10-001527TTS Palm Beach County School Board vs. Amber Schmeider Status: Closed Recommended Order on Monday, August 23, 2010.

Summary: Just cause existed to terminate teacher who purposely engaged in sexual conduct on school grounds during school hours.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-1527

)

AMBER SCHMEIDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case on

June 11, 2010, at video teleconferencing sites in West Palm

Beach and Tallahassee, Florida, before Administrative Law Judge

June C. McKinney of the Division of Administrative Hearings,

pursuant to the authority set forth in Sections 120.569 and

120.57(1), Florida Statutes (2009) 1 .

APPEARANCES

For Petitioner: Vicki L. Evans-Pare, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416-9239

For Respondent: Matthew E. Haynes, Esquire

Johnson and Haynes, P.A.

The Barrister's Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue in this case is whether there is just cause to

terminate Amber Schmeider's employment with the Palm Beach

County School Board.

PRELIMINARY STATEMENT

By letter dated February 12, 2010, Amber Schmeider

("Respondent" or "Schmeider") was notified that Superintendent

Arthur C. Johnson would recommend to the Palm Beach County

School Board ("Petitioner" or "School Board") at its meeting on

March 3, 2010, that Respondent be suspended without pay pending

termination of her employment. At the meeting, the School Board

voted and approved the recommendation and terminated Respondent

effective March 4, 2010.

Respondent elected to dispute the reasons for the

suspension and termination and requested a hearing. Because she

requested a formal proceeding, the matter was referred to the

Division of Administrative Hearings (DOAH).

The School Board filed a Petition with DOAH on March 22,

2010, in which it charged Schmeider with violation of the Code

of Ethics, Florida Administrative Rules 6B-1.001(2) and(3); the

Principles of Professional Conduct for the Education Profession

in Florida, Florida Administrative Rule 6B-1.001 (3)(a);

Immorality, Florida Administrative Rule 6B-4.009(2); and

Misconduct in Office, Florida Administrative Rule 6B-4.009(3).

At hearing, Petitioner presented the testimony of three

witnesses: Amber Schmeider; Ann Wark, Principal; and Sonia E.

Hill-Howard, Director of Employee Relations. Petitioner's

Exhibits numbered 1 through 15 were admitted into evidence.

Respondent presented the testimony of Detective Vinny Mintus.

Respondent's composite exhibit 1 was admitted into the record.

At the close of the hearing, the parties stipulated that

the proposed recommended orders would be due 30 days after the

filing of the transcript. The proceedings were transcribed and

the parties availed themselves of the right to submit proposed

recommended orders after the filing of the transcript. The

Transcript of the final hearing was filed with DOAH on July 6,

2010. The due date for the proposed recommended orders was

originally August 5, 2010. On July 6, 2010, Petitioner and

Respondent filed an Agreed Order to File Proposed Recommended

Orders no later than July 12, 2010. Both parties filed timely

Proposed Recommended Orders, which have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a duly-constituted school board charged

with the duty to operate, control, and supervise all free public

schools within Palm Beach County Florida Article IX, Florida

Constitution; § 1001.32, Fla. Stat. Specifically, the School

Board has the authority to discipline employees.

§ 1012.22(1)(f), Fla. Stat.

2. Schmeider started her employment with Petitioner in

August 2005. She was employed pursuant to a professional

services contract.

3. During the 2008-2009 school year, Respondent was

assigned to H.L. Watkins Middle School (“Watkins”) as a math

teacher. She was a departmental instructional team leader and

taught students at all achievement levels.

4. Teachers employed by the Petitioner were expected to

serve as "role models" for the students.

5. Ann Wark (Wark) was the principal at Watkins. The

students who attended Watkins ranged in age from 11 to 15 years

and were at an "extremely impressionable" age.

6. Heath Miller ("Miller"), the Watkins' band teacher,

developed a friendship with Respondent when she broke up with

her boyfriend. Respondent was trying to decide whether to

relocate and felt that she was at a low point in her life

because of the break-up. She also had family issues taking

place at the same time. Miller showed Respondent concern and

attention.

7. From approximately January 2008 to October 2008,

Respondent was involved in a consensual sexual relationship with

her co-worker, Miller. 2

8. During the relationship, Respondent had consensual sex

with Miller in the Watkins' band room during the afternoon while

school was in session on two occasions.

9. The first sexual encounter at school was in August

2008. Miller initiated sex with Respondent by asking if she

wanted to go into the room and have sex. After first responding

no, Respondent went ahead and had sex with Miller. Respondent

testified, "I felt like I needed to out of guilt more so than

anything else. I did it and I had sex with him. He didn't

force me and hold me down or anything, but it was more of a

talking in a coercion than it was me saying, oh, let's go do

it."

10. The second campus sexual activity between Respondent

and Miller at school occurred around the end of August or in

September 2008.

11. Respondent admitted at hearing that when Respondent

and Miller had sex on Watkins' campus, they locked the door to

the band room as a precaution to make sure that they were not

caught.

12. Respondent also testified that at the time she was

having sex at work she knew it was unprofessional and wrong

conduct.

13. In 2009, Wark recommended Respondent for Teacher of

the Year for the North Area of Palm Beach County. Wark was not

aware of Respondent's sexual acts in the band room when she

recommended her.

14. At Watkins, Detective Mintus (“Mintus”) was assigned

to investigate a report that Miller was engaged in some sexually

inappropriate behavior with students. During the course of the

investigation, it was discovered that Miller had a sexual

relationship with Respondent.

15. Mintus became aware of Respondent after learning that

Miller gave her his keys to the school to return after he had

been relieved of his teaching duties.

16. On or about April 27, 2009, Mintus interviewed

Respondent. During the interview, Respondent was forthright

with Mintus and admitted to having a relationship with Miller

and engaging in sexual misconduct with Miller on Watkins' campus

during the normal working hours while students were on campus.

17. Respondent answered Mintus' questions truthfully and

told Mintus that, . . . we have had a consensual relationship

outside of school. She also admitted that most of the sex took

place outside of school but two sexual incidents took place in

the band uniform room, and she wasn't forced or raped, because

it was consensual.

18. During the investigation, Mintus also discovered that

Miller asked Respondent to remove Miller's cellular telephone

SIM card from his desk at Watkins' campus after Miller was

escorted off school property. Schmeider removed the card as

instructed.

19. Respondent provided the SIM card to Mintus. The card

had sexually explicit images Miller had taken including naked

pictures of Respondent. Mintus found the SIM card to be a vital

piece of information for his investigation detailing Miller's

phone calls, text messages, and images.

20. Mintus found Respondent's cooperation during the

investigation to be helpful for the criminal case against

Miller. 3 Miller was arrested and was still incarcerated at the

time of the hearing.

21. Eventually, the relationship between Respondent and

Miller became public knowledge among the faculty, staff,

students, and parents.

22. A considerable amount of local press was devoted to

Miller's criminal accusations and some of it focused on the

relationship between Respondent and Miller. However,

Respondent's name was not mentioned on television.

23. Wart testified that when the information came out "it

brought the campus to a standstill."

24. It was near the end of the year when Wark learned of

Respondent's behavior. Wark asked Schmeider not to participate

in school activities with the students. She specifically

instructed Respondent not to attend the eighth grade moving-up

ceremony.

25. Wark characterized Respondent's behavior as a "slap in

the face to the students." She testified,

. . . [the students] look up to us. They

look for us to lead them, to show them right

from wrong, and we're their role models, and

when we take on the profession of education

we need to live by that. You know, what

people do on their own time is their

business, but when they're doing things on

the campus and the school where those

students are sitting in a classroom, it's

just--it's giving a terrible message. I

wanted our kids to be able to walk away at

least with some dignity that the teachers

that they loved had let them down, but

everyone else was still there for them.

26. The matter ultimately was brought to the attention of

the School Superintendent, who by letter dated 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." The School Board

followed the School Superintendent's recommendation and

terminated Respondent effective March 4, 2010.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes.

28. In this proceeding, the Collective Bargaining

Agreement ("CBA") sets the parameters for Respondent's

employment. Article II Section M(1) of the CBA dictates that

the School Board must establish its disciplinary action with

clear and convincing evidence. Pursuant to Section

1021.33(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.

29. The Petitioner has the burden of proving that it has

"just cause" to terminate the Respondent's employment as a

teacher. "Just Cause" is defined to include immorality and

misconduct in office by Section 1012.33(1)(a), Florida Statutes.

30. The State Board of Education has defined the term

"immorality" by Florida Administrative Code Rule 6B-4.009(2),

which provides in pertinent part:

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.

31. The State Board of Education has defined the term

"Misconduct in office," Florida Administrative Code Rule 6B-

4.009(3), provides in pertinent part:

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.

32. Florida Administrative Code Rule 6B-1.001 is entitled,

"Code of Ethics of the Education Profession in Florida," and it

provides in relevant part:

* * *

(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) Awareness 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.

33. Florida Administrative Code Rule 6B-1.006(3)(a) is

entitled, the "Principles of Professional Conduct for the

Education Profession in Florida," and it 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."

34. In the instant case, the School Board, alleged that it

had "just cause" to terminate Respondent because while she was

teaching at HLWMS, she engaged in consensual sexual activities

twice with Miller on school grounds during the school day.

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).

35. It is undisputed that Respondent engaged in sexual

activities with Miller in the band room during school hours

twice. Respondent even concedes Petitioner met its burden of

proving Schmeider's sexual acts fall within the definition of

"misconduct in office" and "immorality" in paragraphs 72 and 78

of Respondent's Proposed Recommended Order.

36. Therefore, the question remaining for the undersigned

is the discipline Respondent should receive for her actions.

The CBA outlines the system for discipline. The CBA provides

that teachers should receive progressive discipline.

37. Article II Section M of the CBA provides:

* * *

7. Except in cases that constitute a real

immediate danger to the District or other

actions/inactions of the employee constitute

such clearly flagrant and purposeful

violations of reasonable school rules and

regulations, progressive discipline shall be

administered as follows:

a. Verbal Reprimand With A Written

Notation -Such written notation shall not be

placed in the employee's personnel file and

shall not be used to the further detriment

of the employee after twelve (12) months of

the action/inaction of the employee which

led to the notation.

b. Written Reprimand -A written reprimand

may be issued to an employee when

appropriate in keeping with provisions of

this Section. Such written reprimand shall

be dated and signed by the giver and the

receiver of the reprimand and shall be filed

in the affected employee's personnel file in

keeping with provisions of Article II,

Section B of this Agreement.

c. Suspension Without Pay - A suspension

without pay may be issued to an employee,

when appropriate, in keeping with provisions

of this Section, including just cause and

applicable laws. The length of the

suspension also shall be determined by just

cause as set forth in this Section. The

notice and specifics of the suspension

without pay shall be placed in writing,

dated and signed by the giver and the

receiver of the suspension. The specific

days of suspension will be clearly set forth

in the written suspension notice which shall

be filed in the affected employee's

personnel file in keeping with provisions of

Article II, Section B of this Agreement.

d. Dismissal - An employee may be dismissed

(employment contract terminated or non-

renewed when appropriate in keeping with

provisions of this Section, including just

cause and applicable laws.

38. The record lacks evidence of the Respondent being

previously disciplined. Therefore, Petitioner must demonstrate

by clear and convincing evidence an exception to Article II

Section M(7) of the CBA by showing Respondent either "clearly

represents a real and immediate danger to students" or that the

"actions/inactions of the [Respondent] constitute such clearly

flagrant and purposeful violations of reasonable school rules

and regulations" that Respondent can be terminated.

39. The evidence taken as a whole demonstrates

Respondent's actions were clearly flagrant and purposeful

violations of the school rules for "misconduct in office" and

"immorality." From Respondent's testimony, she admitted to

being a willing participant in a nine-month relationship with

Miller and to sexual activity taking place mostly off campus but

twice on campus during school hours in the band room.

40. Respondent also testified that Miller neither forced

her, raped her, or held her down, and she repeatedly testified

at hearing that the sexual encounters were consensual, which was

identical to the consensual admission Respondent provided Mintus

in April 2009 when she was interviewed.

41. The evidence that the doors were locked for both

sexual acts in the band room as a precaution to ensure that

Respondent and Miller were not caught further demonstrates a

purposeful action in violation of school rules. Such actions

are obviously inconsistent with what is right or proper for a

teacher at school.

42. Therefore, Petitioner met its burden to demonstrate

Respondent's egregious behaviors constitute flagrant violations

of reasonable rules that are so serious in nature that the step-

by-step progression of discipline should be by-passed. The

appropriate discipline for Respondent is immediate suspension

and termination.

43. In view of the foregoing, the School Board has

sustained its charges against Respondent.

RECOMMENDATION

Upon consideration of the Findings of Fact and the

Conclusions of Law reached, it is

RECOMMENDED that Petitioner enter a final order upholding

Schmeider's suspension and termination.

DONE AND ENTERED this 23rd day of August, 2010, in

Tallahassee, Leon County, Florida.

S

JUNE C. McKINNEY

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 23rd day August, 2010.

ENDNOTES

1/ References herein to the Florida Statutes shall be to the

2009 edition unless otherwise indicated.

2/ Respondent's assertion that Miller manipulated her is

rejected in that she was in a nine-month long willing

relationship with Miller, and the record lacks persuasive

evidence that Miller had control over Respondent. Instead, the

record demonstrates that the sexual activity was consensual by

Respondent's own admissions.

3/ Respondent asserts that her cooperation in the investigation

protected the children of Watkins. Even so, the undersigned

finds that such actions neither relieve Respondent of following

the rules at the school nor redeem the Respondent for her

consensual sexual activities on the school campus during school

hours.

COPIES FURNISHED

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Vicki L. Evans-Pare, Esquire

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Matthew E. Haynes, Esquire

Johnson and Haynes, P.A.

The Barrister’s Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

Jeffrey Scott Sirmons, Esquire

Johnson, Haynes, and Miller

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

Dr. Arthur C. Johnson, Superintendent

Palm Beach County School District

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

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.