89-002447 Pinellas County School Board vs. Perry Hollis Status: Closed Recommended Order on Monday, September 25, 1989.

Summary: Technical school instructor who leaves loaded pistol in door pocket of car used later to train automotive students guilty of misconduct supporting discipline.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF PINELLAS COUNTY , )

)

Petitioner , )

)

vs. ) CASE NO. 89-2447

)

PERRY HOLLIS , )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

A hearing was held in this case on July 18, 1989 in Clearwater, Florida

before Arnold H. Pollock, Hearing Officer with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner : Bruce P. Taylor, Esquire

School Board of Pinellas County

1960 East Druid Rd.

Post Office Box 4688

Clearwater, Florida 34618-4688

For Respondent : Mark Herdman, Esquire

Kelly & McKee, P.A.

1724 East Seventh Avenue

Post Office Box 75638

Tampa, Florida 33675-0638

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Respondent should be

dismissed from employment with the Pinellas County Schools because of the

misconduct alleged in the School Board's letter dated April 24, 1989.

PRELIMINARY STATEMENT

By letter dated April 24, 1989, the Superintendent of Schools for Pinellas

County advised the Respondent that he was suspended with pay effective April 26,

1989 until the next regularly scheduled School Board meeting, at which dismissal

would be recommended. This action was taken because Respondent brought a loaded

handgun onto the campus of St. Petersburg Vocational Technical Institute,

(SPVOTEC), on December 7, 1988. Thereafter, on April 27, 1989, counsel for

Respondent entered a request for formal hearing, and on April 28, 1989, the

matter was forwarded to the Division of Administrative Hearings for appointment

of a Hearing Officer. The undersigned set the case for hearing on July 18,

1989, by Notice of Hearing dated May 16, 1989, and the hearing was held as

scheduled.

At the hearing, Petitioner presented the testimony of Phat Le, a student at

SPVOTEC; Dr. Scott N. Rose, Superintendent of Pinellas County Schools; Robert

Mertz, a student at SPVOTEC; Nancy G. Mertz, Robert's mother; Robert N.

Protomastro, an instructor at SPVOTEC; Stephen Crosby, Personnel Director with

the Pinellas County Schools, and, by deposition, Warren Laux, Director of

SPVOTEC. Petitioner also introduced Petitioner's Exhibits 1 through 5 and 7.

Respondent testified in his own behalf and presented the testimony of Brett M.

Phares, a former student at SPVOTEC, Betty Arrigo, an interpreter for the deaf;

and John W. Stanjeski, an instructor at SPVOTEC. Respondent also introduced

Respondent's Exhibits A through C.

Subsequent to the hearing, a transcript of the hearing was provided and

both parties submitted Proposed Findings of Fact which have been ruled upon in

the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the allegations contained herein, the

Respondent, Perry Hollis, was employed as a welding instructor at SPVOTEC, a

facility operated by the School Board of Pinellas County. The Pinellas County

School Board is the agency responsible for the administration of the public

schools in the county.

2. Respondent began working for the Pinellas County School Board as a

welding instructor approximately 15 years ago. As a part of his job, he was

required to take certain college courses in teacher training and now has 15

credit hours beyond his Bachelor's degree. At this time, and at the time of the

allegations involved herein, he taught welding to mostly adult students at

SPVOTEC where he has been employed for 13 years, satisfactorily, without any

prior disciplinary problems.

3. The evening before the incident in question, Respondent had been out

gun training his dog. Since it is virtually impossible to hold the dog's chain

and fire a rifle at the same time, he was using a pistol, the one involved in

this case. Neither Respondent nor his wife have a permit to carry a concealed

weapon. After the training session was over, Respondent placed the pistol into

the door pocket on the driver's side of his pickup truck, put his dog in the

back, and started home. He does not remember putting the gun in the door but

can think of no other way it could have gotten there.

4. On the way home, the dog jumped out of the back of the truck while it

was moving and injured itself. When Respondent got it, he started to provide

care for the dog and forgot the gun was in the door of his truck. Since the

truck had been acting up, pursuant to an agreement with Mr. Protomastro, the

auto mechanics instructor, the following morning he took the vehicle to school

and left it at the auto shop so that students could work on it as a part of

their training. This is legitimate. The car was assigned to Robert Mertz and

Phat Le to work on.

5. Mr. Protomastro drove the car into the shop but did not see the gun in

the door. When Mertz got into the car, he saw the weapon in the door pouch on

top of some maps and papers and took it out to show to Mr. Le. Mr. Le took it

and tried to fire it but because the safety was on, it would not fire. When Le

removed the safety, the weapon discharged one round, injuring no one and causing

no damage.

6. When Mr. Protomastro heard the explosion, he thought it was a

firecracker and advised Phat Le not to shoot them off at school. Le told showed

him the gun and Protomastro told him to put it back in the truck. He then took

the truck with the gun back to Respondent at the welding shop and advised Hollis

to be sure the truck contained no weapons if he brought it in again. According

to Protomastro, when he first mentioned it to Respondent, the latter seemed

surprised, and he has no less confidence in Respondent's abilities as a teacher

even though in this incident, Respondent showed poor judgement. Protomastro did

not report the incident at that time.

7. However, when Mertz got home from school that afternoon, he told his

mother what had happened. The following morning, she called the school to

express her concern over the fact that someone had brought a gun to school. In

her opinion, Respondent was wrong to allow the weapon to remain unattended in

his car since it is his responsibility to keep the weapon under control at all

times. No action was taken then, however.

8. The incident was subsequently brought to the attention of Pinellas

County school officials by Mr. Laux, SPVOTEC Director, several months after the

incident. Mr. Crosby, Director of Personnel for the Board, caused a formal

investigation to be conducted. Based on the investigation and his own limited

inquiry, he recommended Respondent's dismissal. In the conversation he had with

him, Respondent frankly admitted the gun had been in his car and explained the

circumstances of it's getting there.

9. Crosby recommended dismissal because he concluded Respondent's

effectiveness as an instructor in the Pinellas county schools had been

diminished by the incident. He takes this position because, (1) the media

publicity the incident received, (one article and one editorial), reduced

Respondent's effectiveness, and (2) he believed Respondent's supervisors, "must

feel his effectiveness was reduced due to his lack of judgement." Mr. Crosby

did not, however, check with Respondent's supervisors other than Mr. Laux, the

Director of SPVOTEC, who concurred in a disciplinary action far less severe than

dismissal. Nonetheless, Crosby recommended dismissal rather than some lesser

action which could have been taken because:

(1) The severity of the situation -

teachers are to provide conditions not

harmful to students and here, Respondent

created a dangerous situation,

(2) Students are expelled for bringing

weapons to campus and they can do no less

to teachers, and

(3) Respondent's lack of judgement.

10. Mr. Crosby admits that in his relationships with Respondent, he always

found Respondent to be completely forthright and cooperative and he is aware

that Hollis has taught in the public school system for more than 13 years. He

is familiar with Respondent's performance ratings which were always good.

Considering all this, Crosby ultimately agreed with the Superintendent's

position that Respondent be dismissed even though no teachers or students

indicated their loss of confidence in Respondent as a result of this incident.

11. Even in response to questioning by the Hearing Officer, Mr. Crosby

indicated no opinion as to whether the incident was intentional on the part of

Respondent. From a thorough review of the evidence it is clear it was not.

12. Ms. Betty W. Arrigo is an interpreter for the hearing impaired who

previously worked with Respondent at SPVOTEC. She is aware of the incident with

the gun as a result of seeing the report in the newspaper. As a fellow

instructor, she has lost no confidence in him as a result of the incident and

knows from her communications with seven or so other faculty members that they

feel the same way. None of her contacts have any reservations about working

with Respondent and she has heard nothing derogatory about him from any of them.

13. Mr. Phares was a student at SPVOTEC and took a welding course from

Respondent before the time in issue. He heard about this incident only though

the newspaper and even as a result of his reading, based on his first hand

knowledge of Respondent, his faith in him as an instructor has in no way been

diminished. He would not be reluctant to have Respondent as an instructor

again. Admitting he is not bound by the same restraints and considerations as

the school administration, and agreeing that guns should not be allowed on the

school grounds, he nonetheless believe that if, as it appears in the instant

case, the infraction was inadvertent and was an isolated incident, leniency

should be shown.

14. Much the same approach is taken by Mr. Stanjeski, who knew Respondent

as an instructor at the time of the incident. He, too, is aware of it only from

the newspaper, and has not lost any confidence in Respondent's ability as an

instructor. Respondent insured that his students learned to work safely and was

very much involved with them from a safety standpoint. Mr. Stanjeski would have

no reservations about having his 10 year old son take a class with Respondent.

He does not condone children or adults bringing a loaded gun to school, but

under the circumstances as they appear here, he feels confident with Respondent

and his teaching and supervisory abilities.

15. Dr. Rose, Superintendent of Schools, became aware of the Respondent

when he received the complaint from Crosby with the recommendation for

dismissal.

16. School Board policies prohibit weapons from being brought onto a

campus by students or faculty. The purpose of these policies is to insure, as

much as is possible, against accidents, and to promote the safety of both

students and staff. Prior to adoption of a policy, several public readings are

required, after which it is adopted and placed in a policy book furnished to all

teachers. Respondent was aware of the policies.

17. Respondent's bringing a weapon to school constitutes a violation of

this policy but, in Dr. Rose's opinion, even worse, Respondent did not

demonstrate the care for his students expected of a teacher. This constitutes

major carelessness on his part, and in the opinion of Dr. Rose, constitutes a

violation of the Florida Teacher's Code of Ethics.

18. Dr. Rose also feels that Respondent's actions herein jeopardizes the

safety of students. Respondent's judgement in this situation was poor, and his

conduct put a dangerous instrument into the hands of a youth whose judgement had

not matured. Dr. Rose feels that a teacher would not, if he valued the worth

and dignity of his students, do anything potentially dangerous to their welfare.

19. According to Dr. Rose, Respondent's conduct impaired his effectiveness

as a teacher in that the work site was compromised. The Board envisions that a

work site within the school system will be a safe place and for that reason,

guns are not allowed on campus. To bring a gun on campus shows a disregard for

the needs of the students.

20. Prior gun incidents have sensitized the public to weapons on campus.

As a result, any incident involving a gun on campus is considered critical by

the Board, and brings back fears of danger to the students. Whenever a teacher

creates a potential hazard to his students, it adversely impacts on his

effectiveness, according to Dr. Rose. As Superintendent, he receives feedback

from students, parent and teacher organizations, his division heads, and the

public, and in this case, though the incident was not widely known until the

dismissal was publicized, public demand for action was satisfied by the

dismissal. Dr. Rose contends that while the press reaction is considered to be

important, school Board decisions, and his in particular, are not dictated by

the press.

21. Nonetheless, the issue of guns on campus is very important to the

public sector and the Board is sensitive to public reaction. The subject comes

up frequently at public meetings and Dr. Rose receives many letters and phone

calls about what is being done to keep guns off the campuses. After the

articles previously mentioned appeared in the press in this case, Dr. Rose

received substantial favorable feedback regarding the dismissal action against

the Respondent.

22. The substantial hiatus between the occurrence and the subsequent

dismissal action resulted from the fact that the incident was not reported for

several months. When the report was received, immediate action was taken to

investigate it and to take appropriate corrective action. Local school

administrators are supposed to act on their independent judgement within Board

set parameters. In this case, Mr. Hollis' actions caused a question as to his

ability to make valid judgements on his own and requires him to be more closely

supervised. Therefore, his effectiveness, in the opinion of Dr. Rose, has been

diminished.

23. Though lesser punishments were available, Dr. Rose recommended the

harshest discipline be imposed here because of the severity of the incident.

The decision to dismiss Respondent was based on the fact that he had a gun on

campus, aggravated by the potential danger to the students. Before taking

action, Dr. Rose considered the Respondent's contention that he had forgotten

the gun was in the car and, in fact, he believes this is so. In addition, his

investigation disclosed no facts which lead him to believe that the incident

would be repeated if Respondent were to be allowed to continue to teach. He is

satisfied this was an isolated case and he considered that in making his

recommendation for dismissal. Dr. Rose admitted that Respondent could probably

be properly disciplined by lesser action, but, if that lesser action were taken,

there is, in his opinion, a substantial risk that others might not get the

important message regarding the policy against guns in the schools.

24. Dr. Rose has not received any letters from parents as a result of this

incident demanding that Respondent be dismissed. Nonetheless, he believes that

because of the circumstances involved and because of the policy letters of the

school Board and their intent that firearms not be brought onto campus at all;

and because any time an incident involves bringing a firearm onto a campus,

there is the potential for the weapon to be used in a harmful way, either

directly or accidentally; it is imperative the strongest possible message be

sent out stating that weapons will not, under any circumstances, be tolerated on

the campuses of institutions within the jurisdiction of the Pinellas County

School Board.

CONCLUSIONS OF LAW

25. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter in this case. Section 120.57(1), Florida

Statutes.

26. In its letter of April 24, 1989 to the Respondent, notifying him of

its intent to dismiss him, the, Board indicates as reasons there for gross

insubordination and misconduct in office which are grounds for dismissal under

Section 231.35(4)(c), Florida Statutes. At the hearing, however, counsel for

the Board indicated it was Petitioner's intent to voluntarily dismiss the

allegation of gross insubordination and proceed only on the allegation of

misconduct in office.

27. In his testimony, Dr. Rose cited several sections of the Florida

Statutes and Rules of the Department of Education outlined in the Florida

Administrative Code as authorizing disciplinary action. These included Sections

790.001, 790.01, and 790.06, Florida Statutes, as well as Rules 6B-1.001, 6B-

1.006, and 6B-4.009, F.A.C.

28. Section 231.36, Florida Statutes, deals with inter alia, contracts

with instructional staff and provides at subparagraph (4)(c):

Any member of the ... instructional

staff, ... who is under continuing

contract may be suspended or dismissed at

any time during the school year; however,

the charges against him must be based on

... misconduct in office, ... gross

insubordination

29. Since the Board has alleged misconduct in office, if the evidence

supports such a charge, dismissal is a legally enforceable action.

30. Chapter 790 of the Florida Statutes, deals with weapons and firearms

and at section 790.001(6), a firearm is defined as:

... any weapon ... which will, is

designed to, or may readily be converted

to expel a projectile by the use of an

explosive; ....

31. The pistol found in the door pocket of Respondent's vehicle by Mr.

Mertz and discharged by Mr. Le, constitutes a firearm under the terms of the

statute.

32. Section 790.01, Florida Statutes, makes it a crime to carry a

concealed weapon and Section 790.06, Florida Statutes, defines the

qualifications for obtaining a license to carry a concealed weapon or firearm in

this state. The evidence clearly indicates that Respondent was not charged with

carrying a concealed weapon nor an unlicensed weapon, nor would such a charge be

appropriate since the weapon was not concealed but was in open view in the door

compartment.

33. Rule 6B-1.001, F.A.C., outlines the Code of Ethics of the education

profession in Florida and requires that the educator value the worth and dignity

of every person; demonstrate primary professional concern for the student and

the development of the student's potential; and always be aware of the

importance of maintaining the respect and confidence of one's colleagues, his

students, their parents, and other members of the community.

34. Rule 6B-1.006, F.A.C., outlines the Principles of Professional Conduct

for the Education Profession in Florida. Under subparagraph 3 thereof, the

obligations of the educator to the student are outlined and at subparagraph (a),

it requires the instructor to make reasonable effort to protect the student from

conditions harmful to learning or to health or safety.

35. Under the provisions of Rule 6B-4.009(3), F.A.C., misconduct in office

is defined as:

... a violation of the Code Of Ethics of

the Education Profession as adopted in

Rule 6B-1.001, F.A.C., and the Principles

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.

36. There is no doubt that Mr. Hollis inadvertently left his loaded weapon

in the door pocket of his vehicle when he brought it to school on December 7,

1989. There is also no doubt that the weapon was discovered by a student and

discharged and that the presence of the weapon on the campus was an inadvertent

violation of the School Board's policy against bringing weapons onto a campus.

It also created a safety hazard to students and instructional staff.

37. It is also abundantly clear that the School Board has a clear policy

against bringing weapons onto a campus which is applicable to both students and

staff, and that enforcement of that policy is consistent with the policy and

consistently severe. There is also no question that not only the School Board

but also the public takes a vital interest in promoting safety in the public

schools and is unalterably opposed to the gratuitous introduction of weapons

onto a school campus. Consequently, if it is shown that Mr. Hollis'

introduction of the weapon onto the campus was an intentional action, there is

no doubt swift and severe disciplinary action would be appropriate.

38. Here, however, the evidence does not show that. Instead, the evidence

clearly demonstrates that Mr. Hollis' introduction of the weapon was inadvertent

and even the Superintendent of Schools recognizes this fact. The Superintendent

was satisfied that Mr. Hollis did not intend to introduce the weapon and that

the introduction was an isolated instance in an otherwise excellent long-

standing record of service. All other incidents where staff members had or

discharged weapons on campus can be distinguished from the instant case in that

they were intentional and the Respondent's clearly was not. It was serious

negligence, but under the terms of the Rules applicable in this case, negligence

does not, under the circumstances of this case, equate to misconduct sufficient

to justify dismissal after an honorable and long-standing period of employment.

39. The evidence also demonstrates without question that those people with

whom Respondent has dealt regularly; his colleagues and his students, in no way

feel this unfortunate incident affects his efficiency, his credibility, or his

effectiveness within the school system as a teacher. Even his immediate

supervisor, Mr. Laux, felt that while some disciplinary action was appropriate,

something far less severe than dismissal would be the proper course of action.

40. Clearly, the negligence of Mr. Hollis here did not impair his

effectiveness in the school system and under the circumstances of this case, did

not constitute misconduct in office sufficient to warrant his dismissal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is,

therefore:

RECOMMENDED that the continuing suspension with pay be lifted but that

Respondent be reprimanded and suspended without pay for ten (10) days.

RECOMMENDED this 25th day of September, 1989, in Tallahassee.

_________________________________

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of September, 1989.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-2447

The following constituted my specific rulings pursuant to Section

120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted

by the parties in this case.

For the Petitioner:

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. - 5. Accepted and incorporated herein.

7. - 10. Accepted and incorporated herein.

11. & 12. Accepted.

13. - 15. Accepted and incorporated herein.

16. & 17. Accepted and incorporated herein.

18. 7 19. Accepted and incorporated herein.

20. Accepted and incorporated herein.

21. & 22. Accepted and incorporated herein.

23. Accepted and incorporated herein.

24. Accepted and incorporated herein.

25. Accepted.

For the Respondent:

Respondent did not number his paragraphs in the Statement of the Facts, so

the paragraphs will be addressed in turn as though they had been numbered.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

COPIES FURNISHED:

Bruce P. Taylor, Esquire

School Board Attorney

Post Office Box 6374

Clearwater, Florida 33518

Mark Herdman, Esquire

Kelly & McKee, P.A.

1724 East 7th Ave.

Tampa, Florida 33605

Dr. Scott N. Rose

Superintendent of Pinellas

County Schools

Post Office Box 4688

Clearwater, Florida 34618-4688

Hon. Betty Castor

Commissioner of Education

The Capitol

Tallahassee, Florida 32399-0400

=================================================================

AGENCY FINAL ORDER

=================================================================

SCHOOL BOARD OF PINELLAS COUNTY, FLORIDA

SCHOOL BOARD OF PINELLAS

COUNTY, FLORIDA

Petitioner,

v. DOAH CASE NO. 89-2447

PERRY HOLLIS,

Respondent.

___________________________/

FINAL ORDER

WHEREAS, the Superintendent of Schools, by letter dated April 24, 1989,

which contains the reasons therefore, recommended to the School Board of

Pinellas County, Florida that Perry Hollis be dismissed from his employment as a

teacher and that the continuing contract between Perry Hollis and the School

Board of Pinellas County, Florida be terminated, and

WHEREAS, said Perry Hollis requested an administrative hearing on the

issues raised by the Superintendent's notification letter, and

WHEREAS, the Department of Administration, Division of Administrative

Hearings, was requested to conduct the administrative hearing in said cause, and

WHEREAS, said Department of Administration, Division of Administrative

Hearings, accepted jurisdiction to conduct an administrative hearing and to

enter a recommended order, assigning to it the case number of 89-2447, and

WHEREAS, an administrative hearing was conducted on July 18, 1989, before

the Honorable Arnold H. Pollock, Hearing Officer of the Division of

Administrative Hearings, and

WHEREAS, said hearing officer has issued a recommended order which has been

reviewed by the School Board of Pinellas County, Florida, and

WHEREAS, the School Board of Pinellas County, Florida has been informed

that the respondent, Perry Hollis, is willing to accept a thirty (30) calendar

day suspension from work without pay, it is

ORDERED and ADJUDGED that the Hearing Officer's Recommended Order is hereby

accepted, adopted, and incorporated herein by reference in total, except as

specifically provided herein, and it is further

ORDERED and ADJUDGED that due to the serious nature of the allegation

against respondent, Perry Hollis, the Hearing Officer's recommendation of a ten

(10) day suspension without pay is hereby rejected and in lieu thereof,

respondent, Perry Hollis, is suspended for thirty (30) calendar days, without

pay, with May 11, 1989 being the first day of said suspension, and it is further

ORDERED and ADJUDGED that the Order imposed by this Board of May 10, 1989

imposing a suspension without pay, pending the outcome of the administrative

hearing process in this cause, it is hereby rescinded, except to the extent of

the thirty (30) calendar day suspension without pay imposed as a penalty in this

cause, and respondent, Perry Hollis, is hereby reinstated to teaching status and

shall be awarded back pay, retirement contributions, social security

contributions, and other fringe benefits to which he was entitled for the

difference between the thirty (30) calendar day suspension without pay and the

date of this Order.

Any party adversely affected by this Order has the right to appeal to the

Second District Court of Appeals, Lakeland, Florida by filing notice of intent

to do so with the Clerk of said court within thirty (30) days of the date of

this Order.

DONE and ORDERED on this 11th day of October, 1989.

SCHOOL BOARD OF PINELLAS

COUNTY, FLORIDA

By :_______________________________

Chairman

Attest :_______________________________

Ex-Officio Secretary