01-003317 Pinellas County School Board vs. Reginald K. Reese Status: Closed Recommended Order on Wednesday, January 2, 2002.

Summary: Violation of School Board policy which prohibits sexual misconduct is just cause for teacher`s dismissal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 01 - 3317

)

REGINALD K. REESE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held on October 18, 2001,

in Largo, Florida, before Carolyn S. Holifield, an

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jacqueline Spoto Bircher, Esquire

Sc hool Board of Pinellas County

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Florida 33779 - 2942

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUES

Whether Respondent’s alleged conduct is a violation of

Pinellas County School Board Policy 8.25 and/or Section 231.36,

Florida Statutes, and is just cause for his dismissal as a

teacher in the Pinellas County School District.

PRELIMINARY STATEMENT

By letter dated July 18, 2001, Dr. J. Howard Hinesley,

Superintendent of Pinellas County Schools, advised Respondent

that he was recommending Respondent’s dism issal as a teacher in

the school district. According to the letter, the

recommendation of dismissal was because, on November 10, 1999,

Respondent engaged in conduct that violated School Board Policy

8.25 and Section 231.36, Florida Statutes. Respondent

c hallenged the proposed dismissal and requested a formal

hearing. On or about August 20, 2001, the matter was forwarded

to the Division of Administrative Hearings for assignment of an

Administrative Law Judge to conduct the hearing and prepare a

recommende d order. By notice issued September 6, 2001, the

matter was set for hearing and this proceeding followed.

In the Pre - Hearing Statement filed at the final hearing,

the School Board clarified the issues in the case by stating

that Respondent’s “actions were a violation of School Board

Policy 8.25(1)(a), (d) and (x) and 8.04, and also constitute

just cause for his dismissal under Section 231.36 because, among

other things, it constitutes immorality and conviction of a

crime involving moral turpitude.”

Prior t o the evidentiary portion of the hearing, the

parties agreed to address Respondent’s Motion for Partial

Summary Final Order, filed on October 5, 2001, in their post -

hearing submittals in lieu of making argument at the hearing.

After due consideration of t he Respondent's Motion and the

Memorandum of Law in support thereof, the Motion for Partial

Summary Final Order was denied in an Order issued on

December 31, 2001.

At hearing, Petitioner presented the testimony of the

following witnesses: Brian Ward, a c orporal with the Pinellas

County Sheriff’s Office; Jeannie Springer, an assistant

principal at Riviera Middle School; J. Howard Hinesley, Ed.D.,

Superintendent of Pinellas County Schools; Arthur Harris, an

assistant principal at Riviera Middle School; Albe rt Bennett,

principal of Riviera Middle School; James M. Barker,

administrator of the Office of Professional Standards, Pinellas

County Schools; and Frank Wooten, president of the Parent -

Teacher - Student Association of Riviera Middle School.

Petitioner off ered and had Exhibits 1 through 13 received into

evidence.

Respondent testified on his own behalf and presented the

testimony of the following witnesses: Faith Golson, Sue Greene,

Jean Krasulski, and David Mason, all teachers at Riviera Middle

School ; Jade Moore, executive director of the Pinellas County

Classroom Teachers Association; Peggy Sanchez Mills and Peter

Nolan, parents of former students of Respondent at Riviera

Middle School; Betty Reese, Respondent’s mother; Derek Reese,

Respondent’s brot her; Gwendolyn Deloris Reese, Respondent’s

sister; and Terry Chisolm, Angela Rodriguez, Angela Peaton, and

Dallas Manuel, II, all friends of Respondent and members of the

Pinellas County community. Respondent offered and had Exhibits

1 and 2 received into evidence.

At the conclusion of the hearing, the parties agreed to

file proposed recommended orders ten days from the date the

Transcript was filed. The Transcript of the proceeding was

filed on October 29, 2001. On November 11, 2001, the parties

filed a Joint Motion for Enlargement of Time to Submit Proposed

Findings of Fact, Conclusions of Law and Supporting Memorandum

(Motion). The Motion was granted and the time for filing

proposed recommended orders was extended to November 12, 2001.

Both parties t imely filed proposed findings of fact, conclusions

of law, and argument under the extended time frame.

FINDINGS OF FACT

1. Respondent, Reginald K. Reese, is a teacher certified

by the State of Florida, holding a professional service contract

with Pe titioner, the Pinellas County School Board (School

Board). Respondent was employed as a substitute teacher by the

School Board in August 1988. Respondent was hired as a full -

time teacher in the Pinellas County School System in August

1989, and has been a teacher in the district since that time.

At all times relevant to this proceeding, he was employed as a

teacher at Riviera Middle School.

2. Throughout his tenure with the School Board,

Respondent's teaching career has been exemplary and he has

co nsistently received good evaluations.

3. It is undisputed that Respondent is held in high regard

and considered an excellent teacher by many parents of children

he has taught and by his colleagues and administrators with whom

he has worked.

4. Respondent is viewed by his former principal and

current assistant principals as an excellent educator. His

co - workers view him as an excellent teacher, the epitome of

quality, a wonderful teacher, top - notch, one of the best,

innovative, creative, comp assionate with children, an

inspiration to students, and one of the teachers students come

back to the school to see. Two parents whose children were

taught by Respondent several years ago believe that Respondent's

work and effort as a teacher had turned their children around

and made them responsible, productive adult members of society.

5. Prior to the recommended disciplinary action which is

the subject of this proceeding, Respondent has never been the

subject of disciplinary action by the School Board or any of its

administrators.

6. On Wednesday, November 10, 1999, at about 1:00 p.m.,

Respondent parked his vehicle at the entrance of the south trail

near the mangrove area in the vicinity of 4th Street and 115th

Avenue in St. Petersburg, Flor ida. Respondent then exited his

vehicle and entered the south trail of the mangrove area.

7. It is undisputed that while in the mangrove area,

Respondent engaged in a sexual activity, specifically oral sex

and masturbation, with two other adults. The contact between

Respondent and the other individuals was consensual and involved

adults who were strangers to each other. This sexual activity

was observed by Corporal Ward of the Pinellas County Sheriff’s

Office.

8. The mangrove area in which t he incident occurred was

not clearly visible from the street. However, the area is

considered a public place and is next to a busy four - lane road.

Moreover, within that vicinity, people engage in recreational

activities, including sunbathing, fishing, an d boating.

9. After the sexual activity had concluded, Respondent was

arrested at the scene of the incident described in paragraph 7

by an officer with the Pinellas County Sheriff’s Office who had

observed the acts. As a result of the incident, Resp ondent was

charged with committing an unnatural and lascivious act and

exposure of sexual organs. Respondent pled nolo contendere to

exposure of sexual organs and an Order Withholding Adjudication

of Guilt was entered on December 30, 1999. Further, an Or der

Withholding Adjudication of Guilt on a Plea of Nolo Contendere

to the charge of unnatural and lascivious act was entered on

December 30, 1999. An Order to Seal Criminal History Record was

entered on January 4, 2001.

10. On the advice of counsel, Respondent did not report

his arrest, the charges filed against him, or the orders entered

resolving the criminal matters to School Board officials at or

near the time they occurred.

11. Respondent reported his arrest in a letter dated

June 10, 200 1, to the School Board’s Office of Professional

Standards, when he applied for renewal of his teaching

certificate.

12. Upon receipt of the June 10, 2001, notification of

Respondent’s arrest, the School Board investigated the matter.

Following the i nvestigation, on July 18, 2001, Respondent was

notified in a certified letter that Dr. J. Howard Hinesley,

Superintendent of Pinellas County Schools, would be recommending

to the School Board that Respondent be dismissed from

employment. The basis of the recommendation of dismissal is

that the conduct engaged in by Respondent on November 10, 1999,

violated Pinellas County School Board Policy 8.25 and the Code

of Ethics and the Principles of Conduct of the Education

Profession in Florida. It was alleged th at these violations

constitute just cause for Respondent's dismissal pursuant to

Section 231.36, Florida Statutes.

13. Dr. Hinesley's recommendation of dismissal is based on

several factors. First, Dr. Hinesley believes that the conduct

engaged in b y Respondent on November 10, 1999, was immoral in

that it took place in a public area. Second, Dr. Hinesley

believes that dismissal of Respondent is warranted because

Respondent's actions were inappropriate and embarrassed the

school system and the school . Finally, Dr. Hinesley believes

that the conduct engaged in by Respondent was inappropriate and

impaired his effectiveness as a teacher in the Pinellas County

School District.

14. Information regarding the subject incident has not been

widely dissem inated because the record was sealed by court -

order. However, all of the witnesses testifying in support of

Respondent were advised of the details of the incident. In

light of this knowledge, teachers who have worked with

Respondent, a former administrat or who supervised Respondent,

former students of Respondent, parents of Respondent's former

students, and community members supported Respondent. While

admitting that Respondent made a mistake or had a lapse in

judgment, they believe that his exemplary te aching record and

dedication to students and to the profession will allow him to

overcome the challenges that may arise if and when the incident

becomes public. Many of them also believe that his service to

the Pinellas County School District community wi ll not be

impaired.

CONCLUSIONS OF LAW

15. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

See Sections 120.569 and 120.57, Florida Statutes, and

Subsection 231.36(6)(a)2., Florida Statutes .

16. The Superintendent of the Pinellas County School Board

has the authority to make recommendations for dismissal

regarding school employees pursuant to Subsection 230.33(7)(e),

Florida Statutes.

17. The School Board has the authority to dis miss School

Board employees pursuant to Subsection 230.23(5)(f), Florida

Statutes.

18. The School Board seeks to dismiss Respondent from

employment as a teacher in the Pinellas County School District.

Accordingly, in this proceeding, the School Boar d has the burden

of proof and must meet that burden by a preponderance of the

evidence. Dileo v. School Board of Dade County , 569 So. 2d 883

(Fla. 3rd DCA 1990) and Allen v. School Board of Dade County ,

571 So. 2d 568 (Fla. DCA 1990).

19. Chapter 23 1, Florida Statutes, governs teacher

contracts and teacher discipline. Subsection 231.02(1), Florida

Statutes, provides that to be eligible for appointment in any

position in any school district, "a person shall be of good

moral character."

20. Resp ondent is employed by the School Board pursuant to

a professional service contract. Section 231.36, Florida

Statutes, provides in pertinent part:

(1)(a) Each person employed as a member

of the instructional staff in any district

school system . . . sha ll be entitled to and

shall receive a written contract as

specified in Chapter 230. All such

contracts . . . shall contain provisions for

dismissal during the term of the contract

only for just cause. Just cause includes,

but is not limited to, the follo wing

instances, as defined by rule of the State

Board of Education: misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, or conviction of a crime

involving moral turpitude.

* * *

(6)(a) Any member of the instructi onal

staff, excluding an employee specified in

subsection (4), may be suspended or

dismissed at any time during the term of the

contract for just cause as provided in

paragraph (1)(a). . . .

21. The definition of “just cause” set forth in

Subsectio n 231.36(1)(a), Florida Statutes, is not all - inclusive.

By defining just cause as “including, but not limited to,

misconduct in office, incompetency, gross insubordination,

willful neglect of duty, or conviction of a crime involving

moral turpitude,” the Florida Legislature gave school boards

discretion to determine what actions constitute just cause for

suspension or dismissal. Carl B. Dietz v. Lee County School

Board , 647 So. 2d 217 (Fla. 2nd DCA 1994). Therefore, engaging

in immoral conduct or conduct that comes within definition of

just cause provided in Section 321.36, Florida Statutes, is not

the sole basis upon which a school board may dismiss an

employee. A school board may define by policy conduct that

constitutes just cause for dismissal of an employee who has a

professional service contract.

22. In this case, the School Board duly promulgated School

Board Policy 8.25. That policy establishes conduct that may

constitute just cause for dismissal of a teacher and, hence,

termination of his or her professional service contract.

23. As a result of the conduct described in paragraph 7

above, it is alleged that Respondent violated School Board

Policy 8.25, and the Code of Ethics and Principles of

Professional Conduct of the Education Prof ession in Florida. It

is alleged that these violations constitute just cause for his

dismissal pursuant to Section 231.36, Florida Statutes. More

specifically, the record in this case indicates that the School

Board alleges that Respondent’s conduct not only violates School

Board Policy 8.25, but also is immoral and is a conviction of a

crime involving moral turpitude within the meaning of

Rule 6B - 4.009, Florida Administrative Code.

24. The terms "immorality" and "conviction of a crime

involving mo ral turpitude” are defined in Rule 6B - 4.009, Florida

Administrative Code, as follows:

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

that is sufficiently notorious to bri ng the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vi leness or

depravity in the private and social 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 tur pitude.

25. School Board Policy 8.25 sets forth the disciplinary

guidelines for School Board employees. An employee who commits

one or more of the offenses enumerated in that policy is subject

to imposition of a penalty within the range prescribed therein.

Among the offenses listed in School Board Policy 8.25(1) and

which constitute grounds for discipline under Section 231.36,

Florida Statutes, are the following:

(a) Inappropriate sexual conduct,

including but not limited to lewd and

lascivio us behavior, indecent exposure,

solicitation of prostitution, sexual

battery, possession or sale of pornography

involving minors, sexual relations with a

student

* * *

(d) Committing or Conviction* of a

Criminal Act - Misdemeanor

* * *

(x) Failure to Comply with School

Board Policy, State Law, or Appropriate

Contractual Agreement

* * *

*Conviction is defined as a finding of

guilt, a plea of guilty, a plea of nolo

contendere , or entering a Pre - Trial

Intervention pr ogram, whether or not there

is a formal adjudication of guilt.

26. School Board Policy 8.25(1) provides that mitigating

circumstances may be considered in determining the disciplinary

action to be taken only "when there is a range of penalties."

In this case, the sole penalty for a substantiated charge of

inappropriate sexual conduct, which includes lewd and lascivious

behavior, is dismissal. The penalty range for the a

substantiated charge of committing or conviction of a “criminal

act - misdemeanor ” is suspension to dismissal. Finally, the

penalty range for a substantiated charge of failing to comply

with school board policy, state law, or appropriate contractual

agreement is caution to dismissal.

27. The School Board established by the requis ite

evidentiary standard that Respondent violated School Board

Policy 8.25(1)(a). The evidence presented at hearing clearly

established that on one occasion, Respondent engaged in

inappropriate sexual conduct within the meaning of School Board

Policy 8.25 (1)(a). It is undisputed that Respondent engaged in

sexual activity with two other adults and exposed his sexual

organs in a public place. For this conduct, Respondent was

charged with and pled nolo contendere to committing an unnatural

and lascivious ac t and exposure of sexual organs. School Board

Policy 8.25 expressly provides that lewd and lascivious behavior

is deemed "inappropriate sexual conduct." Moreover, the policy

mandates that this sexual conduct will result in dismissal, the

sole penalty pre scribed by the duly promulgated policy.

28. The School Board met its burden and established that

Respondent violated School Board Policy 8.25(1)(a). Therefore,

consistent with that policy, the penalty for this violation is

dismissal.

29. Under the facts of this case, the violation of School

Board Policy 8.25(1)(a) constitutes just cause to dismiss

Respondent from his teaching position with the Pinellas County

School District.

30. The School Board established that Respondent violated

Schoo l Board Policy 8.25(1)(x) by failing to timely report his

arrest as required by School Board Policy 8.04(4) and

Rule 6B - 1.006(5)(m), Florida Administrative Code. School Board

Policy 8.04 requires all employees to “notify their supervisors

immediately” if they are arrested for any criminal offense.

Rule 6B - 1.006(5)(m), Florida Administrative Code, requires

educators to “self - report any conviction, finding of guilt,

withholding of adjudication . . . or entering of a plea of

guilty or nolo contendere for an y criminal offense other than a

minor traffic violation within 48 hours after the final

judgment.”

31. The evidence is undisputed that Respondent was

arrested on November 10, 1999, and entered a plea of nolo

contendere to the charges arising out of the subject incident on

December 30, 1999. It is also undisputed that the orders

withholding adjudication were entered December 30, 1999.

Respondent acknowledged that he failed to report the required

information to appropriate official within the time p rescribed

by School Board Policy 8.04 and Rule 6B - 1.006(5)(m), Florida

Administrative Code, in violation of School Board Policy

8.25(1)(x). The penalty for this violation is caution to

dismissal.

32. The undisputed evidence established that Responden t

committed the acts described in paragraph 7. These acts are

criminal offenses classified as misdemeanors. Accordingly, the

School Board met its burden and established that Respondent

violated School Board Policy 8.25(1)(d) by committing

misdemeanor cri minal acts. The penalty range for a

substantiated charge of committing a "criminal act - misdemeanor"

is suspension to dismissal.

33. The School Board has failed to establish that

Respondent was convicted of a crime involving moral turpitude

within the meaning of Section 231.36, Florida Statutes,

notwithstanding the School Board’s definition of “conviction” as

enunciated in School Board Policy 8.25. The evidence

established that with respect to both criminal charges against

Respondent, adjudication of guilt was withheld. Accordingly,

there was no conviction of any crime.

34. The School Board failed to establish that Respondent’s

conduct described in paragraph 7 constituted immoral acts within

the meaning of Rule 6B - 4.009(2), Florida Administrativ e Code.

In order to show that the conduct is immoral within the meaning

of the rule, it must be established that the conduct (1) is

inconsistent with the standards of public conscience and good

morals; (2) is sufficiently notorious to bring the individual

concerned or the education profession into public disgrace or

disrespect; and (3) impairs the individual's service in the

community. See McKinney v. Castor , 667 S. 2d 387 (Fla. 1st DCA

1995). The School Board met its burden as to the first and

second el ements required to establish "immorality" within the

meaning of Rule 6B - 4.009(2), Florida Administrative Code, but

failed to establish the third element.

35. With regard to the first element, it was established

that the conduct engaged in by Responde nt is inconsistent with

the standards of public conscience and good morals. As to the

second element, Respondent's conduct is sufficiently notorious

to bring Respondent and/or the education profession into public

disgrace or disrespect. With regard to th e third element, many

of Respondent's colleagues, former students and parents of his

former students, and friends and community members testified at

hearing and submitted letters of support for Respondent. These

individuals believe that despite the subjec t incident,

Respondent can overcome any challenge that may arise if and when

the details of the incident become public. Moreover, these

individuals believe that Respondent can contribute positively to

the Pinellas County School District community. The Sc hool Board

presented no contrary evidence to establish that Respondent's

service in the community would be impaired as a result of his

conduct. Having failed to establish each of the three elements

required by Rule 6B - 4.009(2), Florida Administrative Code , there

can be no finding that the conduct is immoral within the meaning

of the rule.

36. The School Board has established that Respondent

violated School Board Policy 8.25(1)(a), (d), and (x). Those

violations constitute just cause for Respondent's dismissal as a

teacher in the Pinellas County School District.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board enter a Final Order

that dismisses Respondent from his position as a teacher with

the Pinellas County School District.

DONE AND ENTERED this 2nd day of January, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Heari ngs

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 2nd day of January, 2002.

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Jacqueline Spoto Bircher, Esquire

School Board of Pinellas County

301 Fourth Street, Southwest

Post Office Box 2942

Largo, Fl orida 33779 - 2942

Honorable Charlie Crist

Commissioner of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

Dr. J. Howard Hinesley, Superintendent

Pinellas County School Board

301 Fourth Street, Southwest

Largo, Florida 33770 - 3536

James A. Robinson, 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 Recomme nded Order. Any exceptions

to this Recommended Order must be filed with the agency that

will issue the Final Order in this case.