Findings Of Fact Respondent was initially employed by the Pinellas County School Board in August 1973 as a plant operator, and received evaluations on his job performance approximately on an annual basis through December, 1986. In the evaluation dated May 17, 1977 in the category of attitude, Respondent received a comment that he was "slow to cooperate, occasionally disagreed with others, objects to some jobs." Respondent received "Needs Improvement" ratings in attitude, and relations with others on his evaluation dated January 10, 1983. In the evaluation dated December 17, 1984, Respondent received a "Needs to Improve" in the category of relations with others. On October 5, 1979, while a night plant operator at Clearwater High School, Respondent was placed on a 90 day probationary period after using profanity and being insubordinate to his immediate supervisor. On January 11, 1980, the principal of Clearwater High School requested that the Superintendent of the Pinellas County school system initiate the termination of Respondent for failing to cooperate with fellow workers, and reporting that work was done when in fact it had not been done. Prior to any action being taken to terminate Respondent in 1980, Dr. Ronald F. Stone interceded with the Superintendent on Respondent's behalf. It was Dr. Stone's opinion that Respondent's difficulties in cooperating with his fellow workers were due to the larger and more complex nature of the plant operator work at a high school, and Stone arranged to have him transferred to an elementary school where he has been subsequently employed. Respondent's employment was covered by the terms of the collective bargaining agreement between the International Brotherhood of Firemen and Oilers (IBFO) and the Petitioner for the years 1985 through 1988. The IBFO agreement states, in Article 11 that: . . . except as expressly provided in this agreement, the determination and administration of school policy, the operation and management of the schools and the direction of employees are vested exclusively in the Board. The IBFO agreement does not set forth any definition of the grounds for which the Petitioner may discharge IBFO employees, including plant operators. However, the practice of "progressive" discipline is specifically recognized at Article 29, Section G(2). On January 22, 1987, the Office of the State Attorney for the Sixth Judicial Circuit for the State of Florida, in and for Pinellas County Florida, filed an Information in Circuit Criminal Case No. 87-695CFANO, alleging the Respondent had committed the felony of handling and fondling a child under the age of 16 in a lewd manner. The child involved is currently six years old. On May 27, 1987, Respondent entered a plea of guilty to the lesser included charge of simple battery in Case No. 87-695CFANO, the Court accepted said plea, found him guilty of the lesser included charge of simple battery, withheld adjudication of guilt, and placed him on probation for one year. The Superintendent of the Pinellas County School System has recommended that Respondent's employment be terminated based upon his plea to this charge, and the accumulated effect of his poor performance in this job. There are no plant operator jobs in small, noncomplex facilities, within the Pinellas County school system that would not bring the employee into contact with children. Even working on night shifts in an elementary school, Respondent would be coming into contact with children who are students of the Pinellas County school system. It is the opinion of Dr. Ronald Stone, Executive Assistant Superintendent of Human Resources and Ms. Nancy Zambito, Director of Personnel Service, that the employees of the Pinellas County school system must maintain a public image of respect for school age children, and that the commission of, or entry of a plea of guilty to the charge of any battery on a school age child is inconsistent with said public image and is, therefore, detrimental to the Pinellas County school system. According to his brother, Arthur T. Greer, a lieutenant in the Akron Police Department, Respondent has a learning disability which makes it very difficult for him to communicate. He discussed the entry of a plea of guilty to a simple battery with Respondent before it was entered, and he feels that Respondent entered this plea to avoid a very traumatic experience of testifying in court. However, Respondent has consistently denied improperly touching, fondling or committing a battery on the child. Respondent's immediate supervisor, William J. Johnson, who has supervised him for 5 years, testified that he was a very good, loyal and dependable worker. This testimony was supported by Robert Russell, Plant Operations Supervisor. Johnson also confirmed that Respondent has consistently denied the charges involving the child. In accordance with Article 29 of the IBFO agreement, disciplinary action taken more than two years previous to a current charge cannot be considered by an employee's immediate supervisor in assessing disciplinary action on a current charge. This provision, however, does not limit consideration by the Superintendent or School Board of all prior charges and disciplinary actions when imposing discipline on a current charge. Respondent is under contract for the 1987-1988 school year, but is in the status of suspended without pay, pending a final determination in this cause. He has been suspended without pay since January, 1987 when the information against him was filed in Case No. 87-695CFANO.
Recommendation Based upon the foregoing, it is recommended that Petitioner enter a Final Order approving the Superintendent's recommendation that disciplinary action be taken against Respondent. However, it is recommended that such action be based solely upon the finding that he is guilty of a simple battery against a child under 16 years of age. Accordingly, it is recommended that Respondent be suspended without pay from January, 1987 until the entry of the Final Order herein at which time it is further recommended that Respondent be reinstated to his former position as plant operator. DONE AND ENTERED this 1st day of February, 1988, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4131 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1. 3-5 Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Rejected as not based on competent substantial evidence. Rejected as unnecessary and irrelevant. 10-11 Adopted in Finding of Fact 5. 12 Rejected as unnecessary and cumulative. 13-14 Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. 17-18 Rejected as unnecessary due to Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Rejected as unnecessary and cumulative due to Finding of Fact 9. Rulings on Respondent's Proposed Findings of Fact: 1 Adopted in Finding of Fact 1. 2-3 Adopted in Finding of Fact 9. Rejected as simply a statement about evidence which was not presented; and therefore as unnecessary. Adopted in Findings of Fact 2-5, 13 and 14. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618-4688 James R. Stearns, Esquire 1370 Pinehurst Road Dunedin, Florida 34698 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618-4688 =================================================================
Findings Of Fact Respondent, David L. Smith, is a teaching veteran of twenty years and holds a teacher certificate by Florida. He is employed by Petitioner, the School Board of Pinellas County, as a teacher by means of a continuing contract. During times material, Respondent was assigned as a teacher at Pinellas Park High School. At the beginning of the 1991-92 school year, Respondent's father passed away and Respondent was allowed bereavement leave for a period of approximately eight days. The incidents alleged in Petitioner's charging letter and which is at issue herein occurred over a 5-day period from September 9-13, 1991, after Respondent returned from the burial of his father in the Midwest. During early September 1991, Respondent found a black student, Gregory Mills, sitting in his chair whereupon he replied to the class, "How far to you think I can throw this negro?" The term "negro" is offensive to some black students and Petitioner discourages the use of racial slurs in the school setting. The student to whom the remark was made, Gregory Mills, did not view the remark as offensive and considered that Respondent was making a joke of the incident. Mills view Respondent as a good teacher who gets along well with all students and was particularly concerned about the welfare of minorities, exemplifying such by assisting them in achieving their career objectives. At least one student, Robia Brown, who was in Respondent's class when Respondent made the "negro" remark to Mills thought that Respondent used the term "nigger" instead of "negro." However, the facts failed to support Robia Brown's recollection and it was not borne out by the testimony of Respondent and the student to whom it was directed, Gregory Mills. During times material, Bihn Vo was an oriental student at Pinellas Park and was an office assistant whose duties included taking messages and information from the office to individual classrooms. On one occasion following September 9, 1991, Vo was delivering information to Respondent's classroom. When Vo entered the wrong door, Respondent replied, "What do you want, you oriental son of a bitch?" On a separate occasion during early September 1991, information was delivered to Respondent's classroom for Kelly Slusser, a student. When the file which contained the information was given to Respondent, he threw the open file across the room and remarked, "[I] do not like her anymore." Also, during the same time period, Respondent grabbed Slusser by the neck and pushed her backwards leaving marks on her neck which were later visible by the assistant principal, Pamela Jones. As a result of those incidents, Slusser and another student, Robia Brown, withdrew from Respondent's class. During this period of time in early September 1991, Respondent openly used profanity in the presence of students. On September 9, 1991, Respondent experienced restlessness and an inability to sleep because of the mental state that he was experiencing following his father's burial and the internal strife that was brought upon him by his family members and some chicanery that was ongoing between Respondent and other family members about estate property which his father left. Respondent and his father enjoyed a very close relationship. His father's death was untimely occurring during a period when he (Respondent's father) appeared to have been enjoying good health. Respondent's father would spend most summers with him and they would vacation in and around Central Florida. As a result of the depression that Respondent appeared to suffer following his father's death, he visited his physician, David R. Newsome, M.D., for medication which would allow him to sleep at night. All of the incidents which are at issue occurred over a 5-day period from September 9-13, 1991. Following those incidents, Respondent took an 8-day leave from September 16-27, 1991, and received psychotherapy. On September 27, 1991, Respondent returned to his teaching duties and continued his employment with Petitioner until October 19, 1991, without further incident, at which time he was suspended by Petitioner. It is undisputed that Respondent was a popular teacher who often kidded with students. He appeared sleepy and drowsy during early September 1991 and at least one of Petitioner's supervisory employees questioned him about his well-being and suggested that he request administrative leave, which he did. Respondent's actions during the period September 9-13, 1991, came about as a result of his despondency over his father's death and he received medical treatment which appeared to have alleviated the problem. Respondent enjoys teaching and it does not appear that his effectiveness has been reduced to the point whereby he would be an ineffective teacher if he is afforded an opportunity to return to a classroom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: 1. Petitioner enter a Final Order (1) reversing its recommendation that Respondent be dismissed from his position of employment with Petitioner as an instructional employee, (2) that Respondent be placed on probation for a period of one (1) year under terms and conditions designed to assure that no further similar acts/occurrences that were displayed by him in September 1991 are manifested, and (3) that Respondent be reinstated with all other rights and benefits of a tenured instructor employed by continuing contract with the Pinellas County School Board. DONE and ENTERED this 29th day of May, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: BRUCE P TAYLOR ESQ SCHOOL BOARD ATTORNEY PINELLAS COUNTY SCHOOLS PO BOX 2942 LARGO FL 34649 2942 LAWRENCE D BLACK ESQ 650 SEMINOLE BLVD LARGO FL 34640 3625 J HOWARD HINESLEY SUPERINTENDENT OF SCHOOLS PINELLAS COUNTY SCHOOLS PO BOX 2942 LARGO FL 34649 2942 BETTY CASTOR COMMISSIONER OF EDUCATION THE CAPITOL TALLAHASSEE FL 32399 JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1992.
The Issue The issue in this case is whether the school Board of Pinellas County (Petitioner) should dismiss its employee, Clarence Davis (Respondent), from continuing contract for misconduct in office and gross insubordination based upon matters alleged in the Superintendent's letters of March 13 and April 24, 1989.
Findings Of Fact Respondent holds a teaching certificate from the State of Florida, and has been employed by continuing contract with the Petitioner since April 21, 1971. In 1986, he was assigned to Azalea Middle School, where he has since been employed. The parties stipulated that during a prior assignment at Riviera Middle School, the principal of that school had warned Respondent to refrain from aggressively touching students. During April, 1986, Dr. Scott N. Rose, Superintendent of the Pinellas County school system, removed Respondent from a counseling assignment at Pinellas Park Middle school, and transferred him to Azalea Park Middle school as a physical education teacher. The Superintendent issued a warning at the time of this transfer that he would recommend a suspension without pay or termination if Respondent's future actions at Azalea Middle school constituted insubordination. During the 1987-1988 school year, Respondent was assigned to a guidance counselor position at Azalea Middle School, but he again had to be removed by the Superintendent. He was warned again that future problems would result in a suspension without pay or a termination. John Leanes became principal of Azalea Middle School in January, 1988, and in October, 1988, he warned Respondent to avoid touching students. In December, 1988, senior administrative officials and representatives of the Petitioner met with the Respondent, and warned him not to touch students. They told him that if he could not meet the standards and expectations of the Petitioner for teachers in the Pinellas County school system, he would be recommended for termination of his continuing contract. The Code of Student Conduct in effect in the Pinellas County school system at all times material hereto provides, in part, that: No form of physical punishment, other that paddling with a paddle is authorized. Corporal punishment may be used only after careful consideration of the facts by the principal, or designee. In no case shall such punishment be degrading or unduly severe in nature. Around the time of the winter holiday during the 1988-1989 school year, Respondent became involved in an incident with a twelve year old female student named M.S. The student was not feeling well, and did not dress out for physical education class. She was lying down in the bleachers. Respondent yelled at M.S. to come down from the bleachers when he observed her talking to other students at the top of the bleachers. When she complied and approached him, he appeared to the student to be very angry, and threatening. He yelled at her so closely that saliva from his mouth struck her in the face. After yelling at her, he pushed M.S. with both hands, throwing her back onto the bleachers. This incident caused the student, M.S., to be frightened and intimidated by the Respondent. Other students observed the incident, and confirmed the testimony of M.S. at hearing. Respondent's actions in this incident reasonably caused M.S. to feel embarrassment, fear, and the threat of physical punishment. On or about March 7, 1989, Respondent yelled at a male student, J.S., and pushed him in the chest with his finger while yelling at him. It appeared to the student that Respondent was trying to provoke him into a physical confrontation. Respondent testified that he was trying to protect another student, K.W., whom he felt was being bullied by J.S. However, K.W. testified that J.S. was not bullying him on this day, and that he and J.S. are friends. Other students witnessed the incident, which reasonably caused the student, J.S., embarrassment, and fear. It is alleged that on March 8, 1989, Respondent also grabbed a student, R.L., by the shoulders, shook him, and yelled at him. R.L. is classified as an emotionally handicapped student, who has been suspended. Students who testified characterized R.L. as someone who talks alot, says bad things about, and fights with, other students, and is generally a trouble maker. Based upon his demeanor at hearing, as well as the testimony of other students about his character, it is found that the testimony of R.L. is not credible. It is reasonable to infer that R.L. heard about the incident the day before with J.S. and the Respondent, and fabricated his allegations to gain attention. Based upon the testimony of Dr. Scott N. Rose and John Leanes, who were accepted as experts in education, as well as the testimony of Stephen Crosby, director of personnel services for Petitioner, incidents such as those between the Respondent and M.S. and J.S. diminish a teacher's effectiveness by creating an improper role model, teaching students that violence is a way to resolve disputes, frightening students, and causing them to be afraid of school and teachers. This creates a negative educational atmosphere, and could potentially increase the school system's liability. In November and December, 1988, the Respondent was suspended without pay on two occasions based upon allegations similar to the ones at issue in this case. The period of these suspensions was three and five days, respectively. The Respondent requested an administrative hearing concerning these suspensions, and following that hearing, Hearing Officer Don W. Davis issued a Recommended Order on April 21, 1989, in DOAH Cases Numbered 88-5720 and 89-0344, recommending that the proposed suspensions be dismissed. A Final Order in this prior case has not yet been entered by the Petitioner.
Recommendation Based upon the foregoing, it is recommended that the Petitioner enter a Final Order dismissing Respondent from continuing contract with the Pinellas County school system. DONE AND ENTERED this 14th day of June, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1546 Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding 1. Adopted in Finding 2. Adopted in Finding 3. Adopted in Finding 4. Rejected as irrelevant. 7-8. Adopted in Finding 11. 9-12. Adopted in Finding 5. Rejected as not a finding of fact but a conclusion of law. Adopted in Finding 6. 15-19. Adopted in Finding 7. 20-24. Adopted in Finding 8. 25-28. Rejected and adopted in part in Finding 9. Adopted in Finding 10. Rejected as not based on competent substantial evidence. The Respondent did not file specific Proposed Findings of Fact, but incorporated argument in a proposed recommended order. Therefore, it is not possible to address specific findings of fact on behalf of the Respondent. COPIES FURNISHED: Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Lawrence D. Black, Esquire 152 Eighth Avenue, Southwest Largo, Florida 34640 Scott N. Rose, Ed.D. Superintendent of Schools Post Office Box 4688 Clearwater, Florida 34618 Hon. Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Sydney H. McKenzie, Esquire General Counsel Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue is whether Respondent's employment with the Pinellas County School Board should be terminated for just cause for violations of Pinellas County School Board Policies 8.04(4) and 8.25(1)(a), (d), and (x).
Findings Of Fact Based upon observation of the witnesses while testifying, their ability for accurate recall and the review of exhibits in evidence and pleadings contained in the file, the following relevant and material facts are found. Petitioner, Pinellas County School Board, is the governing board of the Pinellas County School District. In 1995, the Board adopted School Board Policy 8.25 "Discipline of Employees." Respondent, Thaddeus Starling (Starling), has been a teacher for 23 years with the last 17 of those years spent in Pinellas County as a full-time teacher. Starling has worked for the last three years as a physical education instructor at the John Hopkins Middle School, located on 16th Street in St. Petersburg, Florida. At all times relevant and material to these proceedings, Starling was employed pursuant to a professional services contract with the School Board pursuant to Section 231.36, Florida Statutes (2001). Mr. James Baldwin, a principal for over 15 years and the current principal of John Hopkins Middle School, testified that he has personally known Starling for 15 to 16 years and has been his supervisor and principal for three years. As far as he knows, Starling has never done anything wrong to suggest that he was not a good man. He is good with the students and has received good annual evaluations. There is no evidence in the record to suggest that Starling has ever been disciplined by the School Board. Starling has been with his wife 14 years and married to her for the last eight years. Their pastime over the years has been fishing in and around the St. Petersburg area. Starling and his wife regularly fish for mullet in and around the St. Petersburg area during September and October, when the mullet are running. Each day that fishing is planned, Starling calls his wife to identify the spot where they will fish, and she meets him at the identified spot with their fishing equipment. On September 5, 2001, Starling left school driving a 1983 Camaro by pulling onto 16th Street going toward 22nd Avenue. He turned left onto 22nd Avenue to Third Street where he made a left turn. Located along Third Street is one of the several fishing locations where Starling and his wife regularly fished. Third Street at 20th Avenue was under construction on September 5, 2002, and Starling had to detour off Third Street onto 20th Avenue. Starling followed 20th Avenue to the intersection of 20th Avenue and Fourth Street, which is controlled by posted stop signs facing the 20th Avenue traffic. Because it was raining hard, all the windows in his vehicle were rolled up when he stopped at the 20th Avenue and Fourth Street intersection. In response to complaints made to the St. Petersburg Police Department, a prostitution decoy detail was dispatched to the area of 20th Avenue and Fourth Street on September 5, 2001. Sergeant Quandt, the ranking officer, was in charge of the detail consisting of Detective Christina Bentham, posing as the prostitute decoy, and Detective Landrem, who was an observer or "eyeballer" responsible for looking out for the safety of the female decoy. The crime of solicitation for prostitution focuses on the conversation between the "John" (the person who initiates conversation with the decoy for the purpose of sex in exchange for something of value) and the decoy prostitute. No consummation need occur. The crime is committed by the specific "words spoken" by the accused. While on the decoy detail, Detective Bentham wore an electronic device that transmitted her voice to Detective Landrem, who was equipped with an electronic receiver. Detective Bentham was also wired with an electronic device that transmitted her voice and the voice(s) of persons speaking to her to Sergeant Quandt, who controlled the electronic receiving and recording device. The electronic communication devices enable the members of the prostitution detail to communicate among themselves. The electronic recording device is to record, as factual evidence, the solicitation for sex made by the "John" to the decoy prostitute. On September 5, 2001, Sergeant Quandt had the electronic recording device in his vehicle. He is the only member of the prostitution decoy detail with personal knowledge of when the recording device was actually operating during this decoy detail, but was not called by the Board to give testimony. After approximately four hours of waiting in the pouring-down rain at the intersection of 20th Avenue and Fourth Street, South, decoy Detective Bentham had not arrested anyone for soliciting her for prostitution. Sergeant Quandt drove up to Detective Bentham and ordered her to "get in he was calling it off." By her admission, Detective Bentham steadfastly refused to enter Sergeant Quandt's vehicle and insisted she would stay out longer. Thereafter, Sergeant Quandt drove away to another location. Detective Bentham went to stand under a tree approximately 20 yards away from the intersection. According to Starling, as he sat at the stop sign, waiting for traffic to clear for his turn onto Fourth Street, Detective Bentham came from the grass area, walked onto the sidewalk to the passenger side of his vehicle, and motioned for him to lower his passenger window. Detective Bentham yelled something to Starling that he did not understand, so he slightly rolled down the passenger window of his vehicle. According to Starling, he saw a lady out in the rain waving at his car, and he thought maybe she needed some help. Starling's testimony is plausible. According to Detective Bentham, Starling yelled something to her through his rolled-up passenger window while at the stop sign. She did not understand what he was saying, prompting her to walk approximately 20 yards in the pouring-down rain to the passenger window of his car. This testimony is not credible. Starling and Detective Bentham gave conflicting testimony about who initially said what to whom. According to Starling, Detective Bentham's first statement to him was, "What can I do for you?" and he replied, "Well, nothing, I'm headed to the wall." According to Detective Bentham, her first statement to Starling was, "What are you looking for?" and he replied, "Head." Considering the totality of circumstances, Starling's habit of fishing, the planned fishing at the specific location, calling home to his wife to meet him, and the road construction in the area causing detours resulting in Starling's arrival in the rain at the intersection of 20th Avenue and Fourth Street, Starling's testimony are credited. Detective Landrem was in a parked vehicle approximately 100 yards from Detective Bentham and had control of a radio that he testified "received" only the words spoken by Detective Bentham. According to Landrem, he could not and did not heard any incriminating statements allegedly made by Starling. It is undisputed that the decoy prostitution detail, with electronic recording equipment in their control and on their person, failed to record the alleged incriminating statements during the conversation between Detective Bentham and Starling. Sergeant Quant, ranking police officer in charge of this detail, was not called by the School Board to testify. According to Starling, when Detective Bentham began to speak with him, he said, "Wait a minute," and [I'm going] "fishing," and rolled his window up with the intent of turning right onto Fourth Street. Moments before making his right turn, Starling, looking in his side view mirror, saw Detective Bentham step off the curb onto the road and walk to a white car that was directly behind his car when he was on Twentieth Avenue. Unknown to Starling at that time, the white car was driven by a male, Mr. Perry, whom Detective Bentham arrested for solicitation for prostitution, again without recording that conversation. After Starling turned onto Forth Street East driving without stopping toward Ninetieth Avenue, Starling was followed by Sergeant Quant, but was stopped by and arrested by a uniformed St. Petersburg Police Office and charged with solicitation for prostitution. Under Section 796.07, Florida Statutes, this criminal offense is a misdemeanor. Starling obtained local counsel to represent him in the criminal proceeding. On November 20, 2001, Starling was advised by counsel that he would best be served by dropping his plea of not guilty and entering a plea of nolo contendere. Starling was advised that his fine would be the amount of his posted bond, and he would have to take a sexually transmitted disease test. Starling agreed with the understanding the agreement would be acceptable to the School Board. The County Court of Pinellas County accepted Starling's plea of nolo contendere, withheld adjudication of guilt, and placed Starling on four months' probation that he successfully completed. Starling was advised by his counsel that he did not have to report his arrest to the School Board until time for his professional service contract renewal in May of 2002. In January of 2002, after Starling and a colleague saw a newspaper article about another School Board employee who was disciplined, in part, for failing to report an arrest and a withholding of adjudication, they found a policy manual and talked to a school administrator who advised them to report any such occurrence to the Office of Professional Standards. Thereafter, Starling reported the arrest to the School Board. Starling failed to report his arrest to the Office of Professional Standards immediately after his release from jail on bond. Starling's failure to immediately report his arrest to the School Board was not an intentional violation of Policy but was, at worst, excusable neglect based upon the advice received from counsel. Starling reported his arrest by the St. Petersburg Police Department, the charge of solicitation and the disposition by the court to the Office of Professional Standards on January 9, 2002. Starling's prolonged delay in reporting his arrest to the Board is a violation of Pinellas County School Board Policies 8.04(4) and 8.25(1)(x). By letter of January 25, 2002, as amended thereafter, the Office of Professional Standards, the School Board's attorney and the Pinellas County Sheriff's Office, Superintendent J. Howard Hinesley sent the following notice of suspension and dismissal letter to Starling: January 25, 2002 Dear Mr. Starling: This is to advise you that you were suspended with pay effective January 11, 2002, until the School Board meeting on February 12, 2002. The Board will meet at 1:00 p.m. in the conference hall of the Administrative Building located at the address on this letterhead. At that meeting, I shall recommend that the Board sustain your suspension and dismiss you. If the Board enters its Final Order at that meeting, the effective date of your dismissal will be February 13, 2002. My recommendation for dismissal is based on the fact that on September 5, 2001, you were arrested by St. Petersburg Police for solicitation for prostitution. On November 15, 2001, you pled nolo contendere to the charge. Your actions are violation of School Board Polices 8.04(4) and 8.25(1)(a),(v), and (x), the Code of Ethics and Principles of Professional Conduct of the Education Profession in Florida, and constitute just cause for your dismissal pursuant to Florida Statute 231.36. You are entitled to a hearing regarding my recommendation. This hearing, if requested will be pursuant to Chapter 120, Florida Statutes. Your request for a hearing must be submitted, in writing, to Staff Attorney, Jackie Spoto Bircher, no later than 4:30 p.m. on Monday, February 11, 2002. If you do not request a hearing, this failure constitutes an admission of the allegations made in this letter. Due to the nature of the charges against you, I will recommend that you be suspended without pay effective February 13, 2002, until the conclusion of the administrative hearing process, if you request such a hearing. If you have any questions regarding these procedures, you may contact the Staff Attorney's office at 588-6221. (Emphasis added.) During the final hearing, counsel stipulated to an error in the above Notice in charging a violation of Pinellas County School Board Policy 8.25(1)(v). Counsel agreed that the charge should be violation of Pinellas County School Board Policy 8.25(1)(d). The stipulation amending the charge against Starling was accepted. Dr. Hinesley testified that on those occasions when he considers his recommendation to discipline employees, he adheres to the following process: first, when an employee is alleged to have committed a criminal act involving solicitation of prostitution he listens to his Staff's version of whether or not there is any question of guilt in terms of whether this act actually occurred; and second, if in the opinion of Staff and of the people who investigated the incident, the criminal act did occur, he was limited by Board Policy to recommending dismissal based on the penalty range contained in School Board policy 8.25(a). With regard to this case, Dr. Hinesley testified that at the time Mr. Barker presented this case to him, he did not know whether Mr. Barker's investigation consisted of cross- examination of police officers or merely reading and relying upon reports, including police reports, provided by staff; he did not talk to the police officers nor did he talk to Starling. He had no knowledge of whether Mr. Barker or his staff questioned all the parties involved for purpose of determining whether, in fact, the alleged solicitation for prostitution had occurred. Dr. Hinesley affirmed that had his staff provided him with a report that Starling had not committed the alleged criminal act of solicitation for prostitution, his recommendation to the Board would not have been dismissal. Dr. Hinesley also agreed that should the result of this administrative proceeding conclude that the alleged solicitation for prostitution had not occurred, his recommendation of discipline less than dismissal is permissible under his understanding of Board's policy 8.25(1)(a). Based upon his authority and extensive experience in the Pinellas County Education system, I accept the opinions of Dr. Hinesley and find his testimony credible and conclusive regarding application of Pinellas County School Board's discipline policy. Based on the Finding of Facts herein above, the School Board has failed to prove, by a preponderance of the evidence, that Starling solicited for prostitution decoy Detective Bentham, on September 5, 2001, as alleged in the School Board's Notice of a Recommendation of Dismissal dated January 25, 2002. Based upon the foregone Findings of Fact, Starling has rebutted the presumption of guilt based on his plea of nolo contendere for solicitation of prostitution. However, based upon the foregone Findings of Fact, the School Board has proven by a preponderance of evidence that Starling violated Subsections 8.04(4) and 8.25(1)(x) of the School Board's Policy for not timely reporting his September 5, 2001, arrest.
Conclusions THIS CAUSE was considered by the School Board of Pinellas County, Florida, at its regular meeting held at 5:00 p.m. on December 14, 2004, and the Board, having received and reviewed the record and the recommended order of the Administrative Law Judge, Florence S. Rivas, and the exceptions filed by the Respondent and the response to those exceptions filed by the Superintendent, and having heard argument from counsel for the Respondent and the Superintendent, and being fully advised in the premises, THEREFORE, determines that the Respondent’s misconduct warrants the recommended penalty of termination. IT IS THEREUPON ORDERED by the School Board of Pinellas County, Florida, that: 1. The Respondent’s exceptions to the recommended penalty are denied. 2. The recommended order dated October 7, 2004, to terminate the employment of the Respondent, a copy of which is attached hereto and incorporated by reference, be, and the same is hereby adopted as the Final Order of the School Board. 3. The Respondent, Lincoln M. Loucks, is hereby dismissed and terminated as an employee of the School Board of Pinellas County, Florida, effective the end of the workday, December 14, 2004. DONE AND ORDERED this 14th day of December, 2004. THE SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA Cha By:'{ ry bees ‘ (ote 2 Attest: fon wil “ N.Wilorf Ex Officio Secretary This Final Order was filed with me on this / ¢ day of December, 2004, and a conformed copy of the same was furnished to Thomas L. Wittmer, attorney for the Petitioner, on said date by hand-delivery, and to Mark Herdman, attorney for the Respondent, on said date by regular U.S. Mail, postage prepaid. Forde Was Betz Deborah Beaty Clerk of the Board NOTICE All parties have the right of judicial review of this Final Order in accordance with section 120.68, Florida Statutes. In order to appeal, a party must file a notice of appeal with Deborah Beaty, the Clerk of the School Board, 301 4" Street S. W., Largo, FL 33770, within thirty (30) days of the rendition of this order (which occurred on the date such Final Order was filed with the clerk as set forth above), and must also file a copy of the notice, accompanied by filing fees, with the Clerk of the Second District Court of Appeal, 1005 East Memorial Blvd., Lakeland, FL 33801, tel. (863) 499-2290. Review proceedings shall be conducted in accordance with the Florida Appellate Rules, and specifically, Rule 9.110 of such Florida Appellate Rules.
