90-007092 Dade County School Board vs. Michael Lawless Status: Closed Recommended Order on Tuesday, March 12, 1991.

Summary: Suspension sufficient for outstanding teacher for drug conviction 4 years earlier where all notoriety caused by school board's proposed termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCHOOL BOARD OF DADE COUNTY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7092

)

)

MICHAEL LAWLESS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned

Hearing Officer from the Division of Administrative Hearings, on February 8,

1991, in Miami, Florida.

APPEARANCES

For Petitioner: Madelyn P. Schere, Esquire

School Board of Dade County, Florida

1450 Northeast Second Avenue

Suite 301

Miami, Florida 33132

For Respondent: Jesse J. McCrary, Jr., Esquire

2800 Biscayne Boulevard, Suite 800

Miami, Florida 33137-4198

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of the allegations contained in

the Notice of Specific Charges filed against him, and, if so, what disciplinary

action should be taken against him, if any.

PRELIMINARY STATEMENT

By letter dated October 25, 1990, Petitioner advised Respondent that he was

suspended from his employment effective as of the close of business on October

24, 1990, and that dismissal proceedings were being initiated against him based

upon his conviction of a felony involving moral turpitude, misconduct in office,

and immorality. Respondent timely requested a formal hearing regarding those

allegations, and this cause was transferred to the Division of Administrative

Hearings for the conduct of that formal proceeding. Petitioner subsequently

filed a formal Notice of Specific Charges.

Petitioner presented the testimony of Joyce Annunziata and Desmond Patrick

Gray, Jr. Additionally, Petitioner's Exhibits numbered 1-10 were admitted in

evidence.

Respondent testified on his own behalf and presented the testimony of Steve

Elliott, Laura Lloyd, Robert Keivers, David Cannella, Dr. Fred C. Rogers, and

Jean Freedman. Additionally, Respondent's Composite Exhibit numbered 1 was

admitted in evidence.

Only Petitioner submitted post-hearing proposed findings of fact. A ruling

on each proposed finding of fact can be found in the Appendix to this

Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been employed by

Petitioner as a teacher pursuant to a continuing contract.

2. At all times material hereto, Respondent has been assigned to Miami

Southridge Senior High School where he taught advanced mathematics courses, such

as trigonometry, calculus, and math analysis.

3. At the request of a friend, on November 7, 1986, Respondent sent

approximately two ounces of cocaine to his friend via United Parcel Service. He

was subsequently indicted in the United States District Court for the Eastern

District of Michigan. The indictment contained two counts alleging that

Respondent was guilty of having committed a felony. The case was subsequently

transferred to the United States District Court for the Southern District of

Florida.

4. Respondent pled guilty to Count 1 of that indictment and not guilty to

Count 2. He was adjudicated guilty of Count 1, use of a communication facility

for the commission of a felony in violation of Title 21, U.S.C., Section 843(b).

Count 2 was dismissed. On August 8, 1990, he was sentenced to two years of

probation, residency in a community treatment center with a work-release program

for a period of three months, a fine in the amount of $1,000, and court costs in

the amount of $50.00.

5. The School Board of Dade County has demonstrated its concern for the

problems created by drug abuse in the community. As a result of this concern,

the School Board has established a drug-free work place policy, curricula for

students, a trust counselor program, and an employee assistance program, all

designed to combat drug abuse.

6. Dismissal from employment is not an automatic consequence of a

teacher's involvement with illegal drugs. Nor does a conviction of a felony

automatically require that a teacher be terminated. Circumstances are taken

into consideration. Teachers who use drugs are referred to the employee

assistance program for help in overcoming their drug use. Teachers who attend

the employee assistance program are not necessarily discharged from employment

even though notoriety may have surrounded their drug usage. There is no

allegation or evidence that Respondent has ever used illegal drugs. Similarly,

there is no evidence or allegation that Respondent had any involvement with

illegal drugs other than the occasion on which he mailed cocaine to his friend.

7. Annual evaluations are performed on every teacher in the Dade County

Public Schools. A teacher is rated either acceptable or unacceptable.

Respondent has always been given an acceptable rating. On Respondent's 1984-

1985 annual evaluation, the principal of Miami Southridge Senior High School

added the following comment: "Michael is a super teacher. Has outstanding

relationships with students and peers. Contributes greatly to the school.

Great!". On Respondent's 1985-1986 annual evaluation, his principal added the

following comment: "Cooperative, positive and supportive. Encourages students

to excel. Very competitive." On Respondent's 1986-1987 annual evaluation,

which covered the time period when Respondent transmitted the cocaine to his

friend, his principal wrote the following comment: "An outstanding teacher.

Concerned and devoted." On Respondent's 1987-1988 annual evaluation, his

principal wrote: "Displays confidence and poise in the classroom. Very devoted

and conscientious." On Respondent's annual evaluation for 1988-1989 his

principal wrote: "A very concerned and caring instructor. Contributes greatly

to the overall operation of the school."

8. Former students of Respondent testified in this proceeding. Some were

his students subsequent to the date that he committed his criminal act.

Respondent has inspired those students to study math, has helped them to learn

to the extent that they receive "As" in their college math courses, and has

taught them a love for math such that they are currently majoring in math on

their way to becoming math teachers. Some of these students did poorly in math

before having Respondent as a math teacher. These students have recommended to

others that they take math from Respondent and hope that Respondent will still

be available to teach math to their children.

9. The principal at Miami Southridge Senior High School and the math

department chairperson have no objection to Respondent being returned to that

school to continue teaching math classes. The math department chairperson

describes Respondent as a teacher who is excellent with children, far above the

norm. She recognizes Respondent as having an unusual ability "to get difficult

information across to the students" and have them enjoy it.

10. No notoriety attached to Respondent's criminal act which occurred in

November of 1986. He continued to teach until September 28, 1990, when

Petitioner removed him from the classroom. All notoriety concerning

Respondent's criminal act was caused by the Petitioner itself. Respondent's

attorney advised Respondent's principal of the criminal conviction, and

Respondent's principal then notified other employees of the Dade County Public

Schools. As a result of the principal's notification, Respondent was removed

from the classroom, at which time other School Board employees became aware of

the problem. Thereafter, Petitioner determined to suspend Respondent and

initiate dismissal proceedings, which determination then caused additional

notoriety. Petitioner admits that any notoriety at the school site was not

caused by Respondent's criminal act but rather was due to Respondent's removal

from his classroom assignment.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over the

subject matter of and the parties to this proceeding. Section 120.57(1),

Florida Statutes (1990).

12. Section 231.36(4)(c), Florida Statutes, provides that a member of the

instructional staff who is under continuing contract may be suspended or

dismissed provided that the charges are based upon, inter alia, immorality or

conviction of a crime involving moral turpitude. The definitions for those

charges are contained in Rule 6B-4.009, Florida Administrative Code, which

contains the criteria for suspension and dismissal. The Notice of Specific

Charges filed in this cause charges Respondent only with immorality as defined

by Rule 6B-4.009(2) and with conviction of a crime involving moral turpitude as

defined in Rule 6B-4.009(6), Florida Administrative Code. Those acts are

defined as follows:

(2) Immorality is defined as conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the individual

concerned or the education profession into

public disgrace or disrespect and impair the

individual's service in the community.

* * *

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted standards of

the time a man owes to his or her fellow man

or to society in general, and the doing of the

act itself and not its prohibition by statute

fixes the moral turpitude.

13. Petitioner has failed to prove Respondent guilty of immorality as

defined in Rule 6B-4.009(2). That Rule requires conduct sufficiently notorious

to impair the individual's service in the community. No notoriety attached to

Respondent's conduct, and he continued to inspire students and to perform his

teaching responsibilities in an outstanding manner for several years. When

Petitioner determined to take action against Respondent, then and only then did

any notoriety attach to Respondent's conduct. Petitioner cannot take action

against Respondent for notoriety caused by Petitioner itself.

14. Respondent has, however, pled guilty to and been convicted of a crime

involving moral turpitude. Respondent's conduct constitutes a felony, and

transmitting cocaine via United Parcel Service does violate the accepted

standards of our time.

15. Respondent does not dispute his conviction. What he does dispute is

that suspension followed by termination is the appropriate action to be taken by

Petitioner against him. Petitioner takes the position that the punishment to be

imposed is within its discretion, and Respondent agrees with that position.

However, as Respondent points out, and Petitioner admits, suspension and

termination for Respondent's act is not automatic. The final hearing in this

cause involved the presentation of aggravating and mitigating evidence.

16. Petitioner relies on its strong policy statements in favor of a drug-

free school environment. Petitioner has proven its policy statements set forth

in its rules, the contract between the Dade County Public Schools and the United

Teachers of Dade, the Code of Ethics of the Education Profession in Florida, and

the Principles of Professional Conduct for the Education Profession in Florida.

However, Respondent has not been charged with violating any of Petitioner's

rules, with violating the labor contract, or with violating the Code of Ethics

of the Education Profession in Florida or the Principles of Professional Conduct

for the Education Profession in Florida. Further, no discussion is warranted as

to those rules which Petitioner alleges for the first time in its proposed

recommended order that Respondent has violated since those additional

allegations are not contained in the Notice of Specific Charges, and Respondent

was not on notice that he was required to defend against them.

17. Petitioner admits that it permits some teachers to continue teaching

after felony convictions even though there has been notoriety and that it

permits other teachers to continue teaching as long as they participate in the

employee assistance program to overcome their use of drugs. It is reasonable to

assume that Petitioner takes stronger action against teachers who involve

students in illegal drugs or who use drugs in the school environment than

someone whose involvement with drugs occurred on one occasion away from the

school environment and away from any children or students. It is undisputed

that Respondent is an exceptional teacher, both before and after his criminal

act. He continued, even after his act, to inspire students, to cause them to

want to study math and to do well in math, and to go on to become math teachers

themselves. It is obvious that Respondent is a good role model even though he

admits that he made a serious mistake in 1986.

18. Respondent has been punished for his criminal activity by the Court

responsible for disposing of that criminal charge. He was sentenced to two

years of probation, was required to reside in a community treatment center with

a work-release program for a period of three months, and was required to pay a

fine in the amount of $1,000 and court costs in the amount of $50.00. There is

no evidence that Respondent obtained any economic benefit from his criminal act.

Although one of Petitioner's witnesses testified that Respondent told her he

would do the same act again to help out a friend, that statement does not appear

in that witness's report of the conference for the record conducted with

Respondent by her. That conference report does, however, contain quotes of

other statements made by Respondent to her during that conference and

paraphrases Respondent's position regarding other matters discussed during the

conference. Respondent has been suspended from his employment for almost five

months and does seem to appreciate the serious consequences of his behavior.

19. The law is clear that Petitioner has discretion as to what action it

should take against Respondent. It is recommended that Petitioner take into

consideration the mitigating evidence presented during the final hearing in this

cause and the penalties that Respondent has already suffered as a result of his

action. It is recommended that Respondent's suspension be limited and that he

then be returned to the classroom where he can continue to be an outstanding

member of the teaching profession. Respondent was suspended near the beginning

of the 1990-1991 school year. It is recommended that Respondent's suspension

continue through the 1990-1991 school year and that Respondent be returned to

the classroom at the beginning of the 1991-1992 school year.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered:

(1) finding that Respondent has been convicted of a crime involving moral

turpitude;

(2) suspending Respondent without pay effective at the close of business

on October 24, 1990, and continuing through the end of the 1990-1991 school

year; and

(3) reinstating Respondent as a classroom teacher effective at the

beginning of the 1991-1992 school year.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of

March, 1991.

__________________________________

LINDA M. RIGOT

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 12th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER

1. Petitioner's proposed findings of fact numbered 2-7, and 13 have been

adopted either verbatim or in substance in this Recommended Order.

2. Petitioner's proposed findings of fact numbered 1, 8, 9, 12, and 14

have been rejected as not constituting findings of fact but rather as

constituting conclusions of law, recitation of the testimony, or argument of

counsel.

3. Petitioner's proposed finding of fact numbered 10 has been rejected as

not being supported by the weight of the credible evidence in this cause.

4. Petitioner's proposed finding of fact numbered 11 has been rejected as

being irrelevant to the issues under consideration in this cause.

COPIES FURNISHED:

Honorable Betty Castor

Commission of Education

The Capitol

Tallahassee, Florida 32399-0400

Madelyn P. Schere, Esquire

School Board of Dade County, Florida

1450 Northeast Second Avenue, Suite 301

Miami, Florida 33132

Jesse J. McCrary, Jr., Esquire

2800 Biscayne Boulevard, Suite 800

Miami, Florida 33137-4198

Octavio J. Visiedo, Superintendent

Dade County Public Schools

School Board Administration Building

1450 Northeast Second Avenue

Miami, Florida 33132

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.