The Issue The issue in this case is whether there is just cause to terminate Respondent’s employment.
Findings Of Fact Mr. Overhoff began his employment with the School District on October 20, 2006, as a roofer in the School District’s maintenance department. As a roofer, Mr. Overhoff’s job duties included maintaining and repairing roofs of the School District’s schools and ancillary buildings. His duties also included procuring roofing materials needed on a job, when those materials were not available at the maintenance department’s central warehouse. The School District hired private contracting companies to do major roof repair, and Mr. Overhoff’s duties included meeting with the contractors to discuss the contract work being performed. At all times relevant to this case, Mr. Overhoff was a member of the Support Personnel Association of Lee County (SPALC). During June 27, 2008, through July 11, 2008, Mr. Overhoff resided at 4613 Vinsetta Avenue, North Fort Myers, Florida. Mr. Overhoff’s work hours were from 7:00 a.m. to 3:30 p.m. with a 30-minute unpaid lunch break and a 15-minute paid break in the morning and a 15-minute paid break in the afternoon. Mr. Overhoff reported to the School District’s maintenance office each morning to receive his work assignments for the day. Each employee was assigned more than eight hours of work to ensure that each employee would have sufficient work for the entire day. After receiving his work assignments, Mr. Overhoff gathered the materials he needed for his jobs that day and traveled to the various locations in the county to work on the School District’s buildings. He was expected to return to the School District’s maintenance office by 3:00 p.m. each day to complete the paper work for the roofing work that had been performed that day and to conference with his supervisors concerning work assignments. Mr. Overhoff was assigned a white pick-up truck owned by the School District and designated as M404. Mr. Overhoff was to use this vehicle to go to his work assignments pursuant to The School Board of Lee County Policy 7.04, which provides that employees who drive School District vehicles “shall [u]se the vehicle strictly for approved District business.” Sometime in April 2008, the School District received a call from a neighbor of Mr. Overhoff, who reported that a School District vehicle was parked in Mr. Overhoff’s driveway during work hours. Donald Easterly, the director of Maintenance Services for the School District, met with Mr. Overhoff in April 2008 to discuss the telephone call. Mr. Easterly made Mr. Overhoff aware that the use of a School District vehicle for personal use was prohibited and that personal business could not be conducted during work hours unless it was during a break. The School Board of Lee County Policy 5.33 prohibits the transaction of personal business on school time and provides: The following rules, regulations and guidelines are to be used to prohibit personal business on school time. No employee of the School District may conduct personal business on school time except for emergencies approved by the principal or Superintendent. No School District equipment or supplies shall be used to conduct personal business or any other activity not connected with the School District. During the time relevant to this case, employees in the maintenance department were allowed to stop at restaurants, convenience stores, and fast food establishments for their lunch and morning and afternoon breaks, if the stops were made while the employees were in transit to a job location. It had also been the practice to allow employees to stop by their bank, if the time was counted as break time, and the stop was while in transit to a job location. It was not permissible for an employee to use a School District vehicle to go to his home unless the employee had permission from his supervisor. In May 2008, the School District began installing Global Positioning Systems (GPS) on some of the vehicles used in the maintenance department. The selection of the vehicles for installation of a GPS was made at random. On June 2, 2008, a GPS was installed on the vehicle M404, which was driven by Mr. Overhoff. The superintendent of the School District has alleged in the Petition for Termination of Employment that Mr. Overhoff used a School District vehicle for his personal use on June 27, June 30, July 1, July 2, July 7, July 8, July 9, July 10, and July 11, 2008. Each day will be discussed individually below. On each day in question, Mr. Overhoff was driving the School District vehicle identified as M404. The locations to which the vehicle traveled and the times of arrivals and departures are based on the information captured by the GPS system installed in vehicle M404 during the relevant time periods. There has been no dispute concerning the accuracy of the information. At the end of each work day, Mr. Overhoff and other employees in the maintenance department were required to complete a daily labor sheet, which identified the work that was performed by work order number, task number, and description of the work; identified the location where the work was performed; and listed the amount of travel time and work hours for each work order. The time was to be listed in 15-minute increments. All locations where work had been performed were to be listed on the daily labor sheet. However, if an employee had to return to the maintenance department during the day, the time spent there was not usually recorded on the daily labor sheet. Mr. Overhoff had never been given any formal instruction on how to complete the daily labor sheet. He understood that the number of hours for travel and work should equal eight hours. His daily labor sheets did not always accurately reflect the locations at which Mr. Overhoff had stopped during the workday and did not always accurately reflect the time that he spent working at School District facilities. Prior to August 2008, the employees in the maintenance department were not required to list their break times on the daily labor sheets, and there was no requirement to list every stop made during the day. After August 2008, the maintenance department employees were required to accurately account for all their time during the day, including break times and stops at the maintenance department on Canal Street. June 27, 2008 On June 27, 2008, vehicle M404 was turned on at 6:29:07 a.m. at the maintenance department located at Canal Street. At 8:01:17 a.m., the vehicle entered the 7-11 store located at Southland Court, and, at 8:12:57 a.m., the vehicle departed the 7-11 store. At 8:31:17 a.m., the vehicle arrived at San Carlos Park Elementary School and remained there until it left at 9:19:27 a.m. The vehicle left San Carlos Park Elementary School and went to a Hess Station/Dunkin Donuts business, where the vehicle remained from 9:22:07 a.m. to 9:39:57 a.m. After leaving the Hess Station, the vehicle arrived at Lexington Middle School at 9:57:57 a.m. The vehicle departed the school at 10:16:17 a.m. and arrived at the Canal Street maintenance department at 10:40 a.m. The vehicle remained at the maintenance department until 11:01 a.m. The next stop for the vehicle was at 11:19:37 a.m. at Mr. Overhoff’s home, where the vehicle remained until 11:28:17 a.m. The vehicle left Mr. Overhoff’s home and went to One Price Optical in Cape Coral, Florida, where it arrived at 11:34:07 a.m. and left at 11:37:07 a.m. At 11:43:47 a.m., the vehicle arrived at Bank of America, and, at 11:44:17 a.m., the vehicle departed from the bank. The vehicle returned to Mr. Overhoff’s home at 11:51:58 a.m. and remained there until 11:53:17 a.m., when it departed for One Price Optical. The vehicle arrived at One Price Optical at 12:00:17 p.m. and left at 12:01:27 p.m. heading for Tanglewood/Riverside Elementary School, where it arrived at 12:22:37 p.m. and left at 12:37:47 p.m. The next stop the vehicle made was at another 7-ll store, where it arrived at 12:53:27 p.m. and left at l:01:57 p.m. The vehicle traveled past Mr. Overhoff’s house and arrived at One Price Optical at 1:18:17 p.m. and remained there until 1:33:47 p.m. From One Price Optical the vehicle proceeded to North Fort Myers High School, where it arrived at 1:38:37 p.m. and left at 1:52:17 p.m. From North Ft. Myers High School, the vehicle proceeded to the Professional Building on Dixie Parkway, arriving at 2:01:37 p.m. The vehicle remained stationary for 16 minutes and 40 seconds, circled the block around the Professional Building, and left at 2:21:37 p.m. From the Professional Building, the vehicle proceeded to Dunbar High School, arriving at 2:30:27 p.m. and leaving at 2:43:47 p.m. From Dunbar High School, the vehicle proceeded to the maintenance department at Canal Street, where it arrived at 2:53:47 p.m. Mr. Overhoff spent a total of 29.5 minutes in the morning at a convenience store and a service station. He spent from 11:01 a.m. to 12:01 p.m. on personal business, including stops at his home, a bank, and an optical business. The total time for his personal business was one hour. He left the maintenance department at 11:01 a.m. and could have taken his personal vehicle to run his personal errands and gone back to the maintenance department when he was finished. The locations where he conducted his personal business were northwest of the maintenance department. The next work assignment after he completed his personal business was located southwest of the maintenance department, which means that the errands that he was running were not on the way to a work assignment. In the afternoon, Mr. Overhoff stopped at another 7-11 store for 8.5 minutes, took a circuitous route by his home, and went back to One Price Optical. The amount of time that elapsed from the time he reached the 7-11 until he left One Price Optical was over 40 minutes. His home and One Price Optical were not located on a route that would have taken him logically to his next work assignment. Mr. Overhoff started his workday at approximately 6:30 a.m. Subtracting Mr. Overhoff’s lunch time and break times, Mr. Overhoff used .6 hours of work time above his allotted break times for his personal business. No evidence was presented to show that Mr. Overhoff took annual or sick leave for this time. Based on his daily labor sheets, Mr. Overhoff recorded eight hours of travel and work time for June 27, 2008. On June 27, 2008, a lens fell out of Mr. Overhoff’s glasses. Mr. Overhoff had permission from his supervisor, Michael Hooks, to go to an optical business to have the lens replaced. Mr. Hooks did not give Mr. Overhoff permission to stop by a Bank of America to conduct his banking business. The stop at the bank was not made while in transit to another job. Mr. Hooks did not give Mr. Overhoff permission to make multiple trips to One Price Optical. Mr. Hook had given Mr. Overhoff permission to stop by his house one time to check on Mr. Overhoff’s son. According to Mr. Overhoff, June 27, 2008, was the date that Mr. Hook had given him permission to stop to check on his son at home. Mr. Hook was not certain of the date that he gave such permission, but it was for one time only. June 30, 2008 Vehicle M404 left the maintenance department at Canal Street at 7:29:27 a.m. and arrived at Dunbar High School at 7:38:17 a.m. The vehicle left Dunbar High School at 7:38:17 a.m. and arrived at Kuhlman Concrete, LLC, at 7:40 a.m. The vehicle left Kuhlman Concrete, LLC, at 7:41 a.m. and arrived at North Fort Myers High School at 7:55:37 a.m. The vehicle left the high school at 8:50:27 a.m. and proceeded to Villas Elementary School, arriving at 9:02:47 a.m. and leaving at 9:31:57 a.m. The vehicle arrived at the James Adams Building at 9:45:37 a.m. and departed at 9:52:57 a.m., proceeding to a Hess Gas Station, where it arrived at 10:15:37 a.m. and left at 10:18:57 a.m. The next stop was at the North Fort Myers Academy of the Arts, where the vehicle arrived at 10:26:47 a.m. and departed at 10:41:17 a.m. The vehicle arrived at Diplomat Middle School at 10:59:27 a.m. and left at 11:35:37 a.m. From the Diplomat Middle School, the vehicle arrived at Mr. Overhoff’s house at 11:46:47 a.m., departed at 11:56:07 a.m., and arrived at North Fort Myers High School at 12:00:57 p.m. The vehicle did not stop at the school, but drove through the school grounds and left at 12:02:57 p.m. The vehicle turned in at Kentucky Fried Chicken at 12:21:57 p.m. and exited at 12:22:37 p.m. The vehicle proceeded to McDonald’s, arriving at 12:36:57 p.m. and leaving at 12:40:27 p.m. At 12:52:17 p.m., the vehicle arrived at Three Oaks Middle School and departed at 1:29:57 p.m. From the middle school, the vehicle proceeded to a Bank of America, arriving at 1:35:37 p.m. and leaving at 1:42:17 p.m. After leaving the bank, the vehicle went to South Fort Myers High School, arriving at 1:54:47 p.m. and leaving at 2:04 p.m. The next stop was Ray V. Pottorf Elementary School, where the vehicle arrived at 2:13:47 p.m. and left at 2:29:27 p.m. The vehicle proceeded to High Tech Central/New Directions, arrived at 2:37:57 p.m., drove through the campus, and exited at 2:44:57 p.m. At 2:54:07 p.m., the vehicle arrived at the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for three minutes mid-morning. At lunch time, he stopped at his home for nine minutes. The stop at his home was not authorized and was not in transit to another job location. The travel time to and from his home was eight minutes. He turned into a Kentucky Fried Chicken restaurant for 40 seconds. According to Mr. Overhoff, he went into the Kentucky Fried Chicken parking lot to take a telephone call or open a work folder. The next stop is a McDonald’s fast food place where he remains for 3.5 minutes. According to Mr. Overhoff, this is another stop to do paperwork. In light of his earlier stop at Kentucky Fried Chicken, Mr. Overhoff’s testimony is not credited. Additionally, Mr. Overhoff’s general assertions that his many stops at convenience stores were to do paperwork is not credible. He was given 30 minutes at the end of each work day for the specific purpose of completing his paperwork. The many inaccuracies in his paperwork do not support his assertion that he was making stops to keep his paperwork accurate and in order. Later in the afternoon, he made a six-minute stop at Bank of America. The side trip to the bank did not appear to be on a logical route to his next work assignment. Thus, four minutes’ travel time is assessed for the bank trip. The total time for his personal business was 33.5 minutes. July 1, 2008 On July 1, 2008, vehicle M404 left the maintenance department on Canal Street at 7:03:37 a.m. and arrived at a gas station/convenience store off Metro Parkway at 7:10 a.m. Leaving the convenience store at 7:14 a.m., the vehicle proceeded to Three Oaks Middle School, arriving at Three Oaks Middle School at 7:39 a.m. and leaving at 8:16 a.m. From the middle school, the vehicle traveled to Ray V. Pottorf Elementary School arriving at 8:36 a.m. and leaving at 8:41 a.m. The vehicle returned to the maintenance department at 8:50 a.m. and remained there until 9:16 a.m. The vehicle proceeded to Bonita Middle School, arrived there at 9:52 a.m., and left at 10:22 a.m. The next stop was Orange River Elementary School, where the vehicle arrived at 11:01:27 a.m. and departed at 11:05:27 a.m. At 11:12 a.m., the vehicle stopped at a restaurant/convenience store and remained there until 11:33 a.m. The vehicle arrived back at the maintenance department at 11:41 a.m. and departed at 12:20 p.m. The vehicle arrived at Trafalgar Middle School at 12:55 p.m. and departed at 1:18 p.m. The next stop was Gulf Middle School, where the vehicle arrived at 1:27 p.m. and left at 1:40 p.m. At 1:48:57 p.m., the vehicle arrived at Bank of America off Skyline Boulevard. The vehicle left the bank at 1:56:07 p.m. From the bank at Skyline Boulevard, the vehicle proceeded to the Bank of America at Viscaya Parkway, arriving at 2:09 p.m. and leaving at 2:19 p.m. At 2:23:07 p.m., the vehicle arrived at One Price Optical. The vehicle left One Price Optical at 2:27:07 p.m. The next stop was the James Adams Building, where the vehicle arrived at 2:44 p.m. and left at 2:46 p.m. At 3:02:57 p.m., the vehicle was parked at the maintenance department. The stop at the convenience store in the morning consumed ten minutes of Mr. Overhoff’s morning break time. The lunch at a restaurant took 21 minutes. In the afternoon, Mr. Overhoff stopped at two banks for a total of 17 minutes. Another stop was made at One Price Optical for four minutes. The stop at One Price Optical was not authorized and, based on the map contained in Petitioner’s Exhibit 7, the trip was not on the route back to the next job location. Thus, the travel time from the last bank stop, four minutes, should be added to the time. The time expended on personal business was 56 minutes. July 2, 2008 On July 2, 2008, vehicle M404 left the maintenance department at 7:04 a.m. and arrived at the James Adams Building at 7:13 a.m. The vehicle left the James Adams Building at 7:56 a.m. and arrived back at the maintenance department at 8:05 a.m. The vehicle left the maintenance department at 8:27 a.m. and arrived at the 7-11 store off Metro Parkway at 8:33 a.m. The vehicle left the 7-11 at 8:37 a.m. and returned to the James Adams Building at 8:50 a.m. At 8:57 a.m., the vehicle left the James Adams Building and returned to the maintenance department at 9:04 a.m., where it remains until 9:26 a.m. The vehicle arrived at Fort Myers High School at 9:41 a.m. and left at 9:56 a.m. Arriving at Orange River Elementary at 10:18 a.m., the vehicle remained until 11:03 a.m. when it proceeded to the Taco Bell off Palm Beach Boulevard. The vehicle reached Taco Bell at 11:05 a.m. and left at 11:38 a.m. At 11:47 a.m., the vehicle arrived at Edgewood Academy, where it left at 11:50 a.m. The vehicle arrived at Dunbar High School at 11:59 a.m. and departed at 12:05 p.m. From Dunbar High School, the vehicle proceeded to Mr. Overhoff’s house, where the vehicle remained from 12:27:17 p.m. to 12:30:07 p.m. At 12:49 p.m., the vehicle arrived at the James Adams Building, where it remained until 12:57 p.m. From the James Adams Building, the vehicle proceeded to a 7-11 store located off Winkler and Colonial Boulevard. The vehicle arrived at the 7-11 at 1:09 p.m. and departed at 1:11 p.m. At 1:17 p.m., the vehicle arrived at Lowe’s Shopping Center off Colonial Boulevard and Ben C. Pratt Parkway. The vehicle left the shopping center at 1:27 p.m. The next stop was Colonial Elementary, where the vehicle arrived at 1:34 p.m. and departed at 1:36 p.m. The vehicle returned to the maintenance department on Canal Street at 1:47 p.m. and remained there. In the morning, Mr. Overhoff went to a convenience store, which was not in route to a job location. The time spent at the convenience store was four minutes and the travel time to and from the convenience store from the maintenance department was 12 minutes for a total of 16 minutes for his morning break. Mr. Overhoff had lunch at Taco Bell for 33 minutes. In the afternoon, Mr. Overhoff stopped at his home for almost three minutes; however, the stop at his home was not on route to any job location. Thus, the travel time to his home and back to the next job should be included in any break time. The travel time for the trip home was 41 minutes, and the total time taken for his trip home was 44 minutes. The stop at his home was not authorized. Mr. Overhoff’s excuse for the stop at his home was to get boots and use the bathroom. His testimony is not credited. Mr. Overhoff testified that he needed his boots to clean off water, but the job in which he had been cleaning off water was before he stopped at his home. In the afternoon, Mr. Overhoff stopped at a convenience store for two minutes and went to Lowe’s for ten minutes. The stop at Lowe’s was not authorized. The stops at the convenience store and at Lowe’s were not in transit to another job location. The travel time should be calculated based on the time it took to get from Lowe’s to his next work location, which was 14 minutes. The total time that Mr. Overhoff spent on personal business was 1.95 hours. Thus, Mr. Overhoff spent .95 hours above his allotted break time for his personal business. No evidence was presented that leave was taken, and his daily labor sheet showed that he worked for eight hours on that day. July 7, 2008 On July 7, 2008, vehicle M404 left the maintenance department on Canal Street at 7:22 a.m. and proceeded to a 7-11 at the corner of Winkler and Colonial Boulevard, arriving there at 7:33 a.m. and leaving at 7:38 a.m. The vehicle arrived at Ray V. Pottorf Elementary at 7:43 a.m. and left at 9:35 a.m. The next stop was Lexington Middle School, where the vehicle arrived at 9:51 a.m. and departed at 10:05 a.m. From Lexington Middle School, the vehicle went to Fort Myers Beach Elementary School, arriving at 10:18 a.m. and leaving at 10:22 a.m. The vehicle arrived at Tanglewood/Riverside Elementary School at 10:46 a.m. and left at 11:04 a.m. At 11:21 a.m., the vehicle returned to the maintenance department at Canal Street. Leaving the maintenance department at 12:04 p.m., the vehicle proceeded to Dunbar High School, arriving at 12:10 p.m. and leaving at 12:23 p.m. At 12:39 p.m., the vehicle arrived at Crowther Roofing and remained there until 12:52 p.m. The vehicle made another stop at One Price Optical at 1:12 p.m. Leaving One Price Optical at 1:21 p.m., the vehicle arrived at Taco Bell off Santa Barbara Boulevard at 1:27 p.m. and left at 1:46 p.m. The vehicle arrived at Mariner High School at 1:53 p.m. and departed at 2:09 p.m. At 2:14 p.m., the vehicle entered the Publix Shopping Center off Santa Barbara Boulevard, departing at 2:17 p.m. From 2:22 p.m. to 2:37 p.m., the vehicle was stopped at a warehouse. At 2:44 p.m., the vehicle arrived at Mr. Overhoff’s house, where it remained until 2:47 p.m. At 3:07 p.m., the vehicle returned to the maintenance department at Canal Street. Mr. Overhoff stopped at a convenience store for five minutes in the morning. In the early afternoon, he made a nine- minute stop at One Price Optical, which was not an authorized stop. He stopped at Taco Bell for 19 minutes. He went to a Publix Shopping Center for three minutes, to a warehouse for 15 minutes, and to his home for three minutes. The stops at the Publix Shopping Center, the warehouse, and Mr. Overhoff’s home were not authorized, were for personal business, and were not in transit to a job location. Thus, the travel time from the shopping center to his home, which totals 12 minutes should be added to the time taken for personal business. The total time for personal business on July 7, 2008, was 65 minutes, which was five minutes above the allotted break times. July 8, 2008 On July 8, 2008, vehicle M404 left the maintenance department at Canal Street at 7:44 a.m., arrived at ALC Central/New Directions at 7:53 a.m., and departed ALC Central/New Directions at 8:23 a.m. The vehicle returned to the maintenance department at 8:28 a.m. and remained there until 8:41 a.m. At 8:58 a.m., the vehicle arrived at Tropic Isles Elementary School and remained there until 9:37 a.m. From the elementary school, the vehicle proceeded to the 7-11 store located off Pondella and Orange Grove. The vehicle arrived at the 7-11 at 9:39 a.m. and left at 9:42 a.m. From the 7-11, the vehicle proceeded to New Directions, arriving at 9:55 a.m. and leaving at 9:57 a.m. The vehicle returned to the maintenance department at Canal Street at 10:03 a.m. and departed at 10:33 a.m. The next stop was Cypress Lake High School, where the vehicle arrived at 10:56 a.m. and left at 11:28 a.m. From Cypress Lake High School, the vehicle traveled to Bank of America off Cypress Lake Drive. The vehicle arrived at the bank at 11:30 a.m. and left at 11:38 a.m. From the bank, the vehicle arrived at the 7-11 store off Metro Parkway at 11:45 a.m. and departed at 11:55 a.m. After leaving the 7-11 store, the vehicle proceeded to South Fort Myers High School, arriving at 11:59 a.m. and departing at 12:31 p.m. The next stop was Roofing Supply Company, where the vehicle stopped at 12:46 p.m. and left at 12:59 p.m. The vehicle proceeded to New Directions and arrived at 1:07 p.m. The vehicle remained at New Directions until 1:53 p.m. From New Directions, the vehicle headed to the maintenance department at Canal Street, where the vehicle arrived at 2:06 p.m. and remained. Mr. Overhoff stopped at a convenience store in the morning for four minutes, at a bank for eight minutes at lunch time, and at a convenience store for ten minutes at lunch time. These stops were made in transit to a job location. July 9, 2008 On July 9, 2008, vehicle M404 left the maintenance department at Canal Street at 7:12 a.m. and arrived at the 7-11 store off Metro Parkway and Colonial at 7:23 a.m. The vehicle remained at the 7-11 store until 7:30 a.m., when it left for Six Mile Cypress School, arriving at 7:42 a.m. and leaving at 7:53 a.m. The next stop for the vehicle was The Sanibel School, where the vehicle arrived at 8:29 a.m. and departed at 9:19 a.m., headed for Bailey’s General Store off Periwinkle Way. The vehicle arrived at Bailey’s General Store at 9:25 a.m. Mr. Overhoff made an authorized purchase of a 6-volt lantern at the store and left the store in the vehicle at 9:35 a.m. to return to The Sanibel School at 9:42 a.m. The vehicle remained at The Sanibel School until 10:29 a.m. At 10:39 a.m., the vehicle arrived at the 7-11 store off Periwinkle Way, where the vehicle remained until 11:02 a.m. From the 7-11, the vehicle traveled to Riverdale High School, where it arrived at 11:53 a.m. The vehicle remained at Riverdale High School until 1:36 p.m. The next stop was a convenience store on Palm Beach Boulevard, where the vehicle arrived at 1:42 p.m. and left at 1:46 p.m. From the convenience store, the vehicle proceeded to Edgewood Elementary School, arriving at 1:59 p.m. and leaving at 2:09 p.m. From Edgewood Elementary School, the vehicle traveled to New Directions/ALC Central, arriving at 2:16 p.m. and leaving at 2:23 p.m. The next stop was Dunbar High School, where the vehicle arrived at 2:28 a.m. and left at 2:56 p.m. The last stop was the maintenance department at Canal Street at 3:00 p.m. Mr. Overhoff stopped at a convenience store early in the morning for six minutes, at another convenience store at mid-morning for 23 minutes, and at a convenience store in the afternoon for four minutes. These stops were in transit to job locations. July 10, 2008 On July 10, 2008, vehicle M404 left the maintenance department at 8:30 a.m. and arrived at the Hess Service Station off River Road at 8:50 a.m. The vehicle remained at the Hess Service Station until 8:53 a.m., when it departed for Lee County Electric Company off Electric Lane. The vehicle arrived at the utility company at 8:56 a.m. and left at 8:59 a.m. The next stop was North Fort Myers Academy of the Arts, where the vehicle arrived at 9:06 a.m. and departed at 9:40 a.m. From North Fort Myers Academy of the Arts, the vehicle proceeded to Hector A. Cafferata, Jr., Elementary School, arrived there at 10:07 a.m. and left at 10:47 a.m. The next stop was Ida S. Baker High School, where the vehicle arrived at 11:05 a.m. and left at 11:26 a.m. At 11:29 a.m., the vehicle arrived at Gulf Middle School and left at 11:45 a.m. From Gulf Middle School, the vehicle traveled to Three Oaks Elementary School arriving at 12:41 p.m. and leaving at 1:11 p.m. The vehicle next arrived at Bonita Springs Elementary School at 1:30 a.m. The vehicle left Bonita Springs Elementary School at 1:55 p.m. and arrived at Lowe’s at Rolfes Road at 2:27 p.m. Mr. Overhoff made an authorized purchase at Lowe’s, and the vehicle left Lowe’s at 2:54 p.m. and arrived at the maintenance department at 3:04 p.m. Mr. Overhoff stopped at a convenience store for three minutes in the early morning and at the electric company for three minutes. The stop at the electric company was not an authorized stop. July 11, 2008 On July 11, 2008, vehicle M404 left the maintenance department at Canal Street at 7:34 a.m. and arrived at the 7-11 store off Lee Boulevard at 8:00 a.m. The vehicle remained at the 7-11 until 8:04 a.m., when it departed for Veteran’s Park Academy, where it arrived at 8:18 a.m. and left at 9:58 a.m. From Veteran’s Park Academy, the vehicle traveled to North Fort Myers High School, where it arrived at 10:45 a.m. and departed at 11:38 a.m. The vehicle returned to the maintenance department at Canal Street at 12:03 p.m., where it remained until 12:24 p.m. From the maintenance department, the vehicle traveled to the 7-11 store off Pondella Road, where it arrived at 12:39 p.m. and left at 12:43 p.m. From the 7-11, the vehicle traveled to Mariner High School, where it stopped at 12:57 p.m. and left at 1:28 p.m. The next stop was Riverdale High School, where the vehicle arrived at 2:07 p.m. and departed at 2:17 p.m. After leaving Riverdale High School, the vehicle went to Bank of America, arriving at 2:20 p.m. and leaving at 2:24 p.m. The vehicle left the bank and headed to Dunbar High School, where it arrived at 2:44 p.m. and left at 2:51 p.m. The last stop for the vehicle was at the maintenance department at Canal Street at 2:56 p.m. Mr. Overhoff stopped at a convenience store for four minutes in the early morning, at a convenience store for three minutes at lunch time, and at a bank in the afternoon for four minutes. The stops were in transit to job locations. The School District initiated an investigation into Mr. Overhoff’s use of a School District vehicle for personal business while on School District time. A predetermination conference was held on September 25, 2008. Mr. Overhoff appeared at the predetermination conference along with a representative of the SPALC. At the conclusion of the investigation, the School District determined that probable cause existed to impose discipline on Mr. Overhoff. On December 18, 2008, Mr. Overhoff was suspended with pay and benefits. By Petition for Termination of Employment, the superintendent for the School District recommended to the School Board that Mr. Overhoff be terminated from his employment. Mr. Overhoff requested an administrative hearing. On February 24, 2009, the School Board suspended Mr. Overhoff without pay and benefits pending the outcome of the administrative hearing. Mr. Overhoff had no prior disciplinary actions taken against him while he has been employed with the School District. Prior to the incidents at issue, Mr. Overhoff had received good performance evaluations. He is regarded by the director of maintenance for the School District as a good roofer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Mr. Overhoff violated The School Board of Lee County Policies 5.02, 5.29, 5.33, and 7.04; finding that Mr. Overhoff willfully neglected his assigned duties; suspending him from employment without pay from February 24, 2009, to September 30, 2009; and placing him on probation for one year. DONE AND ENTERED this 13th day of August, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of August, 2009.
The Issue Whether the Respondent's teaching certificate should be disciplined for alleged acts of misconduct as set forth in the Administrative Complaint, dated November 7, 1995, in violation of Section 231.28, Florida Statutes, and the Florida Code of Ethics of the Education Profession, Rule 6B 1.006, Florida Administrative Code.
Findings Of Fact Respondent holds Florida Educators Certificate 614756, covering the areas of Early Childhood Education, Elementary Education, Specific Learning Disabilities, and Emotionally Handicapped. The certificate is valid through June 30, 2000. At all times relevant, the Respondent was employed as a Specific Learning Disabilities resource teacher at Merritt Island High School in the Brevard County School District. Beginning in 1992 and continuing through March, 1994, Respondent engaged in a series of sexual relationships with C.M., R.B., D.L., and J.C., four minor male students at Merritt Island High School. The sexual activity involved masturbation and oral sex which took place during and after school, at various locations on the school campus, including Respondent's classroom at Merritt Island High School. Sexual activity also took place in Respondent's vehicle while at the beach. In exchange for the sexual favors, Respondent gave the students money, clothing, food, and other items. When Respondent's relationships with these students became public knowledge, she requested a personal leave of absence from school beginning April 4, 1994 through June 6, 1994. During the 1994 1995 school year, Respondent was placed in a nonstudent contact position. On or about August 24, 1994, Respondent was arrested and charged on 40 counts of Sexual Battery on a Minor by a Person in Custodial Authority. Eventually, additional charges were added for a total of 101 counts in four separate cases. Respondent pled Not Guilty to all counts in the Circuit Court for Brevard County, Florida. Thereafter, all four cases were tried together before a jury. On or about August 26, 1995, following the jury trial in the circuit court, Respondent was found guilty on 64 of the 101 Counts in the four cases, as follows: In Case Number 94A: 23 of 37 counts of Sexual Activity with a Minor by a Person in Custodial Authority: In Case Number 94 A: 34 of 47 counts of Sexual Activity with a Minor by a Person in Custodial Authority; In Case Number 94A: 2 of 2 counts of Sexual Activity with a Minor by a Person in Custodial Authority: and In Case Number 65A: 4 of 10 counts of Sexual Activity with a Minor by a Person in Custodial Authority and 1 of 1 counts of Lewd and Lascivious Act upon a Minor. Following the convictions on the 64 counts by the jury, the Court revoked Respondent's bail and she was remanded to the custody of the Brevard County Sheriff pending sentencing. Following her conviction, Respondent was placed in a no pay status, as absent without leave, with the school district for the 1995-1996 school year. Respondent was subsequently terminated from her employment with the school district. On or about October 5, 1995, the Circuit Court adjudicated the Respondent guilty of the 64 felony counts and sentenced her to serve 10 years in custody, followed by 15 years of supervised probation. Following the first twelve months after her release from prison, Respondent is to pay the cost of her supervision. Special conditions of Respondent's probation include the following: Undergo psychiatric treatment/mental heath counseling for sex offenders and such other psychiatric treatment/mental health counseling as directed. Have no contact with the victims or their families. Have no contact with any male child under the age of 18 years without the child's parent or guardian being present; and Not engage in any employment or volunteer activities, paid or unpaid, which place her in a position of supervision or authority over children under the age of 18 years. Respondent is presently serving her sentence in the custody of the Florida Department of Corrections. Respondent is guilty of gross immorality and conduct involving moral turpitude. Respondent's misconduct seriously reduces her effectiveness as a teacher.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued finding that Respondent did violate the provisions of Sections 231.28(1)(c), (e), (f), and (i), Florida Statutes, and Rules 6B1.006(3)(a), (e), (g), (h), and (4)(c) Florida Administrative Code. It is further RECOMMENDED that a Final Order be issued permanently revoking Respondent's teaching certificate for the above violations. DONE AND ENTERED this 18th day of March, 1997, in Tallahassee, Leon County, Florida. _ DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1997. COPIES FURNISHED: Carl J. Zahner,II, Esquire Office of the General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-1700 Lorene C. Powell, Esquire 118 North Monroe Street Tallahassee, Florida 32399-1700 Karen B. Wilde, Executive Director Education Practices Commission The Florida Education Center, Room 224B 325 West Gaines Street Tallahassee, Florida 32399 Michael H. Olenick, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399 Kathleen M. Richards, Administrator Professional Practices Services 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether to impose sanctions against Respondent, Brooke Braly, up to, and including, revocation of her Educator’s Certificate.
Findings Of Fact The Commissioner is responsible for monitoring each person who holds a Florida Educator Certificate and who is working in any school district within the State. Part and parcel of the Commissioner’s duties is the determination of whether any teacher violated any of the Principles of Professional Conduct for the Education Profession. At all times relevant hereto, Ms. Braly held Florida Educator Certificate No. 1106771, covering the areas of elementary education and English for speakers of other languages. The certificate is valid through June 30, 2021. Ms. Braly is employed as a teacher in the Volusia County School System, teaching at the School in the area of Modified ESE with Varying Exceptionalities. Her students were those with physical and/or mental disabilities which resulted in learning difficulties. Ms. Braly had served in that position for seven years as of the date of final hearing, including the 2017-2018 school year. An incident occurred at the School on December 5, 2016, i.e., the 2016-2017 school year, involving the Student. Based on that incident, the Commissioner issued an Administrative Complaint on November 21, 2017 (some 10 months later), which contained the following allegations: On or about December 5, 2017, [Ms. Braly] failed to notify school administrators after she confiscated a BB gun from a student at the beginning of the school day. [Ms. Braly] also failed to properly secure the BB gun to prevent the student from regaining possession of it while still on school property. The Salient Facts From the evidence presented, it is clear that on December 5, 2016, the Student approached Ms. Braly at the beginning of the school day. The Student told Ms. Braly that he had inadvertently failed to remove his BB/airsoft pistol from his backpack before leaving for school that morning. He asked her what he should do, and Ms. Braly took the gun from him to secure it for the day. At no time was she worried that the Student had intentions of using the BB gun or that it was a serious problem. In fact, Ms. Braly did not even believe it was a BB gun, but thought it was a plastic toy gun. At the end of the day, the Student took the gun home with him. As the Student was exiting the school bus at his stop that afternoon, another student sitting on the bus saw the BB gun, which the Student had stuck into his waistband under his shirt. The Student’s shirt was lifted for some reason and the other student spotted the gun. That student went home and immediately sent an email to several School administrators to report what he had seen. The administrators reviewed surveillance videos from the bus and identified the Student as the person carrying the gun. An investigation ensued and the Administrative Complaint was filed. The less clear and/or less persuasive “facts” of this case are set forth below. The Gun The Commissioner presented a picture of a BB gun at final hearing which was purported to be the same gun Ms. Braly had confiscated from the Student on December 5, 2016. The black and white picture shows a replica Smith & Wesson handgun of small to average size. Ms. Braly says that the gun depicted in the picture is not the gun she took from the Student. The Student’s father brought a handgun to final hearing that he said was the gun at issue. It was plastic, lightweight, and tan and black in color. There was a clip (presumably for holding BBs) that could slide into the handle of the gun. The father demonstrated how to insert the clip and how to “cock” the gun by sliding back the top portion. That action would engage a spring that would release once the trigger was pulled, i.e., it was a spring-fired pistol, not a recoil action weapon. According to the Student, the gun fired plastic pellets rather than BBs. Ms. Braly, who only saw the gun for a few moments on the morning of December 5, 2016, remembers it to be black with an orange tip, unlike the gun produced at final hearing. At some point, the Student was asked to identify the gun from a picture depicting several different handguns. The Student pointed out to an investigator which of the depicted guns looked most like his BB pistol. The photographic line-up was not offered or admitted into evidence, so no finding is made as to what it may have shown, vis-à-vis what the gun looked like. At the final hearing, the Student’s father acknowledged that he had previously told School administrators he had destroyed his son’s gun back in December when the event occurred. The gun he produced at final hearing was obviously not destroyed; in fact, it looked very new and barely used. The Student said the gun produced at hearing was the same gun he gave to Ms. Braly on December 5, 2016. Mr. Starin, an investigator for the Volusia County School District, was tasked with looking into the incident. He did not speak to the Student’s parents nor did he attempt to locate the gun (other than having the Student identify what the gun looked like from the pictorial lineup). The most persuasive evidence is that the gun given to Ms. Braly on December 5, 2016, was the same as or similar to the one depicted in the Commissioner’s exhibit and proffered at final hearing. It was very light and obviously a toy, but was designed to resemble a real gun. Though it looked somewhat like a real weapon from afar, it is hard to believe anyone who held the gun or saw it up close would think it real or capable of causing serious harm to a person. December 5, 2016 As the Student was walking to his bus stop, he told his sister he had forgotten to remove the BB gun from his backpack after carrying it with him to the park the night before. His sister advised the Student to give the gun to his teacher so as not to get in trouble at school. Upon arrival at the School, the Student immediately approached Ms. Braly, who he trusted and believed would help him do what was most appropriate in this situation. When no other students were nearby, the Student told her about the gun. Ms. Braly took the gun and placed it in her office in a desk drawer. The Student remembers her placing the gun in a cardboard soda can box. Ms. Braly remembers just placing it in a desk drawer. It is patently obvious by his actions that the Student had no intentions of displaying the gun at school for any purpose. He very intentionally tried to diffuse any danger or unease that might have arisen due to his mistake. Ms. Braly took the Student’s actions and demeanor into account when deciding what to do. Ms. Braly thought the toy gun would be safe in her locked office as that was where she kept her purse and car keys during the school day. Normally no one had access to the office during the day, except that construction was going on and some of the workers did have access to the office. Ms. Braly did not consider those workers a threat to steal anything or to rifle through her desk during the day. She also did not consider the toy gun worthy of anyone’s interest. She believed her response to the situation was reasonable, based on all the circumstances and her knowledge of the Student. At the end of the day, the Student retrieved the gun. How that occurred is not entirely clear from the evidence. The Student says that he asked Ms. Braly at the end of the day if he could get his gun. She was very busy at the time and just told him, “yes,” so he went into the office and retrieved it. He remembers Ms. Braly telling him to put it in his backpack so that no one else would see it. He did so, but then transferred it to his waistband later. An ESE co-teacher with Ms. Braly remembers Ms. Braly being completely absorbed in the preparation of an Individual Education Plan for another student that afternoon. The co-teacher had instructed students not to bother Ms. Braly and does not remember the Student or anyone else talking to Ms. Braly that afternoon. Ms. Braly does not remember being asked by the Student whether he could get his gun from the office. She simply did not even think about the gun after acquiring it that morning. To her, the gun was a toy and did not warrant much attention. Sometime the next day, she realized the gun was gone and surmised that the construction workers must have left the door open so that the Student was able to get his gun. She did not explain why she thought the Student – rather than the workers – had taken the gun from her office. At any rate, the Student retrieved his gun before he left for home. As he was exiting the school bus, the other student noticed the gun in his waistband and notified School administrators. That action is very understandable considering the school shootings across the nation in recent times. December 6, 2016 Once the school administrators got word about the gun and identified the Student, they contacted Ms. Braly. The School resource officer, Deputy Abato, went to Ms. Braly’s class and asked to talk to her. They went into her office, away from the students, and she was asked about the gun. The conversation lasted only a few moments. Deputy Abato was only concerned with whether the gun was real or not. Convinced it was not, he did not pursue the matter. Later, Ms. Braly was asked by assistant principal Feltner to write a statement concerning the incident. Her statement reiterated what had happened, i.e., the Student showed her the gun, she identified it as a toy and placed it in her office, and the Student later retrieved it. Again, how she knew that the Student retrieved the gun rather than someone else getting it is not clear. Deputy Abato’s statement from that same day mirrored Ms. Braly’s statement. Deputy Abato said that if a student pulled a gun on him that looked like the one in the picture offered into evidence, he would order the student to put the gun down. If they did not do so, he would likely shoot them. Whether the gun the Student had was like the picture is not clearly established in the record. The best evidence is that the gun could have looked like that, but even that evidence is neither clear nor convincing. The gist of the Commissioner’s argument in this case is that: IF an armed deputy saw the Student with the gun, and IF the deputy ordered him to put it down, BUT the student did not immediately comply, THEN the deputy MIGHT be inclined to fire on the student. Though completely plausible in general terms, that eventuality seems very unlikely under the facts of this case. Later Developments On December 15, 2016, Investigator Starin issued an “Investigative Summary” describing his findings after conducting a brief investigation. The report did little more than recite what other people had said. Mr. Starin concluded that the Student brought the gun to school, gave it to his teacher, and retrieved it at the end of the day. The summary provides little substantive information and makes no recommendation or assertion of wrongdoing by Ms. Braly. The investigator only talked to three people as part of his minimal investigation into the incident on December 5, 2016: Ms. Braly; Deputy Abato, who had only secondhand knowledge; and the Student. It is remarkable that Mr. Starin did not interview Ms. Braly’s co-teacher or her paraprofessional, both of whom were in the classroom that day, or the Student’s parents. The overall level of the investigation is consistent with the degree of seriousness of the events. That is, there was a slight breach of protocol, but no probability of harm to the Student or others at the School. The Board decided that the incident nonetheless warranted some discipline. The School Board notified Ms. Braly that a letter of reprimand would be issued and she would be suspended for three days without pay. Although this was a fairly low level of discipline, Ms. Braly has challenged it; the matter is currently in arbitration. Notwithstanding the discipline imposed, the Board has re-hired Ms. Braly for the 2018-2019 school year in the same position she has held for the past seven years. In fact, she has continued teaching at the School since the December 5, 2016, incident. She is an effective teacher and has not had any other disciplinary actions against her, and the School recognizes her as an effective ESE teacher. The Commissioner also seeks to discipline Ms. Braly, noting that she failed to report the incident and did not adequately secure the toy gun. Both of these allegations are true, whether they violate any particular policy or not. The Commissioner proposes a letter of reprimand, suspension of Ms. Braly’s Educator Certificate for six months, and two years of probation. However, based on the best evidence available, Ms. Braly’s conduct was both reasonable and essentially benign. If any sanction against Ms. Braly was warranted, it should be minimal at worst.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Pam Stewart, as Commissioner of Education, dismissing the Administrative Complaint filed against Respondent, Brooke Braly, in its entirety. DONE AND ENTERED this 22nd day of August, 2018, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 2018. COPIES FURNISHED: Gretchen Kelley Brantley, Executive Director Education Practices Commission Department of Education Turlington Building, Suite 316 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Branden M. Vicari, Esquire Herdman & Sakellarides, P.A. Suite 110 29605 U.S. Highway 19 North Clearwater, Florida 33761 (eServed) Ron Weaver, Esquire Post Office Box 770088 Ocala, Florida 34477-0088 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Marian Lambeth, Bureau Chief Bureau of Professional Practices Services Department of Education Turlington Building, Suite 224-E 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
Findings Of Fact This action is brought by the School Board of Bay County, Florida, against Willie L. Brown, calling for Brown's dismissal as an employee of the Bay County School System. This request for dismissal follows the March 17, 1981, suspension of Brown by action of Pete Holman, Superintendent of the Bay County School System. See Petitioner's Exhibit No. 4, admitted into evidence. The basis for this action on the part of the Petitioner is as stated in the Issues statement of this Recommended Order. After being informed of the Petitioner's intent to dismiss him as an employee, the Respondent requested a formal hearing in this cause and the School Board, on June 4, 1981, asked the Director of the Division of Administrative Hearings to assign a Hearing Officer to conduct a Subsection 120.57(1), Florida Statutes, hearing. A Hearing Officer was assigned and the hearing was held on July 10 and 14, 1981. The Respondent holds Florida Teaching Certificate No. 385083, valid through June 1985, and covering the areas of elementary education, early childhood education and administration/supervision. At all times pertinent to this matter, the Respondent, Willie L. Brown, was employed by the Bay County School Board as a teacher at the A. D. Harris Sixth Grade Center. In the school year 1980-81 a local civic club in Panama City, Florida, held an oratorical contest for the benefit of students in the Bay County School System. Among the participants in that contest were students from the A. D. Harris Sixth Grade Center where the Respondent taught. Brown acted in the capacity as advisor to those students and met with the students from the Harris Center on several occasions to aid the students in the preparation of their speeches, and in the presentation of those speeches. One of the students participating in the oratorical contest was Steve William Rudd, a minor. Rudd was not a student in Brown's regular academic classes. The involvement Rudd had with Brown prior to the oratorical contest was merely to the extent of knowing that Brown was a teacher at Harris. On the first occasion of Rudd's participation with Brown in the speech contest, Brown met with Rudd and other students in the auditorium at the school and listened to their speeches and critiqued their presentation. The next occasion in which Brown took part in the preparation of the students for the oratorical contest occurred in Brown's homeroom, at which time the general nature of the relationship between Brown and the students was as occurred at the auditorium session. On the third occasion in which the Respondent met with Rudd, there was also in attendance a second student, William Arnold Stevenson. This session was held in the classroom of another teacher. On that occasion Stevenson was allowed to present his speech while Brown listened and Rudd waited for his turn. When Stevenson had concluded his speech, he left the room leaving Brown and Rudd alone. Rudd then commenced his speech standing at the front of the room, and he concluded that presentation while Brown moved around the room listening to the speech. Brown then made certain suggestions to Rudd about correcting Rudd's speech presentation and then asked Rudd to move to the back of the classroom. Rudd complied with that request. Rudd then began to give his speech again while standing at the back of the room in the area of a desk. At this time the Respondent was moving around the room and eventually approached Rudd. At that point, Brown placed his folded arms on the back of Rudd at Rudd's shoulder level. At this juncture, Rudd was facing the front of the classroom and the Respondent was directly behind him. The front of Brown's body was touching the back of Rudd's person. Brown remained in this position until Rudd had concluded his speech. During this interval, Brown made no comment. The interval for this occurrence was approximately two or three minutes. After Rudd had presented his speech for the second time, the Respondent went and took a seat in a chair in the back of the classroom. The Respondent then instructed the student to sit on the Respondent's lap. Rudd complied and seated himself on the Respondent's leg, in the area of the Respondent's knee. The Respondent then gestured with his hand, pointing in the direction of the Respondent's groin area, meaning the genital area, and said to the student, "sit right here." The Respondent then pulled the student toward his body and at that time the student was seated on the Respondent's genital area with his back against the Respondent's chest. No comment was made during this part of the episode, which lasted a short time. Brown then moved Rudd back away from his body into the original location near his knee. He then took the student's right hand and with the student's hands stroked Brown's genital area. This maneuver with the student's hand was a momentary event. While the student was seated on the Respondent's lap, he was concerned for his welfare and in particular worried about the door which had been locked by the Respondent. The student thought that the door was locked such that he, the student, could not exit. In fact, the door was locked barring entry from persons outside the room. Brown released Rudd's hand and told Rudd that he could get out and that Brown was sorry for what had occurred. He told the student this several times, once when the student got up, once when the student was midway in the classroom approaching the door, and once when the student got to the door. On the same day as the event transpired, Rudd reported the incident to the Principal at Harris Center, one James Griffin. Griffin then confronted the Respondent with the student's allegations by asking Brown if the story that Rudd had told about the incident was true. Brown responded, "Yes, it is." When Griffin asked him why he did it, Brown said, "I don't know." Griffin then commented to Brown that the matter was a very serious offense and that Brown might be suspended or dismissed from the school system, to which Brown replied, "I know this." Griffin then asked Brown if he was prepared to face the consequences, and Brown replied, "Yes, I guess I am." Since the time of the event, some of the other students in the sixth grade center have referred to Rudd as a "gay boy," meaning that Rudd was a homosexual, due to his circumstance with Brown and that Rudd "felt Mr. Brown off," meaning that Rudd had manipulated the Respondent's penis. Rudd had been teased about the event by other students, and the students did not talk to him. Rudd has felt insecure in his home and has desired to sleep on the floor in a sleeping bag with the lights on because of this event with the Respondent. Rudd has felt as if someone were watching him even in his home, in particular that the person was the Respondent. The student has also felt that he did not wish to sleep by a window and has chosen to sleep in the middle of the room, and at times has slept on a couch in the living room of his home. The aforementioned treatment of the student by other children in the sixth grade center led Rudd's parents to change his bus transportation to avoid a confrontation with the children. Nonetheless, it has not been necessary for the student to seek psychiatric assistance and he is recovering from the trauma of the subject occurrence. In spite of attempts by the school authorities to deter publication of this incident, students, teachers, parents, staff and other persons within the community have learned of the incident and principal Griffin is of the persuasion that there would be dissension with teachers, parents and students should Brown be allowed back as an instructor in the school. Griffin feels that there would be a lack of trust in that Brown has lost his effectiveness as an instructor. Likewise, Bay County Superintendent Holman who is familiar with the case facts, is of the persuasion that Brown's effectiveness as a teacher in Bay County has been seriously reduced. Nothing offered in defense rebuts the opinion of these educators. Following the incident, a meeting was held on March 6, 1981, between the Respondent and Pete Holman, Superintendent of Schools in Bay County, Florida, with the Principal Griffin being in attendance. At that time Brown again admitted that the incident had occurred and subsequent to this meeting Brown was suspended from his teaching duties in the Bay County system. There ensued an administrative complaint brought by Ralph B. Turlington as Commissioner of Education in the State of Florida, and the Bay County School Board took action to discharge the Respondent as an employee.
