09-000387TTS Palm Beach County School Board vs. Rayburn White Status: Closed Recommended Order on Wednesday, February 10, 2010.

Summary: Respondent should be reinstated with back pay because Petitioner did not prove just cause for termination or other discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-0387

)

RAYBURN WHITE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted on August 19, 2009, in West Palm Beach, Florida, and

on October 21, 2009, by video teleconference between West Palm

Beach and Tallahassee, Florida, before Administrative Law Judge

Claude B. Arrington of the Division of Administrative Hearings

(DOAH).

APPEARANCES

For Petitioner: Corey M. Smith, Esquire

School District of Palm Beach County

3318 Forest Hill Boulevard

Suite C-302

West Palm Beach, Florida 33406

For Respondent: Mark Wilensky, Esquire

Dubiner & Wilensky, P.A.

515 North Flagler Drive, Suite 325

West Palm Beach, Florida 33401-4349

STATEMENT OF THE ISSUES

Whether Petitioner, Palm Beach County School Board

(Petitioner or School Board), has just cause to terminate or

otherwise discipline Respondent, Rayburn White’s, employment

based on the conduct alleged in the “Petition” dated January 15,

2009, and filed with DOAH January 20, 2009. Also at issue is

the discipline, if any, to be imposed.

PRELIMINARY STATEMENT

Respondent is an art teacher employed by the School Board.

On July 21, 2008, Palm Beach County Deputy Sheriff Van Garner

arrested Respondent on charges of “Exposing Sexual Organs,”

in a Public Restroom.” Thereafter, Respondent timely self-

reported his arrest.

By letters dated November 20, and December 4, 2008,

Superintendent, Arthur C. Johnson, Ph.D., notified Respondent

that he intended to recommend to the School Board that

Respondent’s employment be suspended without pay and that

termination proceedings be instituted. Both letters contained

the following grounds (which are also the grounds for

termination set forth in the Petition filed by the School

Board):

Based upon information presented to me, I

hereby inform you that there is sufficient

evidence to warrant your termination from

your position as teacher. . . .

On or about July 24, 2008, you became the

subject of an Employee Relations

investigation based upon the allegation(s)

of ethical misconduct, failure to exercise

best professional judgment in violation of

6B-1.001(3), Florida Administrative Code,

The Code of Ethics of the Education

Profession in Florida. Furthermore, the

allegations included a violation of School

Policy(ies) 1.013(1), Responsibilities of

the School District Personnel and Staff. At

the conclusion of the investigation, the

allegation(s) and violation of District

policy(ies) were substantiated.

Sufficient just cause exists for you to be

disciplined pursuant to Sections

1012.22(1)(f) and 1012.27(5), Florida

Statutes; Palm Beach County School District

Policies 1.013 and 3.27, as well as

Administrative Directive 3.27; and Article

II, Section M(6) of the Collective

Bargaining Agreement between the Palm Beach

County Classroom Teachers Association and

the School Board of Palm Beach County, for

violations of the foregoing.

This action is taken in accordance with

Sections 1012.22 and 1012.27, Florida

Statutes. . . .

The School Board voted to accept Dr. Johnson’s

recommendation of termination. Respondent thereafter timely

requested a formal administrative hearing to challenge the

proposed action, the matter was referred to DOAH, and this

proceeding followed.

At the final hearing, Petitioner presented the testimony of

the following School Board employees with his or her title in

parenthesis: Respondent (teacher), Dr. Johnson (School

Superintendent), James Campbell (principal of Acreage Pines

Elementary School), and Angelette Green (Director of Employee

Relations). Petitioner also presented the testimony of

detectives Van Garner and Peter Lazar of the Palm Beach County

Sheriff’s Office. Petitioner offered the following pre-marked

exhibits, each of which was admitted into evidence: 1, 2, 4, 5,

6, 8, 15, 18, 20, 24, 25, 26, 27, 28, 29, and 30. At the

request of the Petitioner, official recognition was taken of the

School Board’s policy 6Gx50-1.013 and of Florida Administrative

Code Rule 6B-1.006.

Respondent testified on his own behalf and presented the

testimony of Rodney Caito, who had taken certain photographs

that were admitted into evidence. Respondent offered the

following pre-marked exhibits, each of which was admitted into

evidence: 1, 2, 3, 4, 6, 7, 8, and 9.

Unless otherwise noted, all statutory references are to

Florida Statutes (2008). References to rules are to the rules

in effect as of the entry of this Recommended Order. The

relevant statutes and rules have not changed since July 21,

2008, the date the conduct at issue occurred.

A Transcript of the proceedings, consisting of three

volumes, was filed on December 7, 2009. At the request of the

parties, the deadline for the filing of Proposed Recommended

Orders was established as being 45 days following the filing of

the transcripts. Each party filed a Proposed Recommended Order,

which has been duly-considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Petitioner was the

constitutional entity authorized to operate, control, and

supervise the public schools in Palm Beach County, Florida

2. Petitioner has entered into individual contracts with

its employees. At all times relevant to this proceeding,

Petitioner employed Respondent as an art teacher. The record is

silent as to whether he has a continuing contract or a

professional services contract. Prior to his reassignment after

his arrest in 2008, Respondent’s assigned school was Acreage

Pines Elementary School (Acreage Pines).

3. Respondent has been employed by Petitioner since

October 17, 1987. Respondent’s job performance has been

satisfactory or above during his tenure with Petitioner.

4. Petitioner and the teacher’s union have entered into a

collective bargaining agreement (CBA). Petitioner has adopted

rules and policies that control the activities of its teaching

professionals. Respondent is subject to the provisions of the

CBA, rules adopted by Petitioner, rules of the State Board of

Education, and duly-enacted statutes.

5. Article II, Section M(6) of the CBA pertains to

progressive discipline and provides as follows:

(6) Where just cause warrants such

disciplinary action(s) and in keeping with

the provisions of this Section, an employee

may be reprimanded verbally, reprimanded in

writing, suspended without pay or dismissed

upon the recommendation of the immediate

supervisor to the Superintendent. Other

disciplinary action(s) may be taken with the

mutual agreement of the parties.

6. Section 1012.22(1)(f), Florida Statutes, provides that

a district school board has the following powers:

(f) Suspension, dismissal, and return to

annual contract status. --The district school

board shall suspend, dismiss, or return to

annual contract members of the instructional

staff and other school employees; however,

no administrative assistant, supervisor,

principal, teacher, or other member of the

instructional staff may be discharged,

removed, or returned to annual contract

except as provided in this chapter.

7. Section 1012.27(5), Florida Statutes, provides that a

school superintendent has the following powers:

(5) SUSPENSION AND DISMISSAL.--Suspend

members of the instructional staff and other

school employees during emergencies for a

period extending to and including the day of

the next regular or special meeting of the

district school board and notify the

district school board immediately of such

suspension. When authorized to do so, serve

notice on the suspended member of the

instructional staff of charges made against

him or her and of the date of hearing.

Recommend employees for dismissal under the

terms prescribed herein.

8. Florida Administrative Code Rule 6B-1.001 sets forth

the Code of Ethics of the Education Profession in Florida.

Subsections (2) and (3) thereof provide as follows:

(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.

9. School Board Policy 6Gx50-1.013(1) requires School

Board employees to “. . . carry out their assigned duties in

accordance with federal laws, rules, state statutes, state board

of education rules, school board policy, superintendent’s

administrative directives and local school and area rules.”

THE 1994 INCIDENT

10. On or about June 27, 1994, Respondent entered a plea

of guilty to the following charges brought in the United States

District Court for the Northern District of Mississippi:

Interference with Government Employee, Disorderly Conduct, and

Reckless Driving. A U.S. Magistrate adjudicated Respondent

guilty of all three charges, imposed court costs, and placed him

on probation for one year with the following special condition

of probation: “Defendant shall not visit any area of the

Tennessee Tombigbee Waterway while on probation supervision.”

11. On March 21, 1995, the Florida Education Practices

Commission (EPC) filed an Administrative Complaint against

Respondent that included the following factual allegations in

paragraphs 3, 4, and 5:

3. On or about June 18, 1994, Respondent

was observed masturbating in his car. When

approached by an undercover federal office,

Respondent fled the scene and was later

apprehended.

4. Respondent was arrested in the U.S.

Northern District of Mississippi and charged

with Interference with Government Employees,

Disorderly Conduct and Reckless Driving.

5. On or about June 27, 1994, Respondent

plead guilty to all three charges and the

Court adjudicated him to be guilty as

charged. Respondent was sentenced to serve

one year probation, not return to the

Tennessee Tombigbee Waterway and pay a $400

fine and court costs.

12. Thereafter Respondent and the EPC entered into a

Settlement Agreement which included the following in paragraphs

3 and 4:

3. The Respondent elects not to contest

the allegations set forth in the

Petitioner’s Administrative Complaint, which

are incorporated herein by reference.

4. The Respondent agrees to accept a

letter of reprimand for the conduct

described in the Administrative Complaint, a

copy of which shall be placed in his

certification file with the Department of

Education, and a copy of which shall be

placed in his personnel file with the Palm

Beach County School Board.

13. The Settlement Agreement also includes the following

in paragraphs 6 and 7:

5. The Respondent agrees that within

thirty [30] days of entry of the Final Order

herein he shall provide the Education

Practices Commission [EPC] written

verification from a professional approved by

the Recovery Network Program that he poses

no threat to the safety or well-being of

students and that he is able to perform the

responsibilities of an educator. All

expenses incurred in connection with

providing this verification shall be borne

by the Respondent.

6. The Respondent agrees that he shall be

placed on probation for a period of two [2]

years . . .

14. The Settlement Agreement was approved by Final Order

issued by the EPC on September 22, 1995.

15. Respondent served his period of probation.

16. Respondent did not admit the alleged facts that

underpin the EPC’s Administrative Complaint. 1

THE 2008 INCIDENT

17. Okeeheelee Park (the park) is located in suburban Palm

Beach County. The park’s various recreational amenities include

walking trails. The park also has restroom facilities at

multiple locations.

18. Detective Van Garner of the Palm Beach County

Sheriff’s Office and his partner, Detective Peter Lazar, were

assigned to conduct undercover operations in the park on

July 21, 2008. Their assignment included the apprehension of

people engaging in illegal sexual acts in the park. This

assignment was in response to citizen complaints about such

activity in the park. Both officers were in civilian dress.

Detective Garner wore a tee shirt and short pants.

19. On July 21, 2008, Respondent was exercising in the

park by walking to lose weight. Because of medical problems,

Respondent needed to lose weight. To work up a good sweat,

Respondent wore a one-piece wet suit that covered his torso, but

not his arms or his legs. The wet suit had a front zipper,

which zipped in a downward, diagonal motion from his neck area

to his left thigh area. Respondent wore a shirt and a pair of

walking shorts over the wet suit. During that summer,

Respondent typically walked from noon to 4:00 p.m.

20. Respondent attracted the attention of Detective Garner

on the afternoon of July 21, 2008, because he saw him go into

more bathrooms in the park than “normal.” 2

21. At approximately 3:00 p.m. on July 21, 2008,

Respondent had been walking for three hours. He went to the

area of a bathroom at the top of a hill near a pavilion where

there was a cool breeze.

22. Detective Garner pulled up in a truck, got out, and

went inside the bathroom from the door on the opposite side of

the building from where Respondent was standing. 3

23. Almost immediately thereafter, while Detective Garner

was standing at a urinal, Respondent entered the bathroom,

walked past Detective Garner, and went to a handicapped stall.

Respondent left the door to the handicapped stall ajar.

24. Detective Garner and Respondent were the only two

people in the restroom. Detective Garner testified that

sometimes a man who is in a restroom for sexual activity will do

things to attract the attention of other patrons of the

facility. Respondent did not make any hand signal, say

anything, or do anything to attract the attention of Detective

Garner other than leaving the door to the stall ajar.

Respondent did nothing in the restroom that would have attracted

Detective Garner’s attention had Detective Garner not been a law

enforcement officer.

25. Respondent stood in the handicapped stall in the

proper stance to urinate. His feet faced the toilet and his

body was turned so that one looking into the stall from the door

would have seen his back and side, but not his front. Detective

Garner became suspicious because he did not hear a stream of

urine coming from the stall.

26. There was a conflict in the evidence as to what

Respondent was doing in the stall. Respondent testified that he

had unzipped the wet suit so he could urinate. Respondent

testified that with one hand he was holding up his shorts and

with the other he was trying to prevent the wet suit from

becoming completely unzipped. Respondent testified that it is

very difficult to get the wet suit zipper started once it

becomes completely unzipped. According to Respondent, when

Detective Garner approached the stall, Respondent was removing

his penis from the wet suit in order to urinate.

27. Detective Garner testified that when he approached the

stall, he saw Respondent move his hands back and forth below the

level of his waist in an activity Detective Garner believed

could only have been masturbation. Detective Garner could not

see Respondent’s genital area until Respondent turned toward

Detective Garner after Respondent sensed Detective Garner’s

presence. Detective Garner testified that he saw Respondent’s

erect penis when Respondent turned.

28. In resolving the conflicting evidence, the undersigned

finds that Petitioner failed to establish by a preponderance of

the evidence that Respondent masturbated in the handicapped

stall of the park’s bathroom on July 21, 2008. 4

29. Petitioner also failed to establish by a preponderance

of the evidence that Respondent was attempting to solicit

Detective Garner or anyone else for sex.

30. When Respondent turned towards him, Detective Garner

pulled out his badge and identified himself as a deputy sheriff.

Respondent immediately began to put his penis back in the wet

suit and his short pants. Within 20-to-30 seconds of that

identification, Respondent had accomplished that purpose and

started to exit the stall. In leaving the stall, Respondent

pushed Detective Garner aside. Detective Garner pushed back.

Before Respondent left the bathroom, there was a brief scuffle

between Detective Garner and the Respondent consisting of

Detective Garner trying to restrain Respondent and Respondent

attempting to exit the bathroom. No blows were thrown during

the scuffle.

31. When he left the restroom, Respondent walked down a

hill away from the restroom and Detective Garner. Detective

Garner walked in the opposite direction to retrieve his firearm

from his vehicle. While walking to his vehicle, Detective

Garner called Detective Lazar on a cell phone and requested that

Detective Lazar come to the scene to assist him.

32. As Detective Lazar was heading to the scene, he asked

a uniformed officer to follow him to the scene. Shortly

thereafter, Detective Lazar and the uniformed officer arrived on

the scene. Respondent promptly complied with their orders.

33. Respondent was charged with Exposing Sexual Organs in

violation of Section 800.03, Florida Statutes; Resisting Arrest

Without Violence in violation of Section 843.02, Florida

Statutes; and Loitering in Public Restroom in violation of a

county ordinance.

34. Respondent entered into a Deferred Prosecution

Agreement in resolution of the criminal charges. Respondent

successfully completed the Deferred Prosecution Agreement, which

included undergoing supervision, paying the costs associated

with the supervision, completion of the Prostitution Impact

Prevention Education School, undergoing HIV/STD test, provision

of a DNA sample, and no contact with adult establishments.

35. Respondent timely self-reported his arrest as required

by School Board policy.

36. The School Board’s Department of Employee Relations

conducted an investigation into Respondent’s employment history,

his background, and the events that culminated in his arrest on

July 21, 2008.

37. The results of the investigation were presented to the

School Board’s Employee Investigative Committee (EIC), which

makes non-binding recommendations to the Superintendent of

Schools. The EIC voted to substantiate the charges against

Respondent and recommended to the School Superintendent that

Respondent’s employment be suspended for 20 days and that

Respondent be transferred to another school.

38. Dr. Johnson made the decision that Respondent’s

employment should be terminated. When he made that

recommendation, Dr. Johnson thought that Respondent had been

caught masturbating for the second time.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the subject matter parties to this case

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2009).

40. Because Petitioner seeks to terminate Respondent’s

employment and does not involve the loss of a license or

certification, Petitioner has the burden of proving the

allegations in its Administrative Complaint by a preponderance

of the evidence, as opposed to the more stringent standard of

clear and convincing evidence. McNeill v. Pinellas County

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

Board of Dade County , 571 So. 2d 568, 569 (Fla. 3d DCA 1990);

Dileo v. School Board of Lake County , 569 So. 2d 883 (Fla. 3d

DCA 1990).

41. The preponderance of the evidence standard requires

proof by "the greater weight of the evidence," Black's Law

Dictionary 1201 (7th ed. 1999), or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000)(relying on American

Tobacco Co. v. State , 697 So. 2d 1249, 1254 (Fla. 4th DCA 1997)

quoting Bourjaily v. United States , 483 U.S. 171, 175 (1987)).

42. Petitioner failed to prove by a preponderance of the

evidence that Respondent masturbated or unlawfully exposed his

genitals in the park bathroom on July 21, 2008.

43. Petitioner failed to prove that Respondent loitered in

the park bathroom on July 21, 2008.

44. Petitioner proved that Respondent failed to comply

with Detective Garner’s lawful orders on July 21, 2008.

45. A teacher’s employment can be terminated for just

cause pursuant to the provisions of Section 1012.33, Florida

Statutes. If Respondent is on a contract other than a

continuing contract, just cause is as provided in Section

1012.33(1)(a), which provides, in relevant part, as follows:

(1)(a) . . . Just cause includes, but is

not limited to, the following instances, as

defined by rule of the State Board of

Education: immorality, 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.

46. If Respondent is on a continuing contract, just cause

is as provided in Section 1012.33(4)(c), Florida Statutes, which

provides, in relevant part, as follows:

(c) Any member of the district

administrative or supervisory staff and any

member of the instructional staff, including

any school principal, who is under

continuing contract may be suspended or

dismissed at any time during the school

year; however, the charges against him or

her must be based on immorality, misconduct

in office, incompetency, gross

insubordination, willful neglect of duty,

drunkenness, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude, as these

terms are defined by rule of the State Board

of Education. . . .

47. The charges against Respondent are that he engaged in

ethical misconduct, that he violated the Code of Ethics of the

Education Profession in Florida (Fla. Admin. Code R. 6B-

1.001(3)) by failing to exercise best professional judgment, and

that he violated School Policy 1.013(1), setting forth

Responsibilities of the School District Personnel and Staff.

Petitioner failed to prove those alleged violations. The

Petition filed by Petitioner, which is the charging document for

this proceeding, does not allege what provisions of Section

1012.33, Florida Statutes, Respondent violated.

48. Respondent’s failure to comply with Detective Garner’s

orders was completely unrelated to his duties and

responsibilities as a teacher. Petitioner failed to establish

grounds to terminate Respondent’s employment or to otherwise

discipline that employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board of Palm Beach

County enter a final order dismissing the charges against

Respondent and reinstating his employment with full back pay.

DONE AND ENTERED this 10th day of February, 2010, in

Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 10th day of February, 2010.

ENDNOTES

1 / Petitioner presented no competent evidence upon which a

finding can be made that Respondent was charged with disorderly

conduct because he was caught masturbating.

2 / Both Detective Garner and Detective Lazar thought they had

seen Respondent in the park on occasions when Respondent would

have been teaching school. Respondent established that at least

on some of those other occasions, Detective Garner and Detective

Lazar had mistaken another park user for Respondent.

3 / Detective Garner initially testified that he entered the

bathroom after Respondent. This mistake is attributable to the

fact that Detective Garner did not have the opportunity to

review his arrest report in any detail prior to testifying.

4 / It is clear that Detective Garner believed before he entered

the bathroom that Respondent was cruising the park bathrooms to

solicit homosexual activity. This belief was very likely

strengthened because he had mistaken Respondent for another

individual. The undersigned concludes that Detective Garner

likely misunderstood Respondent’s hand motions in the bathroom

stall because that is what he expected to see. While he would

have been able to see Respondent’s penis when Respondent sensed

his presence and turned towards him, Detective Garner’s

testimony that he saw Respondent’s erect penis is no more (and

no less) credible than Respondent’s testimony as to what he was

doing in the park bathroom and his denial that he was

masturbating. In reaching these conclusions, the undersigned

has considered that Respondent was in the park for a legitimate

purpose, he had been walking in the hot part of the day for

three hours, he was hot and wet from sweat, he was wearing a

confining wet suit, and he was about to begin a 45-minute-walk

from the park to his home. The undersigned has further

considered that Detective Garner has made many arrests under

similar situations and that he had difficulty recalling some

details of this arrest.

COPIES FURNISHED :

Sonia Elizabeth Hill-Howard, Esquire

Palm Beach County School District

3318 Forest Hill Boulevard, C-302

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Mark Wilensky, Esquire

Dubiner & Wilensky, P.A.

515 North Flagler Drive, Suite 325

West Palm Beach, Florida 33401-4349

Corey M. Smith, Esquire

School District of Palm Beach County

3318 Forest Hill Boulevard, Suite C-302

West Palm Beach, Florida 33406

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C-316

West Palm Beach, Florida 33406

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

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.