STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-1896

)

BARRETT PURVIS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this matter on August 12, 1999, in Ocala, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: William C. Haldin, Jr., Esquire

James L. Richard, Esquire Richard, Blinn & Haldin

808 South East Fort King Street Ocala, Florida 34471

For Respondent: Mark D. Shelnutt, Esquire

421 South Pine Street Ocala, Florida 34474

STATEMENT OF THE ISSUE

The issue is whether Respondent should be terminated for just cause from his employment under a professional service contract pursuant to Section 231.36(6), Florida Statutes.

PRELIMINARY STATEMENT

On April 26, 1999, Dr. John Smith, Superintendent of Marion County Schools, advised the Division of Administrative Hearings that he had recommended the termination of employment of Respondent Barrett Purvis (Respondent) with Petitioner Marion County School Board (Petitioner). A copy of the Amended Recommendation for Dismissal of Professional Service Contract Teacher, with Supporting Charges was enclosed with the referral letter. The April 26, 1999, letter states that Respondent had requested a formal hearing pursuant to Section 120.57, Florida Statutes, and that Petitioner had granted his request.

The Division of Administrative Hearings issued an Initial Order on April 29, 1999. Petitioner filed a Response to Initial Order on May 10, 1999. A Notice of Hearing dated May 20, 1999, scheduled the hearing for August 12-13, 1999. Respondent filed a Response to Initial Order on May 25, 1999.

On August 2, 1999, Petitioner requested an extension of the time set forth in an Order of Prehearing Instructions in which to file a prehearing stipulation. An order granting this request was entered on August 4, 1999.

The parties filed their Pre-Hearing Stipulation on August 6, 1999. They filed a Supplemental Witness List after the commencement of the hearing.

During the hearing, the parties stipulated to the admission into the record of two joint exhibits. Joint Exhibit 1 is an

excerpt of testimony from a criminal jury trial on March 18, 1999, before the Honorable William T. Swigert, Circuit Court Judge. The parties agreed that the undersigned could consider the excerpt of testimony from the criminal trial as evidence in lieu of testimony in this proceeding.

Joint Exhibit 2 is a composite of documents including the following: (a) a memorandum prepared by an investigator with the Office of the State Attorney dated May 25, 1999; (b) a transcribed interview dated May 25, 1999, of Dackory Williams, an ambulance medic, concerning the response of his ambulance unit on May 10, 1998, to treat a patient for injuries due to pepper spray; (c) documents related to the responses of two units of the Ocala Fire Rescue Emergency Medical Service on May 10, 1998;

(d) documents dated May 25, 1999, related to Dackory Williams's photographic identification of the patient treated for pepper spray on May 10, 1998; and (e) documents related to the responses of two ambulance units from Munroe Regional Medical Center on

May 10, 1998.

Petitioner presented the testimony of Dackory Williams, Tammy Burke, Harold Compton, Nick Viaggio, Bobby James, and Dr. John D. Smith. Petitioner did not offer any additional exhibits for admission into the record.

Respondent testified on his own behalf and presented the testimony of William C. Haldin, Jr., Esquire; Patricia Purvis; and James Noell. Respondent offered two additional exhibits,

which were accepted into evidence. Respondent's Exhibit 1 is a composite of documents related to the hiring of Respondent with Professional Service Contract status and Respondent's 1997-1998 Teacher Assessment and Check-List for Professional Improvement. Respondent's Exhibit 2 is a letter dated July 23, 1999, from Petitioner's counsel to a member of Petitioner's staff.

On August 17 and 18, 1999, the Division of Administrative Hearings received ex parte communications from third parties on Respondent's behalf. By letter dated August 18, 1999, the ex parte communications were published pursuant to Section 120.66(2), Florida Statutes. Petitioner filed a letter dated August 23, 1999, objecting to the above-referenced ex parte communications.

During a telephone conference on August 26, 1999, the undersigned advised the parties that the Division of Administrative Hearings had received additional ex parte communications on August 23, 1999. An Order Prohibiting Ex Parte Communication was entered on August 26, 1999. The undersigned has not considered the substance of any ex parte communication in determining the findings of fact and conclusions of law set forth in this Recommended Order.

A Transcript of the proceeding was filed on September 3, 1999. The parties filed their Proposed Recommended Orders on September 23, 1999.

FINDINGS OF FACT

1. Petitioner hired Respondent as a school teacher under a Professional Service Contract for the 1997-1998 school year. Respondent's duties included teaching physical education and serving as head basketball coach at Dunnellon High School in Dunnellon, Florida.

2. At all times material to this case, Bobby James was Respondent's principal. Sometime during the 1997-1998 school year, but prior to the incident at issue here, Mr. James had reason to counsel Respondent and the school's wrestling coach. Mr. James advised both teachers that they should not patronize a nightclub known as Party Central. 1/ Mr. James felt that such places were not appropriate for educators. 2/

3. On April 9, 1998, Mr. James performed an annual teacher assessment for Respondent. Mr. James found that Respondent met all acceptable standards. Mr. James concluded that Respondent did not have any professional areas that needed improvement.

4. On the evening of May 9, 1998, around 11:00 p.m., Respondent and his then fiancée, Theresa Casko, went to Party Central/Shark Attack with one of their male friends, Mike MacGuymo. 3/ The purpose of the night out was to celebrate the 21st birthday of Ms. Casko's male cousin, Jason Tovine.

5. During the evening, Ms. Casko began dancing with Tammy Burke and several of the club's male customers. Both Ms. Casko and Ms. Burke had been drinking alcoholic beverages.

6. Respondent was drinking alcoholic beverages but he was not dancing. Respondent became upset with the manner in which a male customer was dancing behind Ms. Casko. Respondent repeatedly went on to the dance floor in an attempt to persuade his fiancée to leave the establishment.

7. Shortly after midnight, on the morning of May 10, 1998, Respondent and Ms. Casko began arguing at the edge of the dance floor. Respondent took Ms. Casko by the arm and went outside with her. Ms. Casko's cousin followed them.

8. The argument between Ms. Casko and Respondent continued in the parking lot of Party Central/Shark Attack because she did not want to leave the club. Respondent also became angry with Ms. Casko's cousin and grabbed him by the face. At that point, Ms. Casko stepped in between them and began hitting Respondent. During the altercation, Respondent struck Ms. Casko. There is no persuasive evidence that Respondent intentionally struck

   Ms. Casko.

   
   

9. Ms. Casko gave Respondent his engagement ring and walked across the street in the area of a mobile home sales company. Respondent followed her. Ms. Casko told Respondent to get away from her and walked back across the street to the parking lot of Party Central/Shark Attack. Respondent remained in the vicinity of the parking lot of the mobile home sales company.

10. The bouncer from the Party Central/Shark Attack observed the argument and the struggle between Respondent,

    Ms. Casko, and her cousin. The bouncer had seen Respondent hit Ms. Casko. He asked the club's manager to call the police.

11. In the meantime, Officer Harold Compton was flagged downed by someone in the parking lot as he drove past the club. Soon thereafter, three other officers arrived in their patrol cars.

12. The bouncer told Officer Compton that Respondent had hit Ms. Casko. Officer Compton then went across the highway and down the street in his patrol car to look for Respondent. Officer Wayne Sellers and Officer Tommy Ketner also drove across the street to look for Respondent.

13. Officer Nick Viaggio stayed with Ms. Casko in the club's parking lot. Ms. Casko told Officer Viaggio and Tammy Burke that Respondent had hit her but that she did not want to press charges and that she did not need medical treatment. Calls made to the Ocala Fire Rescue Emergency Medical Service and the Munroe Regional Medical Center Ambulance Service to provide

    Ms. Casko with medical treatment were cancelled.

    
    

14. Officer Compton eventually located Respondent and asked him to get in Officer Ketner's patrol car so that they could return to the Party Central/Shark Attack parking lot. Respondent was cooperative.

15. When the police returned to the club's parking lot with Respondent, Officer Compton interviewed Ms. Casko and determined that he had probable cause to arrest Respondent for domestic

    violence. Upon learning that he was arrested and going to jail, Respondent became belligerent.

16. As the officers attempted to handcuff Respondent, he backed away from them, tensed up his arms and shoulders, and began to utter profanity. The officers had to hold Respondent against the hood of a patrol car in order to put the cuffs on him.

17. Ms. Casko began to plead with the officers to let Respondent go home with her. She told Respondent she wanted her ring back. The ring was in Respondent's pocket.

18. Officer Compton and Officer Sellers walked Respondent over to Officer Compton's patrol car because he was the arresting officer. Ms. Casko followed trying to get the ring from Respondent. A crowd gathered as people began to leave the club.

19. About the time that the officers and Respondent reached Officer Compton's vehicle, a call came through from a police officer in another location asking for assistance. Officer Viaggio got in his car and started to leave to respond to the emergency call.

20. Respondent refused to get in the police car as directed by Officers Compton and Sellers. Instead, he turned to talk to Ms. Casko and to try to give her the ring. As Respondent turned to face Ms. Casko, he accidentally butted Officer Sellers in the head, leaving him stunned.

21. Seeing that Officer Sellers was stunned and believing that Respondent might strike Officer Sellers again, Officer Compton sprayed Respondent's face with pepper spray. Respondent then began to struggle vigorously. Officer Viaggio rushed to assist in restraining Respondent. Eventually, the officers were able to subdue Respondent on the ground. They had to warn

    Ms. Casko and others to stand back out of the way.

    
    

22. There was a large crowd in the club's parking lot. Consequently, the police officers took Respondent back across the road to await medical assistance to treat Respondent for injury due to pepper spray. The Ocala Fire Rescue Emergency Medical Service terminated its response because the Munroe Regional Medical Center Ambulance Service had arrived on the scene.

23. The ambulance service medics irrigated Respondent's eyes with a saline solution. They also washed pepper spray from the hands of the officers. The medics wiped Respondent's face with a towel. They gave towels to the officers.

24. Officer Compton then took Respondent to the jail. Respondent was released the next day. The State Attorney charged Respondent with resisting a law enforcement officer with violence, battery on a law enforcement officer, and domestic violence battery.

25. On March 18, 1999, Respondent was tried on reduced charges of resisting arrest without violence and battery on a law enforcement officer. During the criminal trial, Respondent and

    his wife, formerly Ms. Casko, testified that Respondent did not strike her in the early morning hours of May 10, 1998.

    Respondent also testified that he received no medical attention whatsoever for his eyes before arriving at the jail. He stated that it was a "preposterous lie" that a rescue squad had irrigated his eyes across the street from the club. The jury acquitted Respondent of all charges. 4/

26. Petitioner suspended Respondent without pay on or about June 23, 1998.

27. On or about July 21, 1998, before Respondent was acquitted, Mr. James made a public statement that was reported in the local newspaper. Mr. James indicated that he substituted another teacher in Respondent's coaching job because of the unresolved criminal case against him and not because of his professional performance. Specifically, Mr. James's comments included the following:

    Barry is to be commended for the tremendous job that he has done. No matter what happens, that is something you can't take away from anyone. He is an excellent coach and teacher.

    
    

28. Mr. James's duties as principal include assessing the performance of teachers under his supervision. In making such assessments, Mr. James considers the teaching ability and classroom performance of teachers. He also considers the effectiveness of teachers in light of their presentation of

    themselves to their students, parents, and the community, i.e., as role models and counselors.

29. Mr. James testified that he could not recommend retaining any teacher who was not "up front," trustworthy, and loyal. According to Mr. James, a teacher needs to maintain the highest standards and be able to give students the best possible advice.

30. During the hearing, Mr. James testified that he would not recommend that Respondent be retained as a teacher.

    Mr. James based his decision on his reading of the criminal trial transcript, information in Joint Exhibit 2, 5/ Respondent's failure to heed the prior admonition not to patronize nightclubs like Party Central/Shark Attack, and the assumed impact of his performance if he were to be reinstated. Specifically, Mr. James stated as follows:

    The jury [in the criminal trial] that tried his [Respondent's] case had no bearing on my recommendation to the superintendent. The jury that tried his case is the jury of the young people that I have and the parents of those folks.

    
    

31. Dr. John D. Smith, Superintendent of Marion County Schools, testified that he had: (a) read the criminal trial transcript; (b) considered information presented by his support staff; (c) considered Mr. James's recommendation to terminate Respondent's employment; (d) considered Joint Exhibit 2; (e) read newspaper articles relative to the May 10, 1998, incident; and

    (f) consulted with three members of the school advisory council of Dunnellon High School.

32. Dr. Smith determined that Respondent should be terminated because of his questionable integrity. Dr. Smith did not believe that Respondent was trustworthy to be responsible for supervising, advising, and influencing students, especially in situations beyond the classroom or where he is the only adult present, such as field trips, athletic events, and club activities.

33. Dr. Smith concluded that Respondent would no longer be effective as a teacher. He reached this conclusion in part based on his consultations with the three members of the student advisory council. Respondent did not present any evidence from students, parents, his colleagues, or community members regarding his continued ability to be an effective teacher.

    CONCLUSIONS OF LAW

    
    

34. The Division of Administrative Hearings has jurisdiction over the parties and the subject mater of this proceeding pursuant to Sections 120.569, 120.57(1), and 231.36, Florida Statutes.

35. Petitioner has the burden of proving by a preponderance of the evidence that just cause exists for terminating Respondent's professional service contract. Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990);

    Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

36. The Amended Recommendation for Dismissal of Professional Service Contract Teacher, with Supporting Charges states in pertinent part:

    1. On or about May 10, 1998, Respondent appeared intoxicated in a public place and conducted himself publicly in a manner inconsistent with maintaining the respect and confidence of his colleagues, students, parents and other members of the community, inconsistent with valuing the worth and dignity of every person and inconsistent with maintaining a high degree of ethical conduct.

    2. On or about May 10, 1998, Respondent knowingly and willfully resisted, obstructed or opposed Ocala Police Department officer in the lawful execution of their arrest or detention of Respondent by offering or doing violence to the persons of said officers.

    3. On or about May 10, 1998, Respondent knowingly and intentionally touched or struck an officer of the Ocala Police Department against the will of the officer while knowing the officer was engaged in a lawful performance of his legal duties.

    4. During his criminal trial on or about March 26, 1999 (sic), Respondent did, knowingly and willfully, utter false statements while under oath with the intention of misleading the tribunal and concealing the truth.

37. Respondent was hired under a professional service contract pursuant to Section 231.36(3)(a), Florida Statutes. Section 231.36(1)(a), Florida Statutes, provides as follows in pertinent part:

    . . . All such contracts . . . shall contain provisions for dismissal during the term of the contract only for just cause. 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.

    
    

38. Section 231.36(6)(a), Florida Statutes, provides as follows in pertinent part:

    (6)(a) Any member of the instructional staff

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

    
    

39. Immorality and drunkenness were eliminated as specified grounds constituting just cause for suspension or dismissal of instructional personnel when the statutes were amended in 1982. Compare Section 231.36(6), Florida Statutes (1981), with Section 231.36(6), Florida Statutes (Supp. 1982). 6/

40. "Misconduct in office" is the only statutorily- specified grounds for terminating Respondent's employment that is applicable here. Rule 6B-4.009(3), Florida Administrative Code, provides as follows:

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession so serious as to impair the individual's effectiveness in the school system.

    
    

41. The Code of Ethics of the Education Profession in Florida is set forth in Rule 6B-1.001, Florida Administrative Code, which states as follows:

    1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of

       these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

    2. The educator's primary professional concern will always be for the student and for the development of the student's potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.

    3. Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.

42. In McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2nd DCA 1996), the court stated as follows:

    Thus, in order to dismiss a teacher for immoral conduct the fact finder must conclude: a) that the teacher engaged in conduct inconsistent with the standards of public conscience and good morals, and

    b) that the conduct was sufficiently notorious so as to disgrace the teaching profession and impair the teacher's service in the community. (citations omitted.)

43. The court in MacMillan v. Nassau County School Board, 629 So. 2d 226, 230 (Fla. 1st DCA 1993) cited Baker v. School Board of Marion County, 450 So. 2d 1194 (Fla. 5th DCA 1984) for the following proposition:

    [P]ublicity attendant to allegations of misconduct in office and immorality was not, of itself, a proper basis for a finding of impaired effectiveness as a teacher.

    
    

44. MacMillan, 629 So. 2d at 230, quotes with approval the following conclusion of the hearing officer regarding the issue of effectiveness:

    The testimony that Respondent's actions establish a pattern of serious misconduct is not borne out by the record evidence, nor has it been established that Respondent's actions have rendered him so ineffective as a teacher that he should be dismissed in the face of affirmative evidence of good teaching skills. It also has not been established how Respondent's proven conduct, when separated from the allegations not proven, affected Respondent's employment or effectiveness in the community apart from the notoriety resulting from Petitioner's own investigation.

45. In Sherburne v. School Board of Suwannee County, 455 So. 2d 1057, 1061 (Fla. 1st DCA 1984), the court stated as follows:

    Additionally, the Board's evidence fell far short of establishing that appellant's [extramarital] relationship with Palmer was "community knowledge" prior to the time the matter was publicized by the Board's denial of her continuing contract and the attendent [sic] litigation spawned by such denial.

    Certainly, the Board could not justify its granting of an annual contract, withdrawal of that contract, and the denial of a continuing contract, upon the ground that the relationship was "community knowledge" where that knowledge resulted after-the-fact from the Board's own activities. (citations omitted.)

46. In the instant case, Respondent was drinking alcohol in a public place that he had been advised not to patronize. However, he was not intoxicated.

47. Respondent conducted himself inappropriately when he grabbed Ms. Casko's cousin by the face. He then participated in an ensuing struggle, which resulted in his unintentional striking of Ms. Casko.

48. Respondent resisted the police officers when they were trying to handcuff him. He resisted them again as he struggled to communicate with Ms. Casko after the officers directed him to get in Officer Compton's patrol car. However, there is no persuasive evidence that Respondent deliberately butted Officer Compton in the head.

49. Respondent testified falsely in his criminal trial when he stated that he did not receive medical treatment for injuries to his eyes for pepper spray. This false testimony undoubtedly served to impeach the credibility of the three police officers who testified at the criminal trial.

50. Petitioner has proved that Respondent engaged in conduct that violates the standards of public conscious and good morals. Likewise, Respondent has proved that Respondent's behavior violated the Code of Ethics of the Education Profession as set forth in Rule 6B-1.001, Florida Administrative Code. Nevertheless, Petitioner has not proved that Respondent's inappropriate behavior has impaired his effectiveness as a teacher within the community.

51. Mr. James's statements to the local newspaper about Respondent's outstanding performance as a coach and a teacher and Respondent's subsequent acquittal in his criminal trial substantially undermine any adverse publicity associated with Respondent's behavior on May 10, 1998. There is no evidence that Mr. James's recommendation to terminate Respondent was based on

    in-put from students, parents, or community members who believed that Respondent would no longer be effective as a teacher.

52. Dr. Smith concluded that Respondent would not be effective as a teacher in part due to his contact with three members of the school advisory council who affirmed his opinion. Petitioner did not present the testimony of those council members. More importantly, Petitioner did not present evidence distinguishing what the reaction of Dr. Smith, Mr. James, or the council members would have been absent evidence that Respondent testified falsely at his criminal trial.

53. The Office of the State Attorney prepared Joint Exhibit Two. There is no evidence that the State Attorney had charged Respondent with perjury or intended to do so. There is no evidence that Respondent's false testimony at his criminal trial was "common knowledge" prior to Petitioner's introduction of it in the instant case.

54. Respondent did not present evidence regarding the impact of his behavior on the public's perspective of his ability to be effective as a teacher. Even so, the evidence presented by Petitioner is insufficient to warrant dismissal.

RECOMMENDATION

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

RECOMMENDED:

That Respondent be reinstated in a teaching position with back pay and benefits lost during his suspension.

DONE AND ENTERED this 4th day of October, 1999, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of October, 1999.

ENDNOTES

1/ The nightclub referred to as Party Central is also referred to at times by other names such as the Painted Horse Saloon, the Coach and Paddock, and Shark Attack.

2/ Mr. James was concerned because the wrestling coach had been involved in a scuffle at the nightclub. The wrestling coach was subsequently suspended from his teaching position.

3/ Ms. Casko and Respondent are now married.

4/ The jury did not hear testimony from Dackory Williams, one of the medics from the Munroe Regional Medical Center Ambulance Service, who responded to the scene on May 10, 1998, and irrigated Respondent's eyes with saline solution. Instead, the jury heard testimony relative to ambulance and fire rescue units that responded to calls to provide medical treatment to

Ms. Casko, but which were subsequently cancelled.

5/ Joint Exhibit 2 corroborates other evidence concerning the first aid rendered to Respondent for pepper spray injuries on May 10, 1998.

6/ Section 231.36(6)(b), Florida Statutes (1997), includes immorality and drunkenness as additional grounds for suspending or dismissing members of the school district's administrative or supervisory staff. Section 231.36(6)(b), Florida Statutes, is not applicable here.

COPIES FURNISHED:

William C. Haldin, Jr., Esquire James L. Richard, Esquire Richard, Blinn & Haldin

808 South East Fort King Street Ocala, Florida 34471

Mark D. Shelnutt, Esquire

421 South Pine Street Ocala, Florida 34474

Berverly Lambert-Morris, Esquire Pattillo, McHever & Bice, P.A. Post Office Box 1450

Ocala, Florida 34478-1450

Dr. John D. Smith, Superintendent Marion County School Board

Post Office Box 670

Ocala, Florida 34478-0670

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

The Honorable Tom Gallagher Commissioner of Education Department of Education

The Capitol, Plaza Level 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: 99-001896

Orders for Case No: 99-001896