08-004250TTS Indian River County School Board vs. George Young Status: Closed Recommended Order on Wednesday, July 29, 2009.

Summary: Respondent was not forthcoming and completely truthful in report of assault. Failure to be completely honest in his dealings subjects him to suspension, and Petitioner's decision should be sustained.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INDIAN RIVER COUNTY )

SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-4250

)

GEORGE YOUNG, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

May 6 through 8, 2009, in Vero Beach, Florida, before J.D.

Parrish, a designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

For Respondent: Mark Wilensky, Esquire

Dubiner & Wilensky, P.A.

515 North Flagler Drive, Suite 325

West Palm Beach, Florida 33401-4349

STATEMENT OF THE ISSUE

Whether there is just cause to suspend Respondent, George

Young (Respondent), as alleged in the letter of the

superintendent of schools dated June 9, 2008.

PRELIMINARY STATEMENT

On June 9, 2008, Petitioner, Indian River County School

Board (School Board or Petitioner) by and through its

Superintendent of Schools issued a letter that notified

Respondent that action would be taken to suspend him without pay

for three days. The letter stands as the charging document in

this matter and provided, in pertinent part:

On April 8, 2008, you told Athletic Director,

Michael Stutke, that an incident occurred

during an out of town baseball tournament

that involved wrestling with someone’s pants

being pulled down. When you made that

statement you knew that was not the complete

story, because the night before you met with

a student’s parents who told you their son’s

(the victim) pants were taken down and a

bottle put near his rectum during the course

of this incident. This is the same incident

you described to Mr. Stutzke as mere

wrestling and someone’s pants pulled down.

Then, after you made that statement, the

victim’s parents spoke with Mr. Stutzke, and

you were thereafter called into his office

with the parents still there. When the

parents repeated their story and described

the assault on their son as also involving a

bottle, you said words to the effect that “I

thought we agreed to keep that secret (or

quiet).” This was a failure on your part to

be fully honest in your professional dealings

with the athletic director and school

authorities.

Based on your violation of State Board of

Education Rules 6B-1.006, 3(b), 5(a), 5(n) as

defined in Section 1012.795(1), Florida

Statutes and the above incident, please be

advised that as Superintendent of Schools, I

am recommending to the School Board at their

June 24, 2008 meeting that you be suspended

without pay on 8/12/08, 8/13/08 and 8/14/08.

On August 26, 2008, Petitioner approved the recommendation

of the Superintendent. Respondent served his suspension without

pay but disputes the allegations against him. By letter dated

August 28, 2008, Respondent timely filed a request for a formal

hearing to contest the allegations. Respondent seeks back pay

and a clear personnel record. Respondent maintains he did not

violate any provision of law and that the action of the school

district is unjustified.

The matter was forwarded to the Division of Administrative

Hearings on August 28, 2008. A Notice of Hearing scheduled the

case for hearing for October 21, 2008. The case was continued

and rescheduled on four occasions. Ultimately the matter was

heard on the dates set forth above.

At the hearing, the following witnesses testified: L.C.,

the mother of the student victim; H.C., the victim; P.C., the

father of the victim; Michael Stutzke, the athletic director for

Sebastian River High School; T.W., Jr., a parent; T.W., III, a

student; Dr. Peggy Jones, the principal at Sebastian River High

School; Dr. Harry La Cava, the superintendent of schools for the

School Board; William Wilson, an assistant principal at Sebastian

River High School; Kevin Browning, Petitioner’s executive

director of human resources; Jim Mueller, a parent; Erica Young,

Respondent’s wife; B.A., a student; Chris Barcus, a parent; C.J.,

a student; R.J., a parent; Sue Gent, a private investigator; and

Respondent. Petitioner’s Exhibits 4, 15, and 16 were admitted

into evidence. Respondent’s Exhibit 14 was also received in

evidence.

The Transcript of the proceedings was filed with the

Division of Administrative Hearings on June 2, 2009. The parties

requested thirty days within which to file their Proposed

Recommended Orders. That request was granted. The parties

submitted Proposed Recommended Orders that have been fully

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a duly constituted entity charged with the

responsibility and authority to operate, control, and supervise

the public schools within the Indian River County Public School

District. As such, it has the authority to regulate all

personnel matters for the school district, including those

personnel decisions affecting the professional teaching staff.

2. At all times material to the allegations of this case,

Respondent, George Young, was an employee of the School Board and

was subject to the disciplinary rules and regulations pertinent

to employees of the school district.

3. At all times material to this case, Respondent was

assigned to teach at Sebastian River High School and served as

head baseball coach for the varsity team. For purposes of this

case, all acts or omissions complained of were in connection with

Respondent’s responsibilities as a baseball coach.

4. By way of background, the allegations of this case

evolved from an underlying incident that must be disclosed in

order to put the proper perspective on Respondent’s role and

responsibility in connection with the allegations. During March

of 2008, Respondent scheduled his team to participate in a

baseball tournament held in Broward County, Florida. The

tournament location and schedule made it convenient for the team

to remain near the site for one night of the tournament. This

was not the first over-night venture for Respondent and the teams

he coached.

5. Prior to tournaments it was Respondent’s policy to

instruct the team that they were representatives of the school.

Respondent encouraged the students to refrain from horseplay,

roughhousing, or misbehavior that could discredit them or the

school. In short, the team members were to conduct themselves as

gentlemen.

6. Nevertheless, some of the students did engage in poor

conduct. More specifically, several of the players began to

wrestle in one of the hotel rooms. Some unspecified number of

the players turned on their teammate, H.C. Without Respondent’s

knowledge or consent, the players wrestled H.C. (the victim) to a

bed, pulled down his pants, and placed a plastic soda bottle at

or near his rectum. It is unknown whether the bottle actually

penetrated the victim, but the fact that an assault was

perpetrated by the student players is certain.

7. After the assault, the victim escaped the room and fled

to another hotel room. Several team players observed the victim

to be quite upset. Moreover, at least one player believed that

the student was so upset he was crying. Word spread among some

of the players that something bad had happened to the victim.

The details of the assault were not general knowledge.

8. At least two adults who accompanied the team on the trip

were also made aware that something untoward had occurred to the

victim. At least one of the parents told Respondent that night

that something had occurred. No specifics of the incident were

disclosed to Respondent. He knew, however, that wrestling had

occurred and that someone was upset. Respondent made no effort

to personally discover what had happened to the victim that

night. Presumably, he chalked it up as adolescent roughhousing.

9. The next morning Respondent called a team meeting before

the team left the hotel. It was his custom to speak to the team

before checkout but on this morning he had the additional task of

attempting to find out what had occurred the night before. Not

surprisingly, no one disclosed the full details of the assault.

10. From the hotel the team went on to a meal and played in

the tournament. Respondent did not pursue further inquiry into

the assault. Respondent did not question anyone individually

regarding the events.

11. Approximately one week later the victim's parents heard

about the assault. A parent telephoned them to share information

that something had occurred on the tournament trip. They were

stunned and surprised to learn of the incident. They questioned

their sons (both of whom were on the tournament trip) and decided

something needed to be done to punish the students who committed

the assault.

12. To that end, they went to Respondent's home and asked

him about the incident. Respondent was surprised to learn of the

details of the assault and represented that something would be

done to appropriately discipline the perpetrators of the deed.

13. The weight of the credible evidence supports the

finding that on the night of the parents' visit to Respondent's

home, Respondent knew that the victim had been wrestled to the

bed, had had his pants pulled down exposing his buttocks, and

that a bottle may have been involved at or near the student's

rectum. The bottle portion of the assault was stated as a

possibility as the victim's parents at that time had not

confirmed whether or not the bottle was used or merely

threatened.

14. Nevertheless, when Respondent reported the incident the

next day to the athletic director, the possibility of a bottle

being involved in the assault was omitted.

15. Since Respondent did not disclose the full details of

the assault, including the fact that a bottle may have been

involved, to the athletic director, the punishment initially to

be administered to the student perpetrators did not satisfy the

victim's parents when they learned what would be imposed.

Instead, they demanded that more harsh consequences befall the

students who were involved in the assault. Their report of the

incident conflicted with Respondent's story to the athletic

director.

16. It soon became clear that while the parents may have

been willing to spare their son the embarrassment of the bottle

portion of the story when they believed the penalty imposed

against his attackers would be great, they were not going to let

the perpetrators skate by on the penalty initially chosen. Thus

Respondent's willingness to leave out the bottle portion of the

assault became critical to the matter.

17. In fact, the omission of the bottle portion of the

incident became the key allegation against Respondent. The

superintendent's letter setting forth the allegation against

Respondent stated, in part:

On April 8, 2008, you told Athletic Director,

Michael Stutzke, that an incident occurred

during an out of town baseball tournament

that involved wrestling with someone's pants

being pulled down. When you made that

statement you knew that was not the complete

story, because the night before, you met with

a student's parents who told you their son's

(the victim) pants were taken down and a

bottle put near his rectum during the course

of this incident. This is the same incident

you described to Mr. Stutzke as mere

wrestling and someone's pants pulled down.

18. The credible weight of the evidence supports the

finding that Respondent knew he had not given Mr. Stutzke the

complete story of the incident. Although Respondent at that time

may not have known for a fact that a bottle was used in the

commission of the assault, he knew that the rumor of the bottle's

use was in question. An investigation of the matter would have

proved or disproved the bottle portion of the story. Respondent

did not, however, reveal that portion of the allegations to

school authorities.

19. Although Respondent may have entertained the misguided

notion that he was protecting the victim from embarrassment by

not disclosing the full details of the assault, his failure to

make school officials aware of the incident and the potential

allegation of the bottle demonstrates a failure to fully and

honestly conduct himself professionally.

20. Respondent has enjoyed a long, successful, and popular

run as a baseball coach in the district. At the end of the day,

however, responsibility for the safety and well-being of his team

rested with him. That job is unrelated to the success of the

team or their desire to play in tournaments. Moreover, school

authorities must be able to rely on a coach's veracity to

completely and accurately report any incident that may occur

during a school-sanctioned event.

21. The stipulated facts of the parties provided:

a. On March 31, 2008, George Young was the

head coach for the Sebastian River High

School Varsity Baseball team.

b. On March 31, 2008, the Sebastian River

High School Varsity Baseball team attended a

baseball game in Plantation, Florida.

c. Kevin Browning, Director of Human

Resources, investigated allegations of an

incident that occurred on March 31, 2008

involving the baseball team.

d. Browning released his Report and

Recommendation on June 26, 2008.

e. Young was given a three day suspension,

which is the subject of the appeal.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of,

23. Petitioner bears the burden of proof in this cause to

establish by a preponderance of the evidence that Respondent

committed the violations alleged. See McNeil v. Pinellas County

School Board , 678 So. 2d 476 (Fla. 2d DCA 1996).

24. A “preponderance” of the evidence means the greater

weight of the evidence. See Fireman's Fund Indemnity Co. v.

Perry , 5 So. 2d 862 (Fla. 1942).

25. Section 1012.33, Florida Statutes (2008), provides, in

pertinent part:

. . . All such contracts, except continuing

contracts as specified in subsection (4),

shall contain provisions for dismissal during

the term of the contract only for just cause.

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: misconduct

in office, incompetency, gross

insubordination, willful neglect of duty, or

being convicted or found guilty of, or

entering a plea of guilty to, regardless of

Adjudication of guilt, any crime involving

moral turpitude.

* * *

(6)(a) Any member of the instructional

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). The district school board must

notify the employee in writing whenever

charges are made against the employee and may

suspend such person without pay; but, if the

charges are not sustained, the employee shall

be immediately reinstated, and his or her

back salary shall be paid.

26. In this case "just cause" includes those items

specifically addressed by the statute but also includes other

conduct that may be denoted by the "not limited to" language of

the statute. See Dietz v. Lee County School Board , 647 So. 2d

217 (Fla. 2nd DCA 1994). Also, “misconduct in office” in the

instant matter must be considered in relation to the failure to

comply with the identified violations set forth in the

superintendent's letter; ie. Florida Administrative Code Rules

6B-1.006, 3(b), 4(b), 5(a), and 5(n).

27. "Misconduct in office" is defined by Florida

Administrative Code Rule 6B-4.009, as:

. . . a violation of the Code of Ethics of

the Education Profession as adopted in Rule

6B-1.001, F.A.C.,, and the Principals of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B-

1.006, F.A.C., which is so serious as to

impair the individual's effectiveness in the

school system.

28. Florida Administrative Code Rule 6B-1.001, provides:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

(2) The educator’s primary professional

concern will always be for the student and

for the development of the student’s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) 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 educator

strives to achieve and sustain the highest

degree of ethical conduct.

29. Florida Administrative Code Rule 6B-1.006 provides in

pertinent part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

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:

* * *

(b) Shall not unreasonably restrain a

student from independent action in pursuit of

learning.

* * *

(4) Obligation to the public requires that

the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(n) Shall report to appropriate authorities

any known allegation of a violation of the

Florida School Code or State Board of

Education Rules as defined in Section

231.28(1)[now Section 1012.795], Florida

Statutes.

30. An agency's interpretation of the policies it is

charged to administer is entitled to deference and should not be

overturned as long as the interpretation is within the range of

reasonable alternatives. See Rollison v. City of Key West , 875

So. 2d 659 (Fla. 3rd DCA 2004).

31. In this case, Petitioner has alleged that Respondent

violated Florida Administrative Code Rule 6B-1.006(3)(b). It is

concluded that the cited rule is inapplicable to the facts of

this case. Consequently, no violation of the rule can be found.

32. Petitioner has also alleged that Respondent violated

Florida Administrative Code Rule 6B-1.006(4)(b). The rule

required that Respondent not intentionally distort or

misrepresent facts concerning an educational matter in direct or

indirect public expression. Respondent misrepresented himself in

a criminal matter. The weight of the credible evidence concludes

that Respondent did know his students were involved in some

wrestling incident at or near the time it occurred. The

Respondent failed to disclose the possibility that a bottle was

used or threatened when he eventually disclosed the incident to

Mr. Stutzke. When Respondent presented to Mr. Stutzke to report

the incident he knew about the bottle rumor. At the minimum,

Respondent should have reported the bottle portion of the

incident as an unverified rumor so that school officials could

take charge of an investigation. Moreover, since Respondent knew

that the parents of the victims were very upset over the way the

incident was handled, he should have taken more responsibility

giving Mr. Stutzke the information needed to appropriately deal

with the students involved.

33. Petitioner has alleged that Respondent violated Florida

Administrative Code Rule 6B-1.006(5)(a). This rule obligated

Respondent to maintain honesty in all professional dealings.

Respondent was not forthcoming in his dealing with the subject of

the assault. Whether misplaced loyalty to his students or an

intention of sparing the victim embarrassment or any other

possible rationale, Respondent simply did not tell the complete

truth to school authorities. This was a serious assault. To

consider it adolescent horseplay or some minor infraction of team

rules grossly discredits the potential harm to the victim.

Adolescent males do not cry or become visibly distraught over

minor matters. Respondent's professional obligation was to

completely disclose all material information that would assist

school authorities to properly investigate the matter. He simply

did not do so.

34. Finally, Petitioner alleged that Respondent violated

Florida Administrative Code Rule 6B-1.006(5)(n). That rule

required that Respondent report to appropriate authorities any

known allegation of a violation of the Florida School Code or

State Board of Education Rules as defined in Section Section

1012.795, Florida Statutes. It is concluded that Respondent did

not timely report the allegation of assault to school

authorities. Respondent engaged in a minimal investigation the

morning after the incident. Expecting a team of adolescent males

(most of whom had nothing to do with the incident) who were

desirous of playing in a baseball tournament to self-report the

serious incident that had occurred the night before is fairly

improbable. Individuals in a group setting are not likely to

disclose the matter. Had Respondent investigated the incident

the prior night when it occurred, spoken to the victim, seen the

extent to which the victim was distraught, talked to student

witnesses, and made a report to the athletic director in a timely

manner, it is unlikely the team would have continued to play in

the tournament. At the minimum, Respondent would have disclosed

the victim was assaulted.

35. As reviewed in this matter, Petitioner has established

by a preponderance of the evidence that Respondent violated the

rules noted above substantiating “just cause” for disciplinary

action. Misconduct may result when the conduct engaged in

"speaks for itself" in terms of its seriousness and its adverse

impact on the teacher's effectiveness. Proof of the conduct and

the failure to act appropriately may be considered proof of

impaired effectiveness. See Purvis v. Marion County School

Board , 766 So. 2d 492 (Fla. 5th DCA 2000) and Walker v. Highlands

County School Board , 752 So. 2d 127 (Fla. 2nd DCA 2000). It is

concluded that Respondent did not exercise sound professional

judgment and honesty by failing to timely report the incident to

school officials and failing to completely disclose the

allegations of the assault. At least one adult made Respondent

aware that the students were wrestling during the evening that

the assault occurred. Although hindsight is always clear,

Respondent made no personal effort at that time to investigate

what had occurred. Had he gone to the room where the victim was

regaining his composure, he would have observed what others

reported: that the student had gotten the worse of a wrestling

event gone very bad. He would have seen the victim in the upset

state that others reported. He could have challenged the

students to come forth with the complete details. He could have

alerted school officials that something had happened that might

require investigation. In its discretion Petitioner did not

charge Respondent with these oversights. Nor did Petitioner

charge Respondent with other possible violations such as

inadequate supervision of students. Respondent's behavior

discredited himself and the school district. Respondent is

fortunate that a suspension was the only disciplinary action

sought.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Indian River County School Board

enter a Final Order sustaining the suspension of Respondent and

denying his claim for salary reimbursement.

DONE AND ENTERED this 29th day of July, 2009, in

Tallahassee, Leon County, Florida.

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July, 2009.

COPIES FURNISHED :

Mark Wilensky, Esquire

Dubiner & Wilensky, P.A.

515 North Flagler Drive, Suite 325

West Palm Beach, Florida 33401-4349

Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Harry J. La Cava, Ed.D

Superintendent

Indian River County School Board

1900 25th Street

Vero Beach, Florida 32960-3150

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.