STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-1595

)

ROBERT C. HARRIGER, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on July 13, 1999, in Bartow, Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP Post Office Drawer 30 Bartow, Florida 33831

For Respondent: Phillip E. Kuhn, Esquire

1533 Tomahawk Trail, South Lakeland, Florida 33813

Mark S. Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

Should Respondent be terminated from the Polk County School System based on the allegations contained in the letter from Gene Reynolds, Superintendent of Schools (Superintendent), Polk County, Florida, dated March 15, 1999?

PRELIMINARY STATEMENT

By letter dated March 15, 1999, Superintendent Reynolds advised Respondent that he intended to recommend termination of Respondent's employment with the Polk County School System to the Polk County School Board (Board) at the Board's next regular meeting on March 23, 1999. Superintendent Reynolds further recommended to the Board that Respondent be suspended without pay pending final action by the Board. Superintendent Reynolds' action was based on the allegation that Respondent had brought a pornographic video tape to Eastside Elementary School and had left the video tape at the school. Superintendent Reynolds concluded that Respondent's action constituted misconduct in office, and that Respondent's action seriously endangered the welfare of the students under his care, and as a result Respondent's effectiveness as a teacher had been seriously and irreparably impaired. The Board, at its regular meeting on

March 23, 1999, acted favorably on Superintendent Reynolds' recommendation that Respondent be terminated and suspended without pay pending final action by the Board. By letter dated March 17, 1999, Respondent requested a formal administrative hearing. By letter dated March 29, 1999, this matter was referred to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a hearing.

At the hearing, Petitioner presented the testimonies of Josephine Howard and Dennis Dunn. Petitioner did not offer any documentary evidence. Respondent presented the testimony of Thomas Walton. Respondent's Composite Exhibits numbered 1 and 2 were admitted in evidence.

A Transcript of the hearing was filed with the Division on July 28, 1999. The parties filed their Proposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

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

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

2. Respondent is employed by the Board as an elementary classroom teacher, a position he has held since March 8, 1993.

3. During the 1998-99 school year, Respondent was employed as a kindergarten classroom teacher at Eastside Elementary School, located in Haines City, Florida.

4. During his employment as a classroom teacher with the Board, Respondent has received satisfactory evaluations.

5. Prior to the events giving rise to this proceeding, Respondent has had no disciplinary problems during his employment as a classroom teacher with the Board.

6. In January 1999, Respondent missed three days of school as a result of an ankle injury. While Respondent was absent, a substitute teacher taught his classes.

7. While looking for a video tape to show the class, the substitute teacher discovered what appeared to be a pornographic video tape in the cabinet next to the video cassette recorder where other video tapes used in the classroom were stored. The substitute teacher removed the video tape and delivered it to Josephine Howard, principal of Eastside Elementary School.

8. The video tape contains explicit, graphic, hard-core pornographic sequences of adult men engaged in explicit sexual acts.

9. Respondent purchased the video tape at a local video store and brought it to Eastside Elementary School for purposes of viewing the tape when students or other persons were not present.

10. Respondent stored the video tape in the classroom in an unlocked cabinet next to the video cassette recorder with other video tapes used for educational purposes Respondent did not desire or intend to allow students to view the video tape. However, since the video tape was stored in an unlocked cabinet,

    students did have access to the video tape and could have inadvertently viewed the video tape.

11. This incident has not been reported in any newspaper, including those covering the Polk County area, nor has there been any coverage by any radio or television station, including those covering the Polk County area. Other than the incident being brought to the attention of the Board for disciplinary purposes and the news release of the Board's action, the incident has not been made public. In fact, there has been a concerted effort by the Board, the Superintendent's office, and the office of the principal at Eastside Elementary School to prevent this matter from becoming public until after final action by the Board.

12. Since the public is not generally aware of this matter, there has been no outcry of public, parental, or student demand for Respondent's dismissal. Likewise, there has been no demand by any parent that their child not be placed in Respondent's class.

13. Although there has been no public "airing" of this incident, there has been an inquiry by at least one newspaper for the facts of this incident after final action by the Board. Therefore, it appears that there will be a public "airing" of the facts of this incident upon final action by the Board.

14. Respondent has received numerous awards for his teaching technique and work in education. Additionally,

    Respondent has the support of his friends, associates, and fellow church members.

15. Josephine Howard has taught or held positions as principal or as an assistant principal in the public schools in Haines City, Florida for approximately 30 and one half years. Sixteen and one half of those years have been as either a principal or as an assistant principal. Josephine Howard has lived in Haines City, Florida for approximately 34 years.

16. Josephine Howard, based on her knowledge of, and experience with, the staff at Eastside Elementary School, and her knowledge of, and experience with, the community of Haines City and Petitioner's serious conduct of storing the video tape in a cabinet where persons other than school personnel would have access to such video tape, creating the possibility for children of such sensitive age to be exposed to the contents of the video tape, is of the opinion that upon this matter becoming public knowledge, Petitioner's effectiveness as a teacher at Eastside Elementary School, as well as other schools within the community of Haines City, would be impaired.

17. Dennis Dunn has been employed by the Polk County School Board for 30 years, holding positions as a teacher (in elementary school, junior high school, and high school), assistant principal, principal (in junior high school and high school), deputy superintendent, and assistant superintendent for personnel. Mr. Dunn's work with the Polk County School System

    has brought him in touch with not only the community of Haines City, but all of the communities within Polk County, Florida

18. Dennis Dunn, based on his knowledge of, and experience with, the staff of the several public schools in Polk County and his knowledge of, and experience with, the several communities that make up Polk County and Petitioner's serious conduct of storing the video tape in a cabinet where persons other than school personnel would have access to such video tape, creating the possibility for children of such sensitive age to be exposed to the contents of the video tape, is of the opinion that upon this matter becoming public knowledge, Petitioner's effectiveness as a teacher within all of Polk County would be impaired.

    CONCLUSIONS OF LAW

    
    

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

20. Petitioner seeks to terminate Respondent's employment as a teacher on the basis of misconduct in office. Petitioner bears the burden of proving by a preponderance of the evidence, each element of the charged offense which may warrant dismissal. Allen vs. School Board of Dade County, 571 So. 2d 568 (Fla. 3rd DCA 1990); Dileo vs. School Board of Dace County, 569 So. 2d 883 (Fla. 3rd DCA 1990). The Board has met its burden in this regard.

21. Section 231.36(1)(a), Florida Statutes, provides that, except teachers on continuing contract under Section 231.36(4), Florida Statutes, a teacher can be dismissed during the term of an employment contract "only for just cause." Section 231.36(4), Florida Statutes, 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.)

22. 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 "may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (1)(a)."

23. In contrast, Section 231.(6)(4)(c), Florida Statutes, 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 crime involving moral turpitude.

24. It is not clear from the record whether Respondent is on a continuing contract. However, the Board specified in its charging letter that it was prosecuting Respondent's dismissal proceeding on the basis of misconduct in office, and Respondent has not challenged the Board's authority to prosecute

    Respondent's dismissal proceeding on the charge of misconduct in office.

25. Chapter 231, Florida Statutes, does not define misconduct in office. However, the Department of Education Rule 6B-4.009(3), Florida Administrative Code, defines misconduct in office as follows:

    * * *

    
    

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in

    Rule 6B-1.001, FAC., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule [6B- 1.006, FAC.] which is so serious as to impair the individual's effectiveness in the school System. (Emphasis added.)

26. Rule 6B-1.006(1)(2)(3)(a), Florida Administrative Code, provides as follows:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

    3. Obligation to the student requires that the individual:

       1. Shall 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

          * * *

          
          

          (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement

27. Petitioner clearly created a condition whereby kindergarten-aged students could be exposed to the contents of the video tape and thereby violated Rule 6B-1.006(3)(a) and (e), Florida Administrative Code. Petitioner's conduct in bringing the video tape into Eastside Elementary School and storing it in a cabinet whereby kindergarten-aged students could be exposed to the video tape's content was so serious that upon the facts of the incident becoming public knowledge, it will impair Petitioner's effectiveness as a teacher. Therefore, Petitioner committed misconduct in office, and just cause for dismissal has been proven.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board enter a final order finding that Petitioner committed misconduct in office, that just cause for dismissal has been shown, and that Petitioner's contract of employment with the Board is terminated.

DONE AND ENTERED this 20th day of August, 1999, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1999.

COPIES FURNISHED:

Donald H. Wilson, Jr., Esquire Boswell & Dunlap, LLP

Post Office Drawer 30 Bartow, Florida 33831

Phillip E. Kuhn, Esquire 1533 Tomahawk Trail, South Lakeland, Florida 33813

Mark S. Herdman, Esquire Herdman & Sakellarides, P.A. 2595 Tampa Road, Suite J Palm Harbor, Florida 34684

Mr. Glenn Reynolds Superintendent of Schools Polk County School Board 1915 South Floral Avenue Bartow, Florida 33830-0391

Tom Gallagher Commissioner of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 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: 99-001595

Orders for Case No: 99-001595