05-004195TTS Hernando County School Board vs. Michael Ellison Status: Closed Recommended Order on Thursday, February 23, 2006.

Summary: Respondent inadvertently brought a firearm onto campus in the glove box of his truck in violation of Petitioner`s policy. This was misconduct which warranted a 30-day suspension but was not so serioius as to require termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HERNANDO COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4195

)

MICHAEL ELLISON, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearing s , on January 5, 2006, in Brooksville ,

Florida.

APPEARANCES

For Petitioner: J. Paul Carland, II, Esquire

Hernando County School Boar d

919 North Broad Street

Brooksville, Florida 34601

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

The issue is whether Res pondent 's professional services

contract with the Hernando County School Board should be

terminated.

PRELIMINARY STATEMENT

Respondent Michael Ellison (Mr. Ellison) was informed by a

Petition for Termination of Employment, dated October 17, 2005,

that the Hernando County School Board (School Board) intended to

terminate his teaching contract . In a letter dated the same

day, Mr. Ellison, through counsel, requested a hearing.

Mr. Ellison was suspended from his teaching duties with pay

on September 16, 200 5. On November 15, 2005, he was suspended

without pay. On November 16, 2005, the matter was forwarded to

the Divi sion of Administrative Hearings.

The case was set for hearing on January 5 and 6, 2006, in

Brooksville, Florida. The hearing was completed by the end of

the day on January 5, 2006.

At the hearing, the School Board offered Exhibit Nos. 1

through 12 , which were admitted into evidence and called four

witness es . Mr. Ellison testified in his own behalf and

presented the testimony of seven witness es . It was further

stipulated that an additional 20 witnesses were available to

testify that Mr. Ellison was an outstanding teacher and a person

of excellent character.

A Transcript was filed on February 9, 2006 . After the

hearing, Respondent and Petit ioner timely filed their Proposed

Findings of Fact and Conclusions of Law on February 16 and 17 ,

2006 , respectively . The Proposed Findings of Fact and

Conclusions of Law were considered by the Administrative Law

Judge in the preparation of this Recommende d Order.

References to statutes are to Florida Statutes (200 5 )

unless otherwise noted.

FINDINGS OF FACT

1 . The School Board is the agency responsible for the

administration of the school system in Hernando County.

2. The School Board has employed Mr . Ellison almost

continuously since 1979. In addition to teaching, he has

coached students in various sports. Until September 16, 2005,

he taught pursuant to a professional services contract at

Central High School.

3 . On September 15, 2005, Mr. Elliso n 's 1996 Dodge truck

was located at the school's auto shop . Mr. Ellison had driven

it there. S tudents studying automobile repair were to attempt

to repair his truck's air conditioner , which was not

functioning . Mr. Ellison had provided the truck to the auto

shop personally after having made arrangements with the

automobile repair teachers the previous day . He was aware that

the repair job was to be accomplished by students.

4. Peter Koukos, the vocational instructor , informed

Mr. Ellison , that in orde r to repair the air conditioner the

glove box would have to be removed. Mr. Ellison assented to

this procedure.

5 . While attempting to remove the glove box, students

discovered a loaded Power Plus . 38 special revolver in it.

6. The students who foun d it duly reported its presence to

Mr. Koukos , who took custody of it. It was eventually delivered

to the school resource officer , Deputy Sheriff Debra Ann Miles ,

who placed it into evidence in accordance with Hernando County

Sheriff's Office procedures.

7 . It is found as a fact that the revolver was owned by

Mr. Ellison and it was he who had placed the weapon in the glove

box of the truck and it was he who had driven it onto the

Central High School grounds on September 15, 2005.

8 . Mr. Ellison had expe rience d a previous incident with

this weapon on January 21, 2002. This incident was precipitated

when a citizen reported to the Hernando County Sheriff's Office

that a man was standing by a parked pick - up truck in the Fort

Dade Cemetery with a handgun in the left front pocket of his

jacket .

9 . A deputy was dispatched to the cemetery. The deputy

stopped a truck as it exited the cemetery. The truck the deputy

stopped was being driven by Mr. Ellison and it was the same 1996

Dodge that was involved in the September 15, 2005, incident. On

the prior occasion Mr. Ellison related to the deputy that he was

having domestic difficulties and the deputy, with Mr. Ellison's

permission, seized the weapon which was in his possession. The

weapon seized by the deputy w as the very same .38 special

revolver found at Central High School on September 15, 2005.

10 . The weapon was released to Mr. Ellison on February 12,

2002 , because his actions with it on January 21 , 200 2 , were

completely lawful. He thereafter placed the weapon in the glove

box of the 1996 Dodge . He forgot that it was there and if he

had thought about it, he would not have left it in the glove box

of the truck when he delivered it to the students in the auto

repair shop on September 15, 2005.

11 . There was no intent to bring the weapon on campus.

Mr. Ellison is aware of the harm that can ensue from carelessly

leaving weapons in an environment where curious students might

retrieve it and harm themselves or others. He has never denied

that the gun was hi s or that anyone other than himself was

responsible for the weapon being brought to the campus.

1 2 . Mr. Ellison knew that School Board Policy 3.40(6)

provides that no one except law enforcement and security

officers may possess any weapon on school proper ty. This was

explained to all of the teachers in a pre - school orientation

session conducted August 1 - 5, 2005, which Mr. Ellison attended.

Procedures to be followed in the event a gun or other dangerous

weapon was found on campus were reviewed during this orientation

session. These procedures are contained in the Central High

School Blue Book, 2005 - 06 and Mr. Ellison knew this at the time

he drove his truck onto school property.

13. Mr. Ellison was and is familiar with the Code of

Ethics and Principles of Professional Conduct that addresses the

behavior of teachers. He is aware that he has a duty to make a

reasonable effort to protect students from conditions that may

be harmful.

1 4 . Ed Poore, now retired, was an employee of the School

Board for 31 yea rs . He served in the district office as

administrator of personnel and human resources, and

specifically , was involve d with the administration of discipline

and the enforcement of S chool B oard p olicy.

1 5 . Mr. Poore stated that intent was not a factor in

determining whether a violation of School Board Policy 3.40(6)

had occurred . He further noted that the Policy does not provide

for a sanction for its violation. He testified that in

determining a sanction for a violation of this section, he had

observed in the past that the School Board had considered the

sanction imposed on others in similar situations, the individual

person's time and service as a teacher, and any other pertinent

mitigating circumstances.

1 6 . Mr. Ellison's character was described by several

witnesses as follows:

a. Brent Kalstead, the Athletic Director at Hernando High

School, who has been a teacher for 18 years , stated that he had

coached with Mr. Ellison and that he had entrusted his son to

him so that he could teach him baseball. He said that

Mr. Ellison was dedicated to the youth of Hernando County.

b. Marietta Gulino, is Mr. Ellison's girlfriend and a

school bus driver. She stated that Mr. Ellison often takes care

of children after working hours.

c. Richard Tombrink has b een a circuit judge in Hernando

County for 17 years. He has known Mr. Ellison for 15 years as a

baseball coach and at social events. He said that Mr. Ellison

is committed to educating children and has great character.

d. Lynn Tombrink is the wife of Ju dge Tombrink and is a

teacher at Parrott Middle School and has known Mr. Ellison for

20 years. Ten years ago she taught in the room next to him.

She would want him to teach her children.

e. Regina Salazo is a housewife. She stated that

Mr. Ellison wa s her son's pitching coach and that he loves

children and they love him.

f. Timothy Collins, a disabled man, said that his grandson

and Mr. Ellison's grandson play baseball together and that he

knows Mr. Ellison to be professional, a no nonsense type of

person, and a gentleman. It is his opinion that the School

Board needs people like him.

g . Gary Buel stated that Mr. Ellison was his assistant

baseball coach and that Mr. Ellison was dedicated and motivated.

He described him as selfless.

1 7 . The part ies stipulated that if called, the following

witnesses would testify that they know Mr. Ellison to be a good,

decent, honorable man; that they know him to be a good educator

and coach; that they are aware of the circumstances surrounding

the gun being in h is truck on School Board property; that they

do not believe that termination is the appropriate action in

this case; and that he would remain an effective teacher :

Carole Noble of Ridge Manor; Rob and Vickie Fleisher of Floral

City; Vinnie Vitalone of Bro oksville; Ti m Whatley of

Brooksville; Rick Homer of Brooksville; Rob and Candy Taylor of

Spring Hill; Robbie Fleisher; Mark Frazier of Brooksville; Miya

Barber of Brooksville; Nate Dahmer of Brooksville; H ank

Deslaurier of Spring Hill; John and Mary Jo McF arlane of

Brooksville; Pete Crawford of Brooksville; Patrick Ryan of

Tampa; Ed Bunnell of Spring Hill; and Alan and Cecilia Solomon

of Brooksville.

1 8 . It is found as a fact , based on the record of hearing,

that Mr. Ellison is an excellent teacher who wo rks well with

children and whose character is above reproach. He is not the

type of person who would consciously bring a weapon onto school

grounds or commit any other purposeful act which might endanger

students.

1 9 . Mr. Ellison has not been the subjec t of prior

disciplinary actions.

CONCLUSIONS OF LAW

20 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.57(1), and 1012.33( 6 )( a ) , F la. Stat.

21. Mr. Ellison is an instruc tional employee as defined by

Section 1012.01(2) , Florida Statutes .

22. The School Board has the authority to terminate or

suspend instructional employees pursuant to Section s

1012.22(1)(f) and 1012.33(6)(a) , Florida Statutes .

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

affirmative of an issue before an administrative tribunal,

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

396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the

School Board must establish facts upon which i ts allegations of

misconduct are proven by a preponderance of the evidence. Dileo

v. School Board of Dade County , 569 So. 2d 883 (Fla. 3rd DCA

1990) and Sublett v. Sumter County School Board , 664 So. 2d 1178

(Fla. 5th DCA 1995). See also § 120.57(1)(j), Fla. Stat.

24 . Section 1012.33(1)(a) , Florida Statutes , provides that

a teacher, such as Mr. Ellison, who is employed as a teacher

pursuant to a professional services contract , may be dismissed

only for just cause.

25 . Section 1012.33(1)(a) , Florida Sta tutes , defines just

cause as misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or conviction of a

crime involving moral turpitude, and states that these five

reasons may be defined by rule of the State Board of Education.

2 6 . The State Board of Education has provided definitions

for the four of the five terms (willful neglect of duty is not

specifically defined), along with some obsolete terms (which are

not included below), in Florida Administrative Code Rule

6B - 4.009, a s follows:

6B - 4.009. Criteria for Suspension and

Dismissal.

The basis for charges upon which dismissal

action against instructional personnel may

be pursued are set forth in Section 231.36,

Florida Statutes. The basis for four of the

five charges (willfu l neglect of duty is not

included in the rule) is hereby defined:

(1) Incompetency is defined as inability or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a

relative term, an authoritati ve decision in

an individual case may be made on the basis

of testimony by members of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evi dence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure to

perform duties prescribed by law (Section

231.09, Florida Statutes; (2) repeated

failure on the part of a teacher to

communicate with and relate to children in

the classroom, to such an extent that pupils

are deprived of minimum educational

experience; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and relate to teachers

under his or her supervision to such an

extent that the educational program for

which he or she is responsible is seriously

impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate co mmand

of his or her area of specialization.

* * *

(3) Misconduct 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

Prof ession 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.

(4) Gross insubordination or willful

neglect of duties is defined as a constant

or continuing intentional refusal t o obey a

direct order, reasonable in nature, and

given by and with proper authority.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted s tandards

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.

2 7 . Florida Administrative Code Rule 6B - 1.006(3)(a),

provides as follows:

6B - 1.006 Principles of Professional Conduct

for the Education Profession in Florida.

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these princip les

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

th e student from conditions harmful to

learning and/or to the student's mental and/

or physical health and/or safety.

2 8 . Mr. Ellison did not make a reasonable effort to

protect students from conditions harmful to students ' health and

safety. Moreover, a llowing a loaded revolver to be introduced

onto a schoolyard is misconduct in office as contemplated by

Section 1012.33(1)(a) , Florida Statutes . This is an offense

that is so serious that it impaired Mr. Ellison's effectiveness

in the school system.

2 9 . Whether this single breach of school rules provides

just cause for termination must be considered in the light of

the past performance of the violator. In this case, the

unrebutted evidence in the record demonstrates that Mr. Ellison

is a dedicated teac her, an accomplished coach, and a

professional in his dealings with students and parents. He is a

person who cares deeply about the well - being of his students,

and young people in general.

3 0 . In a similar case , School Board of Pinellas County v.

Perry H ollis , Case No. 89 - 2447 (DOAH September 25, 1989), Hollis

inadvertently brought a loaded firearm onto a campus in his

vehicle , which was to be worked on by vocational students .

Subsequently, a student found it and gave it to a fellow student

who caused th e weapon to discharge one round. The Hearing

Officer recommended that Hollis be reprimanded and suspended

without pay for ten days. Subsequently, the School Board of

Pinellas County entered an order suspending Mr. Hollis without

pay for thirty days.

31 . In another similar case, Palm Beach County School

Board v. Roberto Alonso , Case No. 96 - 4744 (DOAH July 1, 1997),

Alonso, a special education instructor , brought a firearm onto

campus on May 1, 1996, which was in a holster attached to his

belt. Slightly m ore than a month earlier, March 29, 1996, he

had carried a firearm onto campus and the campus police advised

him it was inappropriate.

32 . The Administrative Law Judge found that Alonso was

aware that he was bringing a firearm onto campus in violation o f

a clear school policy . Alonso's actions reflec ted a cavalier

attitude toward t he Palm Beach County School Board's firearms

policy. The Administrative Law Judge recommended a one - year

suspension. The Palm Beach County School Board rejected the

Administ rative Law Judge's recommendation and terminated

Alonso's contract.

33 . In the Hollis case a round was fired. In the Alonso

case, a teacher evinced a cavalier attitude toward the School

Board's efforts to prevent firearms from being brought onto

school g rounds. Alonso's actions were more egregious that the

actions of Mr. Ellison. In the Hollis case, the facts are

almost identical to this case , except the Hollis case presented

a more frightening scenario because a round was actually fired.

34. If one ba lances this single careless act committed by

Mr. Ellison, with the overall good that is to be gained by

allowing Mr. Ellison to continue his career as a teacher in the

Hernando County School District, the inevitable conclusion is

that just cause for termin ation is absent.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that Final Order imposing a 30 - calendar - day

suspension without pay be imposed as a p enalty in this cause,

and that R espondent, Michael Ellison, be reinstated to a

teaching status and be awarded back pay and benefits to which he

would have otherwise been entitled since November 15, 2005 , less

the 30 - calendar - day suspension without pay .

DONE AND ENTERED this 2 3rd day of February , 200 6 , in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative 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.f l.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 3rd day of February , 2006 .

COPIES FURNISHED :

J. Paul Carland, II, Esquire

Hernando County School Board

919 North Broad Street

Brooksville, Florida 34601

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Wendy Tellone , Ed.D.

Superintendent of Schoo ls

Hernando County School Board

919 North Broad Street

Brooksville, Florida 34601 - 2397

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. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.