01-002070 Flagler County School Board vs. John A. Highsmith Status: Closed Recommended Order on Tuesday, October 23, 2001.

Summary: Assistant school principal was arrested and convicted of driving under the influence and possession of drug paraphernalia. Respondent`s contract should be terminated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLAGLER COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 2070

)

JOHN A. HIGHSMITH, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provi ded, and a formal hearing was held on

August 29 and 30, 2001, in Bunnell, Florida, and conducted by

Harry L. Hooper, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Frank D. Upchurch, Esquire

Upchurch, Bailey and Upchurch, P.A.

Post Office Drawer 3007

St. Augustine, Florida 32085 - 9066

For Respondent: Bill Salmon, Esquire

204 West University Avenue

Suite 8

Gainesville, Florida 32602

STATEMENT OF THE ISSUE

Whether Respondent's employment be terminated based on his

misconduct.

PRELIMINARY STATEMENT

At times pertinent Respondent was employed as an as sistant

principal by the Flagler County School Board (Board).

Subsequent to the arrest of Respondent on November 12, 2000,

Respondent was suspended from his employment with pay. On

November 21, 2000, Respondent was suspended without pay and on

April 26, 2001, Respondent was informed that his employment was

to be terminated for cause. Respondent timely requested an

administrative hearing.

The matter was set for a hearing on July 31, 2001.

Pursuant to a joint motion to continue the hearing, the case was

subsequently set to commence on August 29, 2001, in Bunnell,

Florida, and was heard as scheduled.

Petitioner presented the testimony of five witnesses and

offered 23 exhibits which were admitted into evidence.

Respondent presented the testimony o f ten witnesses and offered

one exhibit which was admitted.

A Transcript was filed on September 20, 2001. Petitioner's

Proposed Recommended Order was timely filed on October 4, 2001.

Respondent moved for an extension of time to file his Proposed

Rec ommended Order. The motion was not opposed by Petitioner and

was granted. Respondent was permitted to file his Proposed

Recommended Order no later than October 9, 2001, and he timely

filed it. The Proposed Recommended Orders were considered in

the prepa ration of the Recommended Order.

FINDINGS OF FACT

1. Respondent, from the beginning of the 1998 - 1999 school

year until April 26, 2001, was employed by the Board as

assistant principal in charge of the Ninth Grade Center at

Flagler - Palm Coast Hig h School (Flagler). Prior to the 1998 -

1999 school year, he was employed by the Board as a teacher and

as Dean of Students.

2. Respondent's employment was pursuant to a contract

between Respondent and the Board which provided for employment

from July 1, 1999 until June 30, 2001.

3. On Sunday, November 12, 2000, Respondent attended a

football game in Jacksonville, Florida, with a friend. He

departed the stadium area in the late afternoon and traveled to

Daytona Beach.

4. By 9:30 p.m., on November 12, 2001, he was in his Honda

automobile with his friend, occupying the right travel lane of

U.S. 92, about four miles west of Interstate 95. His automobile

was motionless and oriented west toward Deland. U.S. 92 is a

high - speed, four - lane hi ghway, with a divided median. The speed

limit in the portion of the road occupied by Respondent's

automobile is 65 miles per hour. It is located in Volusia

County, which is the county immediately south of Flagler County.

5. Deputy Mike Burton, of t he Volusia County Sheriff's

Office, was proceeding west on U.S. 92 when, at 9:30 p.m., he

observed Respondent's Honda. He observed that Respondent's

vehicle presented a hazard to Respondent and others. It

appeared to Deputy Burton that the occupants of t he Honda were

unconscious. He attempted to communicate with the occupants by

hailing them through the use of his patrol vehicle's

loudspeaker. He failed to rouse the occupants of Respondent's

Honda.

6. Deputy Burton then positioned his patrol vehic le behind

Respondent's automobile and turned on his blue emergency lights

so that oncoming traffic could be warned of the hazard posed by

Respondent's automobile. Because the two occupants of

Respondent's Honda appeared to be unconscious, Deputy Burton

fe ared that they might be experiencing a medical problem. He

called his dispatcher who summoned a rescue squad.

7. Deputy Burton knocked on the window of Respondent's

Honda. Respondent woke up, and upon being told to move his car

to the side of the r oad, pulled on to the shoulder, and fell

again into a state of unconsciousness.

8. Sergeant Cook of the Volusia County Sheriff's Office

arrived on the scene and he and Deputy Burton were eventually

able to arouse Respondent. Deputy Burton observed Respondent to

be unsteady on his feet and observed that his eyes were glassy.

Opened and unopened beer cans were found inside the passenger

compartment of the vehicle and many unopened beer cans were

found in the trunk.

9. Sergeant Cook also found a bottle of prescription

medicine which contained Effexor.

10. Deputy Burton observed Sergeant Cook administer a

field sobriety test. Based on all of his observations of

Respondent, Deputy Burton determined that Respondent's faculties

were impaired , although he did not have an opinion as to whether

the impairment was the result of alcohol ingestion.

11. Sergeant Cook, subsequent to the administration of

field sobriety tests, was of the opinion that Respondent's

faculties were impaired due to the consumption of alcoholic

beverages. He arrested Respondent.

12. In a search incident to the arrest a brass - colored

pipe, about three inches long, was found in Respondent's right

front pants pocket. There was a dark - colored residue with an

od or of burnt marijuana in the bowl of the pipe. Sergeant Cook

performed a field test on the residue which was positive for

marijuana. Based on his observations, his field test, and his

training and experience, Sergeant Cook concluded that the pipe

constit uted drug paraphernalia.

13. Respondent stated to Sergeant Cook, upon questioning,

that the pipe was not his.

14. A videotape of Respondent was made immediately

subsequent to his arrest after Respondent was transported to a

Volusia County Sheri ff's facility. The videotape was received

into evidence. In the videotape Respondent admits to consuming

alcoholic beverages during the afternoon and evening of the day

he was arrested. Respondent revealed in the videotape that he

had been prescribed Ef fexor by his doctor to alleviate symptoms

of depression. During the course of the videotape, Respondent

answered questions in a slow, monotone voice which contrasted

sharply with his articulate testimony at the hearing.

15. As part of Respondent's n olo contendre plea to the

charge of driving while under the influence of alcohol he

admitted that he drove under the influence of alcohol to the

extent his normal faculties were impaired. He was adjudicated

guilty in the County Court of Volusia County of driving under

the influence of alcohol.

16. Lawrence Richard Hunsinger is the principal of Flagler

and is Respondent's immediate supervisor. He related that one

of the primary missions at Flagler was character education.

Educational programs addres sing illegal drugs and alcohol abuse

are a major facet of that mission. The hazards of driving while

under the influence of alcohol or drugs is emphasized in the

character education program.

17. Principal Hunsinger related that the Ninth Grade

Cente r was somewhat autonomous in relation to the high school as

a whole and stated that Respondent acted as a quasi - principal.

Student discipline is one of the most important jobs entrusted

to Respondent and he was expected to be a positive role model.

It wa s important to Principal Hunsinger that he be able to trust

Respondent.

18. Respondent telephoned Principal Hunsinger the day

after Respondent's arrest and told him, among other things, that

he found the marijuana pipe on the high school grounds and that

he intended to use it as a training aid for the students.

19. The arrest of Respondent generated unfavorable

newspaper articles in the local area and in the Flagler student

newspaper. The arrest upset and disappointed many of the

students at Flagler. The incident caused a derogation of

respect for Respondent among the students.

20. Robert Nocella is the dean of students for the Ninth

Grade Center. Respondent was his supervisor. He believes that

the dean of students and the assistant p rincipal must be role

models.

21. It is Mr. Nocella's opinion that Respondent's

effectiveness as a role model has been derogated by the incident

of November 12, 2000.

22. Dr. Robert D. Williams is Superintendent of Schools

for Flagler Count y. He received a telephone call from

Respondent the afternoon of the day following Respondent's

arrest. Respondent told him that he had found the marijuana

pipe at the Jaguars football game in Jacksonville. Respondent

expressed remorse for the events th at had transpired.

Respondent denied using marijuana.

23. Dr. Williams had a subsequent conversation with

Respondent on Wednesday, November 15, 2000, in Dr. Williams'

office. During that time, Respondent again denied using

marijuana on November 12, 2000.

24. Dr. Williams had another conversation with Respondent

on Friday, November 17, 2000, in Dr. Williams' office. At that

time Respondent told Dr. Williams that the marijuana pipe was

used for demonstration purposes in the classroom.

25. Dr. Williams opined that Respondent's conduct was

inconsistent with the standards of public conscience and good

morals. He further opined that Respondent's actions brought the

school district and the high school into public disgrace and

tarnished his rep utation as well as the reputation of the school

district and high school.

26. Dr. Williams has discussed this matter with persons in

the community and the incident resulted in negative effects on

the school system. Two parents asked that punishment

administered to their children be rescinded based on the

behavior of Respondent.

27. There have been numerous recent unfortunate events

involving members of the Flagler staff which have occurred in

the school district. These include a teacher stalki ng someone,

a teacher kicking a student, a teacher striking a student, and a

teacher downloading pornography on a school computer. These

events involved teachers, rather than administrators, and they

were dissimilar from Respondent's conduct.

28. Th e evidence established that, on November 12, 2000,

Respondent was in actual physical control of a motor vehicle

while under the influence of alcohol and that he was in

possession of drug paraphernalia.

29. While serving as assistant principal in char ge of the

Ninth Grade Center Respondent proved to be an effective

administrator who fairly meted out discipline. Until the

incident of November 12, 2000, he was respected and admired by

both students and teachers. He was very concerned about the

welfare of his students. Subsequent to the incident there were

numerous persons who wanted him to be reinstated. He currently

works in marine construction and his employer stated that he is

a hard - working and reliable employee.

CONCLUSIONS OF LAW

30. The Divi sion of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Section 120.57(1), Florida Statutes.

31. The burden of proof is on the party asserting the

affirmative of an issue before an admin istrative tribunal,

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981).

32. In order to meet its burden of proof, the Board must

establish facts upon which its allegations of misconduct are

proved by a preponderance of the evidence. Dileo v. School

Board of Dade County , 569 So. 2d 8834 (Fla. 3rd DCA 1990) and

Section 120.57(1)(j), Florida Statutes.

33. Paragraph 5 of the contract between Respondent and the

Board provided that Respondent may be removed for cause as

provided by law.

34. The applicable law in this case is Section

231.36(6)(b), Florida Statutes, which provides, inter alia that:

(b) Any member of the district

administrative or supervisory staff,

including any principal but exclud ing an

employee specified in subsection (4), may be

suspended or dismissed at any time during

the term of the contract; however, the

charges against him or her must be based on

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude, as

these terms are defined by rule of the State

Board of Education.

35. The allegations against Respondent were as follows:

a. Drunkenness on November 12, 2000, in tha t Respondent

was publicly under the influence of alcoholic beverages to such

an extent that his normal faculties were impaired, and that

Respondent was arrested and found guilty of driving under the

influence of alcohol.

b. Immorality, in that Respondent' s conduct was

inconsistent with standards of public conscience and good

morals, based on Respondent's arrest for driving under the

influence of alcohol, possession of drug paraphernalia, and his

conviction of driving under the influence of alcohol. It was

further alleged that these actions by Respondent were so serious

and notorious that he was brought into public disgrace and

disrespect and his service in the community was impaired.

c. Misconduct in office in that Respondent violated the

Code of Ethics o f the Education Profession in Florida by failing

to maintain a high degree of ethical conduct, as evidenced by

his actions on November 12, 2000, including driving under the

influence of alcohol, refusing to take the blood alcohol breath

test, and possessio n of drug paraphernalia. It was further

alleged that these actions by Respondent were so serious and

notorious that his effectiveness in the school system was

impaired.

d. Gross insubordination or willful neglect of duty, based

on his repeated refusal to submit to a drug test in accordance

with district policy and the directives of his superiors which

were based on reasonable suspicion.

36. Drunkenness is defined by Rule 6B - 4.009(5)(a), Florida

Administrative Code, as occurring when an individual publ icly is

under the influence of alcoholic beverages or drugs to such an

extent that his or her normal faculties are impaired.

Respondent was under the influence of alcohol to the extent his

normal faculties were impaired while in an automobile which was

mo tionless in the driving lane of a major U.S. highway at night.

Not only was this dangerous, but it attracted public attention.

Accordingly, the allegation of public drunkenness is proved.

37. Immorality is defined in Rule 6B - 4.009(2), Florida

Administra tive Code, ". . . as conduct that is inconsistent with

the standards of public conscience and good morals. It is

conduct sufficiently notorious to bring the individual concerned

or the education profession into public disgrace or disrespect

and impair the individual's service in the community." The

allegation of immorality was proved.

38. Misconduct is defined in Rule 6B - 4.009(3), Florida

Administrative Code, as ". . . a violation of the Code of Ethics

of the Education Profession as adopted in Rule 6B - 1 .001, Florida

Administrative Code, and the Principles of Professional Conduct

for the Education Profession in Florida as adopted in Rule

6B - 1.006, Florida Administrative Code, which is so serious as to

impair the individual's effectiveness in the school s ystem."

39. Rule 6B - 1.001, Florida Administrative Code, provides

that educators must be, "Aware of the importance of maintaining

the respect and confidence of one's colleagues, of students, of

parents, and of other members of the community, the educa tor

strives to achieve and sustain the highest degree of ethical

conduct."

41. Respondent's actions on November 12, 2000, were

sufficient to establish that he engaged in misconduct as

charged.

42. The insubordination charge is not supported by the

e vidence because district policy in this regard was not proven

and Respondent was not ordered to submit to a drug test although

he was invited to do so.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is

RECOMMENDED:

Tha t a final order be entered terminating the employment of

Respondent.

DONE AND ENTERED this 23rd day of October, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

HARRY L. HOOPER

Administrative Law Judge

Division of Admini strative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of October, 2001.

COPIES FURNISHED :

Bill Salmon, Esquire

204 West University Avenue

Suite 8

Gainesville, Florida 32602

Frank D. Upchurch, Esquire

Upchurch, Bailey and Upchurch, P.A.

Post Office Drawer 3007

St. Augustine, Florida 32085 - 9066

Robert D. Williams, Superintendent

School District of Flagler County

Post Office Box 755

3039 Highway 100, East

Bunnell, Florida 32110

Honorable Charlie Crist

Commissioner of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGH T TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.