09-000388EC In Re: Brenda Priestly-Jackson vs. * Status: Closed Recommended Order on Monday, July 20, 2009.

Summary: Advocate did not prove a violation of the Ethics Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN RE: BRENDA PRIESTLY- ) Case No. 09-0388EC

JACKSON, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was conducted in this case on May 8, 2009,

via video teleconference with sites in Jacksonville and

Tallahassee, Florida, before Barbara J. Staros, Administrative

Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Advocate: Jennifer M. Erlinger, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Respondent: James Dean, Esquire

Messer, Caparello, & Self, P.A.

2618 Centennial Place,

Tallahassee, Florida 32308

Cindy Laquidara, Esquire

Office of the General Counsel

117 W. Duval Street, Suite 480

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent violated Section 112.313(6), Florida Statutes (2007), by using her position as a member of the Duval County School Board to influence placement

of her children in magnet schools without following proper

procedures, and if so, what is an appropriate penalty.

PRELIMINARY STATEMENT

On December 10, 2008, the Florida Commission on Ethics

(Commission) issued an Order Finding Probable Cause to believe

that Respondent Brenda Priestly-Jackson (Respondent), as a

member of the Duval County School Board, violated Section

112.313(6), Florida Statutes (2007). The Commission forwarded

the case to the Division of Administrative Hearings on

January 23, 2009.

A Notice of Hearing dated February 4, 2009, scheduled the

hearing for April 16, 2009.

On February 10, 2009, Respondent filed an unopposed Motion

for Continuance of Final Hearing. The undersigned issued an

Order Granting Continuance and Re-scheduling Hearing on

February 16, 2009. The order scheduled the hearing by video

teleconference for May 8, 2009. The hearing took place as

scheduled.

At hearing, the Advocate called three witnesses: Dr. Sally

Hague, David Sundstrom, and Respondent. The Advocate offered

Exhibits Numbered 1 through 7. The Advocate’s Exhibits numbered

1 and 6 were admitted into evidence. The Advocate’s Exhibits

numbered 3, 4, 5, and 7 were admitted as Joint Exhibits.

Exhibit numbered 2 was admitted in part. Respondent testified

on her own behalf and called one other witness, Nancy Broner.

A Transcript comprised of two volumes was filed on

June 5, 2009. The parties timely filed their Proposed

Recommended Orders which have been duly considered in the

preparation of this Recommended Order.

On June 17, 2009, the parties filed a Joint Notice to

Clarify Record, which has been duly noted.

References to the Florida Statutes are to the 2007 version,

unless otherwise indicated.

FINDINGS OF FACT

1. At all times pertinent to these proceedings, Respondent

has served as a member of the Duval County School Board (School

Board). She was elected to the School Board in 2002 and

represents District IV.

2. Respondent is subject to the requirements of Part III,

Chapter 112, Florida Statutes, the Code of Ethics for public

officers and employees, for her acts and omissions during her

tenure as a member of the School Board.

3. Respondent and her husband, DeAndre Jackson, have four

children, all of whom attend or attended public schools in Duval

County. Mr. Jackson is a teacher at Jean Ribault Senior High

School, which is the high school from which Respondent

graduated.

4. The Duval County School District (School District)

offers a number of school-choice options. Of the 123,400

students in the School District, about 30,000 students

participate in school-choice options, attending schools other

than their neighborhood or zoned school. Magnet schools

constitute one of the school-choice options in the School

District.

5. Magnet schools are schools that offer a specialized

program or theme for students to participate in based on the

student’s interests, skills, or talents. Parents of students

may apply if they wish their child to attend a magnet school

that is outside that student’s neighborhood or zoned school.

6. School Board Policy 5.46 is entitled Magnet Schools and

Programs (Policy). Pursuant to this Policy, parents wishing

their children to enter a magnet program may apply in January or

February for the upcoming school year. After the application

deadline, the applications are processed and a computer lottery

generates assignments based on student preference and space

availability. The lottery typically occurs in early April, and

students who are not selected are placed on waiting lists.

7. Participants in the lottery have weighted entry points,

which include the following “preferences” identified in the

Policy as follows: (a) whether the student lives in the magnet

school’s attendance area; (b) whether the student participated

in the magnet program at a prior grade level; (c) whether the

student has a sibling who attends the magnet school; and

(d) whether the student’s address is in an attendance area of a

Title I school.

8. Dr. Sally Hague is the Director of School Choice and

Pupil Assignment Operations for the School District. Her duties

include oversight of most of the school-choice options in the

School District.

9. According to Dr. Hague, there are preferences outside

of the Policy which are also recognized. Children of active-

duty military personnel receive a priority imposed by statute.

Dr. Hague also recognizes a preference for students who have

toured the school with parents during the application period.

10. Additionally, children of School Board employees who

are members of collective bargaining units may be given a

preference. Specifically, employees who are teachers and

members of Duval Teachers United have the option under the

collective bargaining agreement for their children to attend

school at their work site or the nearest appropriate school,

subject to consideration given to space and racial balance.

When a parent chooses to exercise this contractual right to

place his or her child at or near the school where the parent

works, that parent would contact Dr. Hague. 1/ The collective

bargaining agreement does not set out a deadline regarding

making such a request.

11. Dr. Hague receives calls from many parents of students

in the School District, including calls from parents who are

teachers and parents who are School Board members.

12. Respondent had the occasion to call Dr. Hague at times

regarding her children. Shortly after Respondent was elected to

the School Board in 2002, Respondent called Dr. Hague regarding

her children’s school placements. Respondent again called

Dr. Hague in 2005, requesting a transfer for one of her children

from one school to another. In both instances, Dr. Hague

considered Respondent to be calling as a mother, not as a School

Board member.

13. During the 2006-2007 school year, two of Respondent’s

children, Ky. J. and Ka. J., attended John E. Ford K-8

Montessori School, a magnet school. 2/

14. Late in the 2006-2007 school year, Respondent was

informed by Ka.’s teacher that Ka. should skip a grade.

Respondent believed that Ka. was not overly mature and wished to

transfer him to a different magnet school. Additionally,

Respondent was concerned that Ka.’s FCAT scores were “flat

academically” compared to prior years.

15. As a result of her concerns, Respondent began

considering options for the next school year. One of the

options Respondent was considering was transferring her children

to another magnet school, Henry F. Kite. In late May 2007,

Respondent again contacted Dr. Hague regarding a change in the

placement of Ky. and Ka.

16. Respondent’s telephone contact to Dr. Hague occurred

after the application period for magnet schools placement in the

2007-2008 school year had passed. She did not contact Dr. Hague

earlier in the school year because she was not aware of the

relevant issues regarding Ka. (i.e., his teacher’s

recommendation that he skip a grade and his FCAT scores).

17. At the time she made the phone call to Dr. Hague,

Respondent had a general understanding that there had been at

least one individual on the Superintendent’s staff (the

Superintendent prior to Dr. Wise) who had been permitted to have

her child transferred to a different magnet program without

going through the application process. The only other School

Board member who testified, Nancy Bonner, was also aware of one

such instance, as was Mr. Sundstrom, the Chief-of-Staff to the

former Superintendent.

18. The testimony regarding the content of this telephone

conversation varies to some extent. Respondent has no

recollection of making any reference to being a School Board

member during her conversation with Dr. Hague.

19. Dr. Hague’s recollection of any reference Respondent

made to her position as a School Board member during this phone

call is less than clear. When asked whether Respondent referred

to herself as a School Board member during this conversation,

Dr. Hague testified, “. . . she did refer to herself as a board

member at one point. . . .Well, I mean, she did say, you know,

as a board member, you know, if there was any way to place her

children at Kite.” Dr. Hague acknowledged that Respondent was

“search[ing] for other ways that we might be able to move the

students to Henry F. Kite.”

20. Moreover, the evidence is clear that Dr. Hague knew

from the first conversation with Respondent in 2002 regarding

her children that Respondent was a School Board member.

Dr. Hague also testified that in each instance, Respondent

called her as a mother and that Dr. Hague was not asked by

Respondent to violate any rule or policy:

Well, she [Respondent] has children in the

school system and she was calling in

reference to her children and their school

assignment, not unlike any one of 300, 400

calls I would take during the course of a

month from parents who call to inquire about

placement with their children, or movement

on a waiting list, or any number of things

that the parents call me about regarding

school assignments.

21. When asked whether she felt intimidated by the phone

call, Dr. Hague replied that she did not feel any intimidation

during the phone call. When asked if she felt pressured, she

replied, “Maybe pressure’s not the right word, some persistence,

I think on her part to see if there were any options from moving

the students to Kite.” Dr. Hague continues to perceive her

working relationship with Respondent as a good one. There is no

evidence to suggest that Respondent demanded that her children

be placed at Kite. Respondent said nothing to indicate that she

might take some sort of adverse action against Dr. Hague if

Dr. Hague did not approve a transfer, and in fact, did not take

any adverse action toward Dr. Hague.

22. After informing Respondent that the application period

had passed, Dr. Hague referred Respondent to then-

Superintendent, Joseph Wise.

23. After speaking with Dr. Hague, Respondent contacted

Superintendent Wise via telephone and left a voicemail regarding

the placement of her children in magnet schools for the 2007-

2008 school year. Respondent “loosely” recalled what she said

in the voicemail, and stated that she told Superintendent Wise

that Dr. Hague told her to contact him.

24. Superintendent Wise delegated the task of

communicating with Respondent regarding this matter to his then-

Chief-of-Staff, David Sundstrom. 3/ Mr. Sundstrom contacted

Dr. Hague who explained the application process for magnet

schools to him.

25. Respondent was next contacted on June 5, 2007, via

e-mail by Mr.Sundstrom regarding her children’s placement in

magnet schools for the 2007-2008 school year.

26. In the e-mail, Mr. Sundstrom advised her that the

lottery period had passed, that she had not yet filled out any

application to move her children to another magnet school, and

that there was a waiting list at Kite for the grades she

requested.

27. Respondent replied in approximately an hour and copied

Dr. Wise. While she alleged in the e-mail that she was aware of

waivers provided to members of Dr. Wise’s staff, she stated that

she would submit late applications to place her children on the

waiting list.

28. Respondent and Mr. Sundstrom exchanged additional e-

mails on June 5, 2007. For some time prior to the June 5, 2007,

e-mails, the relationship between Respondent and then-

Superintendent Wise, and his Chief of Staff, had deteriorated.

According to Mr. Sundstrom, Respondent’s working relationship

with Superintendent Wise deteriorated within months of his

arrival in Duval County and was “really an unhealthy arrangement

or relationship” in the months preceding the June 2007 e-mails.

Mr. Sundstrom very openly did not and does not like or respect

Respondent. Similarly, Respondent distrusted Mr. Sundstrom and

believed that he was trying to undermine her work as a board

member. The e-mails exchanged between Respondent and

Mr. Sundstrom in June 2007 reflect the high level of tension

between the two which came about prior to the issue raised

herein.

29. After becoming aware of the e-mails concerning

Respondent filling out applications late for her children,

Dr. Hague asked a member of her staff to prepare applications

for Respondent to sign to request placement of her children on

the waiting list for Henry F. Kite. This was solely at

Dr. Hague’s direction as a courtesy to Respondent, and was not

requested by Respondent.

30. On July 16, 2008, Respondent signed and submitted

applications for placement of her children in magnet schools for

the 2007-2008 school year. Her son, Ka., was placed on the

waiting list. Only five students were on the waiting list for

Henry F. Kite, substantially fewer than waiting lists for more

highly competitive schools. Ka. was moved into an open spot at

Kite when the waiting list was exhausted.

31. The weight of the evidence does not establish the

allegation that Respondent asserted a “School Board member

privilege” in her communications with Dr. Hague or

Superintendent Wise.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. See § 120.57(1), Fla. Stat. (2008).

33. Section 112.322, Florida Statutes, and Florida

Administrative Code Rule 34-5.0015, authorize the Commission to

conduct investigations and to make public reports on complaints

concerning violations of Part III, Chapter 112, Florida Statutes

(the Code of Ethics for Public Officers and Employees).

34. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue of the proceedings. Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). In this proceeding, the Commission,

through its Advocate, is asserting the affirmative, i.e. that

Respondent violated Section 112.313(6), Florida Statutes, by

misusing her position to attempt to influence placement of her

children in magnet schools without following proper procedures.

35. Commission proceedings that seek recommended penalties

against a public officer or employee require proof of the

alleged violation(s) by clear and convincing evidence. See

Latham v. Florida Comm’n on Ethics , 694 So. 2d 83 (Fla. 1st DCA

1997). Therefore, the Commission must establish its burden in

this case by clear and convincing evidence.

36. As noted by the Supreme Court of Florida:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re: Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

37. Section 112.313(6), Florida Statutes, provides as

follows:

MISUSE OF PUBLIC POSITION.-–No public

officer, employee of an agency, or local

government attorney shall corruptly use or

attempt to use his or her official position

or any property or resource which may be

within his or her trust, or perform his or

her official duties, to secure a special

privilege, benefit, or exemption for

himself, herself, or others. This section

shall not be construed to conflict with s.

104.31.

38. The term "corruptly" is defined by Section 112.312(9),

Florida Statutes, as follows:

(9) "Corruptly" means done with a

wrongful intent and for the purpose of

obtaining, or compensating or receiving

compensation for, any benefit resulting from

some act or omission of a public servant

which is inconsistent with the proper

performance of his or her public duties.

39. The first element, that Respondent is a public

officer, has been established by stipulation of the parties.

40. To establish a violation of Subsection 112.313(6),

Florida Statutes, it must next have been established that

Respondent: (a) used or attempted to use her official position

(b) to secure a special privilege or benefit for herself or

others. These elements have not been proven by clear and

convincing evidence.

41. The evidence adduced at hearing failed to clearly and

convincingly establish that Respondent used or attempted to use

her position as a member of the School Board to secure a special

privilege for herself or others, i.e., influence placement of

her children in a magnet school without following proper

procedures.

42. Dr. Hague’s recollection of her telephone conversation

with Respondent was not precise or explicit, nor were her

recollections distinctly remembered. There is nothing improper

about a School Board member, as a parent, making inquiry as to

placement options for her children. This is especially true

when at the time, Respondent and others had a general

understanding that this had been done in the past for staff in

the Superintendent’s office. The evidence did not establish

that Respondent demanded a School Board member “privilege.”

Moreover, this was not a situation in which a School Board

member called a School District employee with whom she had never

spoken and made sure the person knew she was a School Board

member thereby “putting her on notice” of who she was dealing

with. On the contrary, Dr. Hague had spoken to Respondent in

the past regarding similar placement issues and was well aware

of Respondent’s position. Dr. Hague also perceived that

Respondent was calling in her capacity as a mother, as she had

done in the past.

43. Additionally, this is not an instance wherein threats

or intimidation were used ( compare , e.g ., In re: Coretta Udell-

Ford , (during traffic stop, Respondent identified herself as a

city council member and stated to officer, “That might not mean

nothing to you now, but it will mean something in the morning .

. . ” Council member then drove to police station and demanded

police chief to fire the officer), COE Final Order No. 09-042

filed March 16, 2009, DOAH Case No. 08-2725EC; In re: Lisa Marie

Phillips , (statement by City Commission member that she “owned”

or controlled police during traffic confrontation with another

motorist was intimidating and dissuaded complainant from calling

police.) COE Final Order No. 06-026 filed April 26, 2006, DOAH

Case No. 05-1607EC.

44. There is no competent evidence of exactly what

Respondent stated in the voicemail to Superintendent Wise.

Section 120.57(1)(c), Florida Statutes. The only competent

evidence is Respondent’s “loose” recollection that she told

Superintendent Wise in the voicemail that Dr. Hague told

Respondent to call him. Accordingly, the evidence does not

establish that Respondent invoked a School Board member

privilege in the voicemail.

45. Based on the foregoing conclusions, the second and

third elements necessary to prove a violation of Subsection

112.313(6), Florida Statutes, have not been established.

Therefore, the element of “corrupt intent” need not be

addressed. See In re: Danny Howell , DOAH Case No. 05-4333,

Recommended Order entered September 12, 2007, adopted in full,

COE Final Order 07-147 filed December 5, 2007; In re: Glendell

Russ , DOAH Case No. 00-2536, adopted in full, COE Final Order

No. 01-005 filed June 13, 2001.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is:

RECOMMENDED:

That the Commission enter a final order finding that

Respondent, Brenda Priestly-Jackson, did not violate Section

112.313(6), Florida Statutes.

DONE AND ENTERED this 20th day of July, 2009, in

Tallahassee, Leon County, Florida.

S

Barbara J. Staros

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 20th day of July, 2009.

ENDNOTES

1/ The record is not clear as to the proximity of Henry F. Kite

School to Jean Ribault High School where Mr. Jackson teaches.

2/ In an attempt to maintain student confidentiality, the names

of Respondent’s children will be referenced by their initials.

Since both of the children’s first names begin with the same

letter, their first names will be referenced by the first two

letters of their names.

3/ Nor did Superintendent Wise, the Complainant herein, testify

at the final hearing. The voicemail and its contents were not

saved and are not in evidence. Mr. Sundstrom’s testimony

regarding how he acquired knowledge of the content of the

voicemail is ambiguous, as he could not recall whether he

actually heard the voicemail or whether Dr. Wise told him about

it. Consequently, the alleged content of the voicemail, and e-

mails written by Dr. Wise, are hearsay, and are not sufficient

to support a finding of fact as contemplated in Section

120.57(1)(c), Florida Statutes.

COPIES FURNISHED :

Jennifer M. Erlinger, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

James Dean, Esquire

Messer, Caparello, & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

Cindy Laquidara, Esquire

Office of the General Counsel

117 W. Duval Street, Suite 480

Jacksonville, Florida 32202

Kaye Starling, Agency Clerk

Florida Commission on Ethics

3600 Macclay Boulevard, South

Suite 201

Tallahassee, Florida 32312

Philip C. Claypool, General Counsel

Executive Director

Florida Commission on Ethics

3600 Macclay Boulevard, South

Suite 201

Tallahassee, Florida 32312

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.