STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 97-2109

)

VERNA CARTER, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 14, 1997, a formal administrative hearing was held in this case in Largo, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: C. Wesley Bridges, II, Esquire

Staff Attorney

Pinellas County School Board Post Office Box 2942

Largo, Florida 33779-2942

For Respondent: Verna Clark, pro se

5233 Sixth Avenue North

St. Petersburg, Florida 33710 STATEMENT OF THE ISSUE

The issue in this case is whether the School Board of Pinellas County should dismiss the Respondent from her employment as bookkeeper at Tyrone Middle School on charges that, on

March 14, 1997, the Respondent participated in using the school's intercom system to eavesdrop on and tape record a conversation

between a classroom teacher and another adult taking place in the teacher's classroom.

PRELIMINARY STATEMENT

By letter dated April 7, 1997, the Pinellas County School Superintendent advised the Respondent that he was suspending her and recommending to the School Board that she be dismissed on charges that her alleged conduct on March 14, 1997, violated School Board Policy 6Gx52.31(1)(c) and (v). On April 25, 1997, the Respondent requested formal administrative proceedings, and the matter was referred to the Division of Administrative Hearings (DOAH) on May 5, 1997. In accordance with the parties' Joint Response to Initial Order, final hearing was scheduled for August 14, 1997.

At final hearing, the School Board first called the Respondent as an adverse party witness and then called five additional witnesses, including two experts in the field of education. The School Board also had Petitioner's Exhibits 1 through 3 admitted in evidence. The Respondent testified in her own behalf.

At the conclusion of the evidence, the School Board 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 filed proposed recommended orders. The transcript was filed on September 2, 1997, and no timely proposed recommended orders were filed.

FINDINGS OF FACT

1. The Respondent, Verna Carter, was employed as bookkeeper for Tyrone Middle School in Pinellas County during the 1996/1997 school year. Prior to that, she was "house clerk" of the eighth grade (essentially, the equivalent of the office manager for the administrative staff of that grade level, which was headed by an assistant principal).

2. During the 1996/1997 school year, Martha McKnight was the Tyrone Middle School Principal. McKnight had been made Tyrone Middle School Principal at the beginning of the 1995/1996 school year. During her first year, antagonism developed between the Principal and a significant number of classroom teachers and other school personnel. During the course of the year, the Respondent took the Principal's side, and a close personal as well as work relationship developed between the Principal and the Respondent. When the position of school bookkeeper opened during the summer of 1996, Principal McKnight promoted the Respondent into the position although she was not yet qualified for the position. The Respondent took a bookkeeping course and passed the middle school certification test in August 1996; she became the school's bookkeeper in September 1996.

3. The antagonism between the Principal and the opposing faction of teachers and personnel continued during the 1996/1997 school year. After-ours on Friday, March 14, 1997, while in a darkened room in the vicinity of the school office's intercom

   system, the Respondent heard voices coming through the intercom. She recognized the voices of Scott Bailey, one of the teachers who was antagonistic to Principal McKnight, and Bailey's mother. The Respondent realized that she had accidentally left the intercom system on after previously receiving a call from Bailey in response to an "all call" for him. She was about to turn the intercom off when Bailey and his mother began talking about Principal McKnight. Instead of turning the intercom off, the Respondent began to eavesdrop on the conversation between Bailey and his mother.

4. While the Respondent was eavesdropping, Principal McKnight entered the room and joined the Respondent in eavesdropping. McKnight then went to get a tape recorder. While she was gone, Cindy Bishop, the school's acting media specialist, who was also working late, entered the darkened room and was in the room unbeknownst to Principal McKnight when McKnight returned with a tape recorder. McKnight proceeded to hold the recorder up to the intercom speaker to record Bailey's conversation with his mother for the Principal's possible use against Bailey later.

5. Shortly after the recording began, the two eavesdroppers heard noise in the hallway adjacent to where they were, and Principal McKnight gave the tape recorder to the Respondent and signaled to the Respondent that she wanted the Respondent to continue tape recording for her while she left to

   see what the noise was and divert the intruder. The Respondent complied and continued the secret recording for the Principal.

6. When the Principal left the room, Bishop approached the Respondent and asked her what was going on. The Respondent told her and continued to eavesdrop and tape record in front of Bishop. After several minutes of mostly silence, they heard a loud noise and Bailey's mother saying, "Well, you're probably going to get in trouble for doing that, too." The Respondent handed the tape recorder to Bishop and told her to keep recording while the Respondent went to Bailey's classroom to find out what had caused the loud noise (and was going to get Bailey in more trouble).

7. Almost as soon as the Respondent left, Bishop realized that what she was doing was wrong. She turned the tape recorder off and left.

8. Bothered by her role in the tape recording (minimal as it was), Bishop telephoned an assistant principal to discuss the incident. Over the weekend, she decided to report the incident to the School Resource Officer at Tyrone. Her report initiated an investigation that resulted in a letter of reprimand to Bishop, the suspension and recommended dismissal of the Respondent, and Principal McKnight's suspension, recommended dismissal, and retirement pending the dismissal proceedings.

9. The Respondent does not dispute the essential facts of this case. Rather, she pleads ignorance that what she did was

   wrong, illegal, and against school policy. She also questions why her punishment was harsher than Bishop's. (The Respondent also indicated that another reason she asked for a hearing was her mistaken belief that the decision to dismiss her was reached before her viewpoints were considered.)

10. It is found that the Respondent should have known that what she did was wrong and against school policy, if not illegal. In addition to being school bookkeeper for the 1996/1997 school year, she had been eighth grade "house clerk" for two years, had volunteered at the school for 14 or 15 years, and had been president of the Parent/Teachers Association three or four times.

11. It also is found that the Respondent's punishment was appropriately distinguished from the punishment against Bishop and equated with the punishment recommended for Principal McKnight. Unlike Bishop, the Respondent knew exactly what she and the Principal were doing and why. Unlike Bishop, the Respondent was not just following the Principal's orders, she was the Principal's ally in her running battle with Bailey and the other teachers in the anti-McKnight faction. The Respondent initiated the eavesdropping, and she eavesdropped and tape recorded for much longer than Bishop. In contrast to the Respondent, Bishop quickly recognized that what she was doing was wrong, stopped, and promptly reported the incident to the proper authorities.

12. The evidence was clear that, due to the Respondent's active role in eavesdropping and tape recording Bailey's private conversation for McKnight's use against him, the Respondent's effectiveness has been seriously impaired. Her actions violated the privacy and freedom of expression of a teacher at her school and contributed to the creation of a negative and fearful environment at the school. It is reasonable to think that teachers would not trust the Respondent to properly respect their dignity and rights in the future.

13. Pinellas County School Board Policy 6Gx52.31(1)(c) makes commission or conviction of a felony grounds for suspension or dismissal of a school employee, and (v) makes misconduct or misconduct in office grounds for punishment ranging from a caution to dismissal.

    CONCLUSIONS OF LAW

    
    

14. "In accordance with the provisions of s. 4(b) of Art. IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law." Section 230.03(2), Florida Statutes (1995).

15. Such authority extends to personnel matters. "Except as otherwise provided by law or the State Constitution, district school boards are authorized to prescribe rules governing personnel matters, including the assignment of duties and

    responsibilities for all district employees." Section 231.001, Florida Statutes (1995). The School Board's Rule 6Gx52-5.31 is such a rule.

16. The Superintendent of Pinellas County School District has the authority to suspend and recommend for dismissal School Board employees under certain circumstances pursuant to Section 230.33(7), Florida Statutes (Supp. 1996). The School Board has authority to suspend or dismiss school employees, including non- instructional employees such as the Respondent. Section 230.23(5)(f), Florida Statutes (Supp. 1996).

17. The Pinellas County School Board has the burden of proof in this non-instructional employee dismissal hearing, and the standard of proof is preponderance of the evidence. Dileo vs. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990).

18. In this case, the facts are clear that the Respondent violated Section 934.03, Florida Statutes (1995), by unlawfully intercepting oral communications between Bailey and his mother. This also constituted misconduct in office. Dismissal was warranted under the School Board's Policy 6Gx52-5.31(1)(c)

    and (v).

    
    

19. The Respondent does not dispute the essential facts. Instead, her only defenses are ignorance of her wrong-doing and unfair treatment. As found, neither of these defenses have merit.

RECOMMENDATION

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

RECOMMENDED that the School Board of Pinellas County enter a final order dismissing the Respondent from her employment as school bookkeeper at Tyrone Middle School.

RECOMMENDED this 19th day of September, 1997, in Tallahassee, Leon County, Florida.

J. LAWRENCE JOHNSTON Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax FILING (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 1997.

COPIES FURNISHED:

C. Wesley Bridges, II Staff Attorney

Pinellas County School Board Post Office Box 2942

Largo, Florida 33779-2942

Verna T. Carter

5233 6th Avenue North

St. Petersburg, Florida 33710

Dr. J. Howard Hinesley Pinellas County School Board

301 4th Street Southwest Largo, Florida 33770-2942

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: 97-002109

Orders for Case No: 97-002109