03-001133 Monroe County School Board vs. Sharon Fuller Status: Closed Recommended Order on Friday, October 3, 2003.

Summary: Respondent`s arrest and conviction for driving under the influence (DUI) after two prior DUI convictions, constituted grounds to terminate her professional service contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONROE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1133

)

SHARON FULLER, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on August 7, 2003, in Key West, Florida, before Administrative

Law Judge Claude B. Arrington of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Gordon Rogers, Esquire

Mu ller, Mintz, Kornreich, Caldwell, Casey,

Crosland & Bramnick, P.A.

200 South Biscayne Boulevard, Suite 3600

Miami, Florida 33131

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

STATEMENT OF THE ISSUE

Whether Petitioner has grounds to terminate Respondent’s

professional service contract as a class room teacher, as alleged

in the Administrative Complaint dated February 28, 2003.

PRELIMINARY STATEMENT

At all times pertinent to this proceeding, Petitioner

employed Respondent pursuant to a professional service contract

as a middle school English teache r at the combined public middle

school and high school facilities named Marathon Middle School

(MMS) and Marathon High School (MHS), respectively, in Marathon,

Florida. On or about January 17, 2003, Respondent was arrested

and charged with the criminal of fense of Driving Under the

Influence of Alcohol, commonly referred to as DUI. On or about

January 21, 2003, Petitioner suspended Respondent's employment

with pay, pending an administrative investigation into her

arrest.

On February 28, 2003, Petitioner f iled an Administrative

Complaint alleging facts pertaining to her arrest for DUI on

January 17, 2003, and to her prior convictions of DUI in 1989

and 1993. Petitioner further alleged that Respondent had been

reprimanded and placed on probation by the Flor ida Education

Practices Commission (EPC) based on the 1993 DUI conviction.

The Administrative Complaint alleged that Respondent failed to

successfully complete that term of probation.

Based on the factual allegations, the Administrative

Complaint allege d that just cause existed to terminate

Respondent's employment because her conduct constituted the

following: gross immorality, an act (or acts) of moral

turpitude, and misconduct in office .

On or about February 28, 2003, Respondent was notified in

wr iting that the Superintendent of Schools, Michael J. Lannon,

intended to recommend to the School Board at its meeting

scheduled for March 11, 2003, that Respondent’s suspension with

pay be modified to a suspension without pay and that her

professional serv ice contract be terminated. On March 11, 2003,

the School Board of Monroe County approved the Superintendent’s

recommendation and terminated Respondent's professional service

contract, subject to her due process rights. Following the

School Board’s actio n, Respondent timely requested a formal

administrative hearing. The matter was referred to the Division

of Administrative Hearings and this proceeding followed.

At the final hearing, the parties offered three joint

exhibits, each of which was accepted int o evidence. Joint

Exhibit one was the Code of Ethics for the Teaching Profession

in Florida. Joint Exhibit Two was the deposition of Mr. Lannon

and the exhibits to that deposition. Joint Exhibit Three was

the deposition of Respondent and the exhibits to that

deposition. In her deposition and in her responses to

discovery, Respondent admitted the material facts that underpin

this proceeding, but disputed that those facts constituted

grounds to terminate her professional service contract.

Petitioner pre sented the testimony of Dr. Fred Colvard

(principal of MMS and MHS during the school year 2002/2003),

Mr. Lannon, Lynn D'Ascanio (a parent), Michelle DeSanctis (a

parent), and Linda Hale (an English teacher at MMS). Petitioner

offered three exhibits in ad dition to the joint exhibits, each

of which was admitted into evidence.

Respondent called no witnesses to testify at the hearing

and offered no exhibits, other than the joint exhibits.

A transcript of the proceedings was filed on August 25,

2003. The parties filed Proposed Recommended Orders, which have

been considered by the undersigned in the preparation of this

Recommended Order.

All statutory citations are to Florida Statutes (2002)

unless otherwise indicated. All rule citations are to the

Florida Administrative Code as of the date of this Recommended

Order, unless otherwise indicated.

FINDINGS OF FACT

1. The School Board of Monroe County, Florida (School

Board), is charged with the duty to operate, control, and

supervise the public schools wi thin Monroe County, Florida,

pursuant to Section 4(b) of Article IX of the Florida

Constitution. The Superintendent of Schools (Superintendent) is

authorized by law to act on behalf of the School Board in this

proceeding. The respective duties and respon sibilities of the

School Board and the Superintendent are set forth in the Florida

Education Code at Chapter 1012.

2. Respondent was hired by the School District of Monroe

County, Florida, on or about November 11, 1986. At all times

pertinent to this ac tion, Respondent was employed pursuant to a

professional service contract as a teacher at MMS. She taught

eighth grade English to students who were generally 13 to 14

years of age. Respondent's formal job evaluations have been

satisfactory or better.

3 . On October 26, 1989, Respondent committed the criminal

offense of DUI by driving or being in actual physical control of

a motor vehicle in the State of Florida while under the

influence of alcohol to the extent that her normal faculties

were impaired. Respondent was arrested and charged with

committing the criminal offense of DUI. She submitted to a

breath alcohol test, which indicated that her breath alcohol

level was .19 grams of alcohol per 210 liters of breath.

Pursuant to Section 316.193(1), Flor ida Statutes (1989), a

person is guilty of driving under the influence if that person

was in control of a car and had a breath - level alcohol reading

of .10 grams or more.

4. On December 11, 1989, Respondent entered a plea of

guilty to the criminal offen se of DUI with regard to her arrest

on October 26, 1989. The County Court of Monroe County, Florida

(the Court), adjudicated Respondent guilty of DUI, sentenced her

to six months' probation, and suspended her Florida driving

privileges for six months. Ad ditionally, Respondent was

required to pay a $250.00 fine and $222.50 in court costs. Her

sentence also required her to perform 50 hours of community

service and to complete DUI School.

5. On October 14, 1992, Respondent committed the criminal

offense of DUI by driving or being in actual physical control of

a motor vehicle in the State of Florida while under the

influence of alcohol to the extent that her normal faculties

were impaired. Respondent was arrested and charged with the

criminal offense of D UI. Respondent submitted to two breath

alcohol tests, which indicated that her breath alcohol level was

.261 and .256 grams of alcohol per 210 liters of breath.

Pursuant to Section 316.193(1), Florida Statutes (1992), a

person is guilty of driving under the influence if that person

was in control of a car and had a breath - level alcohol reading

of .10 grams or more.

6. On January 25, 1993, Respondent entered a plea of nolo

contendere to DUI with regard to her arrest on October 14, 1992.

The Court adjud icated Respondent guilty of DUI, sentenced her to

ten days in jail, 12 months' probation, and suspended her

Florida driving privileges for five years. She was also

required to pay fines and court costs in the amount of

$1,266.00, to perform 50 hours of co mmunity service, and to

complete the Multiple DUI Offender Program.

7. On August 1, 1994, the Florida Commissioner of

Education (COE) filed an Administrative Complaint against

Respondent, which alleged that her Florida teaching certificate

should be dis ciplined based on her DUI convictions in 1989 and

1992. The Administrative Complaint alleged that Respondent was

guilty of gross immorality and/or an act involving moral

turpitude.

8. On August 3, 1994, Respondent entered into a Settlement

Agreement with the COE whereby she elected not to contest the

allegations set forth in the Administrative Complaint.

9. Based on the Settlement Agreement between Respondent

and the COE, the EPC entered a Final Order on September 22,

1994, which approved the terms of th e Settlement Agreement

executed by Respondent on August 3, 1994.

10. Pursuant to the terms of the Final Order, the EPC

issued to Respondent a written reprimand, dated September 23,

1994, which stated, in pertinent part, that:

[A]s a teacher you are requ ired to

exercise a measure of leadership beyond

reproach. By your actions [i.e., 1989 and

1992 DUI convictions], you have lessened the

reputation of all who practice our

profession. Your actions cannot be condoned

by the profession nor by the public who

employ us. The Education Practices

Commission sincerely hopes it is your

intention to never allow this situation to

occur again or indeed, to violate any

professional obligation in fulfilling your

responsibility as an educator. To violate

the standards o f the profession will surely

result in further action being taken against

you.

11. A copy of the written reprimand was placed in

Respondent's state certification file and a copy was sent to the

School Board for placement in Respondent's personnel file.

12. In addition to the reprimand, the Final Order placed

Respondent’s teaching certificate on probation for a period of

two years and ordered her to: (1) submit to an examination and

consultation with a licensed substance abuse counselor;

(2) undergo a pr ogram of substance abuse counseling and

treatment until such time as she was released from such

treatment by a licensed substance abuse counselor; and

(3) submit proof of successful completion of the substance abuse

counseling program to the EPC. Responde nt did not comply with

these conditions of her probation. Respondent did not submit to

an examination and consultation with a licensed substance abuse

counselor who was mutually acceptable to the EPC and was,

consequently, unable to tender proof to the EP C that she had

successfully completed such a substance abuse counseling

program. The EPC notified Respondent of her failure to comply

with the settlement and final order by letter dated

September 10, 1997. The EPC closed her probation file with the

notat ion that she had not satisfied the conditions of probation.

There was no evidence that further disciplinary action was taken

against Respondent for her failure to successfully complete the

terms of her probation.

13. On January 17, 2003, Respondent comm itted the criminal

offense of DUI by driving or being in actual physical control of

a motor vehicle in the State of Florida while under the

influence of alcohol to the extent that her normal faculties

were impaired. Respondent submitted to two breath alco hol

tests, which indicated that her breath alcohol level was .207

and .206 grams of alcohol per 210 liters of breath. Pursuant to

Section 316.193(1) a person is guilty of driving under the

influence if that person was in control of a car and had a

breath - level alcohol reading of .08 grams or more. Respondent

was aware that it is unlawful for an individual to drive or be

in actual physical control of a vehicle while under the

influence of alcohol when affected to the extent that the

individual’s normal fac ulties are impaired and/or while having a

breath alcohol level of .08 or more grams of alcohol per 210

liters of breath.

14. On January 17, 2003, Respondent was arrested and

charged with the criminal offense of DUI.

15. On May 12, 2003, Respondent en tered a plea of nolo

contendere to the criminal offense of DUI with regard to her

arrest on January 17, 2003. The court adjudicated Respondent

guilty of that criminal offense and sentenced her to serve

30 days in jail, or in the alternative, to serve 30 d ays in an

approved in - patient substance abuse rehabilitation facility,

followed by 12 months of probation. She was also required to

pay fines and court costs in the amount of $2,393.00, to perform

150 hours of community service, to complete an Advanced DU I

offender course, and to refrain from using alcohol during

probation. Respondent’s Florida driving privileges were

suspended for a period of ten years.

16. Respondent chose to serve her time in jail in the

Monroe County Jail located in Key West. She di d not want to

attend the state - sponsored rehabilitation program because it was

a 61 - day program and she believed the 30 - day private

rehabilitation program she wanted was too expensive.

17. Respondent's arrest for DUI on January 17, 2003, and

the fact sh e had been convicted of DUI on two prior occasions

became common knowledge and a topic of conversation in Marathon,

which is a relatively small community. Students at MMS and MHS

were aware of these facts about Respondent, as were parents of

students, Res pondent's colleagues, and the community in general.

18. On or about January 28, 2003, the Key West Citizen, a

local newspaper in the Florida Keys, reported the news of

Respondent’s January 17, 2003 arrest for DUI and identified her

as a teacher at MHS (sic).

19. The Monroe County Sheriff’s Office web site reported

Respondent’s DUI arrest, the fact that she was a teacher at MMS,

and a copy of her booking photograph. This information was

readily available via the Internet. Students at MMS displayed

Res pondent’s DUI booking photograph and information as wallpaper

on the computers in the school library.

20. Respondent's acts are wholly inconsistent with

Petitioner's efforts to teach students to say no to drugs and

alcohol and to the efforts of such sch ool - sponsored groups as

Students Against Drunk Driving.

21. During the school year 2002/2003, Dr. Colvard was

principal of MMS and MHS. At the time of the final hearing, he

was retired. Dr. Colvard received a letter from one parent and

an e - mail from another condemning Respondent's behavior.

22. Respondent's arrest for DUI on January 17, 2003, and

the fact that it became common knowledge among her students and

in the community that she had two prior DUI convictions, were of

such notoriety to impair both her effectiveness to the school

system and her service in the community. 1

23. Mr. Lannon has been an educator in the Monroe County

School system since 1973 and became Superintendent in 1996.

Mr. Lannon recommended that the School Board terminate

R espondent's employment because Respondent had, by her

misconduct, lost credibility and effectiveness with students,

parents, and the community.

24. Subsequent to Respondent's arrest on January 17, 2003,

a beginning teacher was arrested for DUI. That tea cher was

disciplined with a reprimand. Mr. Lannon testified, credibly,

that the beginning teacher's case was appropriately

distinguished from Respondent's because that case did not

generate the notoriety that Respondent's generated and because

that was th e first offense for the beginning teacher.

25. At all times pertinent to these proceedings,

Respondent was aware of the Code of Ethics/ Principles of

Professional Conduct and had been provided with and signed for

copies of those documents.

CONCLUSION S OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties pursuant to

the provisions of Chapters 120 and 1012.

27. Pursuant to Section 1012.27(5), a Superintendent has

the authority to recommend to a S chool Board the dismissal of

instructional employees when grounds exist for that action. The

grounds upon which a School Board may terminate an instructional

employee's professional service contract includes those set

forth in Section 1012.33(1)(a), which provides as follows:

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

of the instructional staff in any district

school system shall be . . . entitled to and

shall receive a written contract as

specified in this section. All such

contracts . . . shall contain p rovisions 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: misconduct in office,

incompetency, gross insubordination , willful

neglect of duty, or conviction of a crime

involving moral turpitude.

28. The Administrative Complaint charges Respondent with

being guilty of gross immorality, committing an act of moral

turpitude, and misconduct in office. Being guilty of g ross

immorality is not one of the grounds for the termination of a

professional service contract listed in Section 1012.33(1)(a) .

Pursuant to the holding and the rationale expressed in Dietz v.

Lee Count Sch. Bd. , 647 So. 2d 217 (Fla. 2d DCA 1994), the

un dersigned concludes that being guilty of gross immorality can

be the basis for terminating a professional service contract,

depending on the circumstances of the case.

29. Rule 6B - 1.001 sets forth the Code of Ethics of the

Education Profession, and prov ides the following in

subsection (3):

(3) Aware of the importance of

maintaining the respect and confidence of

one’s colleagues, of students, of parents,

and of other members of the community, the

educator strives to achieve and sustain the

highest degr ee of ethical conduct.

30. Rule 6B - 4.009(3) defines “misconduct in office” as:

. . . a violation of the Code of Ethics of

the Education Profession as adopted in Rule

6B - 1.001, Florida Administrative Code, which

is so serious as to impair the individu al’s

effectiveness in the school system.

31. Rule 6B - 4.009(2) defines “immorality” as:

. . . conduct that is inconsistent with

the standards of public conscience and good

morals. It is conduct sufficiently

notorious to bring the individual concerne d

or the education profession into public

disgrace or disrespect and impair the

individual’s service in the community.

32. Rule 6B - 4.009(6) defines “moral turpitude” as:

. . . a crime that is evidenced by an act

of baseness, vileness, or depravity in t he

private and social duties, which, according

to the accepted standards of the time, a man

owes to his or her fellow man or to society

in general, and the doing of the act itself

and not its prohibition by statutes fixes

the moral turpitude.

33. Rule 6B - 4.009(5) defines “drunkenness” as:

. . . (a) that condition which exists

when an individual publicly is under the

influence of alcoholic beverages or drugs to

such an extent that his or her normal

faculties are impaired; or (b) conviction on

the charg e of drunkenness by a court of law.

34. On October 26, 1989, Respondent was in public

operating a motor vehicle with a blood alcohol level of

1.9 times the legal limit. On October 14, 1992, Respondent was

in public operating a motor vehicle with a bl ood level of over

2.5 times the legal limit. On January 17, 2003, Respondent was

in public operating a motor vehicle with a blood alcohol level

of over 2.5 times the lawful limit. On each occasion,

Respondent's condition meets the definition of drunkenne ss found

in Rule 6B - 4.009(5). The undersigned finds Respondent's conduct

on these occasions to be inconsistent with standards of public

conscience and good morals within the meaning of Rule 6B -

4.009(2). Petitioner established that Respondent's arrest for

DUI in January 2003 (and subsequent conviction), together with

her two prior DUI convictions, were sufficiently notorious to

bring Respondent and the education profession into public

disgrace or disrespect and impair Respondent's service in the

community, within the meaning of Rule 6B - 4.009(2) . It is

concluded that under the circumstances of this case, Respondent

is guilty of gross immorality that constitutes just cause for

the termination of Respondent's employment, as alleged by

Petitioner.

35. Respo ndent's high blood alcohol level on each occasion

of her arrest for DUI established that she operated a motor

vehicle in such an impaired condition as to constitute a danger

to innocent people. Under the circumstances of this case, each

of Respondent's co nvictions for DUI should be should be

considered a crime involving moral turpitude within the meaning

of Rule 6B - 4.009(6) and grounds for the termination of

Respondent's employment as alleged by Petitioner.

36. Petitioner also proved by the requisite ev identiary

standard that Respondent engaged in misconduct in office within

the meaning of Rule 6B - 4.009(3). Respondent's conduct violated

her duty found in Rule 6B - 1.001(3) to maintain the respect and

confidence of colleagues, students, parents, and other members

of the community and to strive to achieve and sustain the

highest degree of ethical conduct. Petitioner established that

Respondent’s misconduct was sufficiently serious as to impair

her effectiveness in the school system.

RECOMMENDATION

Based u pon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the School Board enter a final

order that sustains the suspension of Respondent’s employment

without pay and terminates her professional service contract of

employment as a classroom teacher effective March 11, 2003.

DONE AND ENTERED this 3rd day of October, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The D eSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of October, 2003.

ENDNOTE

1/ In addition to the direct evidence presented by Petitioner

that Respondent's effectiveness has been impaired, the

undersigned has relied on recent cases permitting a finder of

fact to infer from the severity of the misconduct that a

teacher's effecti veness has been impaired. See Purvis v. Marion

County Sch. Bd. , 766 So. 2d 492 (Fla. 5th DCA 2000), and Walker

v. Highlands County Sch. Bd. , 752 So. 2d 127 (Fla. 2d DCA 2000).

COPIES FURNISHED :

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

2595 Tampa Road, Suite J

Palm Harbor, Florida 34684

Gordon Rogers, Esquire

Muller, Mintz, Kornreich, Caldwell, Casey,

Crosland & Bramnick, P.A.

200 South Biscayne Boulevard, Suite 3600

Miami, Florida 33131

Dirk M. Smits, Esquire

Monroe County School Boar d

umbo Road

Key West, Florida 33041 - 1788

Michael Lannon, Superintendent

Monroe County School Board

Post Office Box 1788

Key West, Florida 33041 - 1788

Honorable Jim Horne

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Daniel J. Woodring, General Counsel

Department of Education

1244 Turlington Building

315 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties h ave 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.