10-002203PL Dr. Eric J. Smith, As Commissioner Of Education vs. Jillian F. Jardas Status: Closed Recommended Order on Monday, August 16, 2010.

Summary: Teacher met with student off-campus during non-school hours.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DR. ERIC J. SMITH, AS )

COMMISSIONER OF EDUCATION, )

)

Petitioner, )

)

vs. ) Case No. 10-2203PL

)

JILLIAN F. JARDAS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on June 23, 2010, in Tampa, Florida, before Susan B. Harrell, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

For Respondent: Robert F. McKee, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Florida Statutes (2008), 1 and Florida Administrative Code

what discipline should be imposed.

PRELIMINARY STATEMENT

On December 15, 2009, Petitioner filed a six-count

Administrative Complaint against Respondent, Jillian F. Jardas

(Ms. Jardas), alleging that she violated Subsections

Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a),

6B-1.006(3)(e), and 6B-1.006(3)(h). Ms. Jardas requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings on April 23, 2010.

The parties filed a Joint Pre-hearing Stipulation, in which

they stipulated to certain facts contained in Section E of the

Joint Pre-hearing Stipulation. Those facts have been

incorporated into this Recommended Order.

At the final hearing, Petitioner called the following

witnesses: Linda Kippley, Arlene Castelli, Kevin Cooper, Katie

Brees, Donald Grant Smith, and M.B. Petitioner’s Exhibits 1

and 2 were admitted in evidence. Mr. Jardas testified in her

own behalf and offered no exhibits for admission in evidence.

The Transcript of the final hearing was filed on July 12,

2010. The parties agreed to file their proposed recommended

orders within ten days of the filing of the Transcript. The

parties have timely filed their Proposed Recommended Orders,

which have been considered in the preparation of this

Recommended Order.

FINDINGS OF FACT

1. Ms. Jardas holds Florida Educator’s Certificate

No. 1072218, covering the area of social science, which is valid

through June 30, 2012. She graduated from college in

December 2006.

2. At all times material to this proceeding, Ms. Jardas

was employed as a social studies teacher at Giunta Middle School

(Giunta) in the Hillsborough County School District (School

District). She began her employment at Giunta as a long-term

substitute teacher in January 2007. In August 2007, she was

hired as an annual contract teacher. Her annual contract was

renewed for a second year.

3. During the 2008-2009 school year, M.B. was a student in

Ms. Jardas’ sixth-period geography class. In September or

October 2008, M.B. approached Ms. Jardas for help with her

school work and for guidance regarding M.B.’s problems in school

attendance and problems at home. M.B. would stay after class

about once a week and talk to Ms. Jardas in the classroom about

M.B.’s problems. Other teachers were concerned about M.B.’s

academic behavior and had discussed the situation with

Ms. Jardas.

4. Both M.B. and Ms. Jardas are lesbians. In

November 2008, M.B. told Ms. Jardas that she wanted to have a

romantic relationship with Ms. Jardas. Ms. Jardas told M.B.

that she could not have a relationship with M.B. because she was

a teacher, and M.B. was a student, and such a relationship would

be inappropriate. Ms. Jardas did not report to the

administrative staff at Giunta that M.B. had approached her

about having a romantic relationship.

5. Ms. Jardas was involved in the mentoring program at

Giunta, where specific students would be assigned to specific

teachers who would provide guidance to the students. M.B. was

not part of the mentoring program.

6. The School District had policies with respect to

teachers meeting students off the campus during non-school

hours. The general manager of the School District’s

professional standards office explained the policies as follows:

Teachers do not meet with students off

campus, however, that is not done and it is

not approved to do so without the knowledge

of the principal, who is the responsible

party at the school site, and many times,

that involves parents’ permission, sometimes

written permission, for that off-site

visitation or interaction with one another.

It is always related to either a curriculum-

related instructional program, something to

do with the academic focus for children.

Even in a mentoring situation, there are

guidelines as to how you meet with children

and how you do not meet with children. It

is never approved for you to meet alone with

a student or to meet outside of school hours

without it being directly related to some

group activity or activity that has been

approved by the district or the principal.

7. Katie Brees (Ms. Brees) was at one time a friend of

M.B.’s family. During the 2008-2009 school year, M.B. lived at

Ms. Brees’ home. Sometime in November or December 2008,

Ms. Brees sent a text message to Ms. Jardas, stating that M.B.

had a problem and needed to talk to Ms. Jardas. Ms. Jardas had

not given M.B. her telephone number; however, Ms. Jardas had

called M.B.’s grandmother to discuss M.B.’s grades, and M.B. had

gotten Ms. Jardas’ number from her grandmother’s telephone.

8. At the time that Ms. Jardas received the telephone

message from Ms. Brees, Ms. Jardas was at work at her second job

at CVS Pharmacy, where she worked from 4:30 p.m. to

10:00 p.m. Ms. Jardas told Ms. Brees that she was at work and

that, if it was an emergency, Ms. Brees and M.B. could come to

the pharmacy.

9. Ms. Brees and M.B. did go to the pharmacy around

8:00 p.m. They remained in the car. One of Ms. Jardas’ job

responsibilities was to empty the trash containers and take them

to a dumpster outside the building. When Ms. Jardas went out to

empty the trash, she would talk to M.B. through the car window

about M.B.’s problems. Ms. Jardas told M.B. that she could not

keep coming to the pharmacy to talk to Ms. Jardas. Ms. Jardas

did not report to Giunta administration that M.B. had come to

the pharmacy to see her.

10. Sometime in February 2009, Ms. Jardas got another text

message from Ms. Brees, who said that M.B. had been cutting

herself. Mr. Jardas, who was at work at the pharmacy, said that

she could not leave work, but that she would meet them after

work. Ms. Brees told Ms. Jardas to meet them at some property,

which was owned by Ms. Brees’ brother. The location was dark

and secluded. Ms. Brees parked her car behind

Ms. Jardas’ car, and M.B. got out and went to sit with

Ms. Jardas on the hood of Ms. Jardas’ car. Ms. Brees remained

in her car. It was cold, and Ms. Jardas got a blanket from the

trunk of her car. Ms. Jardas and M.B. sat underneath the

blanket and talked for several hours. M.B. tried to get closer

to Ms. Jardas, but Ms. Jardas would not allow her to do so.

Ms. Jardas did not report her encounter with M.B. at the

property of Ms. Brees’ brother to the Giunta administration.

11. In February or early March 2009, Ms. Jardas received

another text message from Ms. Brees, asking Mr. Jardas to meet

with M.B. at Ms. Brees’ house. M.B. had been absent from school

a lot. Ms. Jardas was again at work and told Ms. Brees that she

would meet them after work.

12. Ms. Jardas arrived at Ms. Brees’ home around

10:30 p.m. and went to the backyard. M.B. came out, and she and

Ms. Jardas sat on the patio. Ms. Brees remained in the house.

Around one a.m. or two a.m. when Ms. Brees went to sleep, M.B.

and Ms. Jardas were still on the patio. M.B. tried to kiss

Ms. Jardas, but Ms. Jardas rebuffed M.B.’s advances. Again,

Ms. Jardas did not report her meeting with M.B. to the

administration at Giunta.

13. Ms. Jardas had made it clear to M.B. that she did not

want to have a romantic relationship with M.B. Sometime in

March 2009, M.B. began sending text messages to Ms. Jardas,

saying that she hated Ms. Jardas and could not understand why

Ms. Jardas did not want to have a relationship with her.

Ms. Jardas had her telephone company block calls coming from

M.B.’s telephone number. On March 16, 2007, Ms. Jardas received

a photograph on her telephone which showed the nude upper torso

of M.B. The photograph came from a telephone number unknown to

Ms. Jardas. Ms. Jardas deleted the photograph and had her

telephone company block the number from which the photograph was

sent.

14. M.B. was angry and upset with Ms. Jardas because

Ms. Jardas did not want to have a romantic relationship and was

trying to break contact with M.B. by blocking M.B.’s telephone

number. M.B. told some of her friends that she and Ms. Jardas

had been dating. The friends advised the school resource

officer that M.B. and Ms. Jardas were supposedly having a

relationship.

15. On March 17, 2009, when M.B. was first questioned by a

sheriff’s deputy about any relationship with Ms. Jardas, M.B.

said that Ms. Jardas was her mentor and had been helping her

with problems at home. M.B. advised that she was in love with

Ms. Jardas, but Ms. Jardas said that she would have to stop

seeing M.B. and would refer her to a guidance counselor. M.B.

told the deputy that no inappropriate touching had taken place.

16. On March 18, 2009, M.B. was again interviewed by

personnel from the sheriff’s office. At this interview, M.B.

said that she had met Ms. Jardas at the property of Ms. Brees’

brother and at Ms. Brees’ home. M.B. told the officer that they

had kissed and hugged each other; that Ms. Jardas had put her

hand down M.B.’s pants and rubbed M.B.’s vagina; that

Ms. Jardas asked M.B. to play with herself, and M.B. complied;

and that Ms. Jardas had said that she wanted to be deep inside

M.B.

17. At the final hearing, M.B. recanted her second

interview with the sheriff’s deputy and stated that there had

been no inappropriate touching by Ms. Jardas and that she had

lied because she was mad at Ms. Jardas because Ms. Jardas did

not want to be with her and would not give her a chance. M.B.’s

testimony that there had been no inappropriate touching is

credited.

18. After the school resource officer became involved,

there were rumors around Giunta concerning the alleged

relationship between Ms. Jardas and M.B. The School District

became involved and placed Ms. Jardas on administrative leave

with pay, pending the outcome of the investigation. No criminal

charges were filed against Ms. Jardas.

19. The School District decided not to renew Ms. Jardas’

contract for the 2009-2010 school year. On March 27, 2009,

prior to being formally advised of that decision, Ms. Jardas

resigned her position with the School District, citing personal

reasons. The School District allowed the resignation date to be

the last day of school, which resulted in Ms. Jardas’ receiving

pay to the end of contract. Ms. Jardas was not allowed to

continue to teach in the School District. Ms. Jardas is

currently teaching in New York.

20. Ms. Jardas was aware that she should have reported her

meetings with M.B. to the school administration and that she

should have reported to the school administration that M.B.

wanted to have a romantic relationship with her. Ms. Jardas

explained her rationale for not reporting the situation to

higher authorities as follows:

I thought it was just like a school-kid

crush, I thought nothing was going to

develop from it, I thought that I could

control the situation. She [M.B.] trusted

in me, she believed in me, she sought me

out. I didn’t want to, you know, be

responsible for anything that she could do

to herself, because I was aware that she was

[a] cutter and that she would physically,

you know, hurt herself, and I didn’t want

that on my conscience, and she trusted me,

and I didn’t want her to feel like I ratted

her out by going to speak to, like a

guidance counselor or my principal.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

22. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996).

23. Petitioner has alleged that Ms. Jardas violated

Florida Statutes, which provide:

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012.01(2) or (3)

for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with students for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school board or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the right to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross immorality or

an act involving moral turpitude as defined

by rule of the State Board of Education.

* * *

(g) Upon investigation, has been found

guilty of personal conduct that seriously

reduces that person's effectiveness as an

employee of the district school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Profession prescribed by State Board of

Education rules.

24. Petitioner has alleged that Ms. Jardas violated

Florida Administrative Code Rules 6B-1.006(3)(a),

6B-1.006(3)(g), and 6B-1.006(3)(j), which set forth the

obligations of an educator and provide:

(3) Obligation to the student requires that

the individual:

(a) Shall 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.

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

25. In the Administrative Complaint, Petitioner sets forth

the following factual allegations as the basis for the

violations of the cited statutes and rules:

During the 2008-2009 school year, the

Respondent engaged in an inappropriate

relationship with Student A, a minor female

student. Specifically, the Respondent:

(a) kissed Student A and fondled her

genital area; and

(b) had contact with Student A during non-

school hours, including telephone calls,

text messages and having the student visit

her at several locations, including the

Respondent’s residence.

Student A was ages thirteen and fourteen

during the course of the relationship.

26. Petitioner has failed to establish by clear and

convincing evidence that Ms. Jardas kissed M.B. or fondled

M.B.’s genitals. Petitioner did establish by clear and

convincing evidence that Ms. Jardas and M.B. had contact with

one another off campus and during non-school hours. Petitioner

has established by clear and convincing evidence that Ms. Jardas

and M.B. had exchanged text messages. Petitioner did not

establish that M.B. and Ms. Jardas met at Ms. Jardas’ home. To

the extent that the factual allegations state that Ms. Jardas

had M.B. meet her at several locations, Petitioner did not

establish that the meetings were instigated by Ms. Jardas;

rather, the evidence established that Ms. Jardas met M.B. at the

request of Ms. Brees.

27. Petitioner has failed to establish by clear and

convincing evidence that Ms. Jardas had violated Subsection

1012.795(1)(d), Florida Statutes. Ms. Jardas is guilty of

neither gross immorality nor moral turpitude.

28. Petitioner has established by clear and convincing

evidence that Ms. Jardas violated Subsection 1012.795(1)(g),

Florida Statutes. She failed to follow the School District

policies prohibiting meeting with students during non-school

hours in non-campus settings without the permission of the

parents and knowledge of the School District or the principal.

Meeting with a student late at night in a dark and secluded

setting is irresponsible and can only lead to problems,

particularly with middle-school students. Ms. Jardas was the

adult in the situation and knew that she was violating School

District policies when she continued to meet with M.B.

Ms. Jardas’ actions seriously reduced her effectiveness as an

employee of the School District. As a result of Ms. Jardas’

failure to stop the situation from escalating and her failure to

follow the policies of the School District, rumors went around

the school that she and M.B. had been involved in a romantic

relationship, a criminal investigation was commenced, the School

District was prepared to not renew Ms. Jardas’ annual contract,

and Ms. Jardas resigned her position.

29. Petitioner has established by clear and convincing

evidence that Ms. Jardas violated Subsection 1012.795(1)(j),

Florida Statutes, by violating Florida Administrative Code

Rule 6B-1.006(3)(a). Ms. Jardas failed to make a reasonable

effort to protect M.B. from conditions that would be harmful to

M.B. By continuing to meet with and sending text messages to

M.B., Ms. Jardas fueled a volatile situation, which should have

been stopped the first time that M.B. told Ms. Jardas that she

wanted to have a romantic relationship. Perhaps due to her own

inexperience in teaching, Ms. Jardas thought that she could

“control the situation” and thought that she would be violating

M.B.’s trust by telling the principal.

30. Petitioner has failed to establish by clear and

convincing evidence that Ms. Jardas violated Florida

Administrative Code Rules 6B-1.006(3)(e) and 6B-1.006(3)(h).

The evidence did not establish that Ms. Jardas was intentionally

trying to embarrass or disparage M.B. nor does the evidence

establish that Ms. Jardas was trying to have a romantic

relationship with M.B. for her own personal advantage.

31. Florida Administrative Code Rule 6B-11.007(2) provides

that disciplinary action for engaging in personal conduct which

seriously reduces the person’s effectiveness as an employee of

the school district and for violating the Principles of

Professional Conduct for the Education Profession ranges from

probation to revocation. Florida Administrative Code Rule 11B-

11.007(3) provides that the following aggravating and mitigating

factors may be considered in taking disciplinary action:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the educator has

been previously disciplined by the

Commission;

(f) The length of time the educator has

practiced and the contribution as an

educator;

(g) The actual damage, physical or

otherwise, caused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty upon the

educator’s livelihood;

(j) Any effort of rehabilitation by the

educator;

(k) The actual knowledge of the educator

pertaining to the violation;

(l) Employment status;

(m) Attempts by the educator to correct or

stop the violation or refusal by the

educator to correct or stop the violation;

(n) Related violations against the educator

in another state including findings of guilt

or innocence, penalties imposed and

penalties served;

(o) Actual negligence of the educator

pertaining to any violation;

(p) Penalties imposed for related offenses

under subsection (2) above;

(q) Pecuniary benefit or self-gain enuring

to the educator;

(r) Degree of physical and mental harm to a

student or a child;

(s) Present status of physical and/or

mental condition contributing to the

violation including recovery from addiction;

(t) Any other relevant mitigating or

aggravating factors under the circumstances.

32. Ms. Jardas has not been previously disciplined by the

Education Practices Commission. Ms. Jardas earnestly thought

that she was helping M.B. by counseling her; however, Ms. Jardas

was aware that she should not be meeting with M.B. off-campus

during non-school hours. Based on the totality of the

circumstances, an appropriate penalty would be a one-month

suspension followed by probation for one year.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Ms. Jardas did not violate Subsection 1012.795(1)(d),

Florida Statutes, and Florida Administrative Code

did violate Subsections 1012.795(1)(g) and 1012.795(1)(i),

Florida Statutes, and Florida Administrative Code

Rule 6B-1.006(3)(a); and suspending her educator’s certificate

for one month followed by probation for one year.

DONE AND ENTERED this 16th day of August, 2010, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 16th day of August, 2010.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 version.

COPIES FURNISHED :

Kathleen M. Richards, Executive Director

Education Practices Commission

Department of Education

Turlington Building, Suite 224

325 West Gaines Street

Tallahassee, Florida 32399-0400

Ron Weaver, Esquire

Post Office Box 5675

Douglasville, Georgia 30154-0012

Robert F. McKee, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Marian Lambeth, Bureau Chief

Bureau of Professional Practices Services

Department of Education

Turlington Building, Suite 224-E

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.