urinating was also necessary due to his prostate problem. Furthermore, there was no intent on the part of Respondent, while in Saddle Creek Park on April 11, 1996, to expose or exhibit his sexual organ in a vulgar or indecent manner. Likewise, the evidence is clear that Respondent's effectiveness as a teacher has not been seriously reduced or impaired as a result of the Respondent's arrest on April 11, 1996. Furthermore, the record will not support a finding that Respondent left his worksite early without authorization on April 11, 1996. Petitioner's evidence failed to prove the allegations filed against Respondent.
The ultimate findings of fact are based primarily on an evaluation of the testimony and demeanor of the Respondent and the arresting police officers. However, the testimony of the Respondent's character witnesses also weighed heavily; they were credible, and many of them knew Respondent very well and for a long period of time, some under circumstances that would be expected to have given them an opportunity to learn if Respondent engaged in, or had a reputation for engaging in, the kind of conduct of which he was accused.
CONCLUSIONS OF LAW
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.
Section 231.36(1)(a) Florida Statutes, provides that all instructional staff shall be entitled to and shall receive a written contract, and that all such contracts, except for teachers on continuing contract under Section 236.36(4), Florida Statutes, shall contain a provision for dismissal during the term of the 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 of moral turpitude.
Section 231.36(6)(a), Florida Statutes, similarly provides that, except for teachers on continuing contract under Section 231.36(4), Florida Statutes, a teacher can be suspended or dismissed during the term of an employment contract for just cause as provided in Section 231.36(1)(a), Florida Statutes.
Respondent has a professional service contract with Petitioner which provides that the Respondent shall not be dismissed during the term of his contract except for just cause as provided in Section 231.36(1)(a), Florida Statutes.
In its Policy Manual, Section 6Gx53.3.005, Petitioner has defined each of the items of misconduct included in the term just cause in Section 231.36(1)(a), Florida Statutes, which in pertinent part provides:
Discipline/Dismissal: Employees will be subject to discipline or dismissal for just cause which includes, but is not limited to, misconduct of the following nature:
Immorality: A charge of Immorality is defined as conduct contrary to conscience or public morality.
Misconduct in Office: A charge of Misconduct in Office is defined as conduct which seriously reduces the Employee's effectiveness in the assigned position, or as an Employee of the Board.
Petitioner seeks to dismiss Respondent from employment as a teacher on the basis of immorality and misconduct in office. The Petitioner bears the burden of proving, by a preponderance of the evidence, each element of the charged offenses which may warrant dismissal. Allen v. School Board of Dade County, 571 So.2d 568 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So.2d 883 (Fla. 3d DCA 1990).
Petitioner contends that Sections 231.36(1)(a) and (6)(a), Florida Statutes, extend to the School Boards of the State of Florida broad discretion in determining what constitutes "just cause" for dismissal or suspension of a teacher i.e., giving a broader definition to a specific conduct included in the term "just cause" than has been given to that same conduct by the Department of Education in its Rule 6B-4.009, Florida Administrative Code, and cites as authority for that proposition, Dietz v. Lee County School Board, 647 So.2d 217 (Fla. 2d DCA 1994). However, since the Dietz Case was per curiam affirmed, and the opinion expressed in the Dietz Case was the opinion of Judge Blue and not the opinion of the Court, it is not authority for the above proposition.
Certainly, the School Board may, in determining what conduct constitutes "just cause", include additional conduct, other than the conduct listed in Section 231.346((1)(a), Florida Statutes, and define such additional conduct. However, I question whether a School Board has the authority to redefine a conduct statutorily included in the term "just cause" that has been defined by the Department of Education in Rule 6B-4.009, Florida Administrative Code. However, that issue does not need to be decided here.
As found, Petitioner has failed to prove the charge of immorality. Petitioner has failed to prove that Respondent's conduct came within its definition (the broader definition) of the term immorality. Therefore, the issue of misconduct in office, as defined by the Petitioner, becomes moot because all that is left is the publicity of an unproven conduct, and publicity attendant to allegations of misconduct in office and immorality is not, of itself, a proper basis for a finding of impaired effectiveness as a teacher. Baker v. School Board of Marion County, 450 So.2d 1194 (Fla. 5th DCA 1984); and MacMillian v. Nassau County School Board, 629 So.2d 226 (Fla. 1st DCA 1993). The same would hold true whether the issue is conduct that would impair the effectiveness of a teacher under the Department of Education Rule defining "immorality" or conduct that would seriously reduce the teacher's effectiveness under the Petitioner's definition of "misconduct in office." In any case, it has been found that Petitioner failed to prove that Respondent's effectiveness
as a teacher had been impaired or seriously reduced. Likewise, it has been found that Petitioner failed to prove that Respondent left his worksite early on April 11, 1996, without authorization.
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 28th day of October, 1996, at Tallahassee, Florida.
WILLIAM R. CAVE
Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996.
Honorable John A. Stewart Superintendent of Schools Post Office Box 391
Honorable Frank T. Brogan Commissioner of Education The Capitol
Donald H. Wilson, Jr., Esquire
34650 U.S. Highway 19 North, Suite 308 Palm Harbor, Florida 34684
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.
