04-004096TTS Lee County School Board vs. Elizabeth A. Silveus Status: Closed Recommended Order on Friday, March 11, 2005.

Summary: Amended as to paragraph 72.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 04 - 4096

)

ELIZABETH A. SILVEUS, )

)

Respondent. )

)

AMENDED RECOMMENDED ORDER

Administ rative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing in this proceeding on January 12, 2005,

in Fort Myers, Florida, on behalf of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: J. Paul Carland, II, Esquire

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

STATEMENT OF THE ISSUES

The issues are whether Petitioner has just cause to

terminate the annual contract of a teacher for alleged

immorality pursuant to Subsection 1012.33(1)(a), Florida

Statutes (2003), and Florida Administrative Code

Rule 6B - 4.009(2); and whether the conduct violates ethical

requirements in Florida Administrative Code Rule 6B - 1.001.

PRELIMINARY STATEMENT

On November 4, 2004, Petitioner suspended Respondent

without pay and notified Respondent that Petitioner intended to

terminate Respondent's employment contract. Respondent

requested an administrative hearing, and Petitioner referred the

matter to DOAH to conduct the hearing.

At the hearing, Pet itioner presented the testimony of one

witness and submitted 15 exhibits for admission into evidence.

Respondent called no witnesses and submitted nine exhibits.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the one - volume Transcript of the

hearing filed with DOAH on February 4, 2005. Petitioner and

Respondent timely filed their respective proposed recommended

orders (PROs) on February 7 and 10, 2005.

FINDINGS OF FACT

1. Petitioner is the agency 1 responsibl e for the employment

and dismissal of instructional staff in Lee County, Florida

(teachers). Petitioner employed Respondent as a teacher from

December 11, 2001, until November 4, 2004.

2. On November 4, 2004, Petitioner suspended Respondent

without pay from her teaching position at J. Colin English

Elementary School (English Elementary). The suspension occurred

during the last year of three - year probationary service required

for a professional service contract, pursuant to Subsection

1012.33(3)(a)2., F lorida Statutes (2003).

3. At the time of suspension, Respondent held an annual

contract. Petitioner proposes to terminate the annual contract

on November 4, 2004, for the rest of the 2004 - 2005 school year.

4. The grounds for termination of an annual c ontract must

satisfy the statutory definition of "just cause." The terms of

a binding collective bargaining agreement (CBA) also require

termination to be based upon "just cause." 2

5. The allegations against Respondent are set forth in the

Petition for Termination of Employment dated November 6, 2004

(the petition). The petition alleges Respondent engaged in

conduct that satisfies the definition of immorality and that the

conduct violates rules of ethics cited in the petition. 3

6. The essential fac ts are undisputed. Sometime in

October 2003, Respondent had sex with a man other than her

husband while her husband recorded it on videotape (the

offending conduct). The offending conduct occurred with the

knowledge and consent of the participants.

7. S ometime in April 2004, Respondent divorced her

husband. Her ex - husband disclosed the video to Ms. Lisa Mantle,

the ex - wife of the man in the video with Respondent. Ms. Mantle

filed a complaint with Petitioner on August 24, 2004, and

Petitioner initiated this proceeding.

8. Conduct satisfies the definition of immorality in

Florida Administrative Code Rule 6B - 4.009(2) if the conduct

meets three conjunctive requirements. The conduct must be

inconsistent with standards of public conscience and good moral s

(the community standard). The conduct must be sufficiently

notorious to disgrace the teaching profession and must impair

the teacher's service in the community.

9. Judicial decisions, discussed hereinafter, measure

service in the community by a teach er's effectiveness in the

classroom. There is no direct evidence that Respondent's

conduct impaired her classroom effectiveness.

10. Petitioner urges the trier of fact to infer impaired

classroom effectiveness from the offending conduct. Judicial

decis ions, discussed hereinafter, prohibit such an inference

from private, off - campus conduct and require direct evidence of

impaired effectiveness.

11. Employer Evaluations show Respondent was effective in

the classroom before and after the offending conduc t.

Petitioner employed Respondent for almost three years before

suspending her from her employment. A principal and an

assistant principal recommended Respondent for employment at

English Elementary by letters dated May 5 and 6, 2003. At

English Element ary, Respondent consistently satisfied relevant

performance criteria.

12. Respondent received her last performance assessment on

February 4, 2004, approximately three months after the incident

occurred in October 2003. The principal of English Elementary

conducted a formal classroom observation on February 9, 2004.

The principal determined that Respondent demonstrated an

effective level of performance. On March 8, 2004, the principal

recommended renewal of the annual contract for the 2004 - 2005

school yea r. Respondent completed the 2003 - 2004 school year

without complaint from supervisors, teachers, students, parents,

or others.

13. Ms. Mantel is a parent of school - age children in Lee

County, Florida, but her children are not and never were

enrolled in Respondent's classroom or in English Elementary.

Ms. Mantle's only involvement with faculty or students at

English Elementary is limited to the complaint.

14. The offending conduct did not occur in the classroom,

on campus, during normal working hours, a nd did not involve a

child. The offending conduct did not result in any adverse

impact on students, parents of those students, or fellow

teachers. Respondent did not inject any opinion regarding

sexual morality into the classroom or into private conversa tions

with teachers, students, parents, or others.

15. The offending conduct was private rather than public.

The video was filmed in the privacy of Respondent's home. The

evidence does not indicate that Respondent, or the other

participants, made the v ideo with the intent to show the video

to anyone else or to pander it in the community.

16. The offending conduct was not sufficiently notorious

to disgrace the teaching profession. There is no evidence of

any publicity or a public arrest record. Ther e is no evidence

that a teacher, student, parent, or member of the community,

other than those previously noted and Petitioner's employees,

had knowledge of the incident or viewed the video.

17. Ms. Mantle was the only member of the public to

complain t o Petitioner about the offending conduct. Any wider

knowledge or further notoriety of the offending conduct resulted

after - the - fact from Petitioner's activities.

18. Between August 23 and November 4, 2004, Petitioner

made the offending conduct known t o ten of Petitioner's

employees identified in the record. Petitioner made the conduct

known to other employees who are not identified in the record

but were involved in the investigation, predetermination

conference, and petition hearing on November 4, 20 04.

19. On August 23, 2004, Ms. Mantle telephoned the

principal of English Elementary and advised him of the offending

conduct. Ms. Mantle expressed her opinion that Respondent

should not be around children.

20. The principal transferred the telephon e call to the

secretary for the Director of Personnel Services. Ms. Mantle

insisted on filing a written complaint. She indicated she would

disclose the conduct to the "media" if the Director did not

assist Ms. Mantle with her complaint. The principal

me morialized the telephone conversation in a written

communication to the Executive Director of Human Resources and

Employee Relations (Executive Director).

21. On August 25, 2004, Ms. Mantle filed a written

complaint with the Department of Professional St andards. In

relevant part, the complaint described the offending conduct and

repeated that Respondent should not be around young children.

22. On August 27, 2004, the Director of the Department of

Professional Standards met with Respondent to review the written

complaint. Respondent admitted she was in the video, stated it

was recorded in the privacy of her home, explained it was the

result of her ex - husband's physical and sexual abuse, and

disclosed the divorce that was final in April 2004.

23. Pet itioner initiated a formal investigation on

August 27, 2004, and then suspended Respondent with pay and

benefits on August 30, 2004. On September 3, 2004, the

Coordinator of Professional Standards, Equity and Recruitment,

met with Respondent to discuss th e written complaint.

24. Petitioner concluded the formal investigation on

September 21, 2004, and prepared an investigative summary.

Respondent attended a predetermination conference with a union

representative on September 22, 2004. Respondent and th e union

representative reviewed the investigative summary and certain

supplemental information from Petitioner. Petitioner determined

probable cause existed to discipline Respondent for her conduct

and, by certified letter dated October 1, 2004, advised

R espondent that Petitioner would seek termination of

Respondent's annual contract.

25. Respondent, through counsel, requested an

administrative hearing by letter dated October 11, 2004.

Petitioner referred the matter to DOAH, heard the petition on

Novemb er 4, 2004, and suspended Respondent without pay.

26. Prior to the administrative hearing, Ms. Mantle filed

a motion to quash a subpoena that Petitioner had served to

ensure her appearance as a witness at the hearing. The motion

to quash was based, in re levant part, on Ms. Mantle's stated

desire to abandon her complaint against Respondent. Although

the ALJ denied the motion to quash, Ms. Mantle did not testify

at the hearing because the parties entered into factual

stipulations that obviated the need for her testimony.

27. At the administrative hearing, Petitioner stipulated

that the alleged immoral conduct in the video is the factual

basis for the alleged violation of Subsection 1012.33(1)(a),

Florida Statutes (2003). Petitioner also stipulated th at the

same conduct is the factual predicate for the alleged violation

of Florida Administrative Code Rule 6B - 1.001.

28. The Executive Director was the only witness for

Petitioner. Petitioner has employed the witness for 16 years;

including six years a s a teacher, seven as an assistant

principal or principal, and three in his current position.

29. The testimony of the witness consisted of conclusions

based on his professional experience, his personal opinion as a

parent of students not enrolled in En glish Elementary, and his

personal opinion as one member of the community. The

conclusions and opinions of the witness are not supported by

specific detail or other evidence. Some of the testimony is

based on hearsay statements by Ms. Mantle and hearsay

conversations with unidentified members of the community.

30. The witness opined that Respondent's conduct violated

"the community standard," but was unable to articulate an

objective standard for the trier of fact to apply in this case.

The witness te stified that he would "challenge anyone to clearly

articulate" a community standard.

31. This case is a case of first impression for the

witness. Petitioner has not previously terminated a teaching

contract for immorality that occurred off campus. Th e witness

provided no factual precedent from previous cases or survey data

to explicate an objective community standard. Nor did the

witness base his opinions and conclusions on testimony from

other witnesses, including teachers, students, parents, or oth er

members of the community.

32. The witness based his opinion, in part, on alleged

adultery. For example, the witness testified, inter alia , that

this case was not "just about two consenting adults in a

bedroom," but was about a teacher "engaging in sexual

intercourse with a man to whom she was not married." However,

the witness conceded Petitioner does not, in practice, dismiss

teachers for adultery, notwithstanding the allegation of

adultery in the petition; and does not define adultery.

33. The attempt by the witness to define adultery

elucidates the ambiguity in a community standard based on one

person's judgment. The witness defined adultery as an act of

sexual intercourse by a legally married person with someone

other than the person's lawfu l spouse. The witness acknowledged

some teachers live out of wedlock with their partners in what is

described for ease of reference as a civil union. Teachers

living in a civil union are immune from dismissal for adultery

because the policy requires an a dulterer to be legally married.

34. It is undisputed that the man in the video was not

married to Ms. Mantle or anyone else at the time the video was

recorded. If he were to have been an unmarried teacher at the

time, it is unclear whether sex with a m arried woman would have

rendered him guilty of adultery. It is clear that the witness

considers the consent of Respondent's husband at the time of the

incident, as well as the husband's alleged coercive abuse, to be

irrelevant in defining the alleged adul tery of Respondent.

35. The witness provided no factual examples of how the

offending conduct impacted students in the classroom. The

evidence shows Respondent remained effective in the classroom

until her suspension on August 30, 2004.

36. Other parts of the testimony either are not legally

probative or do not relate to evidence of record. For example,

the witness testified, inter alia :

. . . this is not just . . . a couple of

consenting adults in a bedroom, it's a

production of a videotape that is pub lic.

This is a public -- the district is aware of

this videotape, as are other individuals in

the community.

Transcript at 52.

37. The testimony that members of the community, other

than Petitioner's employees and Ms. Mantel, knew of the

offendi ng conduct is not supported by specific detail or other

evidence. The media did not publicize the conduct, and the

conduct did not result in a public record of arrest. Judicial

decisions, discussed hereinafter, do not permit knowledge of the

conduct resu lting from Petitioner's activities to form the basis

of a finding that the conduct is public.

38. For reasons explained in the Conclusions of Law,

Petitioner has no legal authority to discipline Respondent

pursuant to Florida Administrative Code 6B - 1.0 01. Assuming

arguendo Petitioner has the authority to do so, the testimony

that Respondent's conduct violated ethical standards in Florida

Administrative Code Rule 6B - 1.001 lacks the factual predicate

needed to support the conclusion.

39. In relevant p art, Florida Administrative Code Rule 6B -

1.001 provides:

. . . (1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

(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) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and o f

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

40. The testimony of the witness did not relate the

offending conduct to any requirement in Florida Administrative

Code Rule 6B - 1.001(1) . No evidence impugns the integrity of

Respondent, within the meaning of Florida Administrative Code

Rule 6B - 1.001(2), and the witness did not question Respondent's

professional judgment. TR at 43 - 93.

41. The witness opined that Respondent's conduct

und ermined her "respect in the community" and her "ability to

teach in the classroom" within the meaning of Florida

Administrative Code Rule 6B - 1.001(3). The evidence does not

support that opinion.

42. No teachers, students, parents of students, or other

members of the community testified that Respondent had lost

respect in the community or had lost the confidence of the

community. No evidence shows that the offending conduct

impaired Respondent's ability to teach in the classroom.

43. The witn ess agreed with early hearsay statements of

Ms. Mantle that no students would be left in Respondent's

classroom to teach if parents in the community were aware of the

video. The trier of fact does not question the hypothetical.

However, there is no evide nce that parents in the community

other than Ms. Mantle, the witness, and parents employed by

Petitioner had actual knowledge of the video or, if so, they

withdrew their students from the classroom.

44. Petitioner employed Respondent for almost three ye ars,

recommended Respondent for an annual contract after the

incident, and then sought to terminate the contract after

learning of the incident. As discussed hereinafter, a court

viewed similar actions of another school board as strong

evidence that the s chool board was concerned with what the

school board considered to be an affront to the personal

standards of its members rather than the impact on students.

CONCLUSIONS OF LAW

45. DOAH has in personam jurisdiction over the parties and

subject matter jurisdiction over of the proposed contract

termination for immorality in violation of Subsection

1012.33(1)(a), Florida Statutes (2003), and Florida

Administrative Code Rule 6B - 4.009(2). The parties received

adequate notice of the administrative hearing. § 120.57(1),

Fla. Stat. (2003).

46. DOAH and Petitioner have no authority to determine

whether the alleged immorality of Respondent violates Florida

Administrative Code Rule 6B - 1.001. The Rule was expressly

adopted to implement the law authorizing the Education Standards

Commission (Commission) to issue ethical standards for teachers.

See , e.g. , former § 231.546(2)(b), Fla. Stat. (1999). The Rule

does not implement the statute that is the basis of the alleged

violation in this proceeding.

47. The l aw implemented in Florida Administrative Code

Rule 6B - 1.001 does not authorize the Commission to promulgate

ethical standards for the discipline of teachers, and the

statute does not authorize the discipline of teachers. Nor does

the Rule authorize the di scipline of teachers for a violation of

the ethical standards prescribed in the Rule.

48. Florida Administrative Code Rule 6B - 1.006 authorizes

discipline of teachers for the violation of the requirements

contained therein (the disciplinary rule). The p etition does

not charge Respondent with a violation of the disciplinary rule.

49. The burden of proving the remaining issues is on

Petitioner. Petitioner must show by a preponderance of the

evidence that Respondent engaged in conduct that satisfies the

definition of immorality and that immorality is "just cause" for

Petitioner to terminate Respondent's contract. § 1012.33(1)(a),

Fla. Stat. (2003); Art. 6 CBA § 6.024; McNeill v. Pinellas

County School Board , 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v.

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

50. Petitioner is statutorily authorized to utilize one of

three types of written contracts to employ a teacher. Each

contract must be either a continuing contract, a professional

service con tract, or an annual contract. § 1012.33(3)(a), Fla.

Stat. (2003); Dietz v. Lee County School Board , 647 So. 2d 217

(Fla. 2d DCA 1994)(per curiam)(Blue, J., concurring)(construing

former § 231.36(4)(c), Fla. Stat. (1994)).

51. A teacher who completes sta tutory prerequisites prior

to July 1, 1984, is entitled to a continuing contract.

§ 1012.33(3)(a), Fla. Stat. (2003). A teacher who completes the

prerequisites on or after July 1, 1984, is entitled to a

professional service contract. Id. The prerequis ites include

three years of probationary service. § 1012.33(3)(a)2., Fla.

Stat. (2003). A teacher employed during probationary service is

entitled to an annual contract. § 1012.33(3)(a)2. and (4)(b)

Fla. Stat. (2003); Dietz , 647 So. 2d at 218.

52. Continuing and professional service contracts include

the right to continuing employment, but annual contracts do not.

§ 1012.34(6), Fla. Stat. (2003); Dietz , 647 So. 2d at 218. The

issue of whether Respondent is entitled to contract renewal for

the 2005 - 2006 school year is not ripe for determination. The

sole issues presented are whether Petitioner has "just cause" to

terminate Respondent's annual contract for the 2004 - 2005 school

year, and, if not, whether Respondent is entitled to

reinstatement for th e remainder of the school year with back pay

from November 4, 2004, to the date of reinstatement. Cf. Davis

v. School Board of Gadsden County , 646 So. 2d 766, 769 (Fla. 1st

DCA 1994)(non - instructional employee on annual contract is

entitled to renewal bas ed on findings school board would have

renewed contract but for false allegations).

53. The statutory standard for terminating annual and

professional service contracts is different from that for

terminating continuing contracts. Annual and professional

service contracts must be terminated for "just cause" in

Subsection 1012.33(1)(a), Florida Statutes (2003)(just - cause

contracts). Continuing contracts must be terminated for grounds

enumerated in Subsection 1012.33(4)(c), Florida Statutes (2003).

54. The enumerated statutory grounds for terminating

continuing and just - cause contracts have been described,

respectively, as the "seven deadly sins" and the "five deadly

sins." See , e.g. , Spurlin v. School Board of Sarasota County ,

520 So. 2d 294, 296 (Fla. 2d DCA 1988); Dietz , 647 So. 2d at

218. The seven deadly sins for terminating continuing contracts

are:

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of a crime involving moral turpitude."

§ 1012.33(4)(c), Fla. Stat. (2003).

The five deadly sins for terminating just - cause contracts

exclude immorality and drunkenness, but are otherwise identical

to the seven deadly sins. § 1012.33(1)(a), Fla. Stat. (2003). 4

55. Immorality i s not enumerated as one of the five deadly

sins for terminating a just - cause contract. Neither the CBA nor

Chapter 1012, Florida Statutes (2003), defines the term

"immorality." The rule defining immorality was adopted on

April 5, 1983, in relevant part, to implement the law

authorizing termination of continuing contracts rather than the

law authorizing termination of just - cause contracts such as

Respondent's. Compare former § 231.46(4)(c), Fla. Stat. (1981)

with § 1012.33(4)(c), Fla. Stat. (2003), and Fl a. Admin. Code R.

6B - 4.009(2).

56. Petitioner does not rely on express authority in a

statute or rule for the proposed termination of Respondent's

annual contract. Nor does the proposed agency action rely on

any controlling judicial decisions of an app ellate court.

57. None of the appellate court decisions cited by the

parties in their respective PROs affirm a final order

terminating a just - cause contract for immorality. Nor do the

decisions affirm a final order interpreting Florida

Administrative C ode Rule 6B - 4.009(2) to terminate a just - cause

contract. See Purvis v. Marion County School Board , 766 So. 2d

492 (Fla. 5th DCA 2000)(affirming termination of continuing

contract for misconduct in office rather than immorality);

Walker v. Highlands County School Board , 752 So. 2d 127 (Fla. 2d

DCA 2000)(affirming termination of professional service contract

for misconduct in office rather than immorality); Summers v.

School Board of Marion County , 666 So. 2d 175 (Fla. 5th DCA

1996)(affirming suspension of r ight to teach for misconduct in

office); McNeill , 678 So. 2d at 477 (reversing termination of

continuing contract for immorality), ( see Pinellas County School

Board v. McNeill , Case No. 95 - 1244 (DOAH March 13, 1995)(Finding

of Facts, para. 1, continuing co ntract)(Final Order (October 11,

1995)); McKinney v. Castor , 667 So. 2d 387 (Fla. 1st DCA

1995)(reversing suspension of teaching certificate for

immorality ( see Castor v. McKinney , Case No. 92 - 4799 (DOAH

April 1, 1993)(Finding of Facts, para. 3 (continuing contract),

(Final Order October 20, 1993)); MacMillan v. Nassau County

School Board , 629 So. 2d 226 (Fla. 1st DCA 1993)(reversing

termination of professional service contract for misconduct in

office; charge of immorality dropped); Sherburne v. School Boa rd

of Suwanee County , 455 So. 2d 1057, 1058 (Fla. 1st DCA

1984)(refusal to grant continuing contract for immorality);

Baker v. School Board of Marion County , 450 So. 2d 1194, n. 1

(Fla. 5th DCA 1984)(reversing termination of contract for

immorality pursuan t to § 231.36(6), Fla. Stat. (1981), re -

codified in § 1012.33(4)(c), Fla. Stat. (2003)(pertaining to

continuing contracts)).

58. Independent research did not identify an appellate

court decision affirming the termination of a just - cause

contract for imm orality. Nor did the research uncover an

appellate court decision applying the definition of immorality

in Florida Administrative Code Rule 6B - 4.009(2) to terminate a

just - cause contract. See Buckner v. School Board of Glades

County , 718 So. 2d 862 (Fla. 2d DCA 1998)(rejection for "good

cause" of recommendation to award professional service contract

to teacher must include showing of "good cause" in former

§ 230.23(5), Fla. Stat. (1995)); Tieger v. School Board of Palm

Beach County , 717 So. 2d 172 (Fla. 4th DCA 1998)(reversing

school board denial of request for hearing on termination of

professional service contract during 97 - day initial probation);

Dietz , 647 So. 2d at 218 (affirming termination of professional

service contract for conduct other than imm orality); Tenbroeck

v. Castor , 640 So. 2d 164 (Fla. 1st DCA 1994) (reversing

suspension of teaching certificate for immorality); Clark v.

School Board of Lake County, Florida , 596 So. 2d 735 (Fla. 5th

DCA 1992)(reversing termination of continuing contract for

immorality); Krueger v. School District of Hernando County , 540

So. 2d 180 (Fla. 5th DCA 1989)(teacher on continuing contract

entitled to back pay after improper dismissal for grounds other

than immorality); Spurlin , 520 So. 2d at 295 ("good cause" to

refuse recommendation of continuing contract not limited to

grounds for termination of continuing contract); Forehand v.

School Board of Washington County , 481 So. 2d 953 (Fla. 1st DCA

1986)(reversing termination of continuing contract for

immorality); To merlin v. Dade County School Board , 318 So. 2d

159 (Fla. 1st DCA 1975)(affirming termination of continuing

contract for immorality).

59. One appellate court decision affirmed the termination

of a just - cause contract on a ground that was not one of the

fi ve deadly sins. The ground was neither immorality nor

drunkenness. However, the concurring opinion assumed, but did

not hold, that immorality and drunkenness are implied grounds to

terminate a just - cause contract. In dicta, the court reasoned:

Just caus e . . . includes but is not limited

to five of the seven deadly sins. We assume

that drunkenness and immorality . . . would

also be grounds for dismissal.

Dietz , 647 So. 2d at 218 (Blue, J., concurring).

60. If the dicta in the concurring opinion in D ietz were

controlling precedent in subsequent cases, the charges and facts

in Dietz are distinguishable from those in this proceeding.

In Dietz , the school board charged the teacher with misconduct

in office rather than immorality. The evidence was insu fficient

to prove misconduct in office. However, inappropriate language

at school and a loaded gun locked in the teacher's car

constituted "just cause" to terminate the contract. The

offending conduct in this proceeding occurred off - campus, in

private, a nd did not involve students or a minor.

61. The proposed agency action does not rely on

controlling judicial decisions; or the judicial doctrine of

longstanding legislative reenactment to interpret either the

statute or the Rule. The judicial doctrine h olds that

subsequent reenactment of statutory provisions that have

received a definite judicial construction is presumed to

constitute legislative approval of the judicial construction.

State ex rel. Szabo Food Service, Inc. v. Dickinson , 286 So. 2d

529 ( Fla. 1973); Walsingham v. State , 250 So. 2d 857 (Fla.

1971); Davies v. Bossert , 449 So. 2d 418 (Fla. 3d DCA 1984).

62. The proposed termination relies on incipient agency

policy to interpret: the statute authorizing termination of

just - cause contracts; a nd the Rule defining immorality

(incipient policy). The final order of the agency must

explicate the incipient policy in a manner that is sufficient

for judicial review. § 120.68(7)(e)2. and 4., Fla. Stat. (2003);

McDonald v. Department of Banking and Fi nance , 346 So. 2d 569,

582 (Fla. 1st DCA 1977). This Recommended Order must critique

agency policy as it is revealed in the record of the

administrative hearing. As the First District Court of Appeal

explained in 1977:

. . . the APA infuses Section 120.5 7(1)

proceedings with concern for agency policy

as well as for facts and law. The hearing

officer . . . is . . . charged to record,

recommend and critique agency policy as it

is revealed in the record. . . . [T]he

hearing officer's duty to respond to

evi dence in that way cannot fail to promote

responsible agency policymaking.

McDonald , 346 So. 2d at 582 - 583.

63. The incipient policy developed in the record must be

consistent with legislative intent for the statute authorizing

termination of just - caus e contracts. The incipient policy must

construe the terms of the statute in a manner that is consistent

with constitutional constraints, relevant judicial decisions,

and legislative spirit and policy for the statute as a whole.

64. The plain meaning of statutory language is the first

consideration of statutory construction. Capers v. State , 678

So. 2d 330, 332 (Fla. 1996); St.Petersburg Bank & Trust Co. v.

Hamm , 414 So. 2d 1071 (Fla. 1982). The reference to "moral

turpitude" in the five deadly sins do es not subsume immorality

as a ground for dismissal. Moral turpitude and immorality are

distinct terms defined differently by rule. Fla. Admin. Code R.

6B - 4.009(2) and (6).

65. The legislature enumerates immorality and moral

turpitude as separate grou nds for terminating continuing

contracts. § 1012.33(4)(c), Fla. Stat. (2003). The legislature

does not intend distinct statutory terms to be redundant or

superfluous. See , e.g. , City of Indian Harbor Beach v. City of

Melbourne , 265 So. 2d 422, 424 (Fla. 4th DCA 1972)

(interpretation that renders legislatively created provision

ineffective or purposeless should be avoided). By analogy, the

"lack of good moral character" is not judicially restricted to

"moral turpitude." The Florida Bar re Jahn , 559 So. 2d 1089

(Fla. 1990); Florida Board of Bar Examiners re G.W.L. , 364 So.

2d 454, 458 (Fla. 1978); In Re Florida Board of Bar Examiners ,

358 So. 2d 7, 8 - 9 (Fla. 1978).

66. The statute authorizing termination of just - cause

contracts expressly provides that " just cause includes but is

not limited to" the five deadly sins (the inclusive language).

Petitioner presumes that the inclusive language amends the five

deadly sins, by implication, to add immorality as a ground for

termination of a just - cause contract.

67. Implied amendment would effectively transform the

statute enumerating the five deadly sins into a "reference

statute" that wholly adopts the seven deadly sins. Implied

amendment occurs when the statute referred to in the reference

statute is treate d as if it were incorporated into and formed

part of the reference statute. Implied amendment of a statute

is not favored and generally not upheld in doubtful cases.

State v. J.R.M. , 388 So. 2d 1227, 1229 (Fla. 1980).

68. A literal interpretation of th e inclusive language for

terminating just - cause contracts invites unbridled agency

discretion. As the court in Dietz observed:

. . . the school board . . . determined

there was just cause to terminate . . .

[the] contract. . . . [T]the legislature

left that determination to . . . each school

board by providing no definite parameters to

the term "just cause."

Dietz , 647 So. 2d at 218.

69. Unbridled agency discretion risks violation of the

non - delegation doctrine in Florida. Fla. Const., Art. 2, § 3.

The non - delegation doctrine requires the legislature to provide

standards and guidelines in an enactment that are ascertainable

by reference to the terms of the enactment. Bush v. Shiavo , 885

So. 2d 321 (Fla. 2004); B.H. v. State , 645 So. 2d 987, 992 - 994

(Fla. 1994); Askew v. Cross Key Waterways , 372 So. 2d 913, 925

(Fla. 1978). The incipient policy should construe the relevant

statute in a manner that preserves its constitutionality. See ,

e.g. , Spurlin , 520 So. 2d at 296 - 297 and Von Stephens , 338 So.

2 d at 894 (avoiding construction that would permit unbridled

agency discretion in statute with no express limits).

70. Legislative authority to terminate just - cause

contracts for grounds other than the five deadly sins does not,

a fortiori , subsume immoral ity and drunkenness. If it were the

legislature's intent to authorize immorality and drunkenness as

grounds to terminate just - cause contracts, the legislature could

have made that intent unambiguous by enumerating the seven

deadly sins as grounds for term inating both continuing contracts

and just - cause contracts. That option would have made it

unambiguous that the legislature intended the grounds for

terminating just - cause contracts to include, but not be limited

to, the seven deadly sins enumerated for c ontinuing contracts.

71. The legislature did not choose an unambiguous option

to express the legislative intent assumed in the Agency's

incipient policy. Rather, the legislature excluded immorality

and drunkenness, and the Agency seeks to reinstate immo rality.

72. Separate statutes authorizing termination of just -

cause and continuing contracts are properly construed as

distinct parts of the whole statute. Each part operates on a

separate type of contract, but the two parts together regulate

the termin ation of all contracts that fall within the

legislative purpose for the statute as a whole. Coalition for

Adequacy and Fairness in School Funding, Inc., et al. v. Chiles ,

680 So. 2d 400, 406 (Fla. 1996)(construing constitutional

requirement for uniform sy stem of education to mean a system in

which distinct constituent parts operate to serve a common

purpose). When the statute is construed as a whole, the maxim

expressio unius est exclusio alterius suggests the enumeration

of the five deadly excludes those grounds not adopted from the

seven deadly sins. McFadden v. State , 737 So. 2d 1073 (Fla.

1999); Thayer v. State , 335 So. 2d 815 (Fla. 1976).

73. Statutory provisions enacted in the same act and

related to the same subject matter, i.e. , the termination of

contracts, should be construed in pari materia in a manner that

harmonizes them and gives effect to legislative intent for the

statute as a whole. Such provisions are imbued with the same

legislative spirit and actuated by the same legislative policy.

Forsythe v. Longboat Key Beach Erosion Control District , 604

So. 2d 452 (Fla. 1992); Singleton v. State , 554 So. 2d 1162

(Fla. 1990); Major v. State , 180 So. 2d 335, 337 (Fla. 1965);

Abood v. City of Jacksonville , 80 So. 2d 443, 444 - 445 (Fla.

1955); McGr aw v. R and R Investments, Ltd. , 877 So. 2d 886, 890

(Fla. 1st DCA 2004).

74. Legislative distinctions between the grounds for

terminating continuing and just - cause contracts are consistent

with judicial distinctions between private, off - campus acts a nd

acts that occur on campus. Immorality and drunkenness, unlike

the five deadly sins, are not intrinsically job - related. 5 Acts

of immorality and drunkenness can be wholly private acts that,

without more, do not involve a crime, do not impair classroom

e ffectiveness, and do not disgrace the teaching profession.

Termination of a just - cause contract for immorality or

drunkenness, either of which is not job - related, would not

effectuate the legislative spirit and policy exemplified by the

five deadly sins. See Walker , 752 So. 2d at 128 (impaired

classroom effectiveness inferred from misconduct in school, but

not from private acts of immorality).

75. Termination of a just - cause contract for job - related

deficiencies stemming from acts of immorality or dr unkenness,

whether the acts occur in school or off - campus, effectuates the

legislative spirit and policy expressed in the five deadly sins.

It is sufficient, however, for a school board to prove conduct

is job - related. Cf. Dietz , 647 So. at 218 (on - campu s conduct

that is just cause for termination does not require proof of

misconduct). A requirement for a school board to undertake the

additional burden of proving that job - related deficiencies also

satisfy elements in a definition of immorality or drunken ness

would be a useless legislative requirement. The legislature

should never be presumed to enact a purposeless or useless

provision. Sharer v. Hotel Corporation of America , 144 So. 2d

813, 817 (Fla. 1962); Indian Harbor , 265 So. 2d at 424; compare

Walk er , 752 So. 2d 127 (impaired effectiveness inferred from

school conduct) with Purvis , 766 So. 2d 492 (inferring impaired

effectiveness from school conduct and in dicta from other

conduct) and Tomerlin , 318 So. 2d at 160(immoral conduct at home

and after ho urs found to be job - related because conduct involved

teacher's nine - year - old stepdaughter of same age as teacher's

students); accord Smith v. School Board of Leon County , 405 So.

2d 183 (Fla. 1st DCA 1981)(citing Tomerlin as related to job

performance).

76. Professional service and continuing contracts have

been judicially described as tenured contracts. See , e.g. ,

Clark v. School Board of Glades County , 716 So. 2d 330 (Fla. 2d

DCA 1998)(tenured professional contract); Slater v. Smith , 142

So. 2d 767, 7 69 (Fla. 1st DCA 1962)(holder of continuing

contract acquires rights known as tenure). Each contract is

renewed without the necessity for annual nomination or

reappointment unless a school board invokes the applicable

statutory standard for non - renewal. § 1012.33(3)(e) and (4)(b),

Fla. Stat. (2003); Slater , 142 So. 2d at 769.

77. The statutory standards for non - renewal of

professional service and continuing contracts comprise a primary

distinction in tenured contracts. A professional service

contract must be renewed each year unless performance is

unsatisfactory (unsatisfactory performance). §§ 1012.33(3)(e)

and 1012.34, Fla. Stat. (2003). A continuing contract must be

renewed each year unless a school board has "good and sufficient

reasons" (good ca use) to either dismiss the holder of the

contract or return the teacher to annual contract status for

another three years. § 1012.33(4)(b), Fla. Stat. (2003).

78. Respective standards for the termination and non -

renewal of just - cause contracts are expre ssly related to job

performance (job - related). Compare §§ 1012.33(a)(e) and 1012.34

with § 1012.33(1)(a), Fla. Stat. (2003). Respective standards

for the termination and non - renewal of continuing contracts are

not limited to either the five deadly sins o r unsatisfactory

performance. Compare Buckner , 718 So. 2d at 865 (suggesting in

dicta that legislature did not intend rejection of public

service contract to be based on grounds other than assessment

procedures showing unsatisfactory performance) with Spu rlin , 520

So. 2d at 296 - 297 and Von Stephens , 338 So. 2d at 894

(construing "good cause" for denying a nomination for employment

to include moral fitness and other objective grounds that are

not pretextual or invidious).

79. Legislative intent to exclud e immorality and

drunkenness from the statutory standard for terminating

just - cause contracts is consistent with legislative intent to

limit non - renewal of professional service contracts to

unsatisfactory performance. Statutory standards for the

terminat ion and non - renewal of professional service contracts

are imbued with the same legislative spirit and actuated by the

same legislative policy.

80. Inclusion of immorality and drunkenness in the

statutory standard for terminating a continuing contract is

consistent with inclusion of the lack of moral fitness as a

good and sufficient ground for non - renewal of continuing

contracts. The enumerated grounds for the termination and non -

renewal of continuing contracts are imbued with and actuated by

the same l egislative spirit and policy.

81. Differences in statutory standards for terminating

continuing and just - cause contracts are consistent with

differences in statutory standards for their non - renewal.

Grafting immorality onto the five deadly sins through i mplied

amendment would exacerbate legislative intent for different

treatment of different contracts in the statute as a whole. It

would nullify differences in statutory standards for termination

of the two tenured contracts and indirectly emasculate the

r equirement that non - renewal of professional service contracts

be limited to unsatisfactory performance. 6 When the literal

interpretation of statutory terms frustrates legislative intent,

the literal meaning must yield to legislative intent for the

statute as a whole. Vildibill v. Johnson , 492 So. 2d 1047, 1049

(Fla. 1986); Department of Professional Regulation, Board of

Dentistry v. Florida Dental Hygienist Association, Inc. , 612 So.

2d 646, 654 (Fla. 1st DCA 1993); cf. State v. Perez , 531 So. 2d

961, 963 (Fla. 1988)(rejecting literal meaning leading to

illogical result).

82. The incipient policy cannot rely on a rule to

interpret legislative intent for a statute. A rule defining

immorality for a statute authorizing termination of continuing

contracts do es not imply that a different statute includes

immorality as a ground for terminating different contracts. A

statute controls any conflict or ambiguity between the terms of

the statute and the interpretation of the rule. Johnson v.

State, Department of H ighway Safety & Motor Vehicles , 709 So. 2d

623, 624 (Fla. 4th DCA 1998). Any conflict between a subsequent

statute and a preexisting rule does not create ambiguity in the

statute. Id.

83. Incipient policy interpreting the five deadly sins to

include i mmorality is invalid. The policy is inconsistent with

the non - delegation doctrine and results in the implied amendment

of a statute. The policy conflicts with judicial decisions

recognizing distinctions between private acts of immorality and

job - related acts. The policy is inconsistent with the

legislative spirit and policy for the statute as a whole.

84. Just as incipient policy must not interpret a statute

in a manner that is unconstitutional, incipient policy must not

interpret a rule in a manner tha t satisfies the statutory

definition of an invalid rule. § 120.52(8), Fla. Stat. (2003).

The validity of the Agency's interpretation of the Rule defining

immorality is properly tested by the specific provisions of the

law implemented by the Rule. § 120. 52(8)(c), Fla. Stat. (2003).

85. The Rule defining immorality was adopted on

April 5, 1983, in relevant part, to implement the law

authorizing termination of continuing contracts. See former

§ 231.46(4)(c), Fla. Stat. (1982 Supp.), i.e. , the law expressly

implemented, later codified in § 1012.33(4)(c), Fla. Stat.

(2003)(authorizing termination of continuing contracts). The

Rule was not adopted to implement the law authorizing

termination of just - cause contracts. Compare former

§ 231.36(1)(a), F la. Stat. (1983), with § 1012.33(1)(a), Fla.

Stat. (2003)(each authorizing termination of just - cause

contracts).

86. The incipient policy in this proceeding does not

interpret the Rule defining immorality to regulate the

termination of continuing contra cts in accordance with the

specific provisions of the law implemented by the Rule. Rather,

the incipient policy interprets the Rule to regulate contracts

that are beyond the scope of the law implemented by the Rule.

87. Incipient policy cannot enlarge the specific

provisions of the law implemented in Florida Administrative Code

Rule 6B - 4.009(2) to reach just - cause contracts. Such an

interpretation would be an invalid exercise of delegated

legislative authority in Subsection 120.52(8)(c), Florida

Statu tes (2003). A valid interpretation of a rule must regulate

a matter directly within the class of powers and duties

identified in the specific provisions of the law implemented.

Department of Businesss and Professional Regulation v. Calder

Race Course , 72 4 So. 2d 100, 101 (Fla. 1st DCA 1998); St. Johns

River Water Management District v. Consolidated - Tomoka Land Co. ,

717 So. 2d 72, 76 (Fla. 1st DCA 1998)(range of powers test

replaces reasonably related test).

88. Agency policy that amends a rule is itself a rule.

§ 120.52(15), Fla. Stat. (2003)(defining a rule to include an

interpretation of agency policy that amends a rule). Agency

action that does not follow its own rules is itself a rule.

Vantage Healthcare Corporation v. Agency for Health Care

Asso ciation , 687 So. 2d 306, 307 (Fla. 1st DCA 1997). An agency

interpretation imposing different requirements from those in a

rule is an invalid rule. Decarion v. Martinez , 537 So. 2d 1083,

1084 (Fla. 1st DCA 1989). An agency deviation from a rule is

itsel f a rule. Williams v. Department of Transportation , 531

So. 2d 994, 996 (Fla. 1st DCA 1988). An agency's enforcement of

its interpretation of a rule may be a rule. Department of

Revenue of State of Florida v. Vanjaria Enterprises, Inc. , 675

So. 2d 252, 255 (Fla. 5th DCA 1996). An administrative order

may be a rule. Florida Public Service Commission v. Central

Corporation , 551 So. 2d 568, 570 (Fla. 1st DCA 1989).

89. The Agency's proposed interpretation of Florida

Administrative Code Rule 6B - 4.009(2) w ould be inconsistent with

the Rule and the specific provisions of the law implemented by

the Rule. An exercise of agency discretion is subject to remand

when it is inconsistent with an existing rule or the statute

implemented by the Rule. §§ 120.68(7)(e) 2. and 4., Fla. Stat.

(2003).

90. The Agency has not promulgated an objective definition

of immorality in a rule that regulates just - cause contracts.

Nor does the record evidence explicate an objective definition

of immorality to regulate the termination of a just - cause

contract.

91. Immorality, in the absence of an objective definition,

is unusually ambiguous and can be defined in an almost unlimited

number of ways, depending on the personal views of the definer.

As the Florida Supreme Court has expl ained:

The term "good moral character". . . by

itself, is unusually ambiguous. It can be

defined in an almost unlimited number of

ways for any definition will necessarily

reflect the attitudes, experiences, and

prejudices of the definer. Such a vague

qua lification, which is easily adapted to

fit personal views and predilections, can be

a dangerous instrument for arbitrary and

discriminatory [agency action]. Konigsberg

v. State Bar of California , 353 U.S. 252,

262 - 263, 77 S. Ct. 722, 728, 1 L. Ed. 2d 810

(1957).

Board of Bar Examiners , 358 So. 2d 7, 8 - 9 (Fla. 1978).

92. The incipient policy peddles a conclusion on two

analytical circularities. First, immorality is a ground for

terminating just - cause contracts because immorality is a ground

for termin ating continuing contracts. Second, the definition of

immorality in the Rule regulates just - cause contracts because

the definition regulates continuing contracts. Each treadle is

invalid, but both are required to proceed to a conclusion

concerning the de finition of immorality in the Rule.

93. A determination of whether a teacher deviates from a

standard of conduct requires findings of fact that are the

exclusive province of the trier of fact. Such a determination

is not infused with agency expertise. See Bush v. Brogan , 725

So. 2d 1237, 1239 - 1240 (Fla. 2d DCA 1999)(finding that conduct

was not gross immorality is a finding of fact that is not

infused with agency policy); accord Dunham v. Highlands County

School Board , 652 So. 2d 894, 896 (Fla. 2d DCA 1995).

94. The offending conduct does not satisfy the definition

of immorality in the rule adopted to regulate continuing

contracts. Florida Administrative Code Rule 6B - 4.009(2) defines

the term "immorality" as:

. . . conduct that is inconsistent with t he

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.

Florida courts have construed the foregoing definition of

immorality as follows:

. . . in order to dismiss a teacher for

immoral conduct the fact finder must

conclude: a) that the teacher engaged in

conduct inconsistent with the standards of

public conscience and good m orals, and b)

that the conduct was sufficiently notorious

so as to disgrace the teaching profession

and impair the teacher's service in the

community." (emphasis the court's).

McNeill , 678 So. 2d at 477 (citing McKinney , 667 So. 2d 387 and

Sherburne , 455 So. 2d 1057).

95. The public conscience and good morals of a community

is properly defined by an objective standard. A personal

standard invites an arbitrary and discriminatory exercise of

agency discretion. Board of Bar Examiners , 358 So. 2d at 8 - 9;

s ee Perez - Swinney v. Jamerson , 1995 WL 1052590 Case No. 94 - 2877

(DOAH January 13, 1995) (Final Order October 6, 1995). The

insufficiency of record evidence of a community standard in this

proceeding is similar to that in Sherburne , 455 So. 2d at 1061.

In Sherburne a female teacher was accused of immorality for

engaging in premarital sex. The court stated:

. . . while we recognize that the immorality

of pre - marital sex is not considered open to

debate in some quarters, and this opinion

should not be read a s condoning such

activity, we can find no substantial

evidence satisfying the requirements of

. . . rule [6B - 4.009(2)]. . . .

A finding that Respondent's conduct was inconsistent with the

community standard, without competent and substantial evidence

of an objective standard, would subvert evidentiary requirements

to the attitudes, experiences, prejudices, and personal views of

one person. Konigsberg , 353 U.S. at 262 - 263, 77 S. Ct. at 728;

Sherburne , 455 So. 2d at 1061.

96. Private, off - campus conduct involving a consensual

sexual relationship between adults of the opposite sex, by

itself, is not "just cause" to terminate the contract of a

teacher. Sherburne , 455 So. 2d at 1062. Petitioner must also

show, in relevant part, that the conduct impaired c lassroom

effectiveness and was so notorious that it disgraced the

teaching profession.

97. The offending conduct was not sufficiently notorious

to disgrace the teaching profession. Petitioner cannot rely on

its own activities to prove the conduct was widely known.

Sherburne , 455 So. 2d at 1061; Baker , 450 So. 2d at 1194.

98. A teacher's service in the community is measured by

the teacher's effectiveness in the classroom. McNeill , 678 So.

2d at 477 - 478, citing McKinney , 667 So. 2d at 387 and Sherburn e ,

455 So. 2d at 1062. Respondent remained effective in the

classroom up to the date of her suspension. The summary

opinions and conclusions of the witness were neither credible,

persuasive, nor legally probative. See MacMillan , 629 So. 2d at

229 - 230 (s ummary opinions do not evidence lost effectiveness).

99. Petitioner's favorable evaluation of Respondent after

the incident and subsequent re - employment is strong evidence of

Respondent's effectiveness in the classroom. The decision of a

court faced with similar evidence is instructive:

The Board's action in favoring appellant

with a teaching contract for three years,

and its tender of an annual contract for the

fourth year (subsequent to the events which

it now advances as disqualifying her to

teach) , strongly suggests that in later

denying appellant a continuing contract, or

even employment on an annual contract, the

Board was concerned more with what it

considered to be an affront to its members'

own personal moral standards, than with

appellant's p ossible adverse effects on the

students.

Sherburne , 455 So. 2d at 1061 - 1062.

100. Petitioner argues that a finding of impaired

effectiveness does not require specific evidence but may be

inferred from conduct. Petitioner cites three cases in support

o f its argument. Purvis , 766 So. 2d 492; Walker , 752 So. 2d

127; Summers , 666 So. 2d 175 (Fla. 5th DCA 1996).

101. The three judicial decisions held, inter alia , that

impaired classroom effectiveness may be inferred from the

teacher's conduct. The decis ion in Summers does not describe

the teacher's conduct and provides little factual precedent.

102. The facts in Purvis and Walker are factually

distinguishable from those in this proceeding in two respects.

The charges in Purvis and Walker involved mis conduct in office,

rather than immorality, and the facts involved public rather

than private acts. Purvis , 766 So. 2d at 493; Walker , 752 So.

2d at 128.

103. In Purvis , the court distinguished the holding in

McNeill on the grounds that McNeill "involved a charge of

immorality, rather than misconduct in office." Purvis , 766 So.

2d at 497. This proceeding involves a charge of immorality

rather than misconduct in office.

104. In Purvis , the teacher engaged in an altercation with

his fiancée outside of a nightclub, was arrested at the

nightclub, and was tried and acquitted by a jury on charges of

resisting arrest without violence; and battery of a law

enforcement officer. However, the decision affirming the

dismissal of the teacher turned on the teacher' s willingness to

lie under oath rather than the teacher's classroom performance.

As the court explained:

The fact that Purvis was willing to lie

under oath is particularly damaging to

Purvis' effectiveness as a teacher and

coach, since it harms his credib ility in his

dealings with others. The hearing officer's

reliance on his teaching and coaching skills

and the lack of public scandal are

irrelevant to the trust issues. . . .

Purvis , 766 So. 2d at 498.

Unlike the facts in Purvis , Respondent was honest and

forthcoming during Petitioner's investigation.

105. In Purvis , the court suggested in dicta that impaired

effectiveness may be a standard of severity rather than an issue

of proof. Even if it were an issue of proof, the court reasoned

that impaired effectiveness does not turn on whether misconduct

occurred on school grounds. The court suggested that impaired

effectiveness may be inferred from off - campus conduct. Id.

106. The decision of the Fifth District Court of Appeal in

Purvis conflicts wit h that of the Second District Court of

Appeal in Walker . In Walker , the court held that

ineffectiveness could be inferred from classroom chaos.

However, the court expressly limited it's holding to facts

involving conduct in the classroom. As the court e xplained:

This case must be distinguished from

McNeill , where the teacher's misconduct was

of a private immoral nature. In such a

case, the teacher's ineffectiveness cannot

be inferred due to the private nature of the

misconduct. By contrast, the miscond uct

here occurred in the classroom. The very

existence of the described chaos in

appellant's classroom speaks for itself.

Appellant's misconduct, which consisted of

his unwillingness to follow established

school board policy, led to a loss of

control in the classroom, which, by its very

nature, demonstrates his ineffectiveness in

the school system. In such a case,

independent evidence of the teacher's

ineffectiveness would be superfluous.

Walker , 752 So. 2d at 128.

The ruling in Walker is controlling in this proceeding.

107. The offending conduct in this proceeding was private

and off - campus. Compare Walker , 752 So. 2d at 128 (touching an

undercover officer in McNeill in a sexually suggestive manner,

is misconduct of a private nature even though it created a

public arrest record) and Sherburne , 455 So. 2d at 1062

(private, off - campus conduct involving conduct between adults is

not good cause for refusal of employment unless conduct impairs

ability to teach). Classroom ineffectiveness cannot be infer red

in this jurisdiction from a private, off - campus act of alleged

immorality. The absence of any evidence of impaired classroom

effectiveness deprives the record of a factual predicate essential

to the definition of immorality.

108. The remaining issue is whether conduct that does not

satisfy the definition of immorality is nevertheless an implied

ground for termination of a just - cause contract. See , e.g. ,

Dietz , 647 So. 2d at 218. The record does not develop facts

analogous to those in Dietz in which the offending conduct was

job - related and consistent with the legislative policy actuated in

the five deadly sins.

109. The incipient policy evidenced in the record identifies

three factors for the proposed termination of a just - cause

contract. One fac tor is job performance. Another is adultery,

and the other is public knowledge.

110. The record evidence does not formulate intelligible

standards for defining impaired job performance in a manner that

supports the proposed agency action. Petitioner g ave Respondent

satisfactory job performance evaluations after the offending

conduct, and the conduct did not cause any adverse impact on

students, parents, teachers, or the community.

111. The record evidence does not explicate intelligible

standards fo r the exercise of agency discretion based on adultery.

Teachers living in civil unions, by definition, would be immune

from dismissal for adultery. An unmarried teacher who engages in

sex with a married person may not be guilty of adultery. The

policy does not weigh aggravating and mitigating factors,

including coercion from allegedly abusive spouses.

112. The evidence failed to explicate definite parameters

for determining when a video becomes public. The incipient policy

apparently deems a video to be public when the video is disclosed

to the Agency. The policy disregards evidence showing the video

has no impact in the school or elsewhere beyond the administrative

offices of the Agency.

113. The record shows that Respondent is entitled to

reinst atement and back pay from the date of suspension on

November 4, 2004, through the date of reinstatement (contested

period). Davis , 646 So. 2d, n. 1, at 767. Neither party cited

any provisions in the CBA to determine the amount of back pay.

See generally Sickon v. School Board of Alachua County Florida ,

719 So. 2d 360, 364 - 365 (Fla. 1st DCA 360)(terms of CBA control

rights of parties). The amount of back pay for the contested

period is equal to the amount of wages Respondent would have

earned less any su ms Respondent earned or reasonably could have

earned. Davis , 646 So. 2d, n. 1, at 767.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that Petitioner enter a final order finding

Respondent not guilty of immorality or other just - cause for

termination, reinstating Respondent for the remainder of the

2004 - 2005 school year, and awarding back pay and benefits as

prescribed in this Recommended Order.

DONE AND ENTERED this 16th day of March, 2005, in

Tallaha ssee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Fil ing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of March, 2005.

ENDNOTES

1/ § 120.52(1), Fla. Stat. (2003); Board of Public Instruction

v. State ex rel. Allen , 219 So. 2d 430 (Fla. 1969)(county school

board is a state agency); accord Sublett v. District School

Board of Sumter County , 617 So. 2d 374 (Fla. 5th DCA 1993);

Canney v. Board of Public Instruction of Alachua County , 222

So. 2d 803 (Fla. 1st DCA 1969).

2/ The CBA is enti tled the Agreement between The School Board

of Lee County and the Teachers Association of Lee County TALC

2003 - 2005.

3/ Petitioner has not charged Respondent with violating

disciplinary rules related to the principles of professional

conduct in Florida A dministrative Code Rule 6B - 1.006.

4/ The CBA limits the grounds upon which Petitioner may

dismiss Respondent to those grounds that satisfy the definition

of "just cause" in Chapter 1012, Florida Statutes (2003).

Art. 6 CBA, § 6.024. Similarly, the pe tition proposes to

dismiss Respondent pursuant to Section 6.024 of the CBA and

§ 1012.33(1)(a), Fla. Stat. (2003).

5/ Legislative policy treating a crime of moral turpitude as

job - related is endemic in Florida law and applies to numerous

occupations i ncluding licensees of the Florida Real Estate

Commission, Department of Health, and Florida Bar Association.

The policy is well established through the judicial doctrine of

longstanding legislative reenactment. The legislature has not

reenacted immoralit y as a job - related offense in the statute sub

judice because no appellate decisions have rendered a definite

construction of the statute to terminate a just - cause contract

for immorality. Moral turpitude has been judicially defined to

include the elements of culpable intent and a lack of integrity

or trustworthiness that arguably make moral turpitude job -

related. The term excludes acts committed through error of

judgment when a wrong is not contemplated. See , e.g. , Pearl v.

Florida Board of Real Estate , 394 So. 2d 189, 191 (Fla. 3d DCA

1981). There is no evidence of dishonesty or culpable intent to

pander the video or to use it for any depraved purpose. Rather,

Respondent alleges, but did not testify, that her abusive ex -

husband coerced her into the off ending conduct. Compare Pearl ,

394 So. 2d at 191(possession of controlled substance without

intent to distribute is not moral turpitude) with Milliken v.

Department of Business and Professional Regulation , 709 So. 2d

595 (Fla. 5th DCA 1998)(possession of controlled substance with

intent to distribute is moral turpitude) and Tullidge v.

Hollingsworth , 146 So. 660 (Fla. 1933)(in dicta suggesting false

oath, if proved, would be moral turpitude) with Purvis , 766 So.

2d at 498 (willingness to lie under oath dem onstrates lack of

trustworthiness that impairs job performance).

6/ In a specific situation, the absence of unsatisfactory

performance would require renewal of a professional service

contract and thereafter authorize termination of the contract on

groun ds that are not job - related; but fall within the ambit of

"immorality" or other "good and sufficient reasons" in

§§ 1012.33(4)(b) or (c), Fla. Stat. (2003).

COPIES FURNISHED :

J. Paul Carland, II, Esquire

Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901 - 3916

Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard

Post Office Box 2089

Fort Myers, Florida 33902 - 2089

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street, Room 1244

Tallahasse e, Florida 32399 - 0400

Honorable John Winn, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. James W. Browder, III, Superintendent

Lee County School Board

2055 C entral Avenue

Fort Myers, Florida 33901 - 3916

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.