05-004551 Orange County School Board vs. Michele O`neill Status: Closed Recommended Order on Friday, June 16, 2006.

Summary: Petitioner has reasonable cause to test for alcohol use. Respondent`s refusal to submit to testing is insubordination and warrants termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 05 - 4551

)

MICHELE O ' NEILL , )

)

Respondent . )

)

RECOMMENDED ORDER

On April 6 and 7, 2006, an administrative hearing in

this case was held in Orlando, Florida, before William F.

Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Brian F. Moes, Esquire

Orange County S chool Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802 - 0271

For Respondent: Elizabeth F. Swanson, Esquire

Egan, Lev and Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802 - 2231

STATEMENT OF THE ISSUE

The issue in the case is whether the Orange County School

Board ( Petitioner ) had just cause for termination of the

employment of Michele O ' Neill ( Respondent ).

PRELIMINARY STA TEMENT

By Administrative Complaint dated October 7, 2005, the

Petitioner notified the Respondent that the Petitioner intended

to terminate the Respondent ' s employment as a classroom teacher.

The Respondent filed a request for hearing that was forwarded to

the Division of Administrative Hearings, which scheduled and

conducted the proceeding.

At the hearing , the Petitioner presented the testimony of

five witnesses and had E xhibits numbered 1 through 7 admitted

into evidence. The Respondent testified on he r own behalf,

presented the testimony of seven witnesses, and had E xhibits

numbered 1 through 6 admitted into evidence.

A T ranscript of the hearing was filed on May 5, 2005. The

testimony of Petitioner ' s witness Melissa Caliguiri was taken on

May 11, 20 06 , and the T ranscript was filed on May 15, 2006.

Both parties filed Proposed Recommended Orders.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

employed under a professional services contract by the

Petitioner as a classro om teacher at Lakemont Elementary School,

a unit of the Orange County Public School System.

2. At all times material to this case, Dr. Susan Stephens

was the p rincipal of Lakemont Elementary School.

3. The Petitioner has adopted a " Drug - Free Workpla ce "

policy (the Policy) that in relevant part provides as follows:

No employee shall use, possess, manufacture,

distribute, or be under the influence of

controlled substances or alcohol while on

duty or on school board property, except

when he/she is using a controlled substance

in conformance with the instructions of a

physician.

4. The Policy provides for " Reasonable Suspicion testing "

and provides that such tests may be performed " based on a belief

that an employee is using or has used alcohol or drug s " in

violation of the Policy, and further provides as follows:

Reasonable suspicion testing must be based

on specific, contemporaneous documented

objective and articulable observations and

circumstances which are consistent with the

long and short term ef fects of alcohol or

substance abuse; including, but not limited

to, physical signs and symptoms, appearance,

behavior, speech and/or odor on the person.

Supervisors who have Reasonable Suspicion

tha t an employee may be under the influence

while on duty ar e required to immediately

direct the employee to submit to testing as

provided for by the board. Reasonable

Suspicion shall be in accordance with

training provided to managers, and will

require confirmation by two trained

managers. One of the two manager s may

include the supervisor, if trained. A

refusal to submit to testing will result in

a recommendation to terminate the employee.

5. The Policy includes an " observation checklist " of

characteristics indicative of potential alcohol or controlled

subs tance use, which " includes, but is not limited to " slurred

speech, confusion/disorientation, odor of alcohol on breath or

person, rapid/continuous eye movement or an inability to focus,

and improper job performance and/or violation of authority.

6. Dr. Stephens has received training in " Reasonable

Suspicion " observations.

7. During the 2002 - 2003 school year, the Respondent was

seriously injured in a n automobile crash that required an

extended absence from the classroom. She eventually returned to

tea ching about a year later, but continued to suffer the after -

effects of the injuries, including an altered and uneven manner

of walking.

8. For the vast majority of the Respondent ' s employment

with the Petitioner, her performance has been evaluated as

" e ffective , " and she was regarded as a good teacher.

9. There is some evidence that, after the Respondent ' s

post - accident return to teaching, there were concerns related to

the Respondent ' s job performance. A letter from Dr. Stephens to

the Respondent da ted February 25, 2005 , specifically addresse d a

number of issues , including collaboration with co - workers, anger

management, and focusing on academic instruction during

classroom time.

10. Also subsequent to the Respondent ' s return to the

classroom, a s mall number of parents whose children were being

taught by the Respondent expressed various concerns about the

education the students were receiving. For various reasons,

some parents asked that their children be transferred to the

classrooms of other tea chers.

11. Late in the school day on Friday, September 30, 2005,

a parent contacted Dr. Stephens and reported that during a

classroom meeting with the Respondent, the parent detected the

odor of alcohol on the Respondent. The parent asked that the

chil d be transferred to another teacher ' s classroom.

Dr. Stephens attempted to locate the Respondent at that time,

but the school day was finished and the Respondent had

apparently left the campus.

12. On Monday, October 3, 2005, Dr. Stephens came to the

R espondent ' s classroom to discuss the requested transfer, and

during the meeting, Dr. Stephens detected the odor of alcohol

emanating from the Respondent.

13. Dr. Stephens returned to her office and asked the

school ' s a ssistant p rincipal, Randall Hart, t o go to the

Respondent ' s classroom and talk to her. He did so and then

returned to Dr. Stephens ' office where he reported to her that

the Respondent smelled of alcohol.

14. Dr. Stephens contacted the Petitioner ' s Employee

Relations department to inquir e as to how to proceed, and was

provided the names of several school board personnel who had

received training in " Reasonable Suspicion " observations. From

the names provided to Dr. Stephens, she contacted Dr. Suzanne

Ackley, p rincipal of Brookshire Eleme ntary School in Winter

Park, and asked her to come to Lakemont Elementary School and

observe a teacher for indications of being under the influence.

15. Dr. Ackley arrived shortly after being contacted by

Dr. Stephens. Dr. Stephens and Dr. Ackley went t o the

Respondent ' s classroom and met with the Respondent. No students

were present in the room at the time. Dr. Stephens identified

Dr. Ackley as the p rincipal of Brookshire Elementary.

Dr. Ackley engaged the Respondent in a conversation about

curriculu m issues.

16. During the meeting, Dr. Ackley detected the odor of

alcohol emanating from the Respondent, and believed that the

Respondent ' s speech sounded " slurred. "

17. After meeting the Respondent, Dr. Ackley and

Dr. Stephens returned to the school o ffice. Dr. Ackley told

Dr. Stephens that she had detected the odor of alcohol while

talking to the Respondent. Dr. Ackley then left the Lakemont

campus.

18. Shortly after Dr. Ackley departed, and in accordance

with the P olicy, Dr. Stephens informed the Respondent that there

was concern related to possible alcohol use. Dr. Stephens

ordered the Respondent to accompany her to a facility used by

the school board for alcohol and controlled substance testing.

19. Although the Respondent initially agreed to accompany

Dr. Stephens to the facility and to submit to the test, within a

few minutes, the Respondent changed her mind and refused to

travel with the principal to the testing facility.

20. The Respondent stated that she wanted to go home prior

to going to the testing facility, ostensibly to retrieve some

prescription medications that she wanted to take to the

facility.

21. The Respondent testified that she had not been using

alcohol on October 3, 2005. She offered vague testimony about

an immaterial personal matter, the import of which was that the

Respondent went to an emergency room on October 1, 2005, where

she received prescriptions for medications including Flexeril, a

muscle relaxant. She asserted that she did not refuse to submit

to the test, but that she merely wanted to drive herself home to

retrieve the prescription medications prior to continuing on to

the drug testing facility, to establish that the behaviors

exhibited were related to the use of the medications prescribed

at the hospital. The Respondent ' s testimony is not credible and

is rejected.

22. The Respondent offered the expert testimony of

Dr. Rahn Shaw , who opined that the prescribed medications could

have accounted for some of the Respondent ' s physical

presentation on October 3, 2005; however, there is no evidence

that use of the referenced medications could create an odor of

alcohol on or about a person taking the medications.

23. Dr. Stephens declined to permit the Respondent to go

home before submitting to the test, and c ontinued in attempting

to convince the Respondent to accompany her to the testing

facility.

24. Dr. Stephens specifically and repeatedly advised the

Respondent that failure to comply with the request would

jeopardize the Respondent ' s employment status, but the

Respondent refused to comply.

25. The Respondent decided to leave the school grounds.

She went to her car and began to drive the vehicle from the

campus, but did not get far from her parking space. The

Respondent was prevented from doing so by t he school ' s D.A.R.E.

officer, who arrived after being contacted by school personnel

concerned about the Respondent ' s ability to operate the vehicle.

The D.A.R.E. officer is also a uniformed police officer.

26. The officer testified that she eventually pe rsuaded

the Respondent to exit the vehicle and escorted her to an office

in the school where students, who were passing in the vicinity,

would not see the Respondent. The officer further testified

that Respondent smelled of alcohol at the time the officer

intervened in the situation.

27. The Respondent insisted that she was not under the

influence of alcohol, and in response, the officer performed a

gaze nystagmus test and a " finger - to - nose " test, after which the

officer concluded that the Respondent w as not capable of driving

herself home.

28. Several of the Petitioner ' s witnesses testified that

they were concerned about the Respondent ' s ability to transport

herself home in her personal vehicle. The refusal to permit the

Respondent to transport her self to her home or to the testing

facility was clearly reasonable based on the observations of the

Respondent ' s behavior.

29. It should also be noted that Dr. Shaw testified that

persons using Flexeril " shouldn ' t be driving or operating

machinery becau se it makes everybody I know drowsy and

lethargic " and that " you could qualify for a DUI in this state

by taking that medicine and driving most of the time. "

30. A cab was called, and the Respondent was taken home in

the cab on October 3, 2005. Prior t o leaving the campus,

Dr. Stephens again attempted to convince the Respondent to

submit to the testing and advised that the Respondent ' s

employment was in jeopardy, but to no avail.

31. Dr. Stephens had been in communication with the

Employee Relations department during the incident, and had been

told to direct the Respondent to contact the Employee Relations

department on Tuesday, October 4 th , if she chose not to comply

with the testing directive.

32. After determining that the Respondent would not c omply

with the directive and prior to the Petitioner ' s departure from

the school grounds on October 3 rd , Dr. Stephens instructed the

Respondent to contact the Employee Relations department on the

next day.

33. The Respondent later returned to the school grounds

and retrieved her vehicle.

34. The Respondent failed to contact the Employee

Relations department on October 4, 2005. At the close of that

day, and after the Respondent had failed to make contact, Shonda

Von Schriltz, s enior m anager for the Pe titioner ' s Employee

Relations department, sent two letters by express mail to the

Respondent. The first letter gave notice of a meeting scheduled

for October 10, 2005 , to discuss the incident. The second

letter advised that the Respondent would be placed on " Relief of

Duty " with pay, and that the Respondent was required to remain

available to school personnel during school hours while on the

paid relief period. Attempts to deliver the letters apparently

failed for reasons that are unclear.

35. In any event, there was no communication between the

Respondent and the Petitioner until October 13, 2005. On that

date, a predetermination conference , which was arranged based on

an October 12, 2005, request from a teacher ' s union

representative , was held. Dur ing the meeting, at which Ms. Von

Schriltz was present, the Respondent denied that she had used

alcohol on October 3, 2005 , or that she had been requested to

submit to testing. She had no recollection of having been told

anything by Dr. Stephens , and was unable to offer a rationale

for leaving campus early on October 3 rd .

36. During the October 13 th meeting, the Respondent was

directed to maintain contact with the Employee Relations

department, but after the meeting ended, there was no contact

until Nov ember 8, 2005, when the Respondent answered one of

several telephone calls that had been placed to her number by

Ms. Von Schriltz. During the November 8 th conversation, the

Respondent had no recollection of Ms. Von Schriltz or of the

October 13 th meeting, and instructed Ms. Von Schriltz to contact

the Respondent ' s legal counsel.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.569 , Fla . Stat . (2005).

38. In relevant part, Section 1012.33, Florida Statutes

(2005), provides as follows:

1012.33 Contracts with instructional staff,

supervisors, and school principals . --

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

the instructional staff in any district

school sys tem shall be properly certified

pursuant to s. 1012.56 or s. 1012.57 or

employed pursuant to s. 1012.39 and shall be

entitled to and shall receive a written

contract as specified in this section. All

such contracts, except continuing contracts

as specifie d in subsection (4), shall contain

provisions for dismissal during the term of

the contract only for just cause. Just cause

includes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: misconduct in

office , incompetency, gross insubordination,

willful neglect of duty, or conviction of a

crime involving moral turpitude. (emphasis

added)

39. The Petitioner has the burden of establishing the

facts of the case by a preponderance of the evidence sufficient

to warrant termination of the Respondent ' s employment. McNeill

v. Pinellas County School Board , 678 So. 2d 476 (Fla. 2d DCA

1996); Dileo v. School Board of Dade County , 569 So. 2d 883

(Fla. 3d DCA 1990). In this case, the burden has been met as

set forth h erein.

40. The Administrative Complaint filed in this case

alleges that the Respondent ' s actions are " in violation of

School Board Policies, insubordination, conduct unbecoming a

public employee, and a violation of the Code of Ethics and the

Principals of Professional Conduct of the Education Profession

in Florida. "

41. Pursuant to Article XII, Section A.2. of the operative

Contract between the Respondent and the Orange County Classroom

Teachers Association, a teacher " may be suspended or dismissed

at an y time during the year, provided that the charges against

him/her are based on immorality, misconduct in office,

incompetency, gross insubordination, willful neglect of duty,

drunkenness, or conviction of a crime involving moral turpitude,

where applicable , and in accordance with Florida Statutes. "

42. " Gross insubordination " is defined at Florida

Administrative Code Rule 6B - 4.009(4), to be " a constant or

continuing intentional refusal to obey a direct order,

reasonable in nature, and given by and with p roper authority. "

43. The evidence establishes that the school ' s principal

followed applicable procedure in determining that there was

reasonable suspicion that the Respondent was using or had used

alcohol on October 3, 2005. Two trained personnel observ ed the

Respondent , and both detected the odor of alcohol emanating from

the Respondent. The odor of alcohol is specifically identified

in the P olicy as " grounds for reasonable suspicion. "

44. Additionally, Dr. Stephens ' letter of February 25,

2005, ind icates that she had concerns about the Respondent ' s job

performance. Dr. Ackley believed that the Respondent ' s speech

was slurred on October 3, 2005. Both issues are referenced in

the P olicy ' s observation checklist.

45. Having reasonable suspicion to believe that the

Respondent was using alcohol, Dr. Stephens directed that the

Respondent accompany the p rincipal to the testing facility. The

Respondent initially consented and then almost immediately

changed her position. The Petitioner ' s P olicy clearly states

that such refusal will result in recommendation of termination

of employment.

46. Despite numerous attempts to convince the Respondent

to comply with the P olicy, the Respondent refused to submit to

the testing. The p rincipal reiterated to the R espondent that

such refusal jeopardized the Respondent ' s employment, but the

Respondent still refused to comply.

47. The Respondent ' s " constant or continuing intentional

refusal to obey a direct order, reasonable in nature, and given

by and with proper authority " clearly constitutes gross

insubordination as defined at Florida Administrative Code

Rule 6B - 4.009(4).

48. The Respondent correctly asserts that the evidence

fails to establish that the Respondent was under the influence

of alcohol on October 3 , 2005; however, whether or not the

Respondent was under the influence of alcohol or any other

substance is not at issue in this proceeding.

49. The factual allegations underlying the proposed

termination of employment do not address whether or not the

Respondent was under the influence of alcohol on October 3,

2005, but essentially focus on the Respondent ' s refusal to

comply with the school principal ' s directive on October 3, 2005,

that the Respondent should accompany the school principal to the

testing facility.

50. The Administrative Complaint further charges that the

Respondent was insubordinate through her failure to contact the

Employee Relations department on October 4, 2005, and to

maintain contact with the department between October 13 and

Nov ember 8, 2005. While the evidence supports the allegations

of the complaint, the insubordination of October 3, 2005 , alone

clearly warrants termination of employment.

51. As to the charged violations of the Code of Ethics

and the Princip le s of Profess ional Conduct of the Education

Profession in Florida, Florida Administrative Code

Rule 6B - 4.009(3) provides as follows:

Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in

Rule 6B - 1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in

Rule 6B - 1.006, F.A.C., which is so serious

as to impair the individual ' s effectiveness

in the school system.

52. The Code of Ethics of the Education Profess ion is set

forth at Florida Administrative Code Rule 6B - 1.001, and provides

as follows:

6B - 1.001 Code of Ethics of the Education

Profession in Florida.

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excel lence, 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

conc ern 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 main taining

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.

53. While Florida Administrative Code Rule 6B - 1.001 (2)

addresses the exercise of judgment, the rule clearly relates to

the exercise of judgment in matters affecting the development of

students. The evidence fails to establish that the Respondent ' s

poor judgment as set forth herein negatively affected her

students. Florida Administrative Code Rule 6B - 1.001(3) requires

an educator to strive for " the highest degree of ethical

conduct. " There is no evidence that the Respondent ' s actions

constitute unethical behavior.

54. The Principles of Professional Con duct for the

Education Profession are set forth at Florida Administrative

Code Rule 6B - 1.006. Review of the cited rule fails to establish

that the Respondent ' s actions were specifically contrary to the

Principles of Professional Conduct.

55. The Admini strative Complaint further alleges that the

Respondent exhibited conduct unbecoming a public employee. The

Administrative Complaint references no definition of " conduct

unbecoming a public employee. " The Petitioner asserts in its

Proposed Recommended Ord er that " conduct unbecoming a public

employee " is that " which falls below a reasonable standard of

conduct prescribed by the employer " citing Seminole County Board

of County Commissioners v. Long , 422 So. 2d 938 (Fla. 5th DCA

1982).

56. In this case, th e standard of conduct is set forth in

the P olicy, which also identifies the appropriate penalty in

this case. The Respondent ' s conduct, including the refusal to

submit to testing or to maintain contact with her employer after

leaving the school campus on October 3, 2005, can essentially be

described as a series of insubordinate acts, which have been

addressed as set forth herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Petitioner enter a f inal o rder

terminating the employment of Michele O ' Neill.

DONE AND ENTER ED this 1 6 th day of June, 2006 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 1 6 th day of June , 2006 .

COPIES FURNISHED :

Joseph Egan, Jr., Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802 - 2231

Elizabeth F. Swanson, Esquire

Egan, Lev and Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802 - 2231

Brian F. Moes, Esq uire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802 - 0271

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Ho norable John Winn

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Ronald Blocker, Superintendent

Orange County School Board

Post Office Box 271

Orlando, Florida 328 02 - 0271

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 Fi nal Order in this case.