Findings Of Fact Lawrence was, at all times pertinent to this case, a teacher with the Orange County Public School System. For about two years, and including the months of March, April and May, 1977, Lawrence's responsibilities included supervision of the work experience program at the Green House, Inc., an alternate school program. The Green House is a joint effort between the Orange County school system and a private community agency designed to provide special training for socially maladjusted children. The work experience program at the Green House gives the students insight into job opportunities through interviews, placement assistance and shadowing (the observation by the students of people actually working on the job). As part of his duties, Lawrence set up job interviews, placement and shadowing trips and then transported the students to their appointments. It would regularly happen that Lawrence and a student would travel together alone in Lawrence's car around the Orange County environs. It was alleged that the improper advances were made during such trips in March, April and May, 1977. However, as previously stated, Lawrence's testimony is accepted as accurate and it is found that no improper advances or contact occurred.
Findings Of Fact Edward Pressley, the Respondent, has been a teacher in the Orange County school system for approximately 12 years. Mr. Pressley was serving as a physical education teacher and a remedial teacher for high school students with scholastic difficulty at all times pertinent hereto. In August of 1978, Mr. Pressley had been transferred from the Magnolia School to Cherokee School as a physical education teacher for the 1978-79 school year. On March 28, 1979, Karen Werrenrath, the Principal of Cherokee School and Mr. Pressley's immediate supervisor, determined that he was not at his assigned work location at about the middle of the morning. Mr. Pressley had earlier reported to the Principal that he had discovered the theft of a film projector from the school and that he had reported the theft to a policeman he had observed driving by the school after discovering it missing. Mrs. Werrenrath had inquired about Mr. Pressley's whereabouts because she had received a call from the school system's media center inquiring about the projector which Mr. Pressley had checked out and then reported stolen. The media center required the police department case number which was assigned to the stolen article. Upon calling the police department, Mrs. Werrenrath was informed that the police had no record of any such report, and on March 28, 1979, she therefore informed Mr. Pressley that she had had difficulty in obtaining the number and requested that he obtain it for her. On that date, however, the Respondent left the school campus without permission of the Principal between 10:30 and 11:00 a.m. and did not return to his duty station until approximately 1:15 p.m. Mrs. Werrenrath inquired about his whereabouts during that period of time, and he stated he had gone to the police department and sat on a bench waiting for the police officer to whom he had reported the theft to walk by, and after that he went to lunch. Immediately upon his return to the school campus, however, and during the course of his attempt to explain his previous whereabouts, Mrs. Werrenrath smelled alcohol on Mr. Pressley's breath. Mrs. Werrenrath informed Mr. Pressley that she detected alcohol on his breath, and he offered the explanation that he was taking medication for a halitosis condition. On March 29, 1979, a "workshop" or seminar for physical education teachers in the Orange County school system was held at Meadowbrook Junior High School. Judith Walker is the physical education coordinator for the Orange County public school system and attended that meeting. Ms. Walker is acquainted with the Respondent and saw him at the meeting. Mr. Pressley asked her if he could talk to her, apparently with regard to what he felt was a situation of personal harassment by the school administration. Ms. Walker assented, and the two of them left for lunch together, riding in Mr. Pressley's car. Mr. Pressley was driving. Ms. Walker has known the Respondent for approximately seven years and has observed him on those occasions when he has obviously not been drinking or under the influence of any sort of drug. On those occasions he has been polite and gentlemanly in his conduct, has been able to speak clearly and concisely, and articulate his thoughts reasonably. When she got into Mr. Pressley's car, Ms. Walker noticed a very definite odor of alcoholic beverages. As they drove to a local fast food restaurant, Ms. Walker observed that Mr. Pressley had difficulty controlling the car. He was unable to stay in his lane and was "weaving" from the center line to the side of the road and drove in the wrong way to a drive-in window of the fast food restaurant. In attempting to back out of the drive-in lane, he ran into a post and ultimately hit another post with his car before leaving the restaurant parking area. Ms. Walker also established that the Respondent appeared disoriented and unable to locate the familiar restaurant without her assistance, spoke with slurred speech, and articulated his thoughts in an erratic and disorganized manner. He was unable to conduct a conversation about a subject in a clear and concise manner. Ms. Walker has frequently been in contact with people who have been drinking alcoholic beverages with her knowledge and has seen people in an intoxicated condition. Based upon her experience in observing people in that condition and her observations of Mr. Pressley while she was with him during the school day on March 30, 1979, she felt he was under the influence of alcohol during that time. Shortly after this episode, Ms. Walker reported the incident to the Superintendent of Schools for Orange County at that time, Mr. L. Linton Deck, Jr. She also, shortly thereafter, reduced her observations and impressions regarding the incident to writing in a memorandum to the Superintendent dated April 17, 1979. (Petitioner's Exhibit 3). During the course of their conversation, while Ms. Walker was riding in Mr. Pressley's car on March 30, he informed her that he had been taking pain medication for a back injury and that it was his practice to take beer with his pain pills in order to hasten the comforting effects. Ultimately, in a letter dated April 24, 1979, the Superintendent of public schools in Orange County charged Mr. Pressley with misconduct in office based upon the observations of the two above witnesses that he had been drinking or had been under the influence of alcohol during duty hours. (Petitioner's Exhibit 1). Mr. Pressley retained counsel at that time and, after various negotiations between the Petitioner and the Respondent, an agreement was worked out between counsel for the School Board and Mr. Pressley such that no final disciplinary action was taken with respect to those charges, with the express understanding that Mr. Pressley would enroll in an alcoholic rehabilitation program and would be removed from continuing contract status and placed on annual contract status henceforth. Mr. Pressley was also transferred to Evans High School for employment. Petitioner's Exhibit 1, stipulated into evidence, reveals that the Superintendent's action in deferring taking any formal action against Mr. Pressley on the basis of the charges was purely a result of this agreement. The Respondent expressly agreed, as the letter from his counsel dated May 4, 1979, contained in this exhibit establishes, that the School Board's forbearance in pressing formal action on the charges would not prejudice the School Board in any way with regard to reinstituting the charges at a later time should Mr. Pressley's subsequent conduct justify resumption of their prosecution. Accordingly, as a result of that agreement, Mr. Pressley was allowed to return to the Orange County school system as a teacher on annual contract and was transferred to Evans High School for the 1979-80 school year as a teacher of remedial classes for students who were having scholastic difficulties. Magnolia School is a special education center in the Orange County school system. The Respondent was employed at the Magnolia School some years prior to 1980. On Friday, May 23, 1980, while Mr. Pressley was on personal leave from his job at Evans High School, he appeared upon the grounds of Magnolia School. Jessie D. Smith is a special education teacher who was acquainted with Mr. Pressley from the time he was employed at Magnolia School. On this particular day, Ms. Smith was conducting a private conference with Mrs. Margaret Murray. Mrs. Murray had a son enrolled in the untrainable mentally retarded program at Magnolia Center under Ms. Smith's supervision. This was a private conference between Mrs. Murray and Ms. Smith regarding Mrs. Murray's son's progress in the program and his prognosis for the future. Mr. Pressley had nothing to do with the education of Mrs. Murray's child and had no business being in attendance at the private conference between Ms. Smith and Mrs. Murray. Mr. Pressley had no official business to conduct which justified his presence on the grounds of Magnolia School on that or any other day. The Respondent was not invited by either of the participants in this private conference to participate in it, and indeed Mrs. Murray had never seen Mr. Pressley before he walked into the room, interrupting their conference. Mr. Pressley did not know Mrs. Murray and, although he was not invited to participate in the conference, interrupted it by taking a seat in close proximity to Ms. Smith and Mrs. Murray and abruptly started questioning Mrs. Murray. The Respondent asked Mrs. Murray impertinent and inappropriate questions regarding her marital status, whether she was able to care for her child, and whether she had a boy friend. He insinuated that he felt Mrs. Murray was wasting the school's time by requesting and conducting this conference regarding her child and then declared if he were in her position he would remove her child from school immediately. Ms. Smith naturally became quite irritated with Mr. Pressley's shockingly inappropriate conduct and escorted Mrs. Murray into the next classroom in order to attempt to finish their conference without further interference by the Respondent. Ms. Smith was unable to say whether or not Mr. Pressley had been indulging in alcoholic beverages on the day in question, but she stated, with a view toward her long experience with the Respondent's personality and behavior, that he definitely was not behaving and conducting himself in a normal manner during her observations of him on May 23, 1980. Ms. Smith was shocked and embarrassed that Mr. Pressley as a professional colleague and employee of the same school system would conduct himself in that manner in the presence of the parent of one of her students. When the Respondent first sat down at the conference between Ms. Smith and Mrs. Murray, Mrs. Murray believed him to be a teacher, but when he began talking he was mumbling and slurring his words and speaking in an incoherent manner which led Mrs. Murray to believe that he was in some way retarded. After hearing him converse in that fashion for awhile, she then formed the opinion that he was simply drunk. Ms. Phyllis Albert was employed as a teacher's aide at Magnolia School and was present in the room on May 23, 1980, when Mr. Pressley entered it prior to Ms. Smith and Mrs. Murray coming into the room. Ms. Albert has known the Respondent for a substantial period of time and described him as quiet, reserved and somber. On the day in question, however, Ms. Albert established that Mr. Pressley was acting quite differently from his normal behavior in that he was acting and speaking very exuberantly and in general behaving in an outgoing, extroverted fashion. When the Respondent shook Ms. Albert's hand, she detected a definite odor of alcoholic beverages on the Respondent's breath. She recalled that her impression at the time was that he was "really bombed out of his mind." Olla Evans, the Assistant Principal at Evans High School, observed the Respondent on two occasions between September and December of 1980, when he brought students to her office for disciplinary purposes. On each of these occasions she detected the odor of alcoholic beverages on the Respondent and on the Respondent's breath when he was in her office. On one of these occasions, the odor was so strong that she had to open the door to clear the smell out of her office. On this occasion she also observed that the Respondent's eyes were markedly red. Witness Evans also established that on repetitive occasions (five or six), during the fall of 1980, the Respondent was late arriving for work and that she had to call substitute teachers to take his classes for him until he arrived. Catherine Melton was a regular, continuing substitute teacher for Mr. Pressley's classes at Evans High School in the fall of 1980. She was called to substitute for Pressley's classes at least three or four times during the course of the fall school term. She substituted for his second period class in December on the day before the Christmas holidays commenced. At approximately 8:30 that morning the Respondent appeared, looking in the window of the classroom door. She opened the door and asked him if he was coming into the class at that time. He did not respond but walked into the classroom and appeared confused and disoriented. She observed the Respondent in this disoriented state for several minutes, during which time he did not acknowledge her presence or respond to her in any way. On another occasion, in December of 1980, the Respondent was escorted from the school by two police officers. On that occasion the Respondent missed the entire afternoon of that working day without his absence being excused. He was thus unable to perform his duties as a teacher that afternoon and did not obtain leave approval for that time. On January 7, 1981, Juana Senter, who is an Assistant Principal at Evans High School, reported to John Pitts, the Principal, that Mr. Pressley was late again and had not called in to report that he would be late nor to seek an excuse for his absence. She reported this to the Principal at approximately 8:15 or 8:20 a.m. The official starting time for teachers at Evans High School at all times pertinent hereto was 7:00 a.m. The students then report at 7:15 a.m., and the tardy bell for students and teachers is rung at 7:20 a.m. Inasmuch as Mr. Pressley had already been late reporting for work five or six times during the fall of 1980, and now once again on January 7, 1981, Ms. Senter suggested to the Principal that "something should be done about it." Mr. Pitts directed Ms. Senter to secure a substitute teacher for Mr. Pressley's classes and direct Mr. Pressley to report to his office when he arrived at school. The Respondent arrived at school at approximately 8:30 a.m. on that day and reported to Mr. Pitts' office. Mr. Pitts was taken aback at the Respondent's appearance. The Respondent was untidy, with wrinkled, rumpled clothes, and Mr. Pitts detected the strong odor of alcoholic beverages on or about the Respondent's person as soon as the Respondent entered his office. Mr. Pitts described the Respondent as "either getting drunk or doing some drinking, or coming off a real tough night." The witness then established that he had had substantial experience in the Navy, and since, around people who have been drinking in various amounts, and described his observations as to how people act when under the influence of alcohol. In his experience, people who have been drinking late into the night or early in the morning usually carry evidence of the odor of alcoholic beverages on their breath or on their clothing and generally act, move or behave in an unsteady manner. The witness established that the Respondent acted in this manner on this occasion and that his presence was accompanied by a strong odor of alcoholic beverages. There was no question in this witness' mind that the Respondent had been drinking shortly before coming into his office. Mr. Pitts therefore was not desirous of the Respondent coming in contact with the students while he was in that condition. He therefore directed that Mr. Pressley return home and "get himself straightened out" and report back to Mr. Pitts for a conference about his problem before returning to the classroom to conduct business with his students. Mr. Pitts was aware that the Respondent was enrolled in an alcoholic rehabilitation program, and he described himself and the school administration as making every effort to be supportive of the Respondent in his rehabilitation effort. The Respondent failed to return to the school that day and did not come in for a conference with Mr. Pitts, but rather returned the next day to the regular conduct of his classes without further discussing the incident with Mr. Pitts. The Respondent has been on medication of one type or another since January of 1979. He has had prescribed for him and has been taking various types of pain and tranquilizer medications and muscle relaxants such as Fiorinal No. 3, Talwin, Vicodin, Tylox, Librium and Valium. The Respondent contends he has never taken an overdose of any of his various types of medication, but acknowledges that he has at times taken medication in conjunction with alcoholic beverages in order to speed up the comforting effects of the medication. Although the Respondent stated at one point that he had had no difficulties occasioned by mixing his medications with alcoholic beverages, he has admitted that he was convicted of driving while intoxicated as a result of mixing medication and alcohol on two occasions: January 22, 1979; and again on March 7, 1980. Parenthetically, it should be noted that portions of the arrest record for the Respondent's arrests for Driving While Intoxicated were admitted for the narrow reason of demonstrating that he was aware of the effects of consuming alcohol and his medication contemporaneously prior to his engaging in some of the conduct described in the Findings of Fact above. In any event, Mr. Pressley has admitted that on those two occasions he was mixing medications with alcoholic beverages with the convictions resulting. Mr. Pressley, in testifying concerning the episode occurring at Magnolia School, stated that he had been taking medication that day prior to going to the school. Later in his testimony he recanted and testified that he could not remember if he had been taking medication, and he denied drinking that day. The Respondent's testimony is repeatedly characterized by the statement, "I don't recall," or "I don't remember." He recalls being in the room with Ms. Smith and another person at Magnolia School, but does not recall who that person was, nor does he remember participating in the meeting with Mrs. Murray and Ms. Smith. He claims not to remember anything he asked Mrs. Murray. Mr. Pressley also maintains he cannot recall any of the details of the episode at Magnolia School, although he maintains he definitely does recall that he had not been drinking that day. The undersigned finds the Respondent's testimony and demeanor on the witness stand characterized by poor memory or evasiveness or both.
Recommendation In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses, the evidence in the record, and the pleadings and arguments of counsel, it is RECOMMENDED: That a final order be entered by the School Board of Orange County, Florida, dismissing the Respondent as an instructional employee of the School Board of Orange County, Florida. RECOMMENDED this 27th day of July, 1981, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1981. COPIES FURNISHED: John W. Bower, Esquire Bowen and King 217 North Eola Drive Orlando, Florida 32802 Mark F. Kelly, Esquire 341 Plant Avenue Tampa, Florida 33606
The Issue Whether Respondent, between August, 1975 and May 26, 1976, committed acts constituting misconduct in office and immorality, as set forth in the letter to him dated June 10, 1976, from L. Linton Deck, Jr. This proceeding involves allegations against the Respondent, a teacher employed in the public schools, by the School Board of Orange County, Florida. By letter of May 26, 1976, the Superintendent of schools for Orange County informed the Respondent that he was relieved of duty pending an investigation into allegations made by students concerning possible improper conduct with a student or students. After an investigation into the allegations, the Superintendent formally charged him with misconduct in office and immorality and suspended him, with pay, pursuant to Section 231.36 and 230.33, Florida Statutes. Respondent requested a public hearing concerning the allegations on June 14, 1976. The school board requested that the Division of Administrative Hearings provide a hearing officer for this purpose by letter from its counsel, dated June 21, 1976.
Findings Of Fact Respondent was employed in the public school system of Orange County in 1972. At the start of the academic year 1975-76, he was a teacher of mathematics at the Union Park Junior High School. In December, 1925, he transferred to the new Liberty Junior High School. Students whom he had taught in the eighth grade at Union Park also were transferred to the new school. During the course of the aforesaid year, the following incidents took place at the schools involving the Respondent and certain of his eighth grade students: Patricia Renee Riggs - In September, 1975, Riggs was sitting at a desk in the front of Respondent's homeroom conducting voting procedures for student school officers. Respondent, who was sitting on the corner of the desk, took away her pen. She asked for it and he pinched her on the arm. She pinched him back. Riggs testified that Respondent then said, "Do you want me to pinch you down there?" (See Finding No. 6) In February, 1976, Riggs asked the Respondent for assistance with her course work while in the classroom. He put his hand on her shoulder and she backed away. He walked toward her and pushed her shoulder and she fell in a trash can. Also during the second term, on one occasion while Riggs was in the back of the classroom, and after having made a facetious remark to Respondent, he put his hands on her shoulders and pinned them back onto a nearby desk. Another time during the second term, she asked the Respondent for assistance after class. He told her to "Come at 2:00 and we will finger it out." During March or April, 1976, while Riggs was in the lunch line at school, Respondent approached her, placed his hands under her arms and moved her aside. The above incidents made Riggs uncomfortable to be in Respondent's class. (Testimony of Riggs) Debra S. Muns - During the first semester at Union Park Junior High School, Muns was wearing a beaded shirt in the classroom one day. Another student asked Respondent to feel the shirt. Muns testified that Respondent stated, "That's not all I would like to feel." (See Finding No. 6) During the second semester, after arriving in the classroom from a visit to an orthodontist, Muns remarked to the Respondent that her teeth were hurting her. Respondent put his hands on her shoulders and said, "I know a good way to make them stop hurting," or words to that effect. Also during the second semester, while Muns was looking at a poster on the classroom wall, Respondent placed his hands on the wall above her and, although not touching her, effectively pinned her against the wall. At this time he made a statement concerning tutoring her after class to the effect that he didn't have only work in mind. His actions made her feel uncomfortable. (Testimony of Muns) Lisa Fox - On several occasions during the school year, while asking for assistance with classroom work, Respondent came to her desk and placed his arm on her back and sometimes rubbed her back while assisting her. This bothered her and made her feel uncomfortable. Fox tried to get transferred from Respondent's class early in the year because it was disruptive and she was not doing well in mathematics. She also complained about the class being noisy on several other occasions. (Testimony of Fox) Penny Seifert - At various times during the school year, Seifert asked for assistance in her work and Respondent knelt by her desk and sometimes placed his hand on her back and rubbed it. On several occasions when Respondent was helping her with mathematics after the regular school period, he pulled up a chair to her desk on the side where she could not get out and rubbed her back. During the second semester she stayed after class once to ask Respodent a question and he attempted to back her into a corner of the classroom. She pushed him in the stomach to move him aside. These events bothered her and made her feel uncomfortable. Once she kissed him on the cheek to be "friendly" with him. (Testimony of Seifert) Virginia Niemensky - In May, 1976, this student was erasing the blackboard in the classroom. She tripped and the eraser flew out of her hand and hit the Respondent in the head. He retrieved it, put chalk on it, and started placing it in her hair. After asking him to stop, Respondent wrestled her to the floor, pinned her arms with his knees and proceeded to place chalk on her clothes. Mary Atkisson - At various times during the year, Mary purchased pencils from the Respondent. At such times, she would hand him a nickel and he would try to hold her hand. During the last half of the second semester she asked the Respondent for assistance with a mathematics problem. He came back to her desk, knelt by the open side and kept "scooting over" toward her to the point where she crawled out over the closed side of her desk to avoid him and left the classroom. On another occasion during the second semester, Mary was having a conversation with two other students, Teresa Skipper and Danny Smith. Teresa had stated that she was cold. Respondent heard the conversation and said to Teresa and Danny, "Why don't you two warm up." Danny responded, "Me warm up with you?" Respondent replied, "It is not my week for boys." During the second semester, Mary was once in the classroom before the other students arrived and asked the Respondent, "Why is it cold here?" He responded, "Because it encourages my favorite body contact sport." Respondent told a joke during class in which he asked if the students had heard the joke about the constipated mathematician who had to work it out with a pencil. During the latter part of the second semester, she told Respondent that she had made a mistake in a mathematics problem and he said, "In doing that, you did it right, because, you know, you are beautiful and I love you." When she later asked him what he meant by the statement, he said, "Pelly, I love my students in every Christian sense of the word." She was upset by this and the "scooting" incident. (Testimony of Atkissan) Mary O'Connell - During the second semester, Mary went to the front of the classroom to ask Respondent if he would move her seat in the classroom. Respondent took her wrist and laid her backwards against a desk. On another occasion, she was sitting at her desk and raised her hand to ask Respondent a question. He came to her desk and she asked him if she could go to another classroom. While she asked him, he pinched the skin on her arm. This bothered and upset her. (Testimony of O'Connell) Beverly Young - In May, 1976, Beverly called the Respondent to her desk to assist her with her work. He bent down beside her desk and while responding to her question, rubbed her back. She told him that Lisa Fox had given a cold to her and that he would have to get on her for doing so. Respondent answered, "I will get on to her but not for giving you a cold," or words to that effect. He also asked her if she would share her cold with him or give it to him. The incident made her uncomfortable, although they were joking at the time. (Testimony of Beverly Young). Teresa Skipper - In May, 1976, Teresa requested that Respondent help her with her work. He came back to her desk, assisted her, and whispered "Do you understand?" She replied, "Yes, sir." Then she felt his tongue touch her ear whereupon she asked him to leave her alone. The incident upset and disturbed her. (Testimony of Skipper) In the latter part of January, 1976, Joyce Krapf, guidance counselor at Liberty Junior High school, received a call from Renee Riggs' mother complaining about "off color" remarks made by Respondent in the class and asking her to speak to Renee about the situation. During approximately the same period, an English instructor in the school, who taught a number of the same students who were in Respondent's classes, became aware of certain of the incidents involving Respondent by conversations of students in his classroom. He made the guidance counselor aware of this information. She talked to several of the girls and then reported the information to the school principal. As a result, the principal talked to some of the students and then, in February, called the Respondent into his office for a conference. He specifically mentioned the remark Respondent was alleged to have made during the "blouse" incident and complaints of having put his arms around the students at their desk, and warned him that he should exercise care in the future to avoid having physical contact with the students or making remarks that would embarrass them or which could be misinterpreted by them. He further stated that if any other such incidents were reported, he would have to ask for a full investigation and that therefore Respondent should make every effort not to be placed in a situation where he could be accused of improper conduct. Respondent said that he would do the best he could to avoid such problems in the future. Toward the end of the school year, the guidance counselor brought to the principal's attention the alleged incident involving Teresa Skipper. The principal again talked to the Respondent, informed him of the complaint and gave him the option of resigning his position or requesting an investigation. Respondent chose the latter course of action. (Testimony of Boyte, Krapf, Dominey) Respondent is an excellent teacher of mathematics and goes out of his way to assist students and other teachers alike. He enjoys a fine reputation as an academician and for good character in the community in which he lives. (Testimony of Boyte, Way, Dominey, Gary, Bloxsom, Case) On May 28 and July 21, 1976, Respondent voluntarily underwent polygraph examinations concerning certain of the incidents forming the basis of the charges against him. During these examinations, he specifically denied touching or placing his tongue in the ear of Teresa Skipper. Concerning his alleged statement regarding Debra Muns' blouse, he claimed he had said "If I did [touch her blouse], I would touch more than that," rather than "That's not all I would like to feel." He further denied stating to Renee Riggs, "Do you want me to pinch you down there?" Although conceding that he had made certain of the other statements and engaged in certain of the actions complained of, he denied any sexual intent or desire on his part. It was concluded by the polygraph examiner that Respondent had not attempted deception in any of his statements or responses and therefore was telling the truth. (Testimony of Levy, Respondent'S Exhibit l; Stipulation) Upon entering the teaching profession in Orange County, Florida, Respondent signed a statement acknowledging that he had read the Code of Ethics of The Education Profession. (Testimony of Respondent, Petitioner's Exhibit 1) The Respondent testified as a witness and denied stating to Biggs, "Do you want me to pinch you down there?" There was no corroboration of Riggs' testimony in this regard, even though another student was nearby at the time. In view of this fact and the delay in reporting the alleged remark to school authorities, it is found that the making of the alleged statement was not established. In like manner, due to the absence of corroboration and the delay in reporting the remark, it is found that Respondent's version of the statement that he made to Muns, i.e., "If I did [touch her blouse], I would touch more than that," is accepted rather than the alleged statement, "That's not all I would like to feel." However, his denial of touching Teresa Skipper's ear with his tongue is not accepted in the light of the circumstances surrounding the incident. Respondent sought to explain various other of his statements and actions directed to his students by asserting that, in most instances, they were designed to create warmth or rapport. Hence, the telling of the joke concerning the mathematician and his use of the term "finger it out." With regard to the scooting incident involving Mary Atkisson he stated, "when she first moved away, I shouldered up to her to just tease her more about it..." His explanation for putting his arms around students at their desks was that when he would kneel to help them with their problems, he had to grasp the back of the chair in order to keep his balance. He admitted, however, that he occasionally patted tbe students on the back for encouragement. His explanation for the statement concerning after school tutoring, that he "had more than work in mind," was designed to tell the students that mathematics could be fun and was not all work. As to the lunch line incident with Riggs, he claimed that she had blocked his progress in the line and that he first said, "Excuse me," and then put his hands on her waist and moved her aside. He further claimed that some of the statements and incidents were precipitated by the students themselves and that he was merely attempting to restore order and get on with the classroom work. The evidence bears out the foregoing explanations and they were accepted as credible. (Testimony of Respondent)
Recommendation That Respondent Robert Gay Ridgeway be dismissed from employment as an instructor with the Orange County public school system for misconduct in office and immorality, pursuant to Section 231.36(6), Florida Statutes. DONE and ENTERED this 25th day of October, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 1976. COPIES FURNISHED: John W. Bowen, Esquire Post Office Box 305 Orlando, Florida 32802 James W. Markel, Esquire Markel and Scott Post Office Box 1991 Orlando, Florida 32802 Robert Gatton, Esquire Johnson, Motsinger, Trismen & Sharp 100 East Robinson Street Orlando, Florida 32801 Alan Todd, Esquire 180 Park Avenue North Post Office Box 986 Winter Park, Florida 32289
The Issue The issue presented is whether a rule establishing high school attendance zones is an invalid exercise of delegated legislative authority within the meaning of Subsection 120.52(8), Florida Statutes (2004).
Findings Of Fact Respondent is the School Board of Orange County, Florida (School Board). The School Board is an educational unit and an agency defined in Subsections 120.52(1)(b)7. and (6), Florida Statutes (2004). Respondent is the governing body of the Orange County School District (School District or District). In relevant part, Respondent has exclusive constitutional authority to "operate, control and supervise all free public schools" within the District pursuant to Article IX, Section 4(b) of the Florida Constitution (2004) (Florida Constitution). On January 11, 2005, Respondent adopted a rule establishing attendance zones for four high schools in western Orange County, Florida (Orange County). The rule modifies previously existing attendance zones for Apopka High School (Apopka), Olympia High School (Olympia), and West Orange High School (West Orange); and establishes a new attendance zone for Ocoee High School (the relief school). It is undisputed that the establishment and modification of school attendance zones involves rulemaking. The parties agree that the adoption of the relevant school attendance zones satisfies the definition of a rule in Subsection 120.52(15), Florida Statutes (2004). Petitioners challenge the rule as an invalid exercise of delegated legislative authority defined in Subsection 120.52(8), Florida Statutes (2004). In relevant part, Petitioners allege that Respondent violated Subsections 120.52(8)(a) and (e), Florida Statutes (2004), by materially failing to follow applicable rulemaking requirements and by adopting a rule in an arbitrary and capricious manner. Before proceeding to the merits of the rule challenge, it is important from a jurisdictional and contextual perspective to note that this Final Order does not reach any matter that falls within the scope of Respondent's exercise of constitutional authority. For reasons discussed in the Conclusions of Law, Respondent has exclusive constitutional authority to operate, control, and supervise public schools within the District (local control). The Legislature has constitutional authority over matters of statewide concern.2 The Legislature cannot statutorily delegate authority that is constitutionally vested in Respondent.3 For purposes of the rule challenge, the exercise of constitutional authority by Respondent is not the exercise of delegated legislative authority within the meaning of Subsections 120.56(1) and (3), Florida Statutes (2004). As a factual matter, the challenged rule involves local control of only those public schools within the District that are affected by the rule. The school attendance zones do not have application beyond the boundaries of the School District. The school attendance zones do not benefit or otherwise affect citizens of the state outside the District.4 The trier of fact has avoided findings concerning matters of local control, including the merits of the school attendance zones, the wisdom of the collective decision of the School Board, and the motives and intent of the individual members of the School Board. Jurisdiction to determine the invalidity of a rule involving matters of local control is the exclusive province of the courts.5 Legislative authority over matters of statewide concern includes the authority to ensure that local school attendance zones are drawn in a manner that complies with uniform requirements for fairness and procedural correctness. The Legislature delegated that authority to Respondent when it enacted Subsections 1001.41(6) and 1001.42(4)(a), Florida Statutes (2004). The trier of fact has made only those findings needed to determine whether the exercise of delegated legislative authority is invalid within the meaning of Subsections 120.52(8) and 120.56(1), Florida Statutes (2004). The challenged rule affects the substantial interests of Petitioners within the meaning of Subsections 120.56(1) and (3), Florida Statutes (2004). Petitioner, Citrus Oaks Homeowners Association, Inc. (Citrus Oaks), is a Florida nonprofit corporation, organized as a homeowners' association pursuant to Chapters 617 and 720, Florida Statutes (2004). The members of Citrus Oaks own residences in the Citrus Oaks subdivision. A substantial number of the members of Citrus Oaks are substantially affected by the challenged rule. A substantial number of members have children who are students in a public school affected by the challenged rule. The challenged rule reassigns many of those students from the Olympia school zone to the West Orange school zone. The subject matter of the rule is within the general scope of interest and activity of Citrus Oaks. The relief requested is of a type that is appropriate for Citrus Oaks to receive on behalf of its members. Citrus Oaks has represented its members in previous litigation, although this is the first administrative proceeding for Citrus Oaks. More than a substantial majority of the members of Citrus Oaks expressly authorized Citrus Oaks to undertake this proceeding for their benefit. Petitioner, Joy Hutchison, is the mother of Jamie Petkov and Kirsta Petkov. Mrs. Hutchinson and her children reside in Citrus Oaks in a neighborhood identified in the record as Gotha, Florida. At the time of the administrative hearing, Jamie Petkov and Kirsta Petkov attended Gotha Middle School (Gotha). Jamie Petkov and Kirsta Petkov would have attended Olympia in the absence of the challenged rule. The challenged rule changes the attendance zone of each student to West Orange. The challenged rule splits feeder patterns intended to ensure that students in adjacent neighborhoods stay together through progressive grades. The challenged rule assigns some students from Gotha to the Olympia school zone and assigns other Gotha students to the West Orange school zone. Differences in West Orange and Olympia do not affect the substantial interests of Petitioners. The two schools offer comparable, but not identical, educational programs. Each school is accredited by the Southern Association of Accreditation. Each is a comprehensive high school with a full range of academic opportunities for students and Advanced Placement (AP) classes for college credit. Each school offers comparable student-teacher ratios, teachers with advanced degrees, and extracurricular activities. West Orange and Olympia are not identical. Homebuyers generally prefer Olympia to West Orange. Area realtors emphasize location within the Olympia school zone as a marketing feature for homes. Prospective homebuyers generally request homes within the Olympia school zone. Approximately 100 students residing outside the Olympia attendance zone have falsified their domicile information in order to enroll in Olympia. Disparities between West Orange and Olympia do not deny Petitioners a uniform system of education. A uniform system of education does not require uniformity among individual schools in physical plant, curricula, and educational programs.6 The rule development process that culminated in the challenged rule began sometime in March 2004. Three staff members in the District office of the Director of Pupil Assignment (the Director) were responsible for recommending school attendance zones to the Superintendent and his cabinet. The Director and her staff pursued negotiated rulemaking within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). In March 2004, the staff began to establish relevant time lines. In April and May of the same year, staff met with principals of schools potentially subject to rezoning. Staff requested each school principal to submit the names of three individuals to serve on a school rezoning committee to work with the staff. Each school rezoning committee was comprised of the "PTSA president, SAC chairperson, and another member." Each school rezoning committee was a negotiating committee within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). Each school rezoning committee was a balanced committee of interested persons who drafted complex rules in anticipation of public opposition. Each committee worked in good faith to develop group consensus for a mutually acceptable proposed rule. The Director and her staff provided packages to each school rezoning committee. The packages included information concerning time lines; rezoning criteria; maps; demographic information about neighborhoods; transfer policies; transportation; and school data such as demographics, enrollment, and original design capacity. Each committee developed proposed attendance zones based on eight rezoning criteria prescribed in the packages. The eight rezoning criteria are identified in the record as: operate under the current desegregation order; consider future planning and growth of attendance zones; equally distribute population to balance facility use of affected schools; consider reducing student transportation distances, when necessary; maximize the number of students walking to school; maximize the school feeder pattern structure; minimize the disruption of residential areas; and ensure demographic balance, when possible. Each committee was required to give overriding importance to the first three of the eight criteria. The school rezoning committees produced approximately 11 initial proposals. The Director and her staff scrutinize various proposals and received citizen input during three public meetings on August 25 and October 5 and 25, 2004. Each public meeting was a rule development workshop within the meaning of Subsection 120.54(2)(c), Florida Statutes (2004). Approximately 600 members of the public attended the first workshop conducted on August 25, 2004. Many members of the public spoke at the meeting or provided written input concerning the various proposals. Staff and committee members considered the public input and scrutinized the proposals. Staff reduced the number of proposals to seven, identified in the record as options A through G, and conducted a second workshop on October 5, 2004. Between 400 and 500 members of the public attended the second workshop. As the meeting "wore on," the Director concluded that no consensus on a single proposal was attainable at that time and adjourned the meeting. After the second workshop on October 5, 2004, the staff developed one recommendation for rezoning and two best options identified in the record as the recommendation, option A, and option F. Staff presented the recommendation to the Superintendent at a cabinet meeting, but also included, for informational purposes, the two options. Attendees at the cabinet meeting included "area superintendents," the chief financial officer, the chief facilities officer, the chief operations officer, and the deputy superintendent for curriculum instruction. The Superintendent and his staff vetted the recommendation before the recommendation was presented to the public as the "Staff Proposal" during a third workshop conducted on October 26, 2004. Approximately 500 members of the public attended the third workshop. The Director presented the Staff Proposal and received public input. The Staff Proposal reassigns 435 students from Apopka to the relief school; 136 students from Olympia to West Orange; and 2,315 students from West Orange to the relief school. The Staff Proposal does not rezone students in Citrus Oaks from Olympia to West Orange. There was no discussion at the third workshop of rezoning options other than the Staff Proposal. It is undisputed that Respondent complied with applicable rulemaking procedures from the initiation of the rulemaking process, through the third workshop conducted on October 25, 2004, when staff presented the Staff Proposal. The alleged violations of applicable rulemaking procedures occurred from October 26, 2004, through January 11, 2005. During that interval, Respondent amended the Staff Proposal and adopted the challenged rule. From October 26 through November 29, 2004, Mrs. Karen Ardaman, a member of the School Board, conducted several non- public conferences with the Director and her staff. The non- public conferences were workshops conducted for the purpose of rule development within the meaning of Subsection 120.54(2)(c), Florida Statutes (2004) (private workshops). The private workshops did not involve negotiated rulemaking within the meaning of Subsection 120.54(2)(d), Florida Statutes (2004). The private workshops were conducted between a member of the School Board and District staff for the official business of rule development. Mrs. Ardaman stated to the Director and her staff that the purpose of the private workshops was to "tweak" the Staff Proposal. Mrs. Ardaman expressed a specific goal of rezoning at least 300 students from Olympia and an optimal goal of reducing Olympia enrollment to design capacity, if possible. The workshops were extensive and produced four "work-up" proposals identified in the record as Petitioner's Exhibits 20 through 23. One of the work-up proposals was adopted by Respondent as the challenged rule on January 11, 2005.7 Each private workshop included "what-if" questions from Mrs. Ardaman to staff members intended to scrutinize alternative school rezoning scenarios. Each scenario involved specific neighborhoods, the demographic breakdown for the neighborhood, the actual number of students, and the number of students to be reassigned. One work-up extended the West Orange zone to an area north of State Road 50. Another work-up reduced the Apopka enrollment from 4,265 to 3,830, or approximately 650 students over design capacity of 3,187. The private workshops included conversations regarding the use of permanent modular classrooms to relieve overcrowding at Olympia. Mrs. Ardaman requested staff to explore the possibility of adding permanent modular classrooms. On November 30, 2004, the Superintendent published in an area newspaper of general circulation a Notice of School Board Meeting scheduled for December 6, 2004. In relevant part, the notice stated that the purpose of the meeting is to discuss "West Orange Apopka Relief School Rezoning." The public meeting conducted on December 6, 2004, was a rule development workshop within the meaning of Subsection 120.54(2), Florida Statutes (2004). The School Board considered the Staff Proposal and the Ardaman alternative (the alternative proposal). The alternative proposal was circulated to the other members of the School Board. Two members left the workshop early. The remaining five members, including Mrs. Ardaman, reached consensus to reject the Staff Proposal and to advertise the alternative proposal as the proposed rule. On December 11, 2004, the Superintendent published a Notice of Proposed Action on High School Attendance Zones in The Orlando Sentinel. The public notice advertised a public hearing scheduled for January 11, 2005, to adopt the proposed rule. That portion of the public notice entitled, "Summary of Proposal" states, in relevant part, that the proposed rule reassigns students residing in Citrus Oaks from Olympia to West Orange. The meeting conducted on January 11, 2005, was a public hearing within the meaning of Subsection 120.54(3)(c)1., Florida Statutes (2004). Members of the School Board adopted the proposed rule by a vote of four to three. Mrs. Ardaman voted with the majority. The private rule development workshops between a school board member and District staff failed to follow applicable rulemaking procedures prescribed in Subsections 120.54(2)(a) and (c), Florida Statutes (2004). Respondent provided no public notice of the private workshops. Respondent failed to follow applicable rulemaking procedures prescribed in Subsections 120.54(2)(a) and (c), Florida Statutes (2004), for the rule development workshop that Respondent conducted in public on December 6, 2004. The notice published on November 30, 2004, was less than 14 days before December 6, 2004. The published notice did not include an explanation of the purpose and effect of either the Staff Proposal or the alternative proposal. The published notice did not cite the specific legal authority for either proposal and did not include the preliminary text of each proposal. Respondent failed to comply with other rulemaking procedures prescribed in Subsection 120.54(2)(c), Florida Statutes (2004). Respondent precluded public participation during the rule development workshop on December 6, 2004. Therefore, the persons responsible for preparing the respective proposals did not explain either proposal to the public and were not available to answer questions from the public or to respond to public comments. The failure to comply with applicable rulemaking procedures is presumed to be material within the meaning of Subsection 120.52(8)(a), Florida Statutes (2004). § 120.56(1)(c), Fla. Stat. (2004). The burden of proof shifts to Respondent to rebut the presumption. Id. Respondent did not rebut the presumption with evidence that the fairness of the proceeding was not impaired or that the proceeding was procedurally correct. Respondent did not show that it cured the materiality of the failure to comply with applicable rulemaking procedures (procedural errors) by satisfying other rulemaking requirements such as those in Subsection 120.54(3)(e), Florida Statutes (2004). After December 11, 2004, when Respondent published the notice of proposed agency action to adopt the proposed rule, Respondent did not show that it filed a certified copy of the proposed rule with the agency head, together with other relevant materials, for public inspection. For reasons stated hereinafter, the public hearing conducted on January 11, 2005, did not cure the materiality of prior procedural errors. A preponderance of evidence shows the failure to comply with applicable rulemaking procedures was material within the meaning of Subsection 120.52(8)(a), Florida Statutes (2004). The procedural errors impaired the fairness and procedural correctness of the development and adoption of the challenged rule. In relevant part, the failure to provide public notice of the private workshops deprived members of the School Board and the public from equal participation, an opportunity to scrutinize various scenarios, and an opportunity for input and comment. The private workshops circumvented six months of prior negotiated rulemaking and public workshops between District staff, rezoning committees, the public, and the Superintendent and his cabinet; and reduced the public process to a shell into which non-public decisions were later poured. The public notice advertised on November 30, 2004, was inadequate. The notice deprived interested members of the School Board and the public of prior notice that the scope of the workshop on December 6, 2004, would include rezoning proposals not addressed in previous public workshops. The procedural errors materially changed the Staff Proposal and materially affected some students not assigned to Olympia in the Staff Proposal. For example, the Staff Proposal decreases Olympia enrollment, through reassignment of students to West Orange, by 136 students; or approximately four percent of the 3,337 students enrolled in Olympia on October 15, 2004; and approximately three percent of the 3,410 students projected to be enrolled in Olympia in the next school year (the 2005-2006 school year). The challenged rule decreases Olympia enrollment by 285 students. That is more than twice the decrease in enrollment in the Staff Proposal. The challenged rule decreases enrollment at Olympia by approximately eight percent of the 3,332 students enrolled in Olympia on November 15, 2004; and approximately eight percent of the projected enrollment of 3,410 for the following school year. The procedural errors materially impact the original design capacities at Olympia and West Orange. The original design capacities at the respective schools are 2,781 and 3,195 students. The enrollment at Olympia on October 15, 2004, in the amount of 3,337 students, exceeded original design capacity by 556 students (overcrowding), or approximately 19.9 percent. The enrollment at West Orange on the same date, in the amount of 4,320 students, exceeded original design capacity by 1,035 students, or approximately 32.4 percent. The Staff Proposal reduced overcrowding at Olympia to 420 students, or approximately 15.1 percent of original design capacity; and added 136 students to West Orange enrollment, or approximately 4.2 percent of original design capacity at West Orange. Based on enrollment on October 15, 2004, the challenged rule decreases overcrowding at Olympia to 271 students, or approximately 9.7 percent of original design capacity; and adds 285 students to the West Orange enrollment, or approximately 8.9 percent of original design capacity.8 The materiality of the procedural errors is exacerbated by the scheduled loss of the Ninth Grade Center at West Orange in the 2005-2006 school year. That event will reduce actual capacity at West Orange from the original design of 3,195 students to 1,993 students. This is a capacity loss of 1,202 students. The challenged rule adds 285 students to West Orange enrollment next year, which is an increase of approximately 14.3 percent over actual capacity. The Staff Proposal adds 136 students to West Orange enrollment, which is an increase of approximately 6.8 percent over actual capacity. The Staff Proposal and challenged rule leave West Orange with 2,236 and 2,385 students, respectively, or approximately 243 and 392 students over next year's actual capacity of 1,993 students. Overcrowding at West Orange from the Staff Proposal is approximately 12.19 percent of actual capacity next year, and overcrowding from the challenged rule is approximately 19.66 percent of actual capacity. The Staff Proposal reduces overcrowding at Olympia next year from 19.99 percent to 15.1 percent over capacity and leaves overcrowding at West Orange over 12.19 percent. The challenged rule reduces overcrowding next year at Olympia from 19.99 percent to approximately 9.7 percent and leaves overcrowding at West Orange at 19.66 percent over actual capacity. The procedural errors facilitated a challenged rule that departs materially from recommendations by the Olympia rezoning committee. The rezoning committee recommended no change at the school. In relevant part, the committee wrote: While we recognize that Olympia remains overcrowded, aggressive, proactive measures should be taken to address overcrowding of Olympia in other ways. Specifically those measures include: Exploring the possibility of adding "permanent" modular structures; and Increasing efforts to remove students who attend Olympia illegally claiming an address in our zone but who actually live out of zone. West Orange is left with room for the growth they expect. Petitioner's Exhibit 14 (P-14). The Orange County Commission, in a decision entered on July 14, 1998, prohibited "portable" classrooms on the Olympia campus in the original design of the school. The decision, however, does not expressly prohibit "permanent" modular classroom structures. Sufficient property exists on the Olympia campus to accommodate permanent modular classroom structures. The procedural errors that occurred in adopting the challenged rule materially affected students in Citrus Oaks who are reassigned to West Orange. The challenged rule will interrupt feeder patterns at Gotha by reassigning some Gotha students to West Orange and allowing others to attend Olympia. The preceding findings concerning variations between the Staff Proposal and the challenged rule are made solely for examining the materiality of procedural errors. The findings do not examine the merits of the challenged rule or the wisdom of the decision of the School Board. Respondent maintains a stated agency policy that prohibits an individual member of the School Board from participating in any matter pending before the Board in which the member has a conflict of interest. In relevant part, the written policy provides: Board members are expected to avoid conflicts of interest involving any matter pending before the board. A conflict of interest is deemed to exist when the member is confronted with an issue in which the member has a personal . . . interest or . . . circumstance that could render the member unable to devote complete loyalty and singleness of purpose to the public interest. . . . The accountability to the whole district supersedes: * * * c. Conflicts based upon the personal interest of a board member who is a parent of a student in the district. P-6, at 001945. Mrs. Ardaman is a member of the School Board who is a parent of three students in the Olympia school zone. When District staff presented the Staff Proposal, one student was a senior at Olympia, another was a sophomore at Olympia, and the youngest was in the sixth grade at Gotha. Mrs. Ardaman did not have a conflict of interest concerning the Staff Proposal, option A, or option F. None of those proposals reassigned any of the Ardaman children from Olympia to West Orange. A deemed conflict of interest existed for Mrs. Ardaman during: the private workshops she conducted with District staff for the purpose of rule development; the public deliberations at the meeting conducted on December 6, 2004; and the vote of the School Board members that took place at the public hearing conducted on January 11, 2005. Courts have recognized that each concerned parent has an interest in his or her children, the educational program in which each is enrolled, the prevention of disruption in the educational progress of each child, and any unwarranted disruption in the child's educational experience.9 Mrs. Ardaman had a judicially recognized interest in developing and adopting a rule that minimized the foregoing impacts on her children. Citrus Oaks sits on the northern boundary of Old Winter Garden Road (Winter Garden). The Ardaman children reside in a neighborhood to the south of Winter Garden. Mrs. Ardaman chose to reassign Olympia students to West Orange from three neighborhoods north of Winter Garden, including students in Citrus Oaks, and to reassign Olympia students to West Orange from only one neighborhood south of Winter Garden. The challenged rule does not achieve the optimal goal sought by Mrs. Ardaman of reducing Olympia enrollment to the original design capacity. The challenged rule could have achieved that goal by increasing the number of reassignments to West Orange from the geographic area south of Winter Garden. Mrs. Ardaman declined that option. During the non-public workshops, Mrs. Ardaman asked District staff to analyze numerous school rezoning scenarios based on reassignments from specific neighborhoods. Although the various scenarios included neighborhoods south of Winter Garden, Mrs. Ardaman did not ask staff to analyze a scenario that would have reassigned students in her neighborhood from Olympia to West Orange. Reassignment of Olympia students in the neighborhood in which Mrs. Ardaman resides would have interrupted feeder patterns for Gotha students. At the time, Mrs. Ardaman had a child in the sixth grade at Gotha. The challenged rule interrupts feeder patterns at Gotha for students residing in neighborhoods north of Winter Garden. Respondent exercised agency discretion in adopting the challenged rule in a manner that was inconsistent with officially stated agency policy. Respondent permitted a member of the School Board with a personal interest deemed to be a conflict of interest to participate in a pending matter before the School Board. The deviation from agency policy was material. The members of the School Board voted on January 11, 2005, to adopt the proposed rule by a vote of four to three. Mrs. Ardaman cast the deciding vote. Without the vote of Mrs. Ardaman, the remaining tie vote would have been insufficient to adopt the proposed rule.10 The deviation from agency policy was material for other reasons previously stated in the discussion of procedural errors and not repeated here. Respondent did not explain the deviation from officially stated agency policy. The adoption of the challenged rule was neither arbitrary nor capricious within the meaning of Subsection 120.52(8)(e), Florida Statutes (2004). The agency action is supported by logic and essential facts. Respondent did not adopt the proposed rule without thought or reason, and the proposed rule is not irrational. Between December 6, 2004, and January 11, 2005, the members of the School Board received data sheets and impact assessments for the proposed rule. The members had already received the data supporting the Staff Proposal. The members had adequate time between December 6, 2004, and January 11, 2005, to evaluate the logic, essential facts, and rationality of the proposed rule. The members of the School Board were faced with a controversial issue and a difficult decision. Reasonable individuals arguably may have decided to draw the school attendance zones differently. However, it is not appropriate for the trier of fact to substitute his judgment for that of the members of the School Board or to examine the wisdom of the decision of the School Board. Even though Respondent did not adopt the challenged rule in an arbitrary or capricious manner, the procedural errors and deviations from officially stated agency policy were material. Each impaired the fairness of the proceedings and prevented the agency action from being procedurally correct.
Findings Of Fact Respondent commenced the 1985-86 school year as a student in the eighth grade at Palms Springs Junior High School. By letter dated November 22, 1985, Petitioner advised Respondent's parents that Respondent "as being administratively assigned, effective immediately, to the Jan Mann Opportunity School-North. That letter further advised of a right of review of Respondent's placement into the opportunity school program until Respondent had made sufficient progress to be returned to the regular school program. Respondent's mother requested a hearing on that placement. On December 5 1985, a "withdrawal card" from the Dade County public schools was executed. At the hearing in this cause on March 17, 1986, Respondent testified that he has never attended the Jan Mann Opportunity School-North while waiting for review of that placement and in fact has been attending no school since he was administratively assigned. In response to questioning as to what he has been doing since his administrative reassignment of November 22, 1985, Respondent replied, "Nothing." Although Respondent's mother agreed during the formal hearing in this cause that she would place her son back into the school system and would send him to the opportunity school while awaiting the outcome of this proceeding, she has not done so. Pursuant to instructions from the undersigned, on March 31, 1986, Petitioner filed a Certification advising that as of March 27, 1986, Respondent was still not in attendance within the Dade County school system. Respondent was born on August 14, 1970.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered dismissing Respondent's request for an administrative review for lack of subject matter jurisdiction. DONE and RECOMMENDED this 15th day of May, 1986, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer, Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 486-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1986. COPIES FURNISHED: Frank R. Harder Esquire 2780 Galloway Road Suite 100 Twin Oaks Building Miami Florida 33165 James M. Ratliff Esquire Legal Services of Greater Miami, Inc. Northside Shopping Center 149 West Plaza, Suite 210 7900 N.W. 27th Avenue Miami Florida 33147-4796 Leonard Britton, Superintendent School Board of Dade County 1410 Northeast Second Avenue Miami Florida 33132 Phyllis O. Douglas Assistant Board Attorney Dade County Public Schools 1410 Northeast Second Avenue Miami Florida 33132
