STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 99-2636

)

TIMOTHY S. FALLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 13, 1999, in Largo, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jacqueline M. Spoto, Esquire

Pinellas County School Board

301 Fourth Street, Southwest Post Office Box 2942

Largo, Florida 33779-2942

For Respondent: Mark Herdman, Esquire

Herdman and Sakellarides, P.A. 2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether Petitioner, the Pinellas County School Board (the "School Board"), should discipline Respondent, a teacher at Palm Harbor

University High School ("Palm Harbor"), for classroom discussions provoked by the Columbine High School tragedy.

PRELIMINARY STATEMENT

By letter dated May 26, 1999, Dr. J. Howard Hinesley, Jr., the Superintendent of Pinellas County School Board, notified Respondent that he would recommend to the School Board that Respondent be suspended for ten days without pay for certain statements made in his classes on April 21, 1999, the day following the tragedy at Columbine High School in Littleton, Colorado. Specifically, the Superintendent alleged that Respondent drew a diagram of a pipe bomb on the board and described its components in detail, explained to students where a pipe bomb should be placed to maximize damage, and that this discussion occurred in several of Respondent’s classes. The Superintendent alleged that Respondent’s actions violated School Board Policy 8.25(1)(v), Rules 6B-1.001(2)&(3) and

6B-1.006(3)(a), Florida Administrative Code, and that the suspension was justified pursuant to Section 231.36(1), Florida Statutes.

By letter dated June 2, 1999, Respondent requested a formal hearing on the recommended suspension. On June 14, 1999, Petitioner forwarded the matter to the Division of Administrative Hearings for assignment of an Administrative Law Judge and the conduct of a formal administrative hearing in this matter,

pursuant to Section 120.57(1), Florida Statutes. The case was assigned to the undersigned and scheduled for hearing on September 13, 1999.

At the final hearing, Petitioner presented the testimony of Deputy Peter Kolnicki of the Pinellas County Sheriff’s Office; Alec Liem, Principal of Palm Harbor; Martha O’Howell, an administrator in the Office of Professional Standards, Pinellas County School Board; Bill Williamson, Area I Superintendent of Pinellas County School Board; Sergeant John Davis, Jr. of the Pinellas County Sheriff’s Office; and Dr. Hinseley, Superintendent of Pinellas County School Board. Respondent testified in his own behalf.

Petitioner’s Exhibits 1-17 were admitted into evidence.

Respondent’s Exhibit 1 was admitted into evidence.

A Transcript of the final hearing was filed at the Division of Administrative Hearings on September 30, 1999. Respondent filed a Proposed Recommended Order on October 13, 1999.

Petitioner filed a Proposed Recommended Order on October 14, 1999.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:

1. Since August 1994, Respondent has been employed as a high school classroom teacher by the Pinellas County School Board.

2. During the 1998-1999 school year, Respondent taught world history, economics, honors economics, and law studies at Palm Harbor. He was also an assistant coach for the junior varsity football team.

3. Prior to becoming a teacher, Respondent spent 15 years in the United States Air Force. During his military career, Respondent received extensive counter-terrorist training, including an individual terrorism awareness course aimed at instructing students on how to teach others to limit their vulnerability to terrorist selection and attack.

4. Respondent came to teaching through the Department of Defense’s "Troops to Teachers" program, in which the military assists placement of retiring soldiers by paying a portion of their teacher salaries.

5. On April 20, 1999, two students at Columbine High School in Littleton, Colorado, killed twelve of their fellow students and one teacher. The incident received massive press coverage.

6. Pinellas County school administrators anticipated that the events at Columbine would be a matter of discussion in the schools the next day. Dr. Hinesley, the Superintendent of Pinellas County Schools, testified that his office made a "general communication" to all principals reminding them to have

   a safety plan and to calm the fears of parents and students. He testified that he left it up to the individual principals to decide whether to meet with their faculties to discuss a coordinated response to questions regarding Columbine.

7. Bill Williamson, the Area I Superintendent directly responsible for Palm Harbor, testified that putting together a cohesive message for teachers to give students regarding Columbine was "an alternative," but that some individuals would have questioned the wisdom of a "boilerplate" message.

8. Alec Liem, the Principal of Palm Harbor, testified that he made no communication to his teachers on the morning of April 21, 1999, as to how they should discuss Columbine with

   their students. He testified that the teachers are professionals and he expects them to teach their classes with the appropriate judgment, without specific direction from the principal.

9. Mr. Liem testified that it was important for him as a school leader to present the issues to the school and discuss them openly. He went on the school’s closed circuit television system on the morning of April 21 and acknowledged that a tragedy had occurred on a high school campus in Colorado. He told the students that it was important they respect each other and recognize their differences as strengths, not weaknesses. He encouraged them to broaden their circles of friendship, to work closely with him to monitor safety on the campus, and to be "part of the solution and not part of the problem."

10. Mr. Liem testified that his announcement was intended to set the tone for the day. He assumed that teachers would "follow that leadership in the classroom and provide opportunities for those types of discussions in the classroom."

11. Respondent taught five periods of classes on April 21, 1999. He testified that there was no discussion of Columbine during first period, though he called for a moment of silence for the families after the Pledge of Allegiance.

12. Respondent stated that the students in his second period class were "abuzz" over Columbine as they entered the classroom, and he therefore believed he should address the issue before commencing the day’s world history lesson.

13. Respondent testified that this class was more inquisitive than the first, and asked many questions about events at Columbine. One student asked, "What’s a pipe bomb?" Respondent stated that another student piped up to give the address of an Internet site containing instructions on making pipe bombs. Respondent cut off the second student before he could give the address, saying, "We don’t need to do that. A pipe bomb is very devastating."

14. Respondent testified that he told the students they need not be afraid of pipe bombs, because the investigation is likely to reveal that someone at Columbine knew what these students were up to and didn’t report it. He instructed his students to "keep a thumb on the pulse of people around you," to

    listen for threatening statements or hate sayings, to observe whether someone spends an inordinate amount of time on the Internet or reading "Soldier of Fortune" type publications, to note when "you see something like a pipe laying there" in someone’s house, and to report such things to school authorities.

15. At this point, the students asked, "How will we know? What does a pipe bomb look like?" Respondent drew a simple sketch of a pipe bomb on the board. The drawing showed a pipe with caps on both ends, and a tail on one end representing a fuse. Respondent told the students that if they see a fellow student working on something that looks like this, they should report it.

16. A student next asked what makes this device so deadly. Respondent answered that the maker will put "nails or something" in the pipe to do harm. He told the class that if they noticed someone taking a piece of pipe with end caps and packing it with nails or tacks "and possibly black powder," then they should report it.

17. Respondent testified that his statements could not be termed "instructions" on how to construct a pipe bomb. He testified that he does not know how to construct a pipe bomb. He also stated that neither his drawing nor his discussion dealt with detonating devices such as blasting caps. The "fuse" he drew on the board was merely illustrative, not the means to actually detonate such a device.

18. Respondent testified that nothing he said could be taken as encouragement to construct a pipe bomb. He emphasized to his students the extreme danger involved in dealing with explosives and that the most likely victims of pipe bombs are the people constructing them.

19. A student then said that if someone threw a pipe bomb into the cafeteria at Palm Harbor, he would run from it. Respondent told the class that "terrorists don’t work that way. Terrorists will find where we’re most vulnerable to pre-place the bomb and then try to get you to circle in that area to detonate it."

20. The students asked specifically about vulnerable areas of Palm Harbor, inquiring as to where they should look for bombs. Respondent spoke generally about being aware of their surroundings, and notifying the teacher if they walk into a classroom and see, for example, a backpack that doesn’t belong there.

21. While emphasizing that the best protection is to spot a bomb before it has been placed, Respondent discussed the vulnerable areas of Palm Harbor: the library, the cafeteria, and the portable classrooms located in an open field behind the school. Respondent stated that the portables were a particular concern because the student population is evacuated to that area during fire drills or bomb threats.

22. Respondent testified that the sketch of the pipe bomb may have stayed on the board for the remainder of the day. He testified that discussions similar to that held in second period also occurred during his fourth and fifth period classes. Respondent stated that none of these discussions lasted for more than five minutes, and that he completed his planned lesson in each of his five classes on April 21, 1999.

23. Respondent testified that his purpose was to protect his students from harm. He believed the best way to do this was to empower them with knowledge of things they should look for around them, warning signs of the kinds of activities that culminated in the Columbine tragedy. His students were aware of his military background, and naturally came to him with technical questions regarding the previous day’s events.

24. Respondent testified that he did not really think that all of his students were now able to go out and spot someone building a pipe bomb, but that "now they feel better knowing that they know how these people work, and they feel safe at school."

25. On April 22, 1999, Robert Heinz, an Assistant Principal at Palm Harbor, received an anonymous phone call from a woman identifying herself as the parent of a Palm Harbor student. The caller told Mr. Heinz that Respondent had shown the class how to construct a pipe bomb and told the class that the most devastating impact on the school could be achieved by placing the bomb in a portable classroom, pulling the fire alarm to cause the

    students to assemble in the area of the portables, then detonating the bomb.

26. Mr. Heinz reported the phone call to Mr. Liem, who instructed him to call the Office of Professional Standards ("OPS") and get specific directions on how to proceed. Mr. Heinz called OPS and spoke with Martha O’Howell, who is one of two OPS staff members who investigate allegations of employee misconduct and make recommendations as to discipline. Ms. O’Howell instructed Mr. Heinz to inform the School Resource Officer ("SRO"), the Pinellas County Sheriff’s Deputy assigned to Palm Harbor. Ms. O’Howell also contacted the SRO, Deputy David Webb.

27. Deputy Webb contacted his superior, Sergeant John Davis, Jr., and told him he did not wish to conduct the investigation because it involved a teacher with whom he worked on a daily basis. With Sergeant Webb’s consent, Deputy Webb handed the investigation over to Deputy Peter Kolnicki, a substitute SRO who was scheduled to work at Palm Harbor on April 23, 1999.

28. Deputy Webb phoned Deputy Kolnicki on the evening of April 22 to brief him on the matter. Deputy Webb provided Deputy Kolnicki with a list of students in Respondent’s classes. Deputy Webb highlighted certain names on the list as the best students to interview about the incident. Deputy Kolnicki stated that Deputy Webb believed these students "would be more truthful than others in the class."

29. Deputy Kolnicki’s written report provides his summation of interviews with eleven students conducted on April 23, 1999. The student list provided by Deputy Webb contains handwritten notes by Deputy Kolnicki next to the names of more than eleven students, but the names of those students are mostly illegible. The written report indicates that five of the eleven students did not see a sketch of a bomb or hear Respondent discuss placement of a bomb during class, though one of the five stated that he heard from other students that Respondent drew a diagram of a bomb on the blackboard at some point during the day.

30. The other six students generally corroborated Respondent’s version of events. Some of the students’ written statements were riddled with spelling and grammatical errors. In the interest of readability, the undersigned has corrected the more egregious errors without notation. Student E.A. wrote:

    The class was talking about the Colorado shooting and saying that the guys must have been pretty smart to make bombs. Some kids said no, anyone can make a bomb and you can find out from anywhere on the internet. We were all talking and saying that anyone who had the resources could make one. Coach Falls drew a sketch of a pipe bomb on the board because a student asked what one was. He explained what happened when one blew up. I didn’t think anything of the whole conversation. Coach treats us like adults

    
    

    and we carry on conversations all the time. To me, this was just a bunch of people talking about a big situation.

    
    

    He also said that a smart place to put it would be out by the portables.

31. Student M.B. wrote:

    
    

    All I know is that Coach Falls drew a drawing on the board of a pipe bomb to show how easily kids have accessibility to it and how easy it was for kids to make it and anyone could do it. He did talk of where would be a good place to put one, but no one took it as serious talk. He wasn’t teaching us where to put a bomb, he was just showing how kids misinterpret things and how we need to catch them right away. (He said to put it in the portables.)

32. Student M.D. wrote:

    
    

    Coach Falls was telling us how anyone who got mad enough had the resources to be able to make a home bomb. He was telling us how it wasn’t hard to find the information on how to build one. He then drew a diagram of the kinds of things that could be used to build one. I personally didn’t think anything of it. He said that the place to put it would be a portable.

33. The three statements quoted above are similar not just in content but in form. Of particular note is the fact that each student mentions placing the bomb in the portables only parenthetically at the end of her statement. This fact leads to the inference that Respondent’s discussion of bomb placement made little impression on these three students, and that Deputy Kolnicki had to jog their memories at the conclusion of their statements to obtain any mention of this discussion.

34. Student C.D. wrote as follows:

    
    

    On 4-21-99, Mr. Falls was discussing the events in Littleton, Colorado, the day before. The discussion turned to the bombs used in the assault. Mr. Falls told how the main part of the bomb was made, he also drew a diagram. He told how shrapnel was placed

    in the bottom of the casing, then the black powder and topped with more shrapnel and finally sealed with a fuse. Mr. Falls went further to say that most deaths associated with pipe bombs occurred during assembly. He also told us the most effective location would be one of the portables. He finished with telling us the consequences of even being in possession of bomb making materials and that plans (even for an atom bomb) could be found on the internet. Mr. Falls also added that the only reason he felt it necessary to demonstrate this was it was history in [the] making and we should know more about what happened in Colorado and we should be equally informed of the problems at hand.

35. Deputy Kolnicki’s written report concluded as follows:

    
    

    Each student spoke very highly of Coach Falls and said that he was the most popular teacher on the campus. All of the students said that they did not believe Falls was trying to give them ideas on how to make a bomb or [where] to place it, but was simply trying to educate them about the Colorado incident and drew the diagram so that should a student come across such a device, they would recognize it and notify the faculty.

36. Deputy Kolnicki testified that in his opinion it was a good idea to educate students about the existence of bombs and where to look for them. He testified that, based on his conversations with the students, he had no reason to believe that Respondent was doing anything other than trying to help his students protect themselves.

37. Mr. Liem, the Principal of Palm Harbor, testified that his understanding of the facts was based on his reading of the police report and meetings with Respondent. He did not speak directly with the students. Mr. Liem stated that Respondent’s

    actions raised great concerns about the safety of the school and students, and created an atmosphere on campus that could exacerbate the existing climate of fear in the aftermath of Columbine. He was concerned with the potential for "planting seeds" with impressionable students by discussing the components and placement of pipe bombs in such detail. Mr. Liem was especially concerned that the discussion occurred in more than one class, an indication that Respondent was initiating the discussion rather than responding to student questions.

38. Mr. Liem testified that Respondent put the students at risk of harm, though he did not believe such was Respondent’s intention. He testified that it is inappropriate under any circumstances to draw a diagram of a pipe bomb. Mr. Liem stated that it would be sufficient to tell the students that a pipe bomb is an explosive device in a pipe, without going into great detail. He stated that a student could be made aware of what a pipe bomb looks like without being instructed in its components.

39. Ms. O’Howell similarly testified that the School District’s concern was not the fact that pipe bombs were discussed in the context of Columbine, but that "the specificity of the conversation went too far. It wasn’t necessary, the components of the pipe bomb, the how-to placement." She stated that discussion of placement of bombs in the portables was not "a necessary part of an awareness discussion."

40. Unlike Mr. Liem, Ms. O’Howell testified that the sketch drawn by Respondent was acceptable. She stated that her discussions with Respondent led her to believe that he discussed placement of the bomb in the portables in the context of "doing maximum damage," and that Respondent did not mention having discussed bomb placement in other locations.

41. Ms. O’Howell discussed Pinellas County Schools’ "Disciplinary Guidelines for Employees," Board Policy 8.25, which Respondent allegedly violated. She agreed that, of the 26 separate offenses listed in the policy, Respondent was charged with violating only Policy 8.25(1)(v), "Misconduct or Misconduct in Office." She disagreed that this is a "catch-all" offense, but conceded that "misconduct" is nowhere defined in the policy, and that the term is applied essentially on a case by case basis.

42. Mr. Williamson, the Area I Superintendent, based his understanding of the facts on his review of the police report and the students’ written statements, as well as discussions with other administrators. He did not speak to Respondent or anyone else with direct knowledge of the events in the classroom.

43. Mr. Williamson concurred with the recommendation that Respondent receive a ten-day suspension without pay. His chief concerns were that the remarks were "ill-timed" in light of the Columbine events, with the potential for encouraging "copycat" crimes, and that the conversations appeared to be teacher directed because they occurred in more than one class. He agreed

    that the drawing of the bomb was itself unobjectionable, but that discussion of the components of a pipe bomb and its placement for maximum impact were entirely inappropriate because "Mr. Falls does not know the mental state of every student in his class."

44. Mr. Williamson testified that he received no phone calls complaining of Respondent’s actions, but that he was approached by two members of the School Board at a breakfast meeting. These School Board members told him they had heard complaints that this was "an outlandish kind of conversation to have, period, much less following the tragedy that occurred at Columbine." Mr. Williamson did not state whether the complaints had come from persons with first hand knowledge of what happened in Respondent’s classroom.

45. Dr. Hinesley, the Superintendent, testified that he did not believe Respondent was trying to teach his students how to build a bomb, "but the outcome . . . could have very easily been that." Like the other administrators, Dr. Hinesley saw no problem in a teacher conducting a general "safety awareness" discussion of pipe bombs, but was disturbed by the detail and specificity of Respondent’s discussion as it was reported to him.

46. Dr. Hinesley testified that his recommendation for discipline was based on the report he received from Mr. Liem, with which he concurred, and on the fact that Respondent appeared to show no remorse for his actions. Dr. Hinesley recommended a ten-day suspension in part by analogizing this case to cases in

    which students make threats. In both situations, he stated, the primary concern is that statements were made that presented a threat to the safety of students. Dr. Hinesley made no mention whether he considered the disciplinary guidelines for employees found in Pinellas County Schools Policy 8.25(3) in recommending discipline for Respondent.

47. In summary, it is found that Respondent conducted his discussion with the intent of teaching his students to protect themselves. No evidence was presented to contradict Respondent’s statements in this regard. Indeed, most of the administrators who testified conceded that Respondent’s intentions were salutary.

48. Nonetheless, it is found that the administrators’ concerns with the impact of the discussion were rational and well taken. While the evidence indicates that all of the students interviewed took Respondent’s presentation as he intended it,

    Mr. Williamson correctly pointed out that Respondent could not know the mental state of every student in his classroom.

    Respondent himself conceded that "I don’t know if a kid, when they leave my class for World War II, if they realize how bad the Nazis were or if these guys, in their own little demented mind, might go out and think, 'Hey! White power!'" Respondent simply expressed the hope that his students understood the context of his message, but admittedly did not know whether some student

    might make pernicious use of the information imparted in those discussions.

49. The administrators also acknowledged that Columbine was an unprecedented event. In the immediate aftermath, no uniform response was provided by the Superintendent to the principals, and Mr. Liem in turn left the response to the individual teachers. Mr. Liem’s statement to the student body on the morning of April 21, 1999, while sounding the noble sentiment of reaching out and broadening circles of friendship, plainly was no answer to the practical questions students were asking. It was only natural that Respondent’s students, aware of his military background and training, would come to him for answers. With the best intentions, Respondent provided more technical detail than was necessary to answer those questions.

50. Several of the administrators observed that Respondent’s actions were more egregious because they were so "ill-timed" in light of Columbine. It is found that Columbine plainly triggered the classroom discussions. Just as plainly, the fear generated by Columbine triggered the administration’s heavy handed response, which evinced less interest in understanding the context of the classroom discussion than in quickly and harshly punishing Respondent.

51. Respondent testified that students came to him and told him that Deputy Kolnicki’s "interviews" consisted of sitting them down and asking two questions: "One, did you draw a pipe bomb on

    the board, and, two, did you mention the word 'portables?'" This is probably a subjective overstatement of Deputy Kolnicki’s actions, but is partially corroborated by the fact that three of the students’ written statements mention "portables" only as a parenthetical afterthought, at the obvious prodding of their interlocutor.

52. Respondent also testified that at his four meetings with Mr. Liem and Ms. O’Howell, they appeared more interested in forcing him to express remorse and accept his punishment than in learning his version of events.

53. Respondent also testified that he was not informed of his right to representation until the end of the second meeting with Ms. O’Howell and Mr. Liem. Ms. O’Howell disputed this statement, saying Respondent was informed of his rights prior to the second meeting. Even if Ms. O’Howell’s version of events is credited, the fact remains that one interrogation occurred without Respondent’s being informed of his right to representation.

54. Dr. Hinesley’s basis for recommending a ten-day suspension was arrived at by likening Respondent’s statements to overt threats made by students. This reasoning is irrational even if one concedes that "student safety" is a concern in both instances. Dr. Hinesley’s logic would result in equivalent discipline being administered to a student threatening to bomb the school and a teacher providing information to students in an

    overzealous effort to teach them to protect themselves from a bomb. The two situations are not comparable.

55. In conclusion, it is found that Respondent’s drawing and discussion of the construction of a pipe bomb and his discussion of the logistics of bomb placement did indeed go beyond what was necessary to ease the fears of his students after Columbine.

56. It is also found that the administration of Palm Harbor and Pinellas County Schools overreacted to the situation in a similar effort to ease the fears of the public after Columbine. Once it was reported that, on the day after the Columbine tragedy, a teacher had shown students how to construct a pipe bomb and where to place it, the actual facts of the situation appear to have mattered less than swift and relatively harsh punishment of the alleged offender.

    CONCLUSIONS OF LAW

    
    

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

58. Petitioner has the burden of establishing by a preponderance of the evidence that the actions of Respondent warrant his suspension or lesser discipline. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

59. The School Board has the authority to suspend instructional staff and other school employees pursuant to Section 230.23(5)(f), Florida Statutes, subject to the procedures set forth in Chapter 231, Florida Statutes.

60. Petitioner concedes that suspension of Respondent must be based on the same definition of "just cause" as used in cases of dismissal. "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. Section 231.36(1)(a), Florida Statutes.

61. Respondent is charged with misconduct in office, which is defined by Rule 6B-4.009(3), Florida Administrative Code, as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code. Such a violation must be "so serious as to impair the individual’s effectiveness in the school system."

62. Respondent is charged with violating Rule 6B-1.001(2) and (3), Florida Administrative Code, which reads as follows:

    1. 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.

       
       

    2. 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.

       
       

63. Respondent is charged with violating Rule

    
    

    6B-1.006(3)(a), Florida Administrative Code, which reads as follows:

    1. 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.

    
    

64. Pinellas County School Board Policy 8.25(1)(v) states that "misconduct or misconduct in office" is an offense with a penalty range from reprimand to dismissal. The Policy does not expressly define what actions constitute "misconduct or misconduct in office," but does state that the listed penalties may be applied only when the offenses constitute grounds for discipline under Section 231.36, Florida Statutes. It is thus presumed that the School Board’s definition of "misconduct in office" is the same as that set forth in Rule 6B-4.009(3), Florida Administrative Code.

65. Whether a particular action constitutes a violation of a rule "is a factual question to be decided in the context of the alleged violation." McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995).

66. It is concluded that Petitioner demonstrated by a preponderance of the evidence that Respondent did not exercise

    "the best professional judgment" in his classroom discussion, thus violating Rule 6B-1.001(2), Florida Administrative Code.

67. It is concluded that Petitioner failed to demonstrate by a preponderance of the evidence that Respondent violated Rule 6B-1.001(3), Florida Administrative Code, because none of Respondent’s actions can fairly be called "unethical" under any common definition of that term.

68. It is concluded that Petitioner demonstrated by a preponderance of the evidence that Respondent violated Rule

    6B-1.006(3)(a), Florida Administrative Code, because Respondent’s classroom discussion did have the potential to create conditions harmful to the physical safety of students.

69. Having established that Respondent violated Rules 6B-1.001(2) and 6B-1.006(3)(a), Florida Administrative Code,

    Petitioner must further establish that Respondent’s violations were "so serious as to impair the individual’s effectiveness in the school system" in order to demonstrate that Respondent committed "misconduct in office."

70. Respondent’s effectiveness in the school system has obviously been impaired, at least in the short term. Whether a more discreet response by school administrators might have lessened that impairment is a matter of speculation. The subsequent investigation, while less than exemplary, would not have occurred at all had Respondent exercised sound judgment in the classroom. As noted above, it was understandable that

    students would seek out Respondent’s special expertise, and also understandable that Respondent would attempt honest answers to honest questions. However, Petitioner’s witnesses correctly observed that Respondent should have understood at some point in the discussion that he was crossing a line, venturing into technical details unnecessary to his goal of reassuring and empowering his students. At the very least, it should have occurred to Respondent that he ought to seek Mr. Liem’s counsel before proceeding with classroom discussions of how a terrorist might strike Palm Harbor.

71. Thus, it is concluded that Petitioner established by a preponderance of the evidence that Respondent committed misconduct in office as defined in Rule 6B-4.009(3). Pinellas School Board Policy 8.25(1)(v) provides that the range of penalties is from caution to dismissal. Policy 8.25(3) sets forth the following aggravating and mitigating factors or circumstances to be considered in determining the appropriate penalty:

    1. The severity of the offense

       
       

    2. Degree of student involvement

       
       

    3. The danger to the public

       
       

    4. The number of repetitions of the offenses and length of time between offenses

       
       

    5. The length of time since the misconduct

       
       

    6. The number of times the employee has been previously disciplined by the

       district as well as the type of discipline

       
       

    7. The contributions of the employee

       
       

    8. The actual damage, physical or otherwise, caused by the misconduct

       
       

    9. The deterrent effect of the discipline imposed

       
       

    10. Any effort of rehabilitation by the employee

        
        

    11. The actual knowledge of the employee pertaining to the misconduct

        
        

    12. Attempts by the employee to correct or stop the misconduct

        
        

    13. Related misconduct by the employee in other employment including findings of guilt or innocence, discipline imposed and discipline served

        
        

    14. Actual negligence of the employee pertaining to any misconduct

        
        

    15. Pecuniary benefit or self-gain to the employee realized by the misconduct

        
        

    16. Degree of physical and mental harm to a student, co-worker or member of the public

        
        

    17. Length of employment

        
        

    18. Whether the misconduct was motivated by unlawful discrimination

        
        

    19. Any relevant mitigating or aggravating factors under the circumstances

        
        

    20. Employee’s evaluation.

72. In mitigation, the facts establish that this is the only disciplinary action that has been brought against Respondent since his employment commenced in 1994. No "related misconduct"

    was alleged. No actual damage or mental or physical harm was caused by his actions. There was no bad motive behind Respondent’s actions, and thus no pecuniary benefit, self-gain, or unlawful discrimination. Respondent did not understand himself to be violating school policy, and thus had no actual knowledge of the misconduct. It is concluded that the situation presented by the aftermath of Columbine was unique, and thus considerations of the deterrent effect of discipline are not germane.

73. The potential aggravating factors are the involvement of students and the danger to the public and students had some unbalanced mind in the class taken Respondent’s statements as inspirational rather than cautionary instruction. The offense was not severe, despite Dr. Hinesley’s effort to equate it to overt threats by a student. Dr. Hinesley made no mention of having even considered the factors listed in Policy 8.25(3) in recommending discipline.

74. Respondent believed that his classroom discussion would assist his students in coping with the events at Columbine. He used poor judgment under exigent circumstances. Based on the facts of what occurred in Respondent’s classroom and of subsequent events, it is concluded that the violations established by Petitioner warrant a written reprimand to Respondent.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Pinellas County School Board enter a final order finding that Respondent committed misconduct in office as defined in Rule 6B-4.009(3), Florida Administrative Code, in that he failed "to exercise the best professional judgment" as required by Rule 6B-1.001(2), Florida Administrative Code, and failed to make a reasonable effort to protect students from conditions harmful to their physical safety as required by Rule 6B-1.006(3)(a), Florida Administrative Code; and ordered that a written reprimand be placed in Respondent’s personnel file.

DONE AND ENTERED this 11th day of February, 2000, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 11th day of February, 2000.

COPIES FURNISHED:

Jacqueline M. Spoto, Esquire Pinellas County School Board

301 4th Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942

Mark Herdman, Esquire

Herdman and Sakellarides, P.A. 2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Dr. J. Howard Hinesley, Jr., Superintendent Pinellas County School Board

301 4th Street, Southwest Largo, Florida 33770

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: 99-002636

Orders for Case No: 99-002636