10-001526TTS Palm Beach County School Board vs. Elizabeth Stuglik Status: Closed Recommended Order on Monday, August 2, 2010.

Summary: Just cause did not exist to terminate annual contract of teacher who had engaged in sexual conduct on school grounds, but did so against her will, and had allowed another teacher to remove students from her class after the students had done their work.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-1526

)

ELIZABETH STUGLIK, )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

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

before Stuart M. Lerner, a duly-designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

May 19, 2010, by video teleconference at sites in West Palm

Beach and Tallahassee, Florida.

APPEARANCES

For Petitioner: Elizabeth McBride, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416

For Respondent: Matthew E. Haynes, Esquire

Johnson and Haynes, P.A.

The Barrister Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

Whether Respondent committed the violations alleged in the

Petition for Suspension Without Pay and Dismissal from

Employment, as clarified at hearing, and, if so, what

disciplinary action should be taken against her.

PRELIMINARY STATEMENT

On March 18, 2010, the Palm Beach County School Board

(School Board), through its counsel, issued and served on

Respondent, then an annual contract teacher, a Petition for

Suspension Without Pay and Dismissal from Employment (Petition).

The Petition described, in some detail, statements that

Respondent had made during a "School Police investigation into

allegations that she had engaged in sexual misconduct with

[fellow teacher] Heath Miller on the campus of H. L. Watkins

Middle School, during normal working hours and while students

were on campus." According to the Petition, the contents of

these statements established that the School Board had "just

cause" to terminate Respondent's contract. Specifically, the

Petition alleged that "Respondent's actions [as described in her

statements] constitute[d] a violation of The Code of Ethics,

Florida Administrative [Code] Rule 6B-1.001(2)"; "Respondent's

actions constitute[d] a violation of The Code of Ethics, Florida

Administrative [Code] Rule 6B-1.001(3)"; "Respondent's actions

also violated . . . Florida Administrative Code Rule 6B-

1.006(3)(a)"; "Respondent's actions violate[d] [Florida

Administrative Code] Rule 6B-4.009(3)"; "Respondent's conduct

evidenced a violation of [Florida Administrative Code] Rule 6B-

4.009(2)"; "Respondent's actions showed a failure to exercise

best professional judgment and unprofessional conduct"; and

"Respondent's behavior made her ineffective in the school

system."

Respondent requested "a hearing conducted by an

administrative law judge appointed by the Division of

Administrative Hearings" on the these allegations. Respondent's

hearing request was referred to DOAH on March 22, 2010.

As noted above, the hearing requested by Respondent was

held on May 19, 2010. At the outset of the hearing, counsel for

the School Board explained that the School Board was seeking to

discipline Respondent for engaging in sexual conduct with

Mr. Miller on school grounds during the regular school day and

for allowing Mr. Miller to "routinely remove[]" students from

her classroom, adding that "the charges against [Respondent

were] premised on [Respondent's] sexual activities with

Mr. Miller having been consensual." School Board counsel stated

later in the hearing, consistent with this earlier

clarification, that if the investigation conducted by the School

Board had revealed that Respondent had "truly [been] a rape

victim," charges would not have been brought against Respondent.

Four witnesses testified at the hearing: Respondent;

Detective Vincent Mintus; Ann Wark; and Rachael Haskell, LCSW.

In addition to the testimony of these four witnesses, the

following exhibits were offered and received into evidence:

Petitioner's Exhibits 1 and 3 through 16; and Respondent's

Exhibits 1 and 2.

At the conclusion of the hearing, the undersigned announced

on the record that the parties would have 30 days from the date

of the filing of the hearing transcript with DOAH to file their

proposed recommended orders.

The hearing Transcript (consisting of two volumes) was

filed with DOAH on June 11, 2010.

Petitioner and Respondent timely filed their Proposed

Recommended Orders on Monday, July 12, 2010.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. The School Board is responsible for the operation,

control and supervision of all public schools (grades K through

12) in Palm Beach County, Florida (including, among others,

H. L. Watkins Middle School (HLWMS)), and for otherwise

providing public instruction to school-aged children in the

county.

2. The School Board has entered into a collective

bargaining agreement with the collective bargaining

representative of its instructional staff. Pursuant to Article

II, Section M., of that agreement, the School Board "has the

burden to prove each and every charge by clear and convincing

evidence" in disciplinary proceedings such as the instant one. 2

3. At all times material to the instant case, Respondent

was employed as an annual contract teacher by the School Board.

The last day for which she was paid by the School Board was

March 3, 2010. From March 4, 2010, until June 4, 2010,

Respondent was under suspension (without pay) pending the

outcome of these disciplinary proceedings. By letter dated

March 22, 2010, Respondent was advised by the School Board's

Chief of Human Resources that she would not be "reappointed" and

that, as a result, her employment with the School Board would

terminate "on the last day of [her] current contractual period"

(which was June 4, 2010).

4. During the 2007-2008 and 2008-2009 school years,

Respondent taught Spanish at HLWMS (to seventh and eight graders

during the 2007-2008 school year; and to sixth, seventh, and

eighth graders during the 2008-2009 school year). Respondent

was responsible, not only for the delivery of instruction to her

students, but also for the management of her classroom.

Furthermore, she was expected to be a "role model" for her

students and to conduct herself accordingly, particularly when

on campus.

5. At all times that Respondent was teaching at HLWMS, Ann

Wark was the principal of the school, and Respondent's

department head was Ann Panse.

6. In each of the two annual evaluations Ms. Wark gave

her, Respondent received an "overall" rating of "satisfactory"

and was rated "acceptable" in each of the 15 performance

categories listed on the evaluation form. In the "comments"

section of the 2007-2008 school year evaluation, Ms. Wark wrote:

Beth has been such a positive addition to

the Watkins Team. She does a great job

working with her students. She is also a

wonderful team player, assisting others

whenever needed.

The "comments" section of the 2008-2009 school year evaluation

(which Ms. Wark signed on May 13, 2009) contained the following

remarks made by Ms. Wark:

Ms. Stuglik is a very creative teacher. She

always has detailed lesson plans that are

effectively presented in the classroom.

7. Respondent was a 22-year-old beginning teacher when she

arrived at HLWMS in August 2007. She and her husband had just

moved from Indiana, away from the family 3 and friends who

comprised her "support system." Aside from her husband (who was

not supportive of her decision to teach at HLWMS), 4 Respondent

was not close with anyone at the school or in the area.

8. Respondent's classroom her first year at HLWMS was the

"chorus room," which was located in a building (Auxiliary

Building) that was separate from the main school building.

9. There were only two other teachers with classrooms in

the Auxiliary Building (which also housed the school's

cafeteria): an ESE teacher and a band teacher.

10. The ESE teacher was infrequently in her room, having

one class there every other day. The remainder of her teaching

time was spent servicing the school's exceptional education

students in their general education settings.

11. The band teacher was Heath Miller. Mr. Miller taught

his students in the "band room." Mr. Miller's classroom (the

"band room") and Respondent's classroom (the "chorus room") were

connected by an unoccupied office.

12. Mr. Miller was a popular and "well respected" member

of school's instructional staff, as evidenced by the multiple

"teacher of the year" awards he had received. Before classes

started that school year (the 2007-2008 school year), during

orientation, Respondent was told by other teachers that

Mr. Miller "was the go-to guy; that if [Respondent] ever needed

help with students, [Mr. Miller] was the guy to see; that he was

just absolutely wonderful."

13. Acting on this advice, Respondent sought out

Mr. Miller's assistance on various occasions, and he became her

trusted, informal teaching mentor (albeit one without any

supervisory authority over her).

14. Over a period of approximately a month, Respondent's

relationship with Mr. Miller, which began as a purely

professional one, evolved into a sexual relationship, against

Respondent's will.

15. From the end of September 2007, until sometime in

November that year before the Thanksgiving break, Mr. Miller and

an unwilling Respondent engaged in sexual intercourse a handful

of times in a large storage closet in the "chorus room." These

incidents (numbering approximately three or four altogether)

occurred during the morning (sometime between 8:45 a.m. and

9:30 a.m.) before classes started. 5

16. On each occasion, over Respondent's verbal

protestations, Mr. Miller, who was "very muscular" and

physically stronger than Respondent, forcefully maneuvered

Respondent to the desired location in the closet, undid her

clothes, and then directed her what to do. At no time did

Mr. Miller strike Respondent, nor did he make any express verbal

threats of harm to Respondent if she resisted his advances.

Respondent, however, did not know what Mr. Miller would do to

her if she did resist. She therefore complied with Mr. Miller's

demands.

17. Respondent did not tell anyone about these

nonconsensual sexual encounters with Mr. Miller until

approximately a year and half later, on April 27, 2009, when she

was interviewed a second time during the "School Police

investigation" described in the Petition.

18. Respondent's post-encounter silence was the product of

her wanting to forget about what had happened, coupled with her

conviction that, if she did report what had happened, no one

would believe her because Mr. Miller was so "well respected."

19. Notwithstanding what Mr. Miller had done to her,

Respondent continued to be "cordial" towards him, acting as if,

at least to the casual, lay observer, nothing untoward had

happened. In addition to conversing in person with Mr. Miller

during the course of the school day, Respondent communicated

with him by text and telephone, and several times even

socialized with him outside of school (but always in a group

situation where there were others present).

20. Respondent's conduct following Mr. Miller's

transgressions against her (as described above) was not atypical

for a sexual assault victim. 6

21. During the 2007-2008 school year and, to a lesser

extent, during the 2008-2009 school year (when Respondent

occupied the classroom in the Auxiliary Building that the ESE

teacher had been in the year before 7 ), an unaccompanied

Mr. Miller, on occasion, came into Respondent's classroom while

she was teaching a class (towards the end of the period, 8 when

the students were working, independently, on class assignments)

and, with Respondent's permission, removed students from her

class, a practice not prohibited by any School Board rule or

policy. The students he removed were all female band students.

Respondent would let the students go with Mr. Miller only if

they were done with their work. 9 The students would be gone from

Respondent's class for approximately ten to twenty minutes.

22. Allegations were subsequently made that Mr. Miller had

(at various unspecified times) engaged in sexual misconduct with

three of the students he had removed from Respondent's class

(plus another student whom Respondent did not teach), and

criminal charges were filed against Mr. Miller based on these

allegations. 10 Mr. Miller is currently in jail and is being held

without bond on these criminal charges.

23. At the time of the removals, however, Respondent had

no knowledge, nor even any idea, that Mr. Miller was engaging in

any inappropriate conduct with students. She believed (based on

what Mr. Miller had told her when he came into her room to get

the students) that he was taking them from her class so they

could participate in band-related activities. 11

24. Mr. Miller was arrested on April 20, 2009. 12 The

following day, School Police Detective Vincent Mintus

interviewed Respondent as part of his ongoing investigation of

the allegations that had been made against Mr. Miller.

25. During this April 21, 2009, interview, Respondent was

not forthright with Detective Mintus. She was asked about her

relationship with Mr. Miller and, in response, failed to

disclose that there was a sexual component to the relationship.

26. Following the interview, Detective Mintus discovered

information causing him to question whether Respondent had been

entirely truthful with him. He therefore made arrangements to

interview Respondent again.

27. This second interview was conducted on April 27, 2009.

When told by Detective Mintus that he had reviewed text messages

and telephone records and, based upon this review, had doubts

concerning how honest she had been during her April 21, 2009,

interview, 13 Respondent acknowledged that, contrary to what she

had intimated in her previous interview, she had had a sexual

relationship with Mr. Miller. She added, however, that this

relationship had been a nonconsensual one in which she had not

been a willing participant. The interview was cut short when

Respondent asked for a union representative to be present.

28. Following her April 27, 2009, interview, Respondent,

with Detective Mintus' assistance, made contact with the Palm

Beach County's Victim Advocate's Office, through which she

subsequently received therapy and counseling enabling her to

better deal with the emotional and psychological effects of

having been sexually victimized by Mr. Miller.

29. Upon being advised by Detective Mintus of what

Respondent had related to him during the April 27, 2009,

interview, Ms. Wark went to see Respondent. She tried to

console Respondent and offered Respondent her support.

30. Aided by newspaper articles on the subject, word

quickly spread through the school and the community about

Detective Mintus' investigation of Mr. Miller's on-campus sexual

activity with HLWMS students and teachers. As a result, "things

at the school came to a standstill."

31. Students openly discussed Respondent's having been

sexually involved with Mr. Miller and expressed their anger with

Respondent for her having engaged in such activity. 14

32. Ms. Wark sensed that Respondent had lost the respect

of the student population as a whole, and their parents.

33. Because it was towards the end of the school year,

Ms. Wark took no action to have Respondent removed from her

classroom assignment while Detective Mintus' investigation was

still ongoing; however, she did instruct Respondent not to

attend any school functions (including graduation) to which

parents were invited. It was not until the beginning of the

following school year (the 2009-2010 school year) that

Respondent was taken out of the classroom and assigned

administrative duties. 15

34. Respondent had left the April 27, 2009, interview with

the understanding that Detective Mintus would contact her to

make arrangements for a follow-up interview. Detective Mintus,

though, expected Respondent to contact him. After not hearing

from Respondent for a couple of months, he sent Respondent a

letter, dated July 1, 2009, asking her to get in touch with him

so that he could set up another interview.

35. Respondent did not receive Detective Mintus' letter

until July 20, 2009. 16 She immediately contacted her attorney

and read the letter to her. Respondent's attorney then

contacted Detective Mintus.

36. Respondent was interviewed a third time by Detective

Mintus on July 29, 2009. She was accompanied to the interview

by her attorney.

37. Immediately before the interview began, Respondent's

attorney told Detective Mintus, on Respondent's behalf, that

Respondent did not want to press charges against Mr. Miller

because she desired "to get on with her life and not have any

notoriety."

38. During the interview, Respondent gave details

regarding her relationship with Mr. Miller. She acknowledged

that she had engaged in sexual activity with Mr. Miller on the

HLWMS campus, but continued to maintain (truthfully) that she

had not willfully participated in this activity.

39. After completing his investigation, Mr. Mintus issued

an Investigative Report, in which he found, among other things,

that Respondent and Mr. Miller had had "mutually agreed upon

sexual intercourse together on multiple occasions" on the HLWMS

campus.

40. On August 14, 2009, Detective Mintus' Investigative

Report was forwarded to the School Board's Department of

Employee Relations.

41. The matter ultimately was brought to the attention of

the School Superintendent, who, on February 12, 2010, advised

Respondent that a determination had been made that there was

"sufficient evidence to warrant [her] termination from [her]

position as Teacher" and that he therefore would "recommend her

suspension without pay and termination at the March 3, 2010

School Board Special Meeting."

42. The School Board followed the School Superintendent's

recommendation, and it suspended Respondent without pay

effective March 4, 2010, pending the outcome of termination

proceedings.

CONCLUSIONS OF LAW

43. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to Chapter 120,

Florida Statutes.

44. "In accordance with the provisions of s. 4(b) of Art.

IX of the State Constitution, district school boards [have the

authority to] operate, control, and supervise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited by the State Constitution or

general law." § 1001.32(2), Fla. Stat.

45. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See §§

1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.

46. A district school board is deemed to be the "public

employer," as that term is used in Chapter 447, Part II, Florida

Statutes, "with respect to all employees of the school

district." § 447.203(2), Fla. Stat. As such, it has the right

"to direct its employees, take disciplinary action for proper

cause, and relieve its employees from duty because of lack of

work or for other legitimate reasons," provided it exercises

these powers in a manner that is consistent with the

requirements of law. § 447.209, Fla. Stat.

47. An annual contract teacher employed by a district

school board has no right to continued employment beyond the

term of the contract.

48. Pursuant to Section 1012.33(6)(a), Florida Statutes,

the teacher "may be suspended or dismissed at any time during

the term of the contract," but only "for just cause as provided

in paragraph (1)(a)" of the statute.

49. Section 1012.33(1)(a), Florida Statutes, defines "just

cause," as including, "but . . . 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."

The "but . . . not limited to" language in the statute makes

abundantly clear that the list of things constituting "just

cause" was intended by the Legislature to be non-exclusive and

that other wrongdoing may also constitute "just cause" for

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

217, 218-19 (Fla. 2d DCA 1994)(Blue, J., specially

concurring)("We assume that drunkenness and immorality, which

are not included in the non-exclusive list of sins [set forth in

Section 231.36(1)(a), Florida Statutes (2001), the predecessor

of Section 1012.33(1)(a), Florida Statutes] constituting just

cause,[ 17 ] would also be grounds for dismissal. . . . In

amending section 231.36 and creating a new contract status for

teachers (professional service) and by failing to further define

just cause, the legislature gave school boards broad discretion

to determine when a teacher may be dismissed during the contract

term. . . . I agree with the majority--that the legislature

left that determination to the respective wisdom of each school

board by providing no definite parameters to the term 'just

cause.'").

50. "Immorality" has been defined "by rule of the State

Board of Education" (specifically Florida Administrative Code

Rule 6B-4.009(2) 18 ) as follows:

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.

51. "Misconduct in office" has been defined "by rule of

the State Board of Education" (specifically Florida

Administrative Code Rule 6B-4.009(3)) as follows:

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.

52. The Code of Ethics of the Education Profession (as set

forth in Florida Administrative Code Rule 6B-1.001) provides as

follows:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

53. The Principles of Professional Conduct for the

Education Profession in Florida (set forth in Florida

Administrative Code Rule 6B-1.006), requires a teacher, as part

of the teacher's "obligation to the student," to "make

reasonable effort to protect the student from conditions harmful

to learning and/or to the student's mental and/ or physical

health and/or safety."

54. "Immorality and "misconduct in office" may be

established, even in the absence of "specific" or "independent"

evidence of impairment, where the conduct engaged in by the

teacher is of such a nature that it "speaks for itself" in terms

of its seriousness and its adverse impact on the teacher's

service and effectiveness. In such cases, proof that the

teacher engaged in the conduct is also proof of impaired

effectiveness. See Purvis v. Marion County School Board , 766

So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands County

School Board , 752 So. 2d 127, 128-29 (Fla. 2d DCA 2000); Summers

v. School Board of Marion County , 666 So. 2d 175, 175-76 (Fla.

5th DCA 1995); Brevard County School Board v. Jones , No. 06-

1033, 2006 Fla. Div. Adm. Hear. LEXIS 287 *17 (Fla. DOAH

June 30, 2006)(Recommended Order)("[T]he need to demonstrate

'impaired effectiveness' is not necessary in instances where the

misconduct by a teacher speaks for itself, or it can be inferred

from the conduct in question."); and Miami-Dade County School

Board v. Lefkowitz , No. 03-0186, 2003 Fla. Div. Adm. Hear. LEXIS

675 **23-24 (Fla. DOAH July 31, 2003)(Recommended Order)("The

School Board failed to prove by a preponderance of the direct

evidence that Mr. Lefkowitz's actions were so serious that they

impaired his effectiveness as a teacher. Nonetheless, based on

the findings of fact herein, it may be inferred that

Mr. Lefkowitz's conduct impaired his effectiveness as a teacher

in the Miami-Dade County public school system.")(citation

omitted).

55. A teacher's engaging in consensual sexual activity on

school grounds during the school day is an example of such

conduct that "speaks for itself" and constitutes "immorality"

and "misconduct in office," as those terms are used in Section

1012.33, Florida Statutes.

56. "[U]nder Florida law, a [district] school board's

decision to terminate [the contract of] an employee is one

affecting the employee's substantial interests; therefore, the

employee is entitled to a formal hearing under section 120.57(1)

if material issues of fact are in dispute." 19 McIntyre v.

Seminole County School Board , 779 So. 2d 639, 641 (Fla. 5th DCA

2001).

57. Pursuant to Section 1012.33(6)(a), Florida Statutes,

the hearing may be conducted, "at the district school board's

election," either by the district school board itself or by a

DOAH administrative law judge (who, following the hearing, makes

a recommendation to the district school board).

58. The teacher must be given written notice of the

specific charges prior to the hearing. Although the notice

"need not be set forth with the technical nicety or formal

exactness required of pleadings in court," it should "specify

the [statute,] rule, [regulation, or policy] the [district

school board] alleges has been violated and the conduct which

occasioned [said] violation." Jacker v. School Board of Dade

County , 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J.,

concurring).

59. The teacher may be suspended without pay pending the

outcome of the termination proceeding; "but, if the charges are

not sustained, the employee shall be immediately reinstated, and

his or her back salary shall be paid." § 1012.33(6)(a), Fla.

Stat. An annual contract teacher whose contract, at the time

the "charges are not sustained," has expired and not been

renewed is entitled only to a "back salary" award (for the

period from the date the teacher's suspension without pay began

to the expiration date of the teacher's annual contract).

60. At the termination hearing, the burden is on the

district school board to prove the allegations contained in the

notice. Ordinarily, the district school board's proof need only

meet the preponderance of the evidence standard. See , e.g. ,

Cisneros v. School Board of Miami-Dade County , 990 So. 2d 1179,

1183 (Fla. 3d DCA 2008)("As the ALJ properly found, the School

Board had the burden of proving the allegations of moral

turpitude by a preponderance of the evidence."). Where,

however, the district school board, through the collective

bargaining process, has agreed to bear a more demanding

standard, it must honor, and act in accordance with, its

agreement. See Chiles v. United Faculty of Florida , 615 So. 2d

671, 672-73 (Fla. 1993)("Once the executive has negotiated and

the legislature has accepted and funded an agreement [with its

employees' collective bargaining representative], the state and

all its organs are bound by that [collective bargaining

agreement] under the principles of contract law."); Hillsborough

County Governmental Employees Association v. Hillsborough County

Aviation Authority , 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold

that a public employer must implement a ratified collective

bargaining agreement with respect to wages, hours, or terms or

conditions of employment . . . ."); and Palm Beach County School

Board v. Auerbach , No. 96-3683, 1997 Fla. Div. Adm. Hear. LEXIS

5185 **13-14 (Fla. DOAH February 20, 1997)(Recommended

Order)("Long-standing case law establishes that in a teacher

employment discipline case, the school district has the burden

of proving its charges by a preponderance of the

evidence. . . ."). Such is the situation in the instant case.

The collective bargaining agreement between the School Board and

Respondent's collective bargaining representative requires that

the School Board present clear and convincing evidence to prove

its case against Respondent.

61. Clear and convincing evidence is an "intermediate

standard," "requir[ing] more proof than a 'preponderance of the

evidence' but less than 'beyond and to the exclusion of a

reasonable doubt.'" In re Graziano , 696 So. 2d 744, 753 (Fla.

1997). For proof to be considered "'clear and convincing' . . .

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

Davey , 645 So. 2d 398, 404 (Fla. 1994), citing with approval,

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

see also In re Adoption of Baby E. A. W. , 658 So. 2d 961, 967

(Fla. 1995)("The evidence [in order to be clear and convincing]

must be sufficient to convince the trier of fact without

hesitancy."). "Although this standard of proof may be met where

the evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corporation, Inc. v.

Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991).

62. In determining whether the district school board has

met its burden of proof, it is necessary to evaluate the

district school board's evidentiary presentation in light of the

specific allegation(s) made in the written notice of charges.

Due process prohibits a district school board from terminating a

teacher's annual contract before its expiration date based on

matters not specifically alleged in the notice of charges,

unless those matters have been tried by consent. See Shore

Village Property Owners' Association, Inc. v. Department of

Environmental Protection , 824 So. 2d 208, 210 (Fla. 4th DCA

2002); and Pilla v. School Board of Dade County , 655 So. 2d

1312, 1314 (Fla. 3d DCA 1995)("The pending proceeding was

brought against the teacher by the School Board to discharge him

from employment. Plainly, in such circumstances the teacher

must have fair notice and an opportunity to be heard on each of

the charges against him. Here, after the School Board had

already completed its case-in-chief, it sought leave to amend to

add two additional charges to its administrative complaint. We

agree with the hearing officer that this request for amendment

came too late.").

63. In the instant case, the School Board, in its

Petition, as clarified (by School Board counsel) at hearing,

alleged that it had "just cause" to terminate Respondent's

annual contract with the School Board for the 2009-2010 school

year because Respondent, when she was teaching at HLWMS, had

engaged in consensual sexual activity with Mr. Miller on school

grounds during the school day and had allowed Mr. Miller, on a

regular basis, to remove students from her class. According to

the allegations made by the School Board, as a result of having

engaged in this conduct, Respondent was guilty of "immorality,"

as defined in Florida Administrative Code Rule 6B-4.009(2), and

"misconduct in office," as defined in Florida Administrative

Code Rule 6B-4.009(3).

64. While it is undisputed that Respondent engaged in

sexual conduct with Mr. Miller in a storage closet in

Respondent's classroom on a handful of occasions during the

first semester of the 2007-2008 school year, the record evidence

does not clearly and convincingly establish that she did so

consensually. In fact, the undersigned, relying on Respondent's

testimony concerning the matter, 20 has affirmatively found that

Respondent unwillingly participated in this activity. Her

having done so constituted neither "immorality," as defined in

Florida Administrative Code Rule 6B-4.009(2), nor "misconduct in

office," as defined in Florida Administrative Code Rule 6B-

4.009(3).

65. The School Board did clearly and convincingly

establish that Respondent routinely allowed Mr. Miller to remove

female students from her class if they had finished their work.

It has failed, however, to advance a theory, consistent with the

allegations made in the Petition, as clarified at hearing, and

with the evidentiary record as a whole, which would support the

conclusion that Respondent's having permitted these removals

(which were not prohibited by any School Board rule or policy)

amounted to disciplinable conduct. 21

66. In view of the foregoing, the School Board has failed

to sustain its charges against Respondent.

67. Accordingly, in accordance with Section 1012.33(6)(a),

Florida Statutes, the Palm Beach County School Board must pay

Respondent's "back salary" for the period she was under

suspension without pay pending the outcome of the instant

termination proceeding. 22

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Palm Beach County School Board issue a

final order finding that the charges against Respondent have not

been sustained and awarding Respondent "back salary" for the

period she was under suspension without pay.

DONE AND ENTERED this 2nd day of August, 2010, in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of August, 2010.

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statutes (2009).

2 The parties so stipulated in paragraph G.4. of their Joint

Pre-Hearing Stipulation (filed on May 10, 2010).

3 Respondent had an aunt and uncle who lived in Palm Beach

County (in Wellington), but she was not close to them.

4 Respondent and her husband divorced in the summer of 2008.

5 Although classes started at 9:30 a.m., students were on campus

before then. Students transported to school by bus generally

arrived by 9:10 a.m., the time that breakfast was served in the

school cafeteria.

6 This finding is based upon the unrebutted expert testimony of

Rachael Haskell, LCSW, the Clinical Supervisor of Trauma

Treatment at the Crisis Center of Tampa Bay, as well as a part-

time instructor at the University of South Florida. See The

Florida Bar v. Clement , 662 So. 2d 690, 696 (Fla.

1995)("[C]aselaw indicates that a fact-finder should not

arbitrarily reject unrebutted testimony."); Wiederhold v.

Wiederhold , 696 So. 2d 923, 924 (Fla. 4th DCA 1997)("[W]hile the

trial court can reject unrebutted expert testimony, it must

offer a reasonable explanation for doing so. In other words,

the trial court as fact-finder cannot arbitrarily reject

unrebutted expert testimony.")(citation omitted); and Long v.

Moore , 626 So. 2d 1387, 1389 (Fla. 1st DCA 1993)("The trial

court should accept unrebutted expert testimony on highly

technical matters, unless it is so palpably incredible,

illogical and unreasonable as to be unworthy of belief or

otherwise open to doubt from some reasonable point of view.").

7 A newly hired chorus teacher was in the "chorus room" for the

2008-2009 school year.

8 Each period lasted an hour and a half.

9 There were occasions when Respondent told Mr. Miller that he

could not take a student out of her class because the student

still had work to do.

10 The proof submitted in the instant case is insufficient to

support a finding that Mr. Miller actually engaged in such

criminal conduct with these students. See Dougan v. State , 470

So. 2d 697, 701 (Fla. 1985)("An indictment or information is not

evidence against an accused, but, rather, is nothing more or

less than the vehicle by which the state charges that a crime

has been committed. The standard jury instructions point this

up in the pretrial instructions by stating that the charging

document is not evidence and that the jury is not to consider it

as any proof of guilt."); Pines v. Growers Service Co. , 787 So.

2d 85, 90 (Fla. 2d DCA 2001)("Allegations are just that-

allegations; they are not proof. A party cannot assume proof,

it must offer competent, substantial proof."); and Clark v.

School Board of Lake County , 596 So. 2d 735, 739 (Fla. 5th DCA

1992)("The charge of abuse is certainly not evidence of the

commission of the act in our system of justice.").

11 No student ever told Respondent anything that would

reasonably lead her to believe otherwise.

12 Following Mr. Miller's arrest, Respondent communicated with

him by telephone and asked him how he was doing.

13 In fact, Detective Mintus had not conducted such a review.

14 The record is unclear as to whether the newspapers accurately

reported that Respondent had engaged in such activity against

her will.

15 Respondent remained on annual contract status the entire

2009-2010 school year.

16 Respondent was on a Mediterranean cruise with her family from

July 1, 2009, through July 18, 2009. She had her mail held

during this time. Delivery resumed on July 20, 2009.

17 "Immorality" was added to the "non-exclusive list of sins" in

Section 1012.33(1)(a), Florida Statutes, by Section 28 of

Chapter 2008-108, Laws of Florida, effective July 1, 2008.

18 Florida Administrative Code Rule 6B-4.009 "define[s]" the

"basis for charges upon which dismissal action against

instructional personnel may be pursued."

19 "A county school board is a state agency falling within

Chapter 120 for purposes of quasi-judicial administrative

orders." Sublett v. District School Board of Sumter County , 617

So. 2d 374, 377 (Fla. 5th DCA 1993); see also School Board of

Palm Beach County v. Survivors Charter Schools, Inc. , 3 So. 3d

1220, 1231 (Fla. 2009)("No one disputes that a school board is

an 'agency' as that term is defined in the APA."); Volusia

County School Board v. Volusia Homes Builders Association , 946

So. 2d 1084, 1089 (Fla. 5th DCA 2006)("[T]he School Board is an

agency subject to the Administrative Procedure Act."); and

Witgenstein v. School Board of Leon County , 347 So. 2d 1069,

1071 (Fla. 1st DCA 1977)("It was obviously the legislative

intent to include local school districts within the operation of

Chapter 120.").

20 Respondent was the only witness at hearing with personal

knowledge about what had happened on these occasions. She

testified with apparent candor, sincerity, and honesty, and

there is no persuasive reason to disbelieve her testimony,

particularly when it is considered in light of the unrebutted

expert testimony of Ms. Haskell referenced above in endnote 6

(which the undersigned has also credited).

21 The School Board has alleged that Respondent's sexual

encounters with Mr. Miller were consensual and not coerced.

Therefore, even though the undersigned has rejected this

allegation and found that Respondent was an unwilling

participant in these encounters, Respondent may not be

disciplined based on the theory that she allowed female students

in her class to go with Mr. Miller knowing that he had sexually

victimized her and that he therefore posed a potential threat to

these students' safety and well-being. Such a theory is beyond

the scope of the charges against Respondent, and thus it has not

been considered by the undersigned in making his recommendation

to the School Board in the instant case. Cf. Arce v. Wackenhut

Corp. , No. 3D08-3029, 2010 Fla. App. LEXIS 9869 **5-6 n.2 (Fla.

3d DCA July 7, 2010)("Arce has expressly rejected, both here and

below, reliance upon any other hearsay exception in this case,

including--most emphatically--the business records exception. A

court's promise of strict neutrality among those who place their

confidence in it for resolution of their differences counsels us

against consideration of a ground for a decision that a

contestant--in this case, Arce--has expressly stated he does not

wish to be considered.").

22 Respondent is not entitled to reinstatement because her last

annual contract with the School Board (for the 2009-2010 school

year) has expired and not been renewed.

COPIES FURNISHED:

Elizabeth McBride, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416

Matthew E. Haynes, Esquire

Johnson and Haynes, P.A.

The Barrister Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

Arthur C. Johnson, Ph.D., Superintendent

Palm Beach County Public Schools

3340 Forest Hill Boulevard, C-318

West Palm Beach, Florida 33406-5869

Honorable 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.