08-004093TTS Brevard County School Board vs. James Michael Murray Status: Closed Recommended Order on Wednesday, June 17, 2009.

Summary: Classroom teachers and wrestling coaches, who allowed an ineligible student to wrestle under a false name, should be removed as coaches, but not terminated from employment as classroom teachers.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-4093

)

JAMES MICHAEL MURRAY, )

)

Respondent. )

)

BREVARD COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-4404

)

JOHN M. HACKNEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on January 21 and 22, 2009, in Viera, Florida.

APPEARANCES

For Petitioner: Joseph R. Lowicky, Esquire

Glickman, Witters and Marrell, P.A.

The Centurion, Suite 1101

1601 Forum Place

West Palm Beach, Florida 33401

For Respondent, James Michael Murray:

Matthew E. Haynes, Esquire

Thomas L. Johnson, Esquire

Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 3004A

Brandon, Florida 33511

For Respondent, John M. Hackney:

Thomas J. Thompson, Esquire

Thomas Thompson, P.A.

1007 South Washington Avenue

Titusville, Florida 32780

STATEMENT OF THE ISSUES

The issues for determination are whether Petitioner has

just cause to terminate the Professional Services Contract of

each of the respondents because each respondent allegedly

engaged in immorality and misconduct in office in violation of

Subsection 1012.33(6)(a), Florida Statutes (2007), 1 and the Rules

of Professional Conduct in Florida Administrative Code Rules 6B-

and (5)(a) and (h).

PRELIMINARY STATEMENT

On August 12, 2008, Petitioner dismissed each of the

respondents from his position of employment as instructional

employees and wrestling coaches. Each of the respondents timely

requested an administrative hearing, and Petitioner referred the

requests to DOAH to conduct the hearing.

At the hearing, Petitioner presented the testimony of nine

witnesses, including two by deposition, and submitted 28

exhibits for admission into evidence. The respondents presented

the testimony of eight witnesses, including their own testimony,

and submitted 30 exhibits for admission into evidence.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the three-volume Transcript of

the hearing filed with DOAH on March 3, 2009. Pursuant to three

agreed motions for an extension of time to file proposed

recommended orders (PROs), the parties timely filed their

respective PROs on May 18, 2009.

FINDINGS OF FACT

1. Petitioner is the agency responsible for the employment

and dismissal of instructional staff (teachers) in Brevard

County, Florida (the school district). During the 2007-2008

school year, Petitioner employed each of the respondents as

teachers and wrestling coaches.

2. Petitioner employed John M. Hackney as a teacher and

the varsity wrestling coach at Astronaut High School

(Astronaut). Petitioner employed James Michael Murray as a

teacher at Space Coast Junior Senior High School (Space Coast)

and as the junior varsity wrestling coach at Astronaut. 2

3. Mr. Hackney and Mr. Murray have extensive experience in

competitive wrestling. Mr. Hackney has coached high school

wrestling for more than 20 years and has been the head coach of

the Astronaut varsity wrestling team for approximately 15 years.

For the last 15 years, Mr. Hackney has also coached competitive

wrestling in the Amateur Athletic Union (AAU). Mr. Hackney has

also served as the head of AAU wrestling in Florida.

4. Mr. Murray began wrestling competitively in 1967 for

the wrestling team at Cocoa High School (Cocoa), a high school

located within the school district. Mr. Murray wrestled for

Cocoa for three years, wrestled for Brevard Community College

for two years, and was a member of wrestling team at the

University of Florida for one year, although he did not compete

in any event for the university.

5. Mr. Murray completed law school and practiced law as a

licensed attorney in Florida. While in private practice,

Mr. Murray was a wrestling referee for the Florida High School

Athletic Association (FHSAA). The FHSAA is the officiating body

for all high school athletic programs in the state, including

wrestling.

6. Mr. Murray authored some parts of the FHSAA officiating

exam. He also taught classes to prepare candidates for the

FHSAA exam.

7. In 2000, Mr. Murray left his law practice to become a

high school teacher and a wrestling coach. Mr. Murray became

the head coach of the Space Coast varsity wrestling team in the

2003-2004 school year. When the principal at Space Coast

removed Mr. Murray as head coach, Mr. Murray remained as a

teacher at Space Coast, but became a junior varsity wrestling

coach at Astronaut. Mr. Murray also has extensive experience as

a coach in AAU wrestling.

8. On December 1, 2007, the Astronaut varsity wrestling

team competed in a multi-team tournament at Poinciana High

School (Poinciana). A regular member of the Astronaut team,

identified in the record as W.P., was injured and unavailable to

compete in the Poinciana tournament. Mr. Hackney substituted a

student, identified in the record as T.G., for W.P.

9. T.G. was a seventh-grade middle school student. He was

not enrolled in Astronaut and was not eligible to compete for

Astronaut in the Poinciana tournament, because the Poinciana

tournament was a high school event sanctioned by the FHSAA.

10. T.G. was at the Poinciana tournament because

Mr. Hackney and Mr. Murray coached T.G. in AAU wrestling events.

T.G. was a very good wrestler for his age group and very

interested in wrestling. Mr. Hackney allowed T.G. to ride on

the team bus with the Astronaut varsity team and attend the

tournament with the Astronaut team. 3

11. Mr. Murray also attended the Poinciana tournament.

The Poinciana tournament was a varsity tournament, and

Mr. Murray was a junior varsity coach. Mr. Murray was not

present at the varsity tournament in any official capacity.

Mr. Murray attended the varsity tournament to help Mr. Hackney.

12. While the Astronaut team members were weighing in

prior to the Poinciana tournament, the father of T.G.,

identified in the record as Mr. G., approached Mr. Hackney and

asked Mr. Hackney if Mr. Hackney would substitute T.G. for W.P.

and allow T.G. to wrestle a high school student from another

school who was at the tournament. The student was ranked number

one in the nation in the AAU, and Mr. G. wanted T.G. to get

experience wrestling at that level of competition. T.G.

welcomed the opportunity to wrestle such a highly-ranked

opponent.

13. Mr. Hackney agreed to the request by Mr. G.

Mr. Hackney discussed the matter with Space Coast coaches

Mr. Toni McCormick and Mr. Richard Jones, and the coaches for

Space Coast agreed to T.G. wrestling as W.P. 4

14. Mr. Murray was not present during the discussions

between Mr. Hackney, Mr. G., and the Space Coast coaches. When

Mr. Hackney informed Mr. Murray of the decision to allow T.G. to

compete as W.P., Mr. Murray advised Mr. Hackney not to proceed.

15. T.G. competed as W.P. in three matches at the

Poinciana tournament. One of the matches was against the number

one ranked AAU wrestler.

16. On December 5, 2007, Mr. Hackney allowed T.G. to

compete as W.P. for Astronaut in a dual meet with the Eau Gallie

High School (Eau Gallie) wrestling team. Mr. G. approved the

entry of his son as W.P. Mr. Murray was not present at the Eau

Gallie dual meet.

17. Petitioner knew, or should have known, that

Mr. Hackney allowed T.G. to compete as W.P. in the Poinciana

tournament and dual meet at Eau Gallie. Mr. Hackney informed

the coaches of the opposing teams of his intent to allow T.G. to

compete as W.P. Mr. Jones also discussed the situation with

Ms. Sharon Travis, the athletic director at Space Coast.

18. Within days of the Eau Gallie match, the area

newspaper published a picture of T.G. wrestling with a caption

identifying T.G. as W.P. Parents and spectators at both the

Poinciana tournament and the Eau Gallie dual meet knew that T.G.

was competing as W.P.

19. The principal at Space Coast, Mr. Bob Spinner, knew

that T.G. had competed as W.P. in the Poinciana tournament and

the Eau Gallie dual meet. In preparation for an arbitration

hearing in April of 2008 concerning Mr. Murray’s grievance

against the principal for removing Mr. Murray as head wrestling

coach at Space Coast, Mr. Spinner learned that Mr. Hackney had

allowed T.G. to compete as W.P. in the Poinciana tournament and

Eau Gallie dual meet. The principal called a student,

identified in the record as W.C., to his office approximately

four times to interview the student concerning the involvement

of Mr. Hackney, Mr. Murray, and T.G. in the Poinciana tournament

and Eau Gallie dual meet.

20. Other employees and agents of Petitioner also knew of

the competition of T.G. in the Poinciana tournament and the Eau

Gallie dual meet. Prior to the arbitration, Mr. Terry Humphrey,

the principal at Astronaut, and Ms. Joy Salamone, the director

of Human Resource Services and Labor Relations, learned of the

actions of Mr. Hackney and Mr. Murray involving T.G.

21. The actions of the respondents did not impair their

service in the community as teachers or their effectiveness as

teachers in the classroom. Each of the respondents continued to

teach in the classroom and receive favorable evaluations as

classroom teachers after the Poinciana tournament and the Eau

Gallie dual meet.

22. Mr. Hackney and Mr. Murray received the highest marks

available on all of their evaluations, including the evaluations

completed after the Poinciana tournament and Eau Gallie dual

meet. Petitioner selected Mr. Hackney as the Teacher of the

Year for the 2006-2007 school year.

23. After Mr. Murray prevailed in the arbitration

proceeding, he was scheduled to be reinstated as head coach for

the Space Coast varsity wrestling team. Mr. Jones, a community

coach at Space Coast, met with several parents, and they decided

to raise the ineligible competition by T.G. as a ground to

prevent the reinstatement of Mr. Murray at Space Coast.

24. One of the parents reported the ineligible competition

by T.G. to the FHSAA. The FHSAA imposed a fine of $2,500.00

against Astronaut.

25. Sometime in July 2008, the school district

superintendent asked Ms. Salamone to conduct an investigation.

On or about August 4, 2008, the investigation concluded that

Mr. Hackney and Mr. Murray should be removed as wrestling

coaches, but retained as classroom teachers.

26. The superintendent convened a meeting to reconsider

the recommendation. The recommendation was changed, and the

superintendent recommended that Petitioner terminate the

respondents as classroom teachers. 5

27. Mr. Hackney and Mr. Murray cooperated fully in the

investigation. Neither of the respondents ever attempted to

conceal their actions.

28. Mr. Hackney was motivated solely by his desire and the

desire of Mr. G. for T.G. to gain experience T.G. would not

otherwise enjoy. Neither of the respondents sought personal

gain, either direct monetary gain or indirect gain through a

winning season. Astronaut would have gained nothing in season

standings by winning the Poinciana tournament and Eau Gallie

dual meet. There is no evidence that T.G. was successful in the

matches with older competitors, and the number one ranked AAU

wrestler pinned T.G. in their match.

29. The competition of T.G. in the Poinciana tournament

and Eau Gallie dual meet did not expose the school district to

increased liability. Mr. G. paid an additional premium for AAU

insurance that covered his son in any competition, including the

Poinciana tournament and the Eau Gallie dual meet. Mr. Hackney

knew that T.G. was insured for both events.

30. The entry of T.G. in the Poinciana tournament and Eau

Gallie dual meet did not cause harm to T.G. The FHSAA suspended

T.G. from varsity competition for one year, but T.G. was

ineligible for varsity competition before the suspension. The

competition by T.G. in each event was not a violation of AAU

rules and regulations.

31. T.G. did not suffer any physical harm from his

competition with older, more experienced wrestlers. There is no

evidence that T.G. suffered any academic or personal harm. The

testimony of T.G. at the hearing demonstrated his appreciation

for the experience he gained in the Poinciana tournament and Eau

Gallie dual meet. 6

32. The termination of the respondents from their

classroom teaching positions deviates from Petitioner’s

progressive discipline policy. Petitioner has never terminated

a coach from his or her teaching position for any reason other

than an improper relationship with a student.

33. Petitioner has refused to terminate other teachers for

conduct more egregious than that of Mr. Hackney and Mr. Murray.

For example, a teacher who provided alcohol to a student and

allowed her to drink until she became incapacitated was

suspended for 30 days from June 12 through July 12, 2008; was

reprimanded; and was subjected to a salary freeze for one year.

34. In another incident, three assistant principals

conspired over a two-year period to move 52 special education

students into different grades so they would not have to take

the Florida Comprehensive Assessment Test (FCAT). The goal was

to raise the school’s overall performance and receive higher

funding from the state. Both administrators and teachers may

receive financial benefits from increased FCAT scores.

Petitioner did not terminate any of the employees. One

assistant principal was demoted to teacher, and another was

subjected to a salary freeze for one year. The assistant

principal, who knew of the plan and failed to report it, was

promoted to the position of elementary school principal.

35. In 2005, two coaches punished two players, who missed

practice, by subjecting the two players to tackling by fellow

players during practice. The coaches instructed the other

players to hurt the two players who missed practice and allowed

tackling after blowing the whistle to end the session. The

incidents received publicity in the local media after the

investigation. Petitioner issued letters of reprimand to each

of the coaches.

CONCLUSIONS OF LAW

36. DOAH has juri sdiction over the parties to and the

subject matter of this proceeding. § 120.57 (1), Fla. Stat. DOAH

provided the parties wi th adequate notice of the admini strative

hearing.

37. The terminatio n of employment at issue in this

proceeding is pr oposed agency ac tion, rather than final agency

action taken previously . DOAH does not re view the employment

termination as would an appellate court. The purpose of a

proceeding conducted pursuant to Su bsection 120.57(1) is to

formulate final agency action rather than to review agency action

previously taken. McDonald v. Depa rtment of Bank ing and Finance ,

346 So. 2d 569, 584 (Fla. 1st DC A 1977).

38. The administra tive hearing is a de novo proceeding in

which either party ma y submit relevant an d material evidence

through the date of the hearing. The evidence is not limited to

that evidence available to Petitioner when Pe titioner proposed the

termination of the resp ondents’ professional service cont racts.

Id.

39. The burden of pr oof is on Peti tioner. Petitioner must

show by a prepon derance of evidence that just cause exists to

terminate the prof essional service contra cts of the respondents

for the reasons stated in the charging docume nt and that

termination is an appropriat e penalty. McNeill v. Pine llas County

School Board , 678 So. 2d 476 (F la. 2d DCA 1996); Dileo v. School

Board of Dade County , 569 So. 2d 883 (F la. 3d DCA 1990).

40. Petitioner show ed, by a preponderanc e of evidence, that

removal of the responde nts from their coachi ng positions is an

appropriate pe nalty. The resp ondents violated FHSAA rules and

regulations, the FHSAA imposed a financial pe nalty on Astronaut,

and parents oppose d the reinstatemen t of Mr. Murray as the head

coach of the Space Coast varsity wres tling team.

41. Petitioner did not show by a preponde rance of the

evidence that te rmination of the employment of the resp ondents as

classroom teac hers is reasonable . Termination is not reasonable

when considered in li ght of the facts and ci rcumstances in this

proceeding or Pe titioner’s past implementation of its progressive

discipline policy.

42. The grounds for the proposed termin ation are based on

allegations of immorali ty, misconduct in office, and violations of

the Code of Profes sional Responsibi lity. Each grou nd is defined,

respectively, in Florida Admini strative Code Ru les 6B-4.009(2)

and (3) and 6B-1.0 06(4). An essential elem ent of each ground is

that conduct either im paired the effectivenes s of the respondents

in the classroom or impaired their effect iveness as teachers in

the community.

43. The trier of fa ct may draw an infe rence of impaired

effectiveness from the nature of the offense. Purvis v. Marion

County School Board , 766 So. 2d 492 (F la. 5th DCA 2000); Walker v.

Highland County School Board , 752 So. 2d 127 (F la. 2d DCA 2000);

Summers v. School Bo ard of Marion County , 666 So. 2d 175 (Fla. 5th

DCA 1995). Unlike the cited cases, this proceeding includes

direct evidence of th e continued effe ctiveness of the respondents

as educators after th e Poinciana tour nament and the Eau Gallie

dual meet.

44. Direct evidence includes the contin ued effectiv eness of

the teachers in the classroom and the favorabl e performance

evaluations af ter the Poinciana tournament and Eau Gallie dual

meet. In addi tion, parent complaints were limited to the

reinstatement of Mr. Murray as head coach of the Space Coast

varsity wrestl ing team. An in ference auth orized in the cited

cases would requir e the fact-finder to ignore the di rect evidence

of unimpaired effectivenes s as classroom teachers.

45. Petitioner’s pr oposed determination that the actions of

Mr. Hackney and Mr. Murray impaired th eir effectiv eness as

teachers would be in consistent with th e determin ation by

Petitioner that giving alcohol to a female student did not impair

the effectiven ess of a male te acher. Petition er’s proposed

determination of impaired effect iveness in this proceeding would

be inconsistent with Petitioner’s determin ation that the FCAT

scheme implemented by three assistant principals did not impair

their effe ctiveness. 7 Petitioner’s proposed determination of

impaired effectiveness in this proceeding wo uld be inconsistent

with Petitioner’s dete rmination that subjecti ng two students to

the risk of phys ical harm did no t impair the effe ctiveness of two

football coaches. 8

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a final order adopting

the Findings of Fact and Conclusions of Law in this Recommended

Order and reinstating each of the respondents to their positions

as classroom teachers with back pay and benefits.

DONE AND ENTERED this 17th day of June, 2009, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of June, 2009.

ENDNOTES

1/ All references to subsections, sections, and chapters are to

Florida Statutes (2007), unless otherwise stated.

2/ Petitioner pays additional compensation to teachers who are

also wrestling coaches.

3/ There is no allegation or finding that the practice of

allowing an ineligible student to ride on the team bus and

attend the tournament with the team violated a statute or rule.

4/ Mr. McCormick and Mr. Jones were community coaches.

Community coaches are not classroom teachers and are employed

under annual contracts.

5/ When the decision was made to recommend termination,

termination was initially proposed only for Mr. Murray.

6/ Counsel for Petitioner surmises in Petitioner's PRO that

T.G.'s experience must have been harmful to T.G.'s educational

environment. Surmise, speculation, and suspicion cannot form

the basis of a finding of fact. Tenbroeck v. Castor , 640 So. 2d

164, 167 (Fla. 1st DCA 1994).

7/ In fact, Petitioner moved one of the offending assistant

principals from administration back into the classroom.

8/ The doctrine of administrative stare decisis applies to final

agency action. Gessler v. Department of Business and

Professional Regulation , 627 So. 2d 501 (Fla. 4th DCA 1993).

COPIES FURNISHED :

Harold T. Bistline, Esquire

Stromire, Bistline & Miniclier

1037 Pathfinder Way, Suite 150

Rockledge, Florida 32955

Joseph R. Lowicky, Esquire

Glickman, Witters and Marrell, P.A.

The Centurion, Suite 1101

1601 Forum Place

West Palm Beach, Florida 33401

Thomas J. Thompson, Esquire

Thomas Thompson, P.A.

1007 South Washington Avenue

Titusville, Florida 32780

Matthew E. Haynes, Esquire

Thomas L. Johnson, Esquire

Johnson, Haynes & Miller, P.A.

510 Vonderburg Drive, Suite 3004A

Brandon, Florida 33511

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Richard A. DiPatri, Superintendent

Brevard County School Board

2700 Judge Fran Jamieson Way

Viera, Florida 32940-6601

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.