04-001322 St. Lucie County School Board vs. Judith Lee Hueter Status: Closed Recommended Order on Friday, September 10, 2004.

Summary: Respondent`s second driving-while-under-the-influence conviction, in light of the substantial mitigating factors, requires severe discipline, but not termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 1322

)

JUDITH LEE HUETER, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearin g was held in this case in Fort Pierce,

Florida, on June 24, 2004, before Florence Snyder Rivas,

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: David Miklas, Esquire

Elizabeth Coke, Esquire

J. David Richeson & Associates, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

For Respondent: Catherine J. Chamblee , Esquire

Chamblee, Johnson & Haynes, P.A.

The Barrister’s Building, Suite 500

1615 Forum Place

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

At issue is whether Petitioner St. Lucie County Schoo l

Board (School Board or Petitioner) should terminate the

employment of Respondent Judith Lee Heuter (Respondent or

Heuter) following her second conviction for Driving Under the

Influence (DUI).

PRELIMINARY STATEMENT

By letter dated March 11, 2004, Michae l Lannon,

Superintendent of St. Lucie County Schools, advised Respondent

that he was recommending her dismissal based upon a second

conviction for DUI. A Statement of Charges and Petition for

Termination of the same date set forth the specific legal

groun ds for termination.

Respondent timely asserted her right to an administrative

hearing to challenge the termination.

The identity of witnesses and exhibits and attendant

stipulations and rulings rendered at hearing are contained in

the one - volume transcrip t of the June 24, 2004, final hearing

which was filed on July 26, 2004.

At hearing, the undersigned reserved ruling on Petitioner's

objection to the relevancy of Respondent's evidence concerning

her professional competence, as well as evidence concerning her

history of alcoholism and related treatment. All such evidence

was received subject to a standing objection lodged by

Petitioner. The parties were invited to brief the objection(s)

in their post - hearing submissions, with the understanding that

eviden ce received pursuant to Petitioner's standing objection(s)

would be disregarded to the extent it was in fact irrelevant.

Upon consideration, evidence relating to Heuter's

professional competence, as well as evidence concerning her

history of alcoholism and related treatment, is deemed relevant

to the alleged violations of Florida Administrative Code Rules

6B - 1.001 (2) and 6B - 1.001 (3); School Board Policy 3.56 (3) (b)

(2), (19) (29) and (37); and Respondent's argument regarding

School Board Policy 3.56 (a). Accordingly, such evidence is

considered only in connection with those provisions.

By agreement of the parties, the record remained open and

the testimony of Susan Ranew was taken telephonically in the

presence of a court reporter with the undersigned pr esiding on

June 29, 2004.

Proposed Recommended Orders were timely submitted by the

parties and have been carefully considered. References to

Sections are to the Florida Statutes (2004). References to the

Code are to the Florida Administrative Code (2002) .

FINDINGS OF FACT

1. Heuter has served as a teacher in the St. Lucie County

school system for over 13 years. At all times material to this

case, Heuter is party to a professional services contract with

the School Board.

2. Heuter's personal and profe ssional reputations were

unblemished until November 12, 1999, when she was arrested for

DUI. By letter dated December 14, 1999, Respondent was notified

by the School Board Personnel Director, Susan Ranew (Ranew),

that she was to meet with Ranew on January 11, 2000, regarding

the arrest.

3. The meeting took place as scheduled. Ranew gave Heuter

a letter signed by Assistant Superintendent for Human Resources

Russell Anderson. The letter stated, in pertinent part:

. . . [Y]our recent arrest could be a

vio lation of the Florida Code of Ethics for

Public Officers and Employees and the

General Personnel Policies of the St. Lucie

County School Board Policies section 3.56.

State Board of Education Administrative Rule

6B - 1.001 states at subsection (3) that the

e ducator is [sic] “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 degree of ethical conduct. . . .

. . . [Y]ou are directed to refrain from

this type of behavior in the future. Your

failure to follow this directive will result

in more severe disciplinary action. . . .

The letter further advised Heuter that she was to be recommended

for a two - day s uspension, a disciplinary action which she did

not contest. In due course, the suspension was formally imposed

and was served by Heuter.

4. In addition, the 1999 arrest resulted in an

investigation by the state's Education Practices Committee

(EPC). On September 7, 2001, the EPC issued a Final Order,

which included a letter of reprimand and three years' probation.

The terms of the probation included a provision that Heuter

refrain from alcohol consumption and engage in substance abuse

counseling.

5. Le gal proceedings relating to the 1999 DUI concluded on

February 14, 2000, when Heuter plead no contest to the charge in

St. Lucie County Court.

6. As a first time DUI offender, Heuter was directed to

alcohol abuse treatment. Thus, at the time the EPC en tered its

Final Order requiring treatment, Heuter was already in

treatment.

7. Although cooperative with treatment, Heuter was not

persuaded that she suffered from alcoholism, a chronic disease

requiring lifelong treatment. Such denial is a classic symp tom

of alcoholism.

8. Heuter was arrested a second time for DUI on June 17,

2003. This event proved the catalyst for her acknowledgment

that she was an alcoholic and would, without treatment, remain a

danger to herself and others.

9. Heuter promptly rep orted the arrest to her principal at

the time, Diane Guffey (Guffey), to Jane Summa (Summa), who was

slated to take over as principal at Heuter's assigned school for

the 2003 - 2004 school year, and to personnel director Ranew.

10. Heuter also returned to a lcohol abuse counseling with

appropriately credentialed professionals, and an understanding

she had previously lacked concerning the seriousness of her

illness.

11. Heuter plead no contest to the second DUI and was

convicted of the criminal charge on Dece mber 17, 2003. She was

still on EPC probation at the time of the second offense, and an

investigation in that forum is pending.

12. More than one month elapsed between Heuter’s no

contest plea and the time she was informed of the

Superintendent's intent to recommend termination.

13. Petitioner contends that Heuter knew or should have

known from the time of the second arrest that a conviction would

automatically result in her termination.

14. In support of this contention, Petitioner asserts that

Heute r was told by Ranew at their January 11, 2000, meeting of

an "unwritten policy" which required that she be terminated upon

conviction.

15. The "unwritten policy" upon which Petitioner relies is

not a School Board policy, but rather a district policy. Th e

difference between School Board policy and district policy in

St. Lucie County includes, but is not limited to, the fact that

School Board policies are promulgated in writing following a

period of deliberation which includes an opportunity for public

com ment.

16. After careful consideration of all of the record

evidence regarding the existence of an unwritten (district

level) policy, the fact - finder is not persuaded that such policy

existed. At most, one or more current and former district

officials, ne ither of whom testified, held the view that any

person who might commit a second alcohol or drug - related

criminal offense should be terminated without regard to any

mitigating factors which may exist.

17. The parties agree that this is a case of first

im pression in St. Lucie County, in that the School Board has

never undertaken to address the question of whether teachers or

other employees should be terminated automatically upon a second

DUI conviction.

18. However, in other contexts relating to substanc e

abuse, the School Board has crafted written policy which

demonstrates careful attention to what people, places, and

circumstances are intended to be brought within the scope of the

policy, and what, if any, discretion the School Board reserves

to deal wi th the offender on an individualized basis.

19. For example, School Board Policy 3.59 addresses

substance abuse in the workplace . This policy specifically

provides:

3.59 DRUG FREE WORKPLACE

(1) It is the intent of the School Board

that work environm ents be free of the

presence of illegal drugs and alcohol.

Therefore, employees are prohibited from

possessing, using, manufacturing,

dispensing, distributing, or being under the

influence of illegal drugs or alcohol while

on duty. For the purposes of th is policy,

illegal drugs are those controlled

substances as defined by federal or state

law, or any counterfeit of such drugs or

substances.

(2) For purposes of this policy,

“workplace” means the site for the

performance of work done in connection with

employment. Workplace includes any school

building or any school premises; and any

vehicle used to transport students to and

from school and school activities off school

property during any school - sponsored or

school - approved activity, event or function,

such as a field trip or athletic event,

where students are under the jurisdiction of

the School District.

(3) As a condition of employment, each

employee shall notify his or her supervisor

of his or her conviction of any criminal

drug statute for a vi olation occurring in

the workplace no later than five (5) days

after such conviction. An employee who

violates the terms of this policy may be

nonrenewed or his or her employment may be

suspended or terminated. However, at the

discretion of the School Bo ard, such

employee may be allowed to participate in

and satisfactorily complete a drug abuse

assistance or rehabilitation program

approved by the School Board in lieu of a

nonrenewal, suspension, or termination.

Sanctions and discipline against employees,

including nonrenewal, suspension, and

termination, shall be recommended within

thirty (30) days of receiving notice of an

employee’s conviction. Within ten (10) days

of receiving notice of an employee’s

conviction in violation of this rule, the

Superinte ndent shall notify the state and

federal department of education.

(4) A drug - free awareness program is

hereby established, and is to be implemented

by the Superintendent, to inform employees

of the dangers of drug abuse in the

workplace, of the School Board’s policy of

maintaining a drug - free workplace, of

available drug counseling, rehabilitation,

and assistance programs, and of the

penalties to be imposed upon employees for

drug abuse violations occurring in the

workplace. As a part of this program, all

employees and applicants for employment

shall be given notice of the School Board’s

policy regarding the maintenance of a drug -

free workplace.

. . . [A]t the discretion of the School

Board, such employee may be allowed to

participate in and satisfact orily complete a

drug abuse assistance or rehabilitation

program approved by the School Board in lieu

of a non - renewal, suspension, or

termination.

20. At all times material to this case, Heuter is actively

participating in treatment as prescribed by ap propriately

credentialed professionals involved in her care. The

opportunity to do the work for which she was trained provides a

powerful incentive for Heuter to continue to cooperate in her

treatment. Heuter’s employer - based insurance provides partial

c overage for her treatment. Her treating professionals regard

her illness as medically similar to diabetes, heart disease, or

other types of chronic and potentially life - threatening

illnesses. So long as Heuter remains in compliance with her

treatment pro gram, she is well able to perform her job.

21. There is no evidence that symptoms of Heuter's

alcoholism ever surfaced in the classroom, or elsewhere on

school grounds or on school time. Rather, at all times material

to this case, Heuter enjoys the unqua lified support and respect

of experienced school principals she has served for and with

over the course of her career.

22. On March 23, 2004, following the decision to terminate

Hueter’s employment, Jane Summa (Summa), who was to be the

principal at Heut er's assigned school the following academic

year, prepared Heuter's performance review for the current year.

She wrote:

It is with great pleasure that an

EXCEPTIONAL OVERALL PERFORMANCE APPRAISAL

RATING be granted to this highly effective

teacher! Yet it comes as no surprise due to

the fact that performance consistently

exceeds the requirements of this position.

As a direct result, students are

consistently afforded an opportunity to

perform at the highest possible level. Add

to this one who always works in a positive,

effective manner with all stake holders and

you have a staff person that I am very proud

to say is a true WEATHERBEE MARINER.

(Emphasis in original).

23. Diane Guffey (Guffey), Respondent’s principal at the

time of both DUI infractions, would welcome Heuter back to her

teaching staff.

24. In a letter dated April 22, 2004, Guffey wrote:

Ms. Hueter is a teacher who has made a

difference in the lives of many

children. . . . Teaching and children are a

passion for her and she gives the job her

best.

Although Ms. Hueter has made some mistakes

of bad judgment in her personal life, I have

never seen any adverse effect on her

teaching.

As an administrator, I sometimes have to

work with marginal teachers. Mrs. Hueter is

an example o f a mentor teacher who can help

other teachers become better. Mrs. Hueter is

an excellent teacher whom I would be proud

to work with at anytime in any school.

25. Robert Dougherty (Dougherty) provided glowing

testimony concerning Heuter's teaching of hi s two sons.

According to Dougherty, Heuter had extracted success from his

sons in situations where other teachers had tried and failed.

His personal knowledge and focus is narrowly based upon his

parent/teacher relationship with Heuter, and, like the tes timony

of Summa and Guffey, was considered only as it may bear upon the

alleged violation of Rule 6B - 1.001(2) and (3).

26. No evidence was presented in support of Petitioner's

request for back pay and benefits.

CONCLUSIONS OF LAW

27. The Division of Adm inistrative Hearings has

jurisdiction over the subject matter and the parties hereto.

§ 120.57(1), Fla. Stat.

28. Heuter is employed pursuant to a professional services

contract and may be terminated only for just cause. Just cause

includes but is not li mited to misconduct in office,

incompetency, gross insubordination, willful neglect of duty, or

conviction of a crime involving moral turpitude.

§ 1012.33(1)(a), Fla. Stat.

29. The School Board is required to prove its allegations

by a preponderance of th e evidence. Dileo v. School Board of

Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990). Dismissal may

be predicated only upon the grounds set forth in the charging

document, in this case the Statement of Charges and Petition for

Termination. Lusskin v. Age ncy for Health Care Administration ,

731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dept. of

Insurance , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v.

Dept. of Business and Professional Regulation , 625 So. 2d 1237,

1238 - 39 (Fla. 2d DCA 1993); Delk v. Dept. of Professional

Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992); Willner v.

Dept. of Professional Regulation, Board of Medicine , 563 So. 2d

805, 806 (Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295

(1991).

30. The factual basis for each of the grounds for

termination alleged by Petitioner is the second DUI conviction.

Petitioner contends that the second DUI violates several

provisions of School Board Policy 3.56(3)(b), a non - inclusive

list of infractions which "warrant disciplinary action." The

policy does not mandate a penalty of termination, whether one or

more of its provisions is violated.

31. By way of defense, Respondent contends that

termination under the facts and circumstances of this case

constitutes a violation of School Board P olicy 3.56 as it

relates to progressive discipline.

32. For the reasons set forth below, it is determined that

Heuter violated subsections (b) (7),(19), (29), and (37) of

School Board Policy 3.56(b) and that discipline is warranted.

However, these violat ions, taken together, do not amount to just

cause for termination under the circumstances of this case.

Alternatively, Heuter has proved that the School Board's

progressive discipline policy militates in favor of a penalty

less than termination for this s econd offense.

33. With respect to Petitioner's allegations, Rule

3.56(3)(b) provides in pertinent part:

EMPLOYEE STANDARDS OF CONDUCT

* * *

(3) Disciplinary Guidelines for Employees.

* * *

(b) The following list is not intended to

be all - inc lusive, but is typical of

infractions that warrant disciplinary

action:

(1) insubordination.

(2) Violation of drug and alcohol

policy.

* * *

(7) Conviction of a criminal act that

constitutes a misdemeanor.

* * *

(19) Violation of any rule , policy,

regulation, or established procedure.

* * *

(29) Any violation of the Code of Ethics

of the Education Profession, the Principles

of Professional Conduct for the Education

Profession, the Standards of Competent

Professional Performance, or the Code of

Ethics for Public Officers and Employees.

(30) Off duty contact that does not

promote the good will and favorable attitude

of the public toward the School District,

its programs, and policies.

* * *

(37) Alcohol - related offenses, incl uding

driving under the influence of alcohol.

. . .

34. (a) Subsection (1) re: Insubordination: Following the

first DUI, Heuter was directed in writing to "refrain from this

type of behavior in the future." There is no evidence that

Heuter's conduc t was a function of disrespect for the directive,

as opposed to a manifestation of her disease. Accordingly,

Petitioner failed to prove this stated ground for termination.

35. (b) Subsection (2) re: Violation of drug and alcohol

policy: The existence o f an unwritten policy applicable to this

case was not proved. Only one drug and alcohol policy applicable

to employees (as opposed to students) was in place at relevant

times. The policy, entitled 3.59 DRUG FREE WORKPLACE and set

forth in pertinent part a bove, by its own terms addresses the

use of drugs and alcohol on school property. There is no

evidence that Heuter used or abused alcohol or any drug in the

workplace. Accordingly, Petitioner failed to prove this stated

ground for termination.

36. (c) Subsection (7) re: C onviction of a criminal act

that constitutes a misdemeanor: Heuter does not deny that she

violated this subsection, thus this charge is sustained.

37. (d) Subsection (19) re: Violation of any rule, policy,

regulation, or established p rocedure: The Petitioner has proved

violations of School Board Policy 3.56 (b)(7),(19),(29),and (37)

each of which is a rule or policy. Accordingly, Petitioner

proved this stated ground for termination; however, this

violation is cumulative and should no t be considered in

enhancement of discipline under the circumstance of this case.

38. (e) Subsection (29) re: Any violation of the Code of

Ethics of the Education Profession, the Principles of

Professional Conduct for the Education Profession, the Stand ards

of Competent Professional Performance, or the Code of Ethics for

Public Officers and Employees.

39. In support of this charge, three Rule violations are

cited: (a) Rule 6B - 1.006(5)(P); (b) Rule 6B - 1.001(2), and (c)

Rule 6B - 1.001(3):

(a) Rule 6B - 1.0 06(5)(P):

Rule 6B - 1.006(5)(P) provides in pertinent

part:

(5) Obligation to the profession of

education requires that the individual:

* * *

(p) Shall comply with the conditions of an

order of the Education Practices Commission.

Based solely upon the undisputed facts adduced at hearing, it

may be inferred that at a minimum Heuter was in violation of the

EPC's proscription against consuming alcohol at the time of her

second arrest. Accordingly, Petitioner has proved this stated

ground for terminati on.

(b) Rule 6B - 1.001(2):

Rule 6B - 1.001(2) provides in pertinent

part:

6B - 1.001 Code of Ethics of the Education

Profession in Florida.

* * *

(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.

40. This Rule is part of Florida's Code of Ethics for

professional educators. Respondent ac curately notes that some

DOAH cases have viewed the Code of Ethics as “aspirational” and

not easily applied as a disciplinary standard. Palm Beach

County School Board v. Laakso, DOAH Case No. 01 - 4839 (2003); See

also Palm Beach County School Board v. Oppe l , DOAH Case

No. 01 - 4533 (2002); Pinellas County School Board v. Lemiesz ,

DOAH Case No. 96 - 3253 (1997); and Pinellas County School Board

v. Snyder , DOAH Case No. 93 - 4972 (1993).

41. Respondent cites this passage from Administrative Law

Judge Rober t Meale's Recommended Order in Palm Beach County

School Board vs. Edward R. Oppel :

Rule 6B - 1.001(2) and (3) are clearly

exhortatory in nature, as they encourage the

administrator to "strive" for the "highest"

and "best." Important as these provisions

are for setting behavioral and professional

goals, they do not serve well as provisions

describing the minimum standards that, if

breached, may result in termination.

Palm Beach County School Board v. Oppel ; DOAH Case No. 01 - 4533

(2002).

42. Judge Meale's observation is persuasive; however, the

broad question of whether the Code of Ethics is aspirational in

nature and therefore not an appropriate basis for termination,

is beyond the scope of this discussion. In predicating Heuter’s

termination upon Rule 6B - 1.001(2), Petitioner has, by the very

terms of the Rule, invited inquiry into whether or not Heuter

has conducted herself in a manner demonstrating primary

professional concern for the development of the potential of her

students; whether or not she striv es for professional growth;

and whether or not she seeks to exercise the best professional

judgment and integrity.

43. In seeking answers to those questions, Heuter's

teaching record; the opinions of principals Gaffey and Summa;

and the opinion of a fath er who believes that Heuter not only

showed concern for the development of his children's potential,

but actually developed their potential where others had tried

and failed, are all of relevance.

44. At all times material to this case, even as she

progre ssed in the disease of alcoholism, Heuter demonstrated

exemplary work on behalf of her students and maintained

"professional growth." The high quality of her professional

performance held steady, and even improved, in the months

following her first DUI. Even after the second DUI,

administrators who must account directly to parents and to

district officials when something is amiss in the classroom,

would welcome her back.

45. Accordingly, Petitioner has failed to prove this

stated ground for termination.

(c) Rule 6B - 1.001(3):

Rule 6B - 1.001(3) provides in pertinent

part:

6B - 1.001 Code of Ethics of the Education

Profession in Florida.

* * *

(3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of pa rents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

46. The case law and conclusions set forth with reference

to Rule in 6B - 1.001(2) above apply with equal force to this

sectio n of the Code.

47. There is no evidence that anyone, including

individuals directly involved in Heuter's termination, lacked

respect for or confidence in Heuter as a teaching professional

at any time. There is no factual basis to conclude that Heuter

ev er failed to strive to achieve and sustain the highest degree

of ethical conduct. Without defending drunk driving, the

undersigned has been unable to locate any case, statute, rule or

other authority to support the notion that either or both DUIs

constitu te, under the facts and circumstances of this case, a

lapse in professional ethics as a teacher.

48. Rather, the opinions of principals Gaffey and Summa

demonstrate that the respect and confidence which a teacher must

have remain intact. It is unimaginab le that one principal, let

alone two, would speak so highly of a teacher if they held any

reservations concerning her ability to sustain the highest

degree of ethical conduct.

49. The Rule does not demand teacher perfection; rather

the verb chosen is "st rive." Heuter's acknowledgment of her

disease, coupled with the fact that she has fully embraced

treatment, suggests that she strives, and will continue to

strive, to achieve and sustain the highest degree of ethical

conduct. Accordingly, Petitioner has failed to prove this

stated ground for termination.

50. (f) Subsection (30) re: Off duty contact that does not

promote the good will and favorable attitude of the public

toward the School District, its programs, and policies: No such

contact has been pro ved. This provision, by its terms, suggests

that the "contact" referred to is contact with the public and

perhaps is limited to contact which influences the "attitude of

the public toward the School District, its programs, and

policies."

51. Even if th e policy addressed "conduct," rather than

"contact," no evidence was presented upon which findings could

be made concerning the public’s good will or lack thereof toward

the School District, its programs or its policies, or even

Heuter herself, as a result of her off - duty conduct.

Accordingly, Petitioner has failed to prove this stated ground

for termination.

52. (g) Subsection 30 re: Alcohol related offenses:

Finally, Petitioner cites violation of subsection (37) which

includes “Alcohol - related offense s, including driving under the

influence of alcohol.” This violation has been proved.

53. Turning to Heuter's defensive use of School Board

Policy 3.56, the contention is that the School Board’s decision

to terminate her under the circumstances of this c ase violates

subsection (a) relating to progressive discipline. The policy

states:

The School District generally follows a

system of progressive discipline in dealing

with deficiencies in employee work

performance or conduct. Should unacceptable

behavio r occur, corrective measures will be

taken to prevent reoccurrence. The

Superintendent is authorized to place

employees on administrative assignment

and/or leave as necessary during an

investigation. However, some behavior may

be so extreme as to merit i mmediate

dismissal.

54. T he progression of discipline from a two - day

suspension to termination, under all the circumstances of this

case, is inconsistent with, at the least, the spirit of the

progressive discipline policy. “Progressing” from a two - day

s uspension to termination is excessive, where, as here, the

substance abuse occurred off school property; the prospects of

rehabilitation are substantial; and the employee has made a

persuasive case for mercy and understanding.

55. Individuals who bring il legal substances on to school

property, or come to work in an impaired condition, pose an

imminent threat to the safety of students and colleagues. Yet

the School Board's written policy provides discretion to

consider all circumstances surrounding the ind ividual's

employment to determine if he is a candidate for rehabilitation.

56. Such discretion is consistent with a progressive

discipline policy; while it is appropriate here to impose more

severe discipline that Heuter suffered following her first DUI,

termination under all the circumstances of this case is a harsh

punishment for which just cause is lacking.

57. In Jim Horne as Commissioner of Education v. Agostino ,

DOAH Case No. 03 - 2877PL (2004), Administrative Law Judge

Lawrence P. Stevenson recomm ended against revoking the license

of a teacher who had battered his wife, stating:

It must be noted that Mr. Agostino’s

violation occurred away from school and

apparently had no effect on his job

performance or on his reputation among

students, parents , and co - workers. Given

these facts, there would be nothing to gain

by depriving Mr. Agostino of his livelihood

while he deals with the emotional and

psychological issues underlying the events

of May 16, 2003.”

58. Here, too, there appears to be "nothin g to gain" by

depriving Heuter the chance to remain productive in a field of

endeavor which is important to the community.

59. Driving while under the influence is a very serious

matter, but in this case it appears to have motivated Heuter to

take serious ly her after - hours recklessness in a way that her

previous arrest and treatment had not.

60. Implicit in the School Board's detailed and

thoughtfully reasoned drug free workplace policy is the notion

that substance abusers can, if properly treated and co operating

with "doctor's orders," perform their jobs as well as any

individual who suffers from a chronic illness which is

responding to treatment.

61. Differences of opinion, sometimes divisive, exist with

regard to society's attitudes toward alcoholism . In its drug

free workplace policy, the School Board has elected to treat

alcoholism as a chronic illness, rather than a moral failing.

Had Heuter violated the drug free workplace policy, she would,

without doubt, be a candidate for the exercise of the School

Board’s discretion to participate in an assistance or

rehabilitation program in lieu of termination, even though it

was a second offense.

62. Given the apparent conflict in the drug free workplace

policy with the proposed discipline in this case, i t is

appropriate for the School Board to take into account

substantial mitigating circumstances which include the opinions

of the Board's principals; the well - being of a long - term, highly

productive employee; and the students who stand to benefit in

the fu ture from the services of an experienced and dedicated

teacher.

63. It is entirely appropriate to impose conditions upon

the exercise of discretion in favor of Heuter's continued

employment, including putting her on formal notice that any

future DUI arres t will result in immediate termination. It

would also be appropriate to require a letter from Heuter's

treating substance abuse counselor certifying her ongoing

compliance with her treatment plan, to be furnished no earlier

that one week prior to the Scho ol Board's consideration of this

Recommended Order.

64. Even if Heuter had presented evidence concerning

entitlement to back pay and benefits, which she did not, it

should be recognized that in incurring the second DUI, Heuter

demonstrated that the relati vely light punishment imposed

following her first DUI had insufficient impact upon her

behavior. It is thus appropriate to treat her period of

unemployment, retroactive to the date she was notified of the

charges heard in this proceeding (March 11, 2004), as a

suspension without pay or benefits.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

that Heuter, having committed the single act of driving under

the influence o n June 17, 2003, violated School Board Policy

3.56 (3) (b) (7) (19), (29) and (37); dismissing the remaining

charges; that acknowledging the violations proved warrant the

substantial discipline of suspension without pay from March 11,

2003, to and includin g the date of the entry of a Final Order;

and denying the claim for back pay and benefits.

DONE AND ENTERED this 10th day of September, 2004, in

Tallahassee, Leon County, Florida.

S

FLORENCE SNYDER RIVAS

Administrative Law Judge

Division of Administrati ve Hearings

The DeSoto 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 10th day of Septem ber, 2004.

COPIES FURNISHED :

Catherine J. Chamblee, Esquire

Chamblee, Johnson & Haynes, P.A.

The Barrister’s Building, Suite 500

1615 Forum Place

West Palm Beach, Florida 33401

David Miklas, Esquire

Elizabeth Coke, Esquire

J. David Richeson & Associat es, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahassee, Florida 32399 - 0400

Michael Lannon, Superintendent

St. Lucie County School Board

4204 Oke echobee Road

Fort Pierce, Florida 34947

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.