01-002038 Palm Beach County School Board vs. William Fox Status: Closed Recommended Order on Monday, May 20, 2002.

Summary: School Board failed to prove by clear and convincing evidence that teacher made inappropriate comments or used inappropriate language to students or parents; five-day suspension without pay should be rescinded with back pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2038

)

WILLIAM FOX, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on Septe mber 12, 2001, via video teleconference, with the

parties appearing in West Palm Beach, Florida, before Patricia

Hart Malono, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings, who was present in

Tallahassee, Florida; on September 26, 2001, in West Palm Beach,

Florida; on October 11, 2001, in West Palm Beach, Florida, via

video teleconference with Judge Malono in Tallahassee, Florida;

and on March 20, 2002, in West Palm Beach, Florida, via

telephone conference, with Judge Malono presiding in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Alan M. Aronson, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

For Respondent: Lawrence M. Fuchs, Esquire

Fuchs & Jones, P.A.

590 Royal Palm Beach Boulevard

Royal Palm Beach, Florida 33411

STATEMENT OF THE ISSUE

Whether the Pet itioner's decision to suspend the Respondent

without pay for a period of five working days should be

sustained. 1

PRELIMINARY STATEMENT

In a Notice of Suspension Without Pay dated May 8, 2001,

the Superintendent of the Palm Beach County school system

("Supe rintendent") notified William Fox that he was recommending

to the Palm Beach County School Board ("School Board") that, at

its May 16, 2001, meeting, Mr. Fox be suspended without pay from

his position as a teacher for a period of five working days,

beginni ng May 17, 2001, and ending May 23, 2001. The grounds

for the recommendation were stated in the notice as follows:

"On or about December 19, 2000, you used inappropriate language

with students and parents. On March 28, 2000, you received a

Written Repri mand for making inappropriate comments to

students."

In an Administrative Complaint dated May 23, 2001, the

Superintendent alleged the following factual basis for the

suspension recommendation:

7. On or about December 19 through 20,

2000, Respondent used inappropriate language

and made inappropriate comments towards

students and parents.

8. Language and comments included but were

not limited to the Respondent swearing at

students and parents, calling students

"jack - asses", and telling a parent he would

" see her son at his funeral."

9. On March 28, 2000, Respondent received a

Written Reprimand for having made similar

inappropriate comments to students and

parents.

The Superintendent alleged as the legal basis for the

administrative charges the following :

10. Pursuant to Florida 6B - 1.001(3),

Florida Administrative Code, Code of Ethics

of the Education Profession in Florida:

(3) Aware of the importance of

maintaining the respect and

confidence of one's colleague, of

students, of parents, and of other

me mbers of the community, the

educator strives to achieve and

sustain the highest degree of

ethical conduct.

11. Just cause exists for the requested

relief pursuant to Fla. Stat. §231.36;

Article II, Section M, of The Collective

Bargaining Agreement betwee n the School

District and The Classroom Teachers

Association; and School Board Policy 3.27.

In addition, in the introductory paragraph of the Administrative

Complaint, it was alleged that Mr. Fox also violated

Rules 6B - 1.006 and 6B - 4.009(6), Florida Admi nistrative Code.

Mr. Fox timely requested an administrative hearing, and the

School Board transmitted this matter to the Division of

Administrative Hearings for assignment of an administrative law

judge.

Pursuant to notice, the final hearing was convened on

September 12, 2001. The School Board presented the testimony of

the following witnesses: B.W., a former student of Mr. Fox;

L.G., B.W's mother; Anthony Rochon, a Crisis Intervention

Teacher at Jefferson Davis Community Middle School ("Jefferson

Davis" ); Todd Smith, assistant principal for the sixth grade at

Jefferson Davis; Oliver Johnson, a compliance administrator for

the School Board; and Paul LaChance, Director of the School

Board's Department of Professional Standards. Petitioner's

Exhibits 1 thr ough 7 were offered and received into evidence.

Petitioner's Exhibit 1 is the investigative file compiled by

Mr. Johnson, the School Board's investigator in this case.

Although the School Board presented sufficient testimony to

establish that the report is a business record, see

Section 90.803(6), Florida Statutes, this exhibit was received

subject to a hearsay objection with respect to the hearsay

statements contained in the report. See Section 120.57(1)(c),

Florida Statutes.

At the beginning of the fin al hearing on September 12,

2001, counsel for the School Board indicated that student S.M.

and his mother M.M, who had been subpoenaed to testify as

witnesses for the School Board, could not be present at the

hearing. Counsel for the School Board requeste d that the

hearing be continued to allow him to present the testimony of

these two witnesses. Counsel for Mr. Fox indicated that Mr. Fox

did not wish to present any evidence until the School Board had

presented its case in its entirety. A continuation of the

hearing was, therefore, scheduled for September 26, 2001.

The hearing on September 26, 2001, was scheduled to begin

at 8:30 a.m., but counsel for the School Board informed the

undersigned that, although new subpoenas for S.M. and M.M.

commanding their presence on September 26, 2001, at 8:30 a.m.

had been served, they had not yet appeared. At approximately

9:00 a.m., counsel for the School Board telephoned M.M., who

told him that, because of a family emergency, neither she nor

her son could appear to t estify that day. Counsel for the

School Board indicated that these were very important witnesses

and that he had been instructed to request another continuance

of the hearing so that he could present their testimony. The

request was granted over the obje ctions of counsel for Mr. Fox,

and a second continuation of the hearing was scheduled for

October 11, 2001. Counsel for the School Board was advised by

the undersigned that he should consider going to circuit court

to enforce the subpoenas and that the he aring would not be

continued for a third time should S.M. and M.M. fail to appear

on October 11, 2001.

After the hearing was convened on October 11, 2001, counsel

for the School Board stated that he had been directed not to go

to circuit court to enforce t he subpoenas for S.M. and M.M. He

stated that he had again served subpoenas on them, that he had

telephoned M.M. on the morning of October 10, 2001, and was

assured that she and her son would appear; however, when counsel

for the School Board spoke with M .M. on the afternoon of

October 10, 2001, she assured him that, regardless of any legal

obligation she might have under the subpoenas, she and her son

would not appear at the hearing.

Counsel for the School Board stated that he did not believe

he had suffi cient evidence to sustain the charges and that he

would work with counsel for Mr. Fox to craft a settlement

agreement that would include dismissal of the Administrative

Complaint with prejudice and would include provisions to make

Mr. Fox whole with respec t to back pay. Counsel for the School

Board stated that he believed this could be accomplished in time

to put the matter on the agenda for the School Board's

November 2001, meeting. The case was, therefore, placed in

abeyance pending action by the School Board on a settlement

agreement.

In a status report dated January 3, 2002, counsel for the

School Board advised that a Settlement Agreement and General

Release was negotiated and signed by Mr. Fox and that the

agreement would be presented to the School Bo ard at its

February 20, 2002, meeting. In a status report dated March 5,

2002, counsel for the School Board advised that the matter had

not been placed on the agenda for the February meeting. During

a telephone conference held on March 7, 2002, the under signed

was advised that the School Board did not intend to take any

action on the settlement agreement.

A third continuation of the hearing was scheduled for

March 20, 2002. At the hearing on March 20, 2002, the School

Board rested its case. Mr. Fox test ified on his own behalf but

offered no exhibits into evidence.

The final volume of the four - volume transcript of the

proceedings was filed with the Division of Administrative

Hearings on April 1, 2002, and the School Board timely filed its

proposed finding s of fact and conclusions of law, which has been

considered in the preparation of this Recommended Order.

Mr. Fox did not file any post - hearing submission.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. The School Board is a duly - constituted school board

charged with the duty to operate, control, and supervise all

free public schools within the School District of Miami - Dade

County, Florida. Article IX, Florida Constitution;

Section 230.03, Florida Statutes.

2. Mr. Fox is a teacher of emotionally handicapped

students who has been employed by the School Board for

approximately 27 years and has taught at Jefferson Davis for t he

past 23 years. He is employed by the School Board under a

continuing contract.

3. On March 28, 2000, Mr. Fox was issued a written

reprimand by the Director of the School Board's Department of

Employee Relations for making inappropriate comments to

stu dents.

4. During the 2000 - 2001 school year, Mr. Fox taught a

sixth grade class composed of six to eight emotionally

handicapped students, some of whom had behavioral problems. The

students in the class were between 11 and 12 years of age.

5. B.W. was a student in Mr. Fox's class from the first

part of November 2000 until he was transferred in the spring to

another class for emotionally handicapped students. 2 B.W.

testified that Mr. Fox cussed in class, using words like "damn"

and "asshole," and saying t hings like "quit your bitching."

B.W. testified that he "believed" he overheard Mr. Fox say

"fuck" in a conversation with another teacher about restaurants

and cars. B.W. agreed when counsel for the School Board asked

him if Mr. Fox ever told him, anothe r student in the class, to

"shut the hell up." 3 B.W. recalled that, when Mr. Fox was

talking to a girl in the class who had been fighting, he

overheard Mr. Fox tell her, in response to something that she

said to him, that he would see her at her funeral. 4 B.W. also

testified that some of Mr. Fox's actions in the classroom

bothered him. 5

6. B.W. told his mother that Mr. Fox was being "real

rude," 6 and he complained to her about Mr. Fox almost every day.

7. L.G., B.W.'s mother, testified that B.W. complai ned to

her about Mr. Fox. B.W. told her that, one time, Mr. Fox told

him to "shut the hell up." 7 B.W. also told her that Mr. Fox used

the "f - word" to a teacher, and B.W. told her that Mr. Fox "said

the word, damn, one time." 8 B.W. also told her that Mr . Fox told

him to "sit back down in the damn seat." 9 When B.W. told her

these things, L.G. testified that she would contact Todd Smith

and Anthony Rochon at Jefferson Davis; she spoke with them

weekly.

8. L.G. testified that she had written in B.W.'s age nda

book that Mr. Fox should correspond with her or call her on the

telephone if there were a problem with B.W. According to L.G.,

Mr. Fox called her at work one day and told her that he had a

problem with B.W. L.G. went to the school immediately and wen t

into the classroom to help her son. L.G. testified that Mr. Fox

was rude to her on this occasion because he told her in a gruff

voice: "'Tell him to do that page there.'" 10

9. L.G. also testified that Mr. Fox telephoned her to talk

about B.W. not doing his work and being obnoxious in class.

L.G. testified that Mr. Fox was rude and unprofessional during

these conversations; he was "very short" with her and once told

her that B.W. "wouldn't do his damn work." 11

10. The 2000 - 2001 school year was Anthony R ochon's first

year as the Crisis Intervention Teacher at Jefferson Davis. His

job is to assist the special education teachers with students

who become overly disruptive in the classroom. The students are

removed from the classroom and sent to him for cou nseling. In

many cases, the students are very angry when they come into his

office; Mr. Rochon must sometimes send the student home because

he or she cannot be calmed down, but, other times, the student

stays with Mr. Rochon the entire day or returns to t he

classroom.

11. At unspecified times during the 2000 - 2001 school year,

Mr. Rochon received complaints regarding Mr. Fox's comments and

actions in the classroom. These complaints came primarily from

four male students, including B.W. and S.M., although other

students in Mr. Fox's class would occasionally complain.

Mr. Rochon received more complaints from the students in

Mr. Fox's class than he did with respect to the other two

classes for the emotionally handicapped at Jefferson Davis.

12. Mr. Rochon c ould not remember during his testimony

specifically what each student said about Mr. Fox, but he thinks

that B.W. may have said that Mr. Fox cursed at him "or something

like that." 12

13. With respect to the other complaints, Mr. Rochon

recalled that "[s]om e [students] would say he cursed at them,

used profanity. Some would say he made derogatory remarks about

their intelligence. And those were basically their major

complaints. Yelled at them." 13 Some students complained to

Mr. Rochon that Mr. Fox called them stupid or yelled at them,

told them that they were not wanted in the class and "should be

somewhere else." 14

14. In most cases, Mr. Rochon would talk to the student

and discover that the student had been angry and misinterpreted

what Mr. Fox said. In a few cases, the student would not tell

him what the problem was but would become upset and would refuse

to return to the classroom; Mr. Rochon would refer these cases

to Todd Smith, the assistant principal for the sixth grade.

15. Mr. Rochon also receiv ed complaints from the mothers

of three of the four male students, including B.W.'s mother and

S.M.'s mother. L.G., B.W.'s mother, complained to Mr. Rochon

that her son complained to her about things that Mr. Fox said to

him, and L.G. complained that Mr. Fox was rude to her. M.M.,

S.M.'s mother, complained to Mr. Rochon that Mr. Fox hung up on

her and was rude to her "or something" and that she received

"excessive phone calls or something from Mr. Fox about things

her child was doing in class." 15

16. Mr. Rochon has no records of the complaints he

received from students or parents, and he does not know whether

the accusations against Mr. Fox were true.

17. Mr. Fox frequently sent both B.W. and S.M. to

Mr. Rochon for intervention. B.W. was sent to Mr. Roch on two or

three times per week, and S.M was sent more often than B.W.

Mr. Fox sent both students to Mr. Rochon for intervention

because they were disrupting his classroom and he could not

teach.

18. Sometimes Mr. Rochon would go to Mr. Fox's classroom

to remove B.W. or S.M. in response to a request from Mr. Fox for

intervention. Mr. Fox personally observed B.W. "running around

the classroom, maybe talking loudly or having an argument with

another student and refusing to stop when Mr. Fox asked him

to." 16 He personally observed S.M. to be "generally . . . loud,

would sometimes use profanity. He would leave the room a lot.

Mr. Fox had to call me to go find him a lot. He was more of a

volatile student in the sense that when he became very angry, he

became very aggressive." 17

19. The 2000 - 2001 school year was Mr. Smith's first year

as the assistant principal for the sixth grade at Jefferson

Davis. In the fall of 2000, Mr. Smith began receiving

complaints from students about Mr. Fox's behavior in the

classr oom. Mr. Smith also received complaints from the parents

of the four male students who complained to Mr. Rochon,

especially from the mothers of B.W. and S.M. The complaints

began in November 2000, at about the time B.W. was placed in

Mr. Fox's classroom. 18

20. Relevant to the issues herein, L.G., B.W.'s mother,

complained to Mr. Smith that B.W. complained to her that Mr. Fox

used inappropriate language and some profanity, specifically

"bullshit," in the classroom. M.M, S.M.'s mother, made similar

allegat ions against Mr. Fox, and she complained to Mr. Smith

that Mr. Fox made some inappropriate comments and used some

profanity, but she did not give Mr. Smith any specifics. L.G.

and M.M. both complained to Mr. Smith that Mr. Fox was

unprofessional in his co nversations with them, but they did not

give any specific instances of such behavior.

21. At their parents' requests, both B.W. and S.M. were

transferred out of Mr. Fox's classroom. B.W. testified that he

asked Mr. Smith to "get me out of the class becau se he [Mr. Fox]

was rude, and he would make comments to other children which I

thought were inappropriate, and they bothered me." 19

22. At about the same time, Mr. Smith discussed the

complaints with Mr. Fox, and there were no further complaints

from paren ts. Only one student complained to Mr. Smith about

Mr. Fox after Mr. Smith's conversation with Mr. Fox.

23. Mr. Smith turned over the information regarding the

complaints of L.G. and M.M. to the principal of Jefferson Davis,

and the principal contacted t he Personnel Department and

referred the matter for investigation.

24. The investigation of Mr. Fox was assigned to

Mr. Johnson on January 17, 2001. Mr. Johnson interviewed S.M.,

the alleged "student victim," on February 1, 2001; he

interviewed B.W. and two other students in Mr. Fox's class on

March 13, 2001; and he interviewed a seventh grade student on

April 10, 2001, who had been in Mr. Fox's class the previous

year. Mr. Johnson also interviewed S.M.'s aunt on March 20,

2001, and S.M.'s mother, M.M., on April 10, 2001. 20

25. Mr. Johnson made notes during these interviews and

later compiled the notes into summaries of the interviews that

were included in his investigation report. He compiled some

other documents in this investigation report, including S.M.'s

extensive disciplinary history, the written reprimand issued to

Mr. Fox on March 28, 2000, and Mr. Fox's evaluations for the

1998 - 1999 and 1999 - 2000 school years. 21

26. Mr. Johnson presented the investigation report to a

case management committee, w hich determined that there was

probable cause to discipline Mr. Fox and that the appropriate

penalty would be a five - day suspension without pay, which would

be progressive discipline because of the written reprimand of

March 28, 2000.

Summary .

27. The Sc hool Board presented no evidence that

establishes that Mr. Fox used inappropriate language or made

inappropriate comments to students or parents on December 19 or

20, 2000.

28. But even going beyond the limited time frame alleged

in the Administrative Com plaint, the evidence is simply not

qualitatively or quantitatively sufficient to establish clearly

and convincingly that Mr. Fox made inappropriate comments and

used inappropriate language in the classroom or to parents.

And, even had the evidence support ed a finding that Mr. Fox had

made inappropriate comments or used inappropriate language on

December 19 and 20, 2000, or even during the 2000 - 2001 school

year, such behavior does not involve conviction for an act of

moral turpitude, the only specific viola tion with which Mr. Fox

is charged.

29. The only direct evidence of Mr. Fox's behavior in the

classroom was the testimony of B.W.. The remaining evidence was

either hearsay or hearsay within hearsay: It consisted of the

testimony of L.G. with respect to B.W.'s complaints to her about

Mr. Fox's comments and language in the classroom; the testimony

of Mr. Rochon and Mr. Smith with respect to complaints of

primarily unspecified comments and language attributed to

Mr. Fox conveyed to them by students and par ents, who reported

only what their children had told them about Mr. Fox's comments

and language in the classroom; and the summaries of the

interviews Mr. Johnson conducted with a few students and the

aunt and mother of one student.

30. Given all the facts and circumstances in this case,

including B.W.'s demeanor as a witness and the use of leading

questions to develop his testimony, B.W.'s testimony is not

sufficiently credible or persuasive of itself to constitute

clear and convincing evidence that Mr. Fo x made inappropriate

comments and used inappropriate language in his classroom.

Furthermore, the hearsay evidence regarding the student

complaints about Mr. Fox's language and comments in the

classroom, which formed the primary body of evidence against

Mr . Fox, cannot be used to enhance B.W.'s credibility and is not

sufficiently persuasive, when viewed as supplementing or

explaining B.W.'s testimony, to establish clearly and

convincingly that Mr. Fox made inappropriate comments or used

inappropriate langua ge in the classroom. 22

31. The only direct evidence of Mr. Fox's behavior towards

parents is the rather vague testimony of L.G. that Mr. Fox was

unprofessional and rude and that, one time, Mr. Fox used the

word "damn" in a conversation with her; the other evidence

consisted of the testimony of Mr. Rochon and Mr. Smith regarding

the complaints of two parents and the summaries of interviews

with a student's mother and aunt that were included in the

investigation report. A description of Mr. Fox's comments as

rude and unprofessional is not sufficiently specific to

establish that his comments were inappropriate, and L.G.'s

testimony that Mr. Fox said "damn" in one conversation with her,

even if true, is not sufficient to support a finding that

Mr. Fox's use of the word was inappropriate, especially given

the absence in the record of any evidence that the School Board

considers inappropriate the use of the word "damn" to a parent.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction o ver the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2001).

33. Pursuant to Section 230.23(5)(f), Florida

Statutes (2001), the School Board is authorized to suspend

members of t he school system's instructional personnel in a

manner consistent with the provisions of Chapter 231, Florida

Statutes.

34. Section 231.36(4), Florida Statutes (2000), provides

in pertinent part:

(c) Any member of the district

administrative or supervi sory staff and any

member of the instructional staff, including

any principal, who is under continuing

contract may be suspended or dismissed at

any time during the school year; however,

the charges against him or her must be based

on immorality, misconduc t in office,

incompetency, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of a crime involving moral turpitude, as

these terms are defined by rule of the State

Board of Education. Whenever such charges

are made against any such employee of the

district school board, the district school

board may suspend such person without pay;

but, if the charges are not sustained, he or

she shall be immediately reinstated, and his

or her back salary shall be paid.

35. Article II, Section M, of The Collective Bargaining

Agreement Between the School District of Palm Beach County,

Florida, and Palm Beach County Classroom Teachers Association,

effective July 1, 1999 - June 30, 2002, deals with discipline of

School Board employees. Section M prov ides in pertinent part:

1. Without the consent of the employee and

the Association, disciplinary action may not

be taken against an employee except for just

cause, and this must be substantiated by

clear and convincing evidence which supports

the recommen ded disciplinary action.

2. All disciplinary action shall be

governed by applicable statutes and

provision of this Agreement. . . .

Therefore, the School Board bears the burden of proving the

violations alleged in the Administrative Complaint by clear a nd

convincing evidence.

36. In Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989), the court explained:

[C]lear and convincing evidence

requires that the evidence must be found to

be cr edible; the facts to which the

witnesses testify must be distinctly

remembered; the evidence must be precise and

explicit and the witnesses must be lacking

in confusion as to the facts in issue. The

evidence must be of such weight that it

produces in the mind of the trier of fact

the firm belief of conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

37. Based on the findings of fact herein, the School B oard

has failed to prove by clear and convincing evidence that

Mr. Fox committed the acts alleged in the Administrative

Complaint as the factual basis justifying his suspension without

pay. However, even if the factual basis for imposing discipline

had be en established with the requisite degree of proof, the

School Board failed to allege in the Administrative Complaint

any legal basis for the five - day suspension without pay imposed

on Mr. Fox.

38. The only reference to Section 231.36 in the

Administrative Complaint was in paragraph 11, in which the

School Board asserted that "[j]ust cause exists for the

requested relief pursuant to Fla. Stat. § 231.36." The

introductory paragraph of the Administrative Complaint contains

the most expansive statement of the legal bases for Mr. Fox's

suspension without pay. In that paragraph, the School Board

alleges that Mr. Fox violated Rule 6B - 1.001(3), Florida

Administrative Code; 23 Rule 6B - 1.006, Florida Administrative

Code; and Rule 6B - 4.009(6), Florida Administrative Co de. 24

39. Rule 6B - 1.001, Florida Administrative Code, is the

Code of Ethics of the Education Profession in Florida.

Rule 6B - 1.006(3), Florida Administrative Code, provides: "Aware

of the importance of maintaining the respect and confidence of

one's collea gues, of students, of parents, and of other members

of the community, the educator strives to achieve and sustain

the highest degree of ethical conduct."

40. Rule 6B - 1.006, Florida Administrative Code, is the

entire Code of Professional Conduct for the Ed ucation Profession

in Florida, and consists of a number of provisions. The School

Board failed in its Administrative Complaint to identify which

of the several provisions of this rule defining the duty of a

teacher toward his or her students that Mr. Fox allegedly

violated.

41. A violation of a provision of the Code of Professional

Conduct or the Code of Ethics is not alone a sufficient basis on

which to impose discipline on a teacher. Such a violation is,

however, a basis for discipline when it is charg ed that the

teacher committed misconduct in office. In Rule 6B - 4.009(3),

Florida Administrative Code, "[m]isconduct in office is defined

as a violation of the Code of Ethics of the Education Profession

as adopted in Rule 6B - 1.001, FAC, and the Principles of

Professional Conduct for the Education Profession in Florida as

adopted in Rule 6B - 1.006, FAC, which is so serious as to impair

the individual's effectiveness in the school system."

42. Mr. Fox has not been charged anywhere in the

Administrative Compla int with having committed misconduct in

office, and, therefore, he cannot, as a matter of law, be found

to have violated Rules 6B - 1.001(3) or 6B - 1.006, Florida

Administrative Code. Disciplinary action may be based only upon

those offenses specifically all eged in the administrative

complaint. See Cottrill v. Department of Insurance , 685 So. 2d

1371 (Fla. 1st DCA 1996); Delk v. Department of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Kinney v.

Department of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987);

Hunter v. Department of Professional Regulation , 458 So. 2d 842,

844 (Fla. 2d DCA 1984).

43. The School Board cited Rule 6B - 4.009(6), Florida

Administrative Code, as the third rule that Mr. Fox allegedly

violated by allegedly using in appropriate language and making

inappropriate comments to students and parents.

Rule 6B - 4.009(6), Florida Administrative Code, provides:

"Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and socia l duties,

which, according to the accepted standards

of the time a man owes to his or her fellow

man or to society in general, and the doing

of the act itself and not its prohibition by

statute fixes the moral turpitude."

44. Section 231.36(4)(c), Florid a Statutes (2000), quoted

above, provides as one basis for suspension of a teacher

employed under a continuing services contract "conviction of a

crime involving moral turpitude." The School Board did not

allege in the Administrative Complaint, or submit any proof at

the final hearing, to establish that Mr. Fox has ever been

convicted of a crime, much less a crime involving moral

turpitude.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Bo ard of Palm Beach

County, Florida, enter a final order rescinding the five - day

suspension of William Fox and ordering that his salary for these

five days be paid.

DONE AND ENTERED this 20th day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

PATRICIA HART MALONO

Administrative Law Judge

Division of Administrative Hearings

T he DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of May, 2002.

ENDNOTES

1 / The parties stipulated at the final hearing that Mr. Fox

served his suspension from May 17 through May 23, 2001.

2 / The time of the transfer is not established in the record.

3 / Transcript at 17.

4 / Transcript at 23.

5 / Mr. Fox was not charged in either the Notice of Suspension

Without Pay or the Administrative Complaint with engaging in

inappropria te actions in the classroom, and no findings of fact

will be made with respect to any allegedly inappropriate actions

of Mr. Fox.

6 / Transcript at 21.

7 / Transcript at 34.

8 / Transcript at 35.

9 / Transcript at 39.

10 / Transcript at 37.

11 / Transc ript at 42.

12 / Transcript at 52.

13 / Transcript at 53.

14 / Transcript at 67.

15 / Transcript at 59.

16 / Transcript at 61.

17 / Transcript at 62.

18 / B.W. was "mainstreamed" into regular classes at the

beginning of the school year but was placed in Mr . Fox's class

for emotionally handicapped students in November 2001.

19 / Transcript at 26.

20 / Mr. Johnson testified that he interviewed L.G., B.W.'s

mother, during his investigation. However, Mr. Johnson's

investigation report does not contain a statem ent that can

reasonably be attributed to L.G.

21 / Mr. Fox's performance was rated acceptable in each category

and overall.

22 / The hearsay evidence was admitted pursuant to

Section 120.569(2)(g), Florida Statutes, and

Section 120.57(1)(c), Florida Statut es ("Hearsay evidence may be

used for the purpose of supplementing or explaining other

evidence, but it shall not be sufficient in itself to support a

finding unless it would be admissible over objection in civil

actions."). Although the School Board esta blished the

foundation for admitting into evidence the investigation file

compiled by Mr. Johnson as a business record of the School

Board, the summaries of interviews included in the file

constitute hearsay that could not be admitted over objection in

a c ivil action.

There is some question in the undersigned's mind as to

whether the hearsay evidence consisting of the statements of

other students, as told to Mr. Smith, Mr. Rochon, and

Mr. Johnson, can properly be bootstrapped onto B.W.'s testimony

as somehow "supplementing or explaining" that testimony.

Nonetheless, the information in the interview summaries and in

the hearsay statements included in the testimony of L.G.,

Mr. Rochon, and Mr. Smith has been carefully evaluated with

respect to its "rati onal and persuasive force." Ehrhardt, C.W.,

Florida Evidence (2002 edition), Section 803.6c at p. 774.

23 / As noted in the Preliminary Statement, this violation is

repeated in paragraph 10 of the Administrative Complaint.

24 / Mr. Fox is also charged, in the alternative, with violation

of School Board Directive and Policy 3.27 and Article II,

Section M, of the Collective Bargaining Agreement, which are in

evidence as Petitioner's Exhibits 6 and 3, respectively. School

Board Policy 6Gx50 - 3.27 does nothing more, however, than set

forth the procedures that must be followed in the suspension and

dismissal of employees. Article II, Section M of the Collective

Bargaining Agreement does nothing more than set forth the

procedures to be followed in disciplining e mployees, including

the imposition of progressive discipline.

COPIES FURNISHED:

Alan M. Aronson, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C - 302

West Palm Beach, Florida 33406

Lawrence M. Fuchs, Esquire

Fuchs & Jones, P.A.

590 Royal Palm Beach Boulevard

Royal Palm Beach, Florida 33411

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406 - 5869

Charlie Crist, Commissioner

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

James A. Robins on, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. An y exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.