15-007009TTS Palm Beach County School Board vs. Lontay Finney Status: Closed Recommended Order on Wednesday, January 4, 2017.

Summary: School Board proved by clear and convincing evidence that it had just cause to terminate Respondent's employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 7009TTS

LONTAY FINNEY,

Respondent.

_______________________________/

RECOMMENDED ORDER

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

October 14, 2016, by video teleconferencing sites in Tallahassee

and West Palm Beach, Florida , before Administrative Law Judge

June C. McKinney of the Division of Administrative Hearings.

APPEARA NCES

For Petitioner: Jean Marie Middleton, Esquire

School Board of Palm Beach County

Office of General Counsel

3300 Forest Hill Boulevard, Suite C - 323

Post Office Box 19239

West Palm Beach, F lorida 33416 - 9239

For Responde nt: Nicholas A nthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive, Suite 309

Brandon, F lorida 33511

STATEMENT OF THE ISSUE

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

terminate Lontay Finney ' s employment with Palm Beach County

School Board based upon the allegations made in its Petition .

PRELIMINARY STATEMENT

By letter dated November 19, 2015, Lontay Finney

( " Respondent " or " Finney " ) was notified that Palm Beach County

School Board ( " Petitioner " or " School Board " ) took action to

suspend Respondent without pay and initiate termination

proceedings . The superintendent ' s November 19 letter allege s

that Respo ndent engaged in an incident of " inappropriate

relationship with a student, ethical misconduct, failure to

exercise best professional judgment , and failure to follow

policy, rule, directive, or statute . " On the basis of that

c onduct , Petitioner alleged that Respondent violated School

Board Policies 0.01, 1.013, 3.02 , Code of Ethics, and Florida

Administrative Code Rules 6A - 5.056 , 6A - 10.080, and 6A - 10.081.

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 " ). A final hearing was originally

scheduled for April 7, 2016. After several continuances for good

cause the matter proceeded as rescheduled on October 14, 2016.

At hearing, the School Board presented the testimony of five

witnesses: Renee Johnson Atkins, mother of former student

Reniqua Morgan; Lontay Finney; Dianna Weinbaum, d irector o f

O ffice of Professional Standards; Reniqua Morgan, by video

deposition; and Bethanie Woodson , by deposition. Petitioner ' s

Exhibits 2, 3, 6 through 9, 12 through 16, and 26 through 28 were

admitted into evidence. Respond ent testified on his own behalf.

Respondent ' s Exhibit 1 was admitted into evidence.

The undersigned took official recognition of p olicies 0.01,

1.013, 3.02 and rules 6A - 5.056, 6A - 10.080, and 6A - 10.081.

The pr oceedings were recorded and trans cribed . T he parties

availed themselves of the right to submit proposed recommended

orders after the filing of the t ranscript. The one - volume

Transcript of the final hearing was filed with DOAH on

November 3, 2016. Both parties filed timely proposed recommended

o rders, which have been considered in the preparation of this

Recommended Order.

Unless specifically stated otherwise herein, all references

to Flori da Statutes and rules shall be to the 2015 codification.

FINDINGS OF FACT

1. Petitioner is a duly - constituted school board charged

with the duty to operate, control, and supervise al l free public

schools within Palm Beach County , Florida. Article IX, Fla.

Const. ; § 1001.32, Fla. Stat. Petitioner has the authority to

discipline employees. § 1012.22(1)(f), Fla. Stat.

2. Finney started his employment with the School Board on

December 19, 2005. He was employed pursuant to an annual

contract.

3. Finney taught at Gl ades Central High School ( " Glades

Central " ) from 2010 through 2015. He was last employed as both a

s cience teacher and assistant athletic d irector . Finney ' s annual

evaluations were acceptable and effective during each year of his

employment at Glades Central.

4. As a teacher, Finney was expected to comply with the

Code of Ethics. On June 1, 2010, h e signed an acknowledgment

that he received training , read, and would abide by School Board

Policy 3.02, Code of Ethics.

5. Reniqua Morgan ( " Morgan " ) was a female student at G lades

Central from 2011 to 2015. She was a cheerleader athlete but

never had Finney as a teacher .

6. Finney knew of Morgan as one of the daughters of his

teacher colleague, Renee Johnson Atkins ( " Atkins " ) and from

seeing Morgan around school . Morgan and Finney also knew who

each other were because they had a niece in common and lived in

the small town of Belle Glade . However, Finney and Morgan did

not associate with one another directly before March 2015.

7. On or about March 22, 2015, Finney initiated contact ,

reach ing out to Morgan by poking her on Facebook. Morgan poked

him back and then Finney followed up by inbox ing her next.

Morgan was surprised that Finney was conversing with her.

8. They continued to chat for several week s not on a n open

feed of Facebook but messaging each other ' s inbox privately .

9. Between 10 :30 and 11:00 p.m. on Sunday, April 1 2 , 2015,

Finney initiated a conversation with Morgan and they chatt ed on

Facebook . Finney suggested that the two of them get together and

asked Morgan , do you want to " chill? " Morgan agreed and said " I

don ' t mind. " They then decided to meet up.

10. Finney did not offer to pick Morgan up at her house.

Finney instructed her to meet him at the stop sign, around the

corner and down the street from where she lived . 1 /

11. Morgan , unbeknownst to her mother , met Finney by the

stop sign .

12. A t the stop sign, Morgan got in Finney ' s mother ' s truck

with Finney . When Finney first made contact with Morgan that

night, he gave her a hug. H e then drove her to his home.

13. At all times relevant to these proceedings, Morgan was

a 17 - year - old minor.

14. Finney did not have permission from Morgan ' s parents to

either pick her up or take her to his house. His inappropriate

actions were outside of school and not in connection with any

school - related activity in any way.

15. At approximately 12:24 a.m. on Monday, April 1 3 , 2015,

Morgan ' s mother , Atkins , was at her residence and went to use the

restroom and s he then discovered that Morgan was not at home.

Morgan had left home without her permission.

16. Atkins was worried about Morgan being out that early in

the morning because it was " unsafe because [of] the neighborhood

that [she] live [d] in, there [were] some people in that

neighborhood that [were] unsafe. " 2 /

17. While at Finney ' s house, Finney and Morgan remained in

the parked truck alongside of the house alone together for

approximately an hour and a half to two hours and spent some of

the time talking and scrolling through Netflix on Finney ' s phone.

18. Neither Morgan nor Finney can recall the name of any of

the movies they watched on Netflix.

19. Morgan ' s mother was looking for Morgan and fo und out

from Bethanie Woodso n ( " Woodson " ) , Morgan ' s friend , that her

daughter was with Finney. Atkins took Woodson with her and drove

to Finney ' s house looking for Morgan .

20. While in the truck with Finney, Morgan ' s friend

contacted her and let her know that her mother was looking for

her. Morgan told Finney she needed to go home.

21. Atkins also learned while at Finney ' s house that Morgan

was on the way home , so she got back in her vehicle and returned

home .

22. Morgan told Finney to drop her off near the railroad

track , which is not the same place he picked her up. He then

dropped her off where she suggested near Avenue A , a neighborhood

on the opposite side of the railroad tracks from where Morgan

lived, and several blocks away from her home .

23. After Finney dropped Morgan off in the early school day

morning wh ile it was dark outside , Morgan had to walk down the

street, come through the neighborhood and then walk across the

bushy railroad tracks to get to her residence . The foot path

Morgan took was also unlit , g rassy , and rocky near the train

track s . No streetlights were near the track s . 3 /

24. When Morgan got home, her mother, sister , and Woodson

were waiting for her .

25. Morgan ' s mother was irate that Morgan had been with

Finney and drove Morgan back to Finney ' s home to address his

actions with her daughter. Finney lived with his parents. When

Atkins knocked on the door, Finney ' s father came to the door and

Atkins requested to see Finney.

26. A t kins confronted him angrily and berated hi m for being

a teacher , picking up Morgan , and taking her to his house at that

hour of the night . Atkins also informed Finney ' s mother what

occurred while she was at their house.

27. Morgan and Finney have had no contact since the

incident.

28. Morgan ' s mother repo rted the incident to Glades

Central . As a result, t h e p rincipal assigned Finney to his

residence by letter , with pay , starting April 13, 2015, pending

the investigation or notification of a change in assignment in

writing.

29. On April 15, 2015, Finney was assigned to temporary

duty at Transportation Services pending investigation.

30. An investigation by the school police found no

violation of a crimin al law by Finney , and the case was referred

to Petitioner ' s Office of Professional Standards , which is

charged with conducting investigations into alleged violations of

School Board policy.

31. On or about May 11, 2015, t he Off ice of Professional

Standards opened an administrative investigation. Dianna

Weinbaum ( " Weinbaum " ) , now d irector of Office of Professional

Standards and former human resources manager , was assigned to

investigate the matter.

32. Around the time the investigation was being conducted,

Finney deactivated his Facebook page due to the mostly negative

comments and statu s es , as well as rumors surrounding the incident

of him picking up Morgan and taking her to his house.

33. Finney was able to finish the school year working back

at Glades Central between investigations .

34. Weinbaum performed a thorough and complete

investigation regarding the allegations against Respondent. She

interviewed all the witnesses and obtained sta tements , as well as

visited the locations where F inney picked up and dropped off

Morgan.

35. On August 4, 2015, consistent with District policy,

Respondent was removed from the classroom and reassigned from his

teaching position back to a temporary duty l ocation again .

36. On October 8, 2015, a pre - determination meeting was

held with the d irector of the Office of Professional Standard s

and Finney , who was represented by counsel regarding the

interactions between Finney and Morgan . Finney was provided a

copy of the investigative file .

37. At the end of the investigation, it was determined that

Finney ' s actions were both an inappropriate relationship with

Morgan and posed a clear threat to Morgan ' s health, safety and

welfare. Weinbaum recommended discipline for Finney consistent

with discipline received by other employees based on the

superintendent and S chool B oard ' s position that employees who

engage in inappropriate relationships with students and who

endanger the health, we lfare and safety of a child will be

terminated.

38. On November 19, 2015, Pet itioner notified Finney of the

s uperintendent ' s recommendation for termination of his employment

at the School Board Meeting set for December 9, 2015. The School

Board accepted the s uperintendent ' s recommendation and voted to

suspend Finney for 15 days and thereafter terminate his

employment.

39. Finney timely requ ested a hearing to contest the

s uperintendent ' s recommendation.

40. Finney ' s disciplinary history does not includ e any

discipline for action s similar to these for which suspension and

termination are recommended.

41. Petitioner charged Finney by Petition with soliciting

an inappropriate relationship with a student that jeopardized her

health, safety and welfare . The Petition charged Finney with the

following violations :

(A) School Board Policies 0.01(2)(c),(2)(f)

Commitment to the Student Principle 1;

3.02(4)(a)(b)(d) (e) ,(g); 3.02

5(a),(a)(iii),(a)(v),(a)(vii); Code of

Ethics; 1.013(1) and (4), Responsibilities of

School district Personnel and Staff; School

Board Policies 1. 013 and 3.27, Criteria for

Suspension and Dismissal , and Code of Ethics

of the Educatio n Profession in Florida;

(B) the Collective Bargaining Agreement

Article II, Section M ; and (C) Rule 6A - 5.056

(2)(a),(b) and (4) F.A.C., Criteria for

Suspension and Dismissal; 6A - 10.081 (3)(a)

and (3)(e) , F.A.C.; 6A - 10.080(1),(2) and (3)

F.A.C. Code of Ethics for the Educat ion

Profession of Florida; and 6 A - 10.081(3)(a)

and (3)(h) F.A.C. Principles of Profess ional

Conduct for the Education Profession.

42. During the final hearing in this matter , Finney

testified that his decision to drive Morgan to his house " was a

lapse in judgment and it was just a bad decision that I made. "

43. At hearing, t he testimony and exhibits establish ed that

Finney initiated contact with Morgan and s olicit ed an

inappropriate relationship with a student that jeopardized her

health, safety and welfare .

CONCLUSIONS OF LAW

44. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties thereto pursuant to sections

120.569 and 120.57(1), Florida Statutes (2016 ).

45. The School Board is seeking to terminate Respondent

from employment. Normally, the burden of proof in an employment

case such as this one would be a preponderance of the evidence

standard. Allen v. Sch. Bd. of Dade Cnty ., 571 So. 2d 568, 569

(Fla. 3d DCA 1990); § 120.57(1)(j), Fla. Stat. However, the

Collective Bargainin g Agreement ( " CBA " ) , Article II, section M,

requires Petitioner to prove its case by clear and convincing

evidence.

46. The Supreme Court of Florida has ruled that :

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts at issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

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

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

47. In the Petition filed in this proceeding, the School

Board charges that Finney violated a variety of School Board

policies , as well as administrative rules . It alleges generally

that Respondent ' s inappropriate actions with Morgan establish

" just cause " for his termination.

School Boar d Policy 0.01 (2)

48. The undersigned will begin with Petitioner ' s charge

that Respondent failed to have concern for the health, safety,

and wellbeing of Morgan, which is defined as:

Policy 0.01(2) [ 4 / ] Commitment to the Student,

Principle I

* * *

3) Shall make reasonable effort to protect

the student from conditions harmful to

learning or to health and safety.

* * *

6) Shall not use professional relationships

with students for private advantage .

49. In Respondent's Proposed Recommended Order , Respondent

asserts that Finney and Morgan had a " friendship that went

outside their relationship as teacher and student at the same

school . . . . and of itself, is neither wrong nor unethical . "

The undersigned is not persuaded by such argument and rejects the

Respondent ' s proposition.

50. The School Board demonstrated by clear and convincing

credible evidence that Finney solicited an inappropriate

relationship with a minor and failed to make any reasonable

effort to protect Morgan ' s safety. Finney placed Morgan in an

unsafe situation by initiating a meeting with her , instructing

her to meet him down the street from her home, picking her up

late at night , and dropping her off alone in the wee hours of the

morning to walk home alone in the dark , on a school day , across a

railroad track , and through a path. Morgan ' s welfare and safety

w ere in jeopardy. And Finney made no effort to ensure that she

was safe . Protection of children is one of the fundamental

duties of a teacher and F inney put Morgan in harm ' s way by

leaving her alone. Finney ' s actions and inactions of putting

Morgan in an unsafe environment was in violation of

p olicy 0.01(2)3.

51. Petitioner has failed to sustain the charge again st

Respondent for violation of p olicy 0.01(2)6.

School Board Policy 1.013

52. The School Board also charged Finney with violating

p olicy 1.013(1) , entitled " Responsibilities of School District

Personnel and Staff, " which provides in relevant part:

1. It shall be the responsibility of the

personnel employed by the district School

Board to carry out their assigned duties in

accordance to federal laws, rules, state

statutes, state board of education rules,

school boar d policy, superintendent ' s

administrative directives and local school

and area rules.

4. Teachers.

It shall be the duty of the teacher to

provide instruction, leadership, classroom

management and guidance to pupils through

democratic experience §231.09, F.S. Teachers

shall perform duties prescribed by school

Board policies relating, but not limited, to

helping students master challenging standards

and meet all state and local requirements for

achievement; teaching efficiently and

faithfully; using prescribed materials and

methods, including technology - based

instruction; recordkeeping; and fulfilling

the terms of any contract, unless released

from the contract by the school board.

53. By Finney violating p olicy 0.01(2) 3. , above, Petitioner

also dem onstrates by clear and convincing evidence that Finney

violated policy 1.013 (1) .

54. Petitioner f ailed to prove Finney violated p olicy

1.013(4) .

School Board Policy 3.02

55 . Petitioner also alleges Finney violated p olicies

3.02(4)(a), (b), (d) , (e), and (g) ; and 3.02 (5)(a) , (a) (iii) ,

(a) (v), (a) (vii) , and (a) (viii) , entitled " Code of Ethics, " which

reads:

(4) Accountability and Compliance

Each employee agrees and pledges:

(a) To provide the best example possible;

striving to demonstrate excellence, integrity

and responsibility in the workplace.

(b) To obey local, state and national laws,

codes and regulations.

* * *

(d) To treat all students and individuals

with respect and to strive to be fair in all

matters.

(e) To create an environment of trust,

response and non - discrimination, by not

permitting discriminatory, demeaning or

harassing behavior of students or colle a gues.

* * *

(g) To avoid conflicts of interest or any

appearance of impropriety

( 5 ) Ethical Standards .

a. Abuse of Students Î We are committed to

ensuring that employee - student relationships

are positive, professional and non -

exploitative. We will not tolerate imp roper

employee - student relationships . Each

employee should always maintain a

professional relationship with students, both

in and outside of the classroom. Unethical

conduct includes but is not limited to:

* * *

(iii) Using one ' s professional relationship

or authority with students for one ' s personal

advantage

* * *

(v) Engaging in any sexually related

behavior with a student with or without

consent of the student. Sexually related

behavior shall include, but not be limited

to, such behaviors as sexual jokes; Sexual

remarks; sexual kidding or teasing; sexual

innuendo; pressure for dates or sexual

favors; Inappropriate physical touching,

kissing, or grabbing; rate; t hreats of

physical harm; sexual assault and any sexual

act as provided for in Section 1012.315,

Florida Statutes.

* * *

(vii) Engaging in misconduct which affects

the health, safety and welfare of a

student(s)

(viii) Soliciting, encouraging, participating

or consummating an inappropriate written,

verbal, or physical relationships with a

student.

56 . Contrary to Petitioner ' s assertion, it has failed to

demonstrate any violation of p olicies 3.02(4)(a) , (d), (e) , and

(g) ; and 5 (a)(iii), (a) (v), and (a) (viii) because Finney ' s

actions did not occur in the workplace ; no evidence show ed Finney

was disrespectful or unfair; the record lacks any credible

evidence that Finney discriminated, demeaned or harassed a

student ; no evidence was presented that Finney ' s actions created

a conflict of interest ; no credible evidence supports any sexual -

related behavior; and no evidence of a physical relationship was

proven .

57 . However, Petitioner did prove by clear and convincing

evidence that Finney ' s violat ion of p olicy 0.01 (2)3. , in

paragraph 50 , is a violation of p olicy 3.02 (4)(b ). Additionally,

the evidence, taken as a whole, demonstrates that Finney engaged

in inappropriate conduct. Finney ' s misconduct started with his

initial contact of poking a minor female student on Facebook , and

continued with approximately three weeks of private conversations

before inviting her to meet him at night . His inappropriate

conduct continued and escalated when Finney instructed Morgan to

go to the stop sign to meet , and he pick ed her up away from her

house at the stop sign without her parents ' permission . Finney ' s

actions continued to be inappropriate when he hugged Morgan when

she got in his truck , s at alone in his mother ' s truck at his

residence driveway with Morgan for over an hour , and ultimately

dropp ed her off around two in the morning where she ha d to cross

a railroad track and go down an unlit path in an unsafe

environment. Finney ' s misconduct and wrongdoing affected

Morgan ' s level of safety and put her welfare in jeopardy in

violation o f p olicy 3.02 (5) (a) (vii) .

School Board Policy 3.27

58 . Petitioner also cited as a basis for discipline and

termination i t s p olicy 3.27, entitled " Suspension and Dismissal

of Employees. " This policy does not provide substantive

violations, but describes the procedure by which disciplinary

matters are handled. This case has been handled in accordance

with Policy 3.27.

Rule 6A - 10.080 Code of Ethics

59 . Petitioner also alleges that there is just cause to

terminate Respondent ' s employment based upon a violation of

rule 6A - 10.080 (2) and (3) , Code of Ethics, which provides in

pertinent 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 se ek

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

the other members of the community, the

educator strives to achieve and sustain the

highest degree of ethical conduct.

60 . In Petitioner's Proposed Recommended Order, Petitioner

contends that Respondent ran afoul of the Code of Ethics by

initiating a conversation with minor Morgan and asking her to

" chill " late at night without any parents ' permission and with no

relationship to any educational purpose. T he School B oard also

asserts Finney further violated the polic y when he picked Morgan

up and dropped her off away from her home on a dark street , which

required her to cross the railroad tracks and walk a dark path in

a dangerous neighborhood to get home . The undersigned agrees

with Petitioner ' s assertion. Finney ' s conduct lacked decency and

did not represent the high moral standards or integrity required

of educators by the Code of Ethics. At hearing, Finney even

admitted that he failed to exercise the best professional

judgment during his interactions with Morgan on the night in

question , which is a violation of rule 6A - 10.080 (2) .

61 . Additionally, the interaction with Morgan from the

night in question ultimately caused Finney to close his Facebook

account because he was receiving a majority of negative comments

regarding the incident with Morgan . Negative comments

demonstrate that the incident was talked about in the community

and Finney was not maintaining the level of respect expected of

an educator or the comments would have been positive , which also

shows Finney failed to demonstrate and sustain the highest degree

of ethical conduct in violation of rule 6A - 10.080(3).

Rule 6A - 10.081

62 . Petitioner also asserts that Respondent violated

r ule 6A - 10.081 , entitled " Principles of Professional Conduct

for the Education Profession in Florida, " which provides:

* * *

(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.

63 . As detailed in paragraphs 50 and 56 above, Finney also

violated r ule 6A - 10.081(3)(a) by not making any reasonable effort

to protect Morgan from an unsafe environment . To the contrary ,

Finney directly placed Morgan in the unsafe environment and left

her there at approximately two in the morning alone.

64 . The record is void of credible evidence to demonstrate

Finney violated rule s 6A - 10.081(3) (e) or (h).

65 . Teachers are held to a higher moral standard than

others in the community because they are leaders and role

models. See Adams v. State Prof ' l Practices Council , 406

So. 2d 1170, 1172 (Fla. 1st DCA 1981).

66 . T he Petition cites to the CBA, which dictates that

Petitioner must adhere to a policy of progressive discipline

" except in cases which clearly constitute . . . the

actions/inactions of the employee constitute such clearly

flagrant and purposeful violations of reasonable school rules and

regulations. "

67 . Additionally, t o bypass progressive discipline and

terminate Respondent, who does not have a disciplinary history ,

s ections 1012.33(1)(a) and (6) , Florida Statutes, also provide in

pertinent part that Petitioner may terminate instructional staff

during the term of their employment contract only for " just

cause. " § 1012.33(1)(a) and (6), Fla. Stat. " Just cause " is

defined in section 1012.33(1)(a) to include , but not limited to ,

" misconduct in office, " " incompetency, " " gross insubordination, "

and " willful neglect of duty. "

Misconduct in Office

68 . The Petition asser ts that Respondent also committed

" M isconduct in office," which is defined by the State Board of

Education in rule 6A - 5.056(2 ) , which provides:

(2) " Misconduct in Office " means one or more

of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6A - 10.080 , F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6A -

10.081 , F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the stud ent ' s

learning environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

69 . Section 1012.33(1)(a) provides a list of aspirational

prohibitions that qualify as " just cause . " However, there is no

question that a male teacher taking a minor female out late at

night, sitting in a truck with her alone in his driveway for

several hours instead of taking her in his ho me , and then

dropping her off in a neighborhood over from where she resides,

which causes her to have to cross the railroad tracks alone in an

unsafe environment around 2:00 a.m. in the dark and then take a

foot path the remainder of the way home is absolutely prohibited.

Dropping a minor off to find her wa y home in the dark in an

unsafe neighborhood is an action that is " clearly flagrant

behavio r and purposeful " and in violation of all the reasonable

school rules and regulations to keep a child safe from harmful

conditions under the CBA .

70 . Additionally , t he School Board has established " j ust

cause" for termination as alleged in the Petition by prov ing by

clear and convincing evidence that Finney committed misconduct

in office when he violat ed the Code of Ethic s in paragraphs 59

and 60 above , the Principles of Professional C onduct for the

Education Profession in Florida in paragraph 62 above, as well

as the numerous violation s of the following p olicies 0. 01(2)3.,

1 .013(1), 3.02(4) ( b), and 3.02(5)(a)(vii) ; and rules 6A - 10.080(2)

and (3), 6A - 5.056(2), and 6A - 10.081(3)(a) .

71 . Therefore, Petitioner has proven the allegations in the

Petition by clear and convincing evidence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Palm Beach County School

Board, enter a final order :

(a) dismiss ing charges of violations of p olicies 0.01(2)6.,

3.02(4)(a), (d), (e), and (g) ; 5(a) , (a) (iii), (a) (v), and

( a) (viii) ; 1.013(4) ; and rule 6A - 10.081(3)(e) and (h) ;

(b) find ing Respondent in violation of rules 6A - 10.080(2)

and (3), 6A - 5.056(2), 6A - 10.081(3)(a), p olicies 0.01(2)3 . ,

1.013 (1) , 3.02(4)(b), and 3.02(5) (a) (vii ) , as charged ; and

(c) uphold ing Respondent ' s suspension without pay and

termination for just cause .

DONE AND ENTERED this 4th day of January, 2017 , in

Tallahassee, Leon County, Florida.

S

JUNE C. MCKINNEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Par kway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of January, 2017 .

ENDNOTES

1/ Morgan ' s testimony as to Finney instructing her to meet him at

the stop sign is found to be credible.

2/ The undersigned finds Atkins ' testimony credible regarding the

neighborhood being unsafe.

3 / Respondent 's claims that the area Morgan walked through to get

home was lit is rejected because t he undersigned f inds the

testimony of more than one witness that the area was unlit more

credible.

4/ While both parties cite to School Board Policy 0.01(2)(c)

in thei r Proposed Recommended Orders , Petitioner ' s E xhibit 18,

page 70, which both parties identify as p olicy 0.01(2)(c) does

not have a subsection ( c ) but a subsection ( 3 ) with the identical

language referenced by the parties as ( c ) . Hence, the

undersigned will refer to the p olicy as listed in exhibit 18,

p olicy 0.01(2)3 and 0.01(2)6.

COPIES FURNISHED:

Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson, P.A.

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

(eServed)

Jean Marie Middleton, Esquire

School Board of Palm Beach County

Office of General Counsel

3300 Forest Hil l Boulevard, Suite C - 323

Post Office Box 19239

West Palm Beach, Florida 33416 - 9239

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

D r. Robert Avossa, Superintendent

Palm Beach County School Board

3300 Forest Hill Boulevard , Suite C - 316

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.