12-001601TTS Broward County School Board vs. Richard Allen Status: Closed Recommended Order on Wednesday, October 31, 2012.

Summary: School Board failed to meet its burden and demonstrate just cause to terminate Respondent from his teaching position.

Case No. 12-1601

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

RICHARD ALLEN, )

)

Respondent. )

)

)

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

June 27 and 28, 2012, at video teleconferencing sites in Fort

Lauderdale 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 (2010). 1 /

APPEARANCES

For Petitioner: Mark A. Emanuele, Esquire

Lydecker, Diaz, P.A., LLC

1221 Brickell Avenue, 3rd Floor

Miami, Florida 33131

For Respondent: Jeffrey Scott Sirmons, Esquire

Johnson & Sirmons, P.A.

510 Vonderburg Drive, Suite 309

Brandon, FL 33511

STATEMENT OF THE ISSUE

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

terminate Richard Allen's employment with the Broward County

School Board based upon the allegations made in its Amended

Administrative Complaint dated March 6, 2012.

PRELIMINARY STATEMENT

By letter dated June 28, 2011, Richard Allen ("Respondent"

or "Allen") was notified that Superintendent James F. Notter

would recommend to the Broward County School Board ("Petitioner"

or "School Board") termination of Respondent's employment.

Respondent timely elected to dispute the reasons for the

termination and requested a hearing. Because he requested a

formal proceeding, the matter was referred to the Division of

Administrative Hearings ("DOAH"). An Administrative Complaint

was filed on November 14, 2011, and a final hearing was

scheduled to start February 15, 2012. Petitioner voluntarily

dismissed the complaint before DOAH on February 13, 2012.

The School Board filed an Amended Administrative Complaint

with DOAH on May 3, 2012, in which it charged Allen with

violation of sections 1002.20, 1002.22, and 1012.33, Broward

County School Board policies 5100.1 and 5306, 20 U.S.C.A.

section 1232(g), and Florida Administrative Rules 6(B)-1.001,

B)-

4.009(1)(2)and (3). On May 16, 2012, the case was scheduled for

hearing on June 27 and 28, 2012. The matter proceeded as

scheduled.

At hearing, Petitioner presented the testimony of three

witnesses: Enid Valdez ("Valdez"), Principal; David Golt,

Executive Director of Professional Standards and of the Special

Investigative Unit; and Katherine Francis, Executive Director of

Student Support Services. Petitioner's Exhibits numbered 1

through 26 were admitted into evidence. Respondent testified on

his own behalf. Respondent's Exhibit 1 was admitted into

evidence.

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

August 24, 2012. The due date for the proposed recommended

orders was originally September 24, 2012. 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 Broward 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. Allen started his employment with Petitioner in 2002.

He was employed pursuant to a professional services contract.

3. During the 2010-2011 school year, Respondent was

assigned to Piper High School ("PHS") as an American government

teacher.

4. For the school year, Allen received all relevant

policies and procedures including the PHS Faculty Handbook,

Computer Acceptable Use Policy, Instructional Performance

Assessment System Policy, Code of Ethics, and Principles of

Professional Conduct. The handbook also covered ethics for

computer networking, online communication, and professional

standards as well as provided directions to obtain website

locations for the Code of Ethics, Principles of Professional

Conduct for the Education Profession in Florida, School Board

policy 5306, and rules regarding confidentiality of records.

5. During the prior 2009-2010 school year, Allen had been

investigated by Petitioner and the Florida Department of

Education ("DOE") for failing to follow district policy

regarding collection of student funds when Respondent collected

money from his students and obtained a personal magazine

subscription that he used in his classroom without going through

the bookkeeper ("magazine incident"). Written student

statements were obtained during the investigation. Ultimately,

Allen contested the proposed discipline, a five-day suspension,

for his actions in DOAH Case No. 10-9262, and the charges were

dismissed with an award of back salary.

6. By certified letter dated May 13, 2010, Petitioner

notified Respondent of Disciplinary Action and provided a

General Release Agreement. The letter also stated:

This is your notice pursuant to Florida

Statute 1012.31 that the material contained

in the investigative file is now a part of

your personnel file and is a public record

and it will become available for inspection

by the public ten (10) days from receipt of

this letter. Any request made by the public

for the documentation referred to above will

be provided in accordance with the laws of

the State of Florida.

7. The Disciplinary Action & General Release Agreement

attached to the letter also read in section 3:

This Agreement and the action taken herein

will become a part of the employee's

employment history with the Broward County

School Board. This document and the

investigative file on which it is predicated

will become public record within ten (10)

days from the execution of this Agreement,

in accordance with Florida law and

Administrative Code.

8. By letter dated August 10, 2010, Petitioner sent

Respondent a letter notifying him that a hearing would take

place regarding the magazine incident. The letter also stated:

This is your notice pursuant to Florida

Statute 1012.31 that the material contained

in your investigative file, is a public

record and it will become available for

inspection by the public ten days from

receipt of this letter. Any request made by

the public for the documentation referred to

above will be provided in accordance with

the laws of the State of Florida.

9. By letter sent certified mail dated August 16, 2010,

Petitioner notified Respondent that he was going to be suspended

without pay for the magazine incident. The letter also stated:

This is your notice pursuant to Florida

Statute 1012.31 that the material contained

in the investigative file is now a part of

your personnel file and is a public record

and it will become available for inspection

by the public ten (10) days from receipt of

this letter. Any request made by the public

for the documentation referred to above will

be provided in accordance with the laws of

the State of Florida.

10. In the middle of August 2010, Allen also received the

investigative file from DOE containing all the student

statements from the magazine incident. In the beginning of

September 2010, Allen opened the read only investigative file

and reviewed it.

11. In September 2010, Respondent also read two articles

in the paper claiming that he had stolen money from the students

for the magazine incident.

12. In order to defend his honor, on October 5, 2010,

Respondent disseminated an email through CAB, the school's

intranet e-mail system, to all of the school's approximately 232

staff members, including teachers, custodial personnel,

cafeteria personnel, technicians, and clerical staff, requesting

support as teacher for the year. The email stated:

Dear Piper Family:

We hope that you all will come out and

vote for me for Teacher of the Year in the

election to be held shortly.

Attached are two documents of some very

important information which outline my

Campaign Platform. These documents

summarize the kinds of things that need to

be changed here at Piper.

Cordially Submitted,

Richard S. Allen

13. Attached to the email was Respondent's platform and

six handwritten student statements. The student statements

spoke positively about Allen as a teacher and contained

students' names, their parents' names, students' home addresses,

students' phone numbers, students' dates of birth and students'

description of events, which occurred within Respondent's class

that had been the subject of School Board of Broward County and

DOE magazine incident investigations.

14. Allen obtained the students' statements he attached to

the email from the DOE investigatory file from the magazine

incident sent to Allen in September 2010. Allen believed the

documents were public since they had been released to him.

15. Both PHS instructional and non-instructional personnel

received the email and attachments. 2 / Approximately 103 members

of PHS faculty and staff opened the email including a custodian

and the cafeteria manager.

16. When Principal Valdez found out the email was on the

PHS email system, she contacted the special investigative unit

("SIU") to see how to proceed because she believed the six

student statements that had been distributed were confidential.

During the magazine incident investigation, Valdez had promised

the students and parents that their statements provided for the

investigation would remain confidential. SIU instructed Valdez

to file a Personnel Investigation Request regarding the email.

17. On or about October 11, 2010, Valdez requested an

investigation from the SIU and provided the information about

Allen's October 5, 2010, email to all the PHS staff with the

campaign platform and student statements attached.

Subsequently, District Investigator JoAnn Carter was assigned to

investigate the allegations against Respondent.

18. After Carter completed the investigation, she sent the

report to the Professional Standards Committee ("PSC"). PSC

reviewed the investigation and determined what policies,

procedures, and statutes Respondent's actions may have violated.

It was determined that Respondent's actions were egregious and

PSC recommended discipline to the superintendent.

19. Prior to the October 5, 2010 email, Respondent's only

prior discipline had been two written reprimands. One written

reprimand was for failure to properly prepare lesson plans and

the other one was for inappropriate conduct at a student-parent

conference.

20. By letter dated June 28, 2011, Allen was notified that

Superintendent James F. Notter would recommend to the School

Board that Respondent should be terminated from his employment

for the October 5, 2010, email he disseminated that the School

Board determined disclosed confidential student information.

CONCLUSIONS OF LAW

21. DOAH has jurisdiction over the subject matter of this

proceeding and the parties thereto pursuant to sections 120.569

and 120.57(1).

22. In this proceeding, the Collective Bargaining

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

employment.

23. Section 1021.33(6)(a), Florida Statutes, provides that

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.

24. The burden of proof in this proceeding is on the

School Board to prove by the preponderance of the evidence that

just cause exists to terminate the employment of Allen. McNeill

v Pinellas Cnty. Sch. Bd. 678 So. 2d 476, 477 (Fla. 2d DCA

1996)("The School Board bears the burden of proving by a

preponderance of the evidence, each element of the charged

offense which may warrant dismissal.") Allen v. School Board of

Dade County , 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. School

Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990).

Preponderance of the evidence that more likely than not tends to

prove the proposition set forth by the proponent. Gross v.

Lyons , 763 So. 2d 276 (Fla. 2000). 25. Petitioner contends in the Amended Administrative

Complaint that Respondent should be terminated for violating the

following School Board policies, procedures, regulations, and

statutes either collectively or individually: sections 1002.20,

1002.22, and 1012.33; Broward County School Board policies

5100.1 and 5306; 20 U.S.C.A. section 1232(g); and rules 6(B)-

1.0955, 6(B)-4.009(1),(2),(3).

26. This is a de

novo proceeding for the purpose of

formulating agency action, and not to determine whether the

School Board's decision was correct at the time that it made the

decision. The findings of fact "shall be based exclusively on

the evidence of record and on matters officially recognized."

§ 120.57(1)(j) and (k), Fla. Stat.

27. Section 1012.33 provides:

(1)(a) Each person employed as a member of

the instructional staff in any district

school system shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specified in subsection (4), shall

contain provisions for dismissal during the

term of the contract only for just cause.

Just cause includes, but is 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.

* * *

(4)(c) Any member of the district

administrative or supervisory staff and any

member of the instructional staff, including

any school principal, who is under

continuing contract may be suspended or

dismissed at any time during the school

year; however, the charges against him or

her must be based on immorality, misconduct

in office, incompetency, gross

insubordination, willful neglect of duty,

drunkenness, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude, as these

terms are defined by rule of the State Board

of Education. Whenever such charges are

made against an employee of the district

school board, the district school board may

suspend such person without pay; but, if the

charges are not sustained, he or she shall

be immediately reinstated, and his or her

back salary shall be paid. In cases of

suspension by the district school board or

by the district school superintendent, the

district school board shall determine upon

the evidence submitted whether the charges

have been sustained and, if the charges are

sustained, shall determine either to dismiss

the employee or fix the terms under which he

or she may be reinstated. If such charges

are sustained by a majority vote of the full

membership of the district school board and

the employee is discharged, his or her

contract of employment shall be canceled.

Any decision adverse to the employee may be

appealed by the employee pursuant to s.

120.68 , provided the appeal is filed within

30 days after the decision of the district

school board.

28. School Board of Broward County policy 5100.1 states in

pertinent part:

STUDENT RECORDS ARE OFFICIAL AND

CONFIDENTIAL DOCUMENTS PROTECTED BY FLORIDA

STATUTE 1002.22 AND THE FEDERAL FAMILY

EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA).

FERPA, ALSO KNOWN AS THE BUCKLEY AMENDMENT,

DEFINES EDUCATIONAL RECORDS AS ALL RECORDS

THAT SCHOOLS OR EDUCATION AGENCIES MAINTAIN

ABOUT STUDENTS.

29. The definition of "educational records" and personally

identifiable information" are in policy 5100.1I, which provides

in pertinent part:

A. Educational Records are records

maintained by a school district or by an

individual acting for the school district

that contain information directly related to

a student. Educational records include

school health records, a student's social

security number; academic work completed;

level of achievement records including

grades and standardized achievement test

scores; interim reports; transcripts;

academic improvement plans; intervention

records; attendance data; evaluation reports

that include standardized intelligence,

aptitude and psychological test scores;

interest inventory results; psychological

files; ESE files; disciplinary records,

including suspension and expulsion records;

family background information;

parent/teacher conference reports; special

program eligibility; teacher or counselor

ratings and observations; verified reports

of serious or recurrent behavior patterns;

and any other evidence, knowledge, or

counselor information recorded in any

medium, including media, video or audio

tape, microfilm and microfiche.

* * *

D. Personally identifiable information

includes, but is not limited to, a student's

name, parents' names, street address or

email address of the student or student's

family, personal identifier such as a social

security number or student number,

photographs, and a list of personal

characteristics or other information that

would make the student's identity easily

traceable.

30. Rule 6A-1.0955 also defines "educational records" and

states in pertinent part:

(1) Purposes. This rule applies to

education records maintained to facilitate

the instruction, guidance, and educational

progress of pupils and adult students in

programs operated under the authority and

direction of a district school board or

other agency or institution as defined in

Section 1002.22(1), F.S. This rule is

intended to further the intent of Section

1002.22(2), F.S., that the rights of

students and their parents with respect to

education records created, maintained, or

used by public educational institutions and

agencies shall be protected in accordance

with the Family Educational Rights and

Privacy Act (FERPA), 20 U.S.C. s. 1232g, the

implementing regulations issued pursuant

thereto, and Sections 1002.22 and 1002.221,

F.S. For the purpose of this rule, the term

"education records" refers to those records

that are included in the definition of

"education records" found in 34 CFR § 99.3.

31. Policy 5306 6(b)1 governs use of the School Board's

electronic intranet system and provides in pertinent part:

a. Use of computer network and online

telecommunications is a privilege and must

support teaching, learning, and research.

* * *

f. Any use of telecommunication services or

networks for illegal, inappropriate,

obscene, or pornographic purposes shall be

prohibited, illegal activities shall be

defined as a violation of local state,

and/or federal laws. Inappropriate use

shall be defined as a violation of the

intended use of the district's mission,

goals, policies or procedures. Obscenity

and/or pornography shall be defined as a

violation of generally accepted social

standards for use of a publicly owned and

operated communication vehicle, and as

defined by School Board policy.

g. All use of telecommunication services or

networks for the promotion of an

individual's personal or political agenda or

commercial initiatives shall be prohibited.

32. The Faculty Handbook under Confidentiality of Records

states in pertinent part:

Teachers must maintain confidentiality of

student or any records. At no time should a

student, parent, or guardian see the grades

of other students. Teachers are not to post

or orally repeat to the class any grade(s)

earned by students. Only the grades and

attendance records of the specific student

with whom a conference is being conducted

may be displayed for viewing.

33. Student confidentiality and privacy rights are

delineated section 1002.22, which reads in pertinent part:

(2) RIGHTS OF STUDENTS AND PARENTS.—The

rights of students and their parents with

respect to education records created,

maintained, or used by public educational

institutions and agencies shall be protected

in accordance with the Family Educational

Rights and Privacy Act (FERPA), 20 U.S.C.

s. 1232g, the implementing regulations

issued pursuant thereto, and this section.

In order to maintain the eligibility of

public educational institutions and agencies

to receive federal funds and participate in

federal programs, the State Board of

Education shall comply with the FERPA after

the board has evaluated and determined that

the FERPA is consistent with the following

principles:

(a) Students and their parents shall have

the right to access their education records,

including the right to inspect and review

those records.

(b) Students and their parents shall have

the right to waive their access to their

education records in certain circumstances.

(c) Students and their parents shall have

the right to challenge the content of

education records in order to ensure that

the records are not inaccurate, misleading,

or otherwise a violation of privacy or other

rights.

(d) Students and their parents shall have

the right of privacy with respect to such

records and reports.

(e) Students and their parents shall receive

notice of their rights with respect to

education.

34. The Family Education and Privacy Rights Act ("FERPA"),

20 U.S.C.A. section 1232g states in pertinent part:

(4) (A) For the purposes of this section,

the term "education records" means, except

as may be provided otherwise in subparagraph

(B), those records, files, documents, and

other materials which--

(i) contain information directly

related to a student; and

(ii) are maintained by an

educational agency or institution or by a

person acting for such agency or

institution.

(B) The term "education records" does

not include--

(i) records of instructional,

supervisory, and administrative personnel

and educational personnel ancillary thereto

which are in the sole possession of the

maker thereof and which are not accessible

or revealed to any other person except a

substitute;

(ii) records maintained by a law

enforcement unit of the educational agency

or institution that were created by that law

enforcement unit for the purpose of law

enforcement;

(iii) in the case of persons who

are employed by an educational agency or

institution but who are not in attendance at

such agency or institution, records made and

maintained in the normal course of business

which relate exclusively to such person in

that person's capacity as an employee and

are not available for use for any other

purpose; or

(iv) records on a student who is

eighteen years of age or older, or is

attending an institution of postsecondary

education, which are made or maintained by a

physician, psychiatrist, psychologist, or

other recognized professional or

paraprofessional acting in his professional

or paraprofessional capacity, or assisting

in that capacity, and which are made,

maintained, or used only in connection with

the provision of treatment to the student,

and are not available to anyone other than

persons providing such treatment, except

that such records can be personally reviewed

by a physician or other appropriate

professional of the student's choice.

(5) (A) For the purposes of this section

the term "directory information" relating to

a student includes the following: the

student's name, address, telephone listing,

date and place of birth, major field of

study, participation in officially

recognized activities and sports, weight and

height of members of athletic teams, dates

of attendance, degrees and awards received,

and the most recent previous educational

agency or institution attended by the

student.

(B) Any educational agency or

institution making public directory

information shall give public notice of the

categories of information which it has

designated as such information with respect

to each student attending the institution or

agency and shall allow a reasonable period

of time after such notice has been given for

a parent to inform the institution or agency

that any or all of the information

designated should not be released without

the parent's prior consent.

35. The Code of Ethics Principles of Professional Conduct

for the Education Profession, SBR-6B-1/1006 provides that the

"obligation to the student requires that the individual . . .

shall not intentionally violate or deny a student's legal

rights."

36. 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.

37. Florida Administrative Code Rule 6B-1.006 contains the

Principles of Professional Conduct for the Education Profession

in Florida and provides in pertinent part:

* * *

(3) Obligation to the student requires that

the individual:

* * *

(f) Shall not intentionally violate or deny

a student's legal rights.

* * *

(h) Shall not exploit a relationship with a

student for personal gain or advantage

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves professional purposes or

is required by law.

(4) Obligation to the public requires that

the individual:

* * *

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

(c) Shall not use institutional privileges

for personal gain or advantage

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

38. School Board Policy 5306 Web Page Procedural

Guidelines provides "web page documents may not include a

student's phone number, address, or complete names of any family

members and/or friends. Web pages may not include any

information, which indicate the physical location of a student

at a given time, other than attendance at a particular school or

participation in activities."

39. Code of Ethics for Computer Network and Online

Telecommunications Users section 6(b) states in pertinent part:

1. All users are expected to read and

understand the following privileges, rights,

and responsibilities when using property or

facilities (WAN, LAN, networks, Internet,

Intranet, etc.)

* * *

f. Any use of telecommunication services or

networks for illegal, inappropriate,

obscene, or pornographic purposes shall be

prohibited, illegal activities shall be

defined as a violation of local state,

and/or federal laws. Inappropriate use

shall be defined as a violation of the

intended use of district's mission, goals,

policies or procedures. Obscenity and/or

pornography shall be defined as a violation

of generally accepted social standards for

use of a publicly owned and operated

communication vehicle, and as defined by

School Board policy.

g. All use of telecommunication services or

networks for the promotion of the

individual's personal or political agenda or

commercial initiatives shall be prohibited.

h. Use of or engaging in offensive or

inflammatory speech, profanity, or obscene

language is not permitted at any time.

i. Hate mail, harassment, discriminatory

remarks, and other antisocial behaviors

shall be prohibited.

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

had "just cause" to terminate Respondent because he sent an

email that had six handwritten student statements attached,

which violated the students' rights with respect to privacy and

confidentiality in Florida and federal statutes, and such

actions also constitute a violation of the Principles of

Professional Conduct. Additionally, Petitioner alleges that

Respondent used the school's technology information system for

personal gain.

41. It is undisputed that Respondent sent the email with

the six student statements attached through the PHS email system

to both PHS instructional and non-instructional staff. However,

the record lacks sufficient credible evidence to demonstrate

Allen disseminated confidential information or violated any

student's rights with respect to privacy.

42. The student statements sent in this matter by email

are not educational records just because they contained

"personally identifiable" information as defined in 5100.1ID and

"directory information" as defined in 20 U.S.C.A. section 1232g.

Petitioner's assertion that such information is an educational

record and confidential according to policy 5100.1IA, 20

U.S.C.A. 1232g, and rule 6A-1.0955 is not persuasive.

43. In Rhea v. District Board of Trustees of Santa Fe

College , 37 Fla. L. Weekly D 1722 (Fla. 1st DCA 2012), the

court held that if the fundamental character of the email

relates to the teacher and is only tangentially related to a

student then the email is a teacher record, which can be

disclosed, not an educational student record under FERPA. "The

fact that [the email] was authored by a student did not convert

it into an 'education record.'" Applying Rhea to the case at

hand, the email subject matter was a request to support Allen's

nomination for teacher of the year and the attached platform and

student statements were to bolster his candidacy as letters of

support. The statements were only incidentally related to the

student authors who wrote them and therefore are not educational

records. Accordingly, Respondent did not violate policy

5100.1IA, 20 U.S.C.A. 1232g, and rule 6A-1.0955.

44. The undersigned is also not persuaded by Petitioner's

other claim that the student statements were confidential

because DOE informed Allen that they were confidential. The

record lacks sufficient credible evidence to demonstrate DOE

sent the investigative file to Allen prohibiting him from

distributing it as alleged by Petitioner.

45. Petitioner also contends that Allen violated the

policy "Teachers must maintain confidentiality of student or any

records" contained in the Confidentiality of Records policy of

the Faculty Handbook. Petitioner alleges the violation in its

Proposed Recommended Order on page 12 as a charge in and of

itself. The undersigned is not persuaded Allen violated the

section because when the policy is read completely in context,

the paragraph provides for specific prohibitions for teachers

posting grades or attendance records of students, which

Respondent did not do. Accordingly, it is not applicable in this

matter.

46. It should also be noted that at hearing, Petitioner

did not present a scintilla of evidence that even one child was

upset, harassed, or humiliated by the email distribution, nor

was a relationship proven between Respondent and any of the

students. Further, the record lacks evidence that the email was

disseminated to the public or media. Moreover, Valdez testified

that she did not contact the children or parents after the email

was disseminated. Additionally, the record is void of evidence

to demonstrate that any individual complained about the student

statements being sent out, or that any parents had problems with

the disseminated email. Further, no findings were made that any

federal funds were lost for Allen, PHS, or Broward County for

allegedly violating FERPA relating to the email incident.

Therefore, Petitioner has failed to present sufficient credible

evidence to sustain the following charges against Respondent:

that he violated or denied a student's legal rights pursuant to

rule 6B-1.006(3)(f); that he exploited a relationship pursuant

to rule 6B-1.006(3)(h); that he received the DOE investigative

file in the course of his professional service of teaching

pursuant to rule 6B-1.006(3)(i); and that he intentionally

distorted or misrepresented facts concerning an educational

matter pursuant to rule 6B-1.006(4)(b). Finally, Petitioner

failed to show Respondent to be dishonest regarding the email

and therefore Respondent did not violate 6B-1.006(5)(a).

47. Petitioner also contends that Respondent violated

policy 5306. The record is clear that this matter stems from an

email Respondent sent on October 5, 2010, not a web page.

Accordingly, Allen did not violate policy 5306 because it only

pertains to web page documents, which is not the issue at hand.

48. Petitioner has met its burden and demonstrated that

Respondent did use his PHS institutional privileges of having

access to the PHS email system to campaign, which is not the

intended use of the system. The intended use of the system is

for educational purposes, learning, or research. The record

demonstrates Allen's campaign email was not a legitimate

educational purpose and that the email even went to cafeteria

workers and custodians. Therefore, Respondent's intended use

was inappropriate and for a personal gain in violation of rule

6B-1.006(4)(c) and the School and District Technology Usage

policy 5306 sections 6(b)1(f) and (g). However, Petitioner's

evidentiary presentation fell short in demonstrating Allen's

actions violate policy 5306 sections 6(b)1(h) and (i).

49. To establish the existence of "just cause" for

termination as alleged in the Amended Administrative Complaint,

the School Board must prove not only that Respondent violated

school policy, but by doing so, he engaged in "misconduct in

office" and/or "immorality" as those terms are used in section

1012.33(1)(a) and defined in rule 6B-4.009. 3 /

50. The State Board of Education has defined the term

"immorality" by rule [6B-4.009(2)], which provides in pertinent

part:

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual's

service in the community.

51. The State Board of Education has defined the term

"Misconduct in office," rule [6B-4.009(3)], provides in

pertinent part:

(3) 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. In this matter, the School Board has failed to make

the required showings. Petitioner did not prove Respondent's

conduct was ever brought to the public or community's knowledge

so there was neither any notoriety nor public disgrace brought

to the teaching profession that could impair Respondent's

service to the community. Further, Allen's actions fail to be

"so serious as to impair his effectiveness in the school

system." No finding, therefore, can be made that Allen's

violation of school policy committed by Respondent amounted

either to "misconduct in office" or "immorality." Hence, no

grounds have been established for Respondent to be disciplined

as a suspension or dismissal pursuant to rule [6B-4.009], under

the Criteria for Suspension and Dismissal.

53. Therefore, the question remaining for the undersigned

is the discipline Respondent should receive for his violating

rule 6B-1.006(4)(c) and the School and District Technology Usage

policy 5306 section 6(b)1(f),(g). The CBA outlines the system

for discipline. The CBA provides that teachers should receive

progressive discipline.

54. Article Eighteen Section B1 of the CBA provides:

a. Progressive Discipline: Any discipline

of an employee shall be for just cause. The

parties agree that the concept of just cause

embodies the principles of progressive

discipline appropriate under the

circumstances. Disciplinary procedures may

include but are not limited to:

verbal/written reprimand, suspension,

demotion and termination. The decision of

the district not to renew an annual contract

employee shall not be subject to this

section. In addition the parties agree that

the principles of progressive discipline do

not apply to employees who are placed in the

90-day process described in Florida Statutes

1012.34.

55. In view of the foregoing, the School Board has only

sustained three violations, rule 6B-1.006(4)(c), and policy 5306

sections 6(b)1(f) and (g), of the 18 violations it charged

against Respondent. Petitioner concedes that prior to the

October 5, 2010, incident, Respondent had not been reprimanded

for any email related activities or any actions related to

student records. Further, all three violations Petitioner

proved against Respondent fail to relate to either of

Respondent's previous two written reprimands alleging policy

violations. Since Petitioner failed to prove the essential

allegations of "misconduct in office" or "immorality" by the

preponderance of the evidence, Respondent's violations fall

outside of the parameters for either termination or suspension

and the only proper discipline for Allen is a written reprimand.

Consequently, all other charges should be dismissed and

Respondent should be reinstated with back pay.

RECOMMENDATION

Upon consideration of the Findings of Fact and the

Conclusions of Law reached, it is

RECOMMENDED that Petitioner enter a final order that:

1. Sustains Respondent's charges of violating rule 6B-

1.006(4)(c) and the School and District Technology Usage policy

5306 sections 6(b)1(f)and(g);

2. Provides Respondent a written reprimand for the three

violations;

3. Dismiss Respondent's charges sections 1002.20, 1002.22,

and 1012.33, Broward County School Board policy 5100.1, 20

U.S.C.A. section 1232(g), and rules 6(B)-1.001, 6(B)-

1.006(3)(f),(h),(i), 4(b), 5(a), and 6(A)-1.0955, 6(B)-

4.009(1)(2) and (3);

4. Immediately reinstates Respondent Richard Allen; and

5. Issues Respondent back salary.

DONE AND ENTERED this 31st day of October, 2012, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day October, 2012.

ENDNOTES

1/ Unless specifically stated otherwise herein, all references

to the Florida Statutes are to the 2010 codification.

2/ Petitioner's Exhibit 8.

3/ Effective April 5, 1983, Florida Administrative Code Rule

6B-4.009 was transferred to Florida Administrative Code Rule

6A-5.056. The Administrative Complaint correctly references the

substance of the rule and corresponding numbered paragraphs, but

incorrectly references the chapter number for the rule.

Consequently, rule 6A-5.056 will be substituted herein and

designated by the utilization of brackets ([]).

COPIES FURNISHED

Mark A. Emanuele, Esquire

Lydecker Diaz P.A., LLC

3rd Floor

1221 Brickell Avenue

Miami, Florida 33131

Jeffrey S. Sirmons, Esquire

Johnson and Sirmons, P.A.

Suite 309

510 Vonderburg Drive

Brandon, Florida 33511

Pam Stewart, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Robert Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

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.