07-002590TTS Seminole County School Board vs. Dale W. Reichard Status: Closed Recommended Order on Monday, June 2, 2008.

Summary: The stipulated facts are insufficient to establish Respondent committed misconduct in office or conduct unbecoming an employee of the school board.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 07-2590

)

DALE W. REICHARD, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was referred to the Division of Administrative

Hearings (DOAH) on June 11, 2007. Pursuant to the parties'

request, no hearing was conducted. As addressed herein, this

Recommended Order is based upon a Stipulation of Facts filed on

February 29, 2008.

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

For Respondent: Thomas Johnson, Esquire

Chamblee, Johnson & Haynes, P.A.

510 Vonderburg Drive, Suite 200

Brandon, Florida 33511

STATEMENT OF THE ISSUE

The issue in the case is whether just cause exists for the

termination of Respondent Dale W. Reichard's (Respondent)

employment under a professional services contract with

Petitioner Seminole County School Board (Petitioner).

PRELIMINARY STATEMENT

By letter dated May 10, 2007, Seminole County School

District Superintendent Bill Vogel (Dr. Vogel) notified the

Respondent that Dr. Vogel intended to recommend to the

Petitioner that the Respondent's employment be terminated. By

letter dated May 24, 2007, the Respondent challenged the

termination and requested a formal administrative hearing. The

Petitioner thereafter filed a Petition for Termination with the

DOAH on June 11, 2007.

An Initial Order was entered, which required the parties to

provide suggested dates for hearing. Based upon the response to

the Initial Order, the formal hearing was scheduled for July 26,

2007.

On July 10, 2007, the Respondent filed an Unopposed Motion

for Continuance based on the existence of unresolved criminal

charges related to matters at issue in this proceeding. The

hearing was rescheduled for September 19, 2007.

On August 30, 2007, the Petitioner filed a Motion for

Continuance based on the failure to complete discovery due to

the criminal charges. The motion was not opposed, and the

hearing was rescheduled for November 16, 2007.

By letter dated November 1, 2007, the Petitioner advised

the Administrative Law Judge (ALJ) that the hearing should be

cancelled, that the parties would submit stipulated facts in

lieu of evidence, and that a recommended order should be issued

on the basis of the stipulation. A telephone conference was

conducted on November 14, 2007, to address the request and to

discuss whether, in light of the apparent lack of disputed

facts, jurisdiction should remain with DOAH. During the

conference, both parties affirmed their interest in having the

matter proceed via a recommended order from DOAH.

By Order Canceling Hearing dated November 15, 2007, the

hearing was cancelled, and the parties were directed to

establish deadlines for filing the stipulation of facts and

proposed recommended orders.

The Petitioner filed a Stipulation of Facts and an Amended

Stipulation of Facts on January 3, 2008, but neither document

was executed by counsel for the Respondent.

The Petitioner filed a Motion for Abatement on January 10,

2008, advising of the death of counsel for the Respondent.

Substitute counsel for the Respondent filed Notices of

Appearance on January 15, 2008.

A telephone conference was conducted on February 8, 2008,

and revised deadlines were established for filing an executed

stipulation and proposed recommended orders. Various extensions

to deadlines were granted upon the agreement of the parties.

An executed Stipulation of Facts was filed on February 29,

2008. Proposed Recommended Orders were filed on March 20, 2008.

The Findings of Fact set forth herein are based in their

entirety on the executed Stipulation of Facts filed on

February 29, 2008. The inclusion of the stipulated facts within

this Recommended Order should not be deemed to indicate that the

ALJ has determined that sufficient evidence exists to support

the facts to which the parties have stipulated.

FINDINGS OF FACT

1. Dr. Vogel is the district school superintendent of the

School District of Seminole County, Florida.

2. Prior to his current employment, he was employed as the

district superintendent in St. Lucie County, Florida for six and

one-half years.

3. Prior to his employment by the School Board of

St. Lucie County, Florida, he was employed as assistant

superintendent for personnel and administrative services by the

School Board of Osceola County, Florida, for 17 years.

4. The Respondent is employed by the Petitioner at Oviedo

High School on a professional service contract, pursuant to the

provisions of Subsection 1012.33(3), Florida Statutes.

5. The Respondent is employed as "instructional

personnel," as defined by Subsection 1012.01(2)(a), Florida

Statutes.

6. The employment relationship between the Respondent and

the Petitioner is established pursuant to the state law of

Florida and the collective bargaining agreement between the

Seminole Education Association, Inc., and the Petitioner. The

Respondent's employment can be terminated for just cause only.

7. The Respondent was arrested at Oviedo High School on

May 9, 2007, on a felony warrant issued by the Circuit Court of

Volusia County, Florida, for the offense of possession of

cocaine.

8. The Respondent's arrest resulted from a May 2, 2007,

visit to the Respondent's residence by undercover investigators

employed by the Volusia County Sheriff's Department. The

Respondent was cooperative with the investigators and

readily admitted that he was in possession of cocaine and gave

the cocaine to them. An ensuing search of the Respondent's

residence resulted in the investigators finding

approximately 12 grams of material which field-tested

presumptive positive for cannabis.

9. The Respondent was charged in the Circuit Court of

Volusia County, Florida, with possession of cocaine under

information 2007-01526CFA WS.

10. Subsequent to the Respondent's arrest at Oviedo High

School on May 9, 2007, Dr. Vogel, as district school

superintendent, placed the Respondent on suspension with pay and

recommended to the Petitioner that the Respondent be suspended

without pay pending termination.

11. By letter of May 10, 2007, Dr. Vogel advised the

Respondent that he would recommend to the Petitioner that the

Respondent be terminated for misconduct in office.

12. Dr. Vogel's recommendation for suspension without pay

and termination was based on information provided to him by

Robert Lundquist (Mr. Lundquist), the principal of Oviedo High

School, and John Reichert, who is the executive director for

Human Resources.

13. By Petition for Termination, filed with the DOAH, the

Respondent was further charged with conduct unbecoming an

employee of the Petitioner by reason of his possession of

cocaine and possession of marijuana.

14. Proceedings for termination were abated pending

resolution of the criminal charges then pending in the Circuit

Court of Volusia County, Florida.

15. The Respondent entered into a Substance Abuse Offender

Referral Agreement with the Office of the State Attorney,

Seventh Judicial Circuit, which provided that the criminal

prosecution would be dismissed if the Respondent successfully

complied with the terms and conditions therein prescribed.

16. The Respondent successfully completed his obligations

under the Substance Abuse Offender Referral Agreement, which

included counseling and random drug testing. The criminal

prosecution was dismissed via a nolle prosequi of the charge

entered on August 3, 2007.

17. Mr. Lundquist has been the principal of Oviedo High

School commencing with the 1996-1997 school year.

18. Mr. Lundquist is the administrative head of Oviedo

High School.

19. At the time of the incident herein described, the

Respondent held the position of teacher of American Government

and chairman of the Social Studies Department at Oviedo High

School. In addition, the Respondent was the boys' volleyball

coach.

20. The Respondent was considered to be a good teacher by

Mr. Lundquist.

21. Three weeks prior to the Respondent's arrest,

Mr. Lundquist had a conference with the Respondent in which

Mr. Lundquist communicated that he had heard through the

Seminole County Sheriff's Department that there was a

possibility that the Respondent was involved in drug use.

22. Mr. Lundquist advised the Respondent that, if the

information Mr. Lundquist had received was correct, the

Respondent should stop his drug use and get help.

23. Later that same day, the Respondent contacted the

Employee Assistance Program (EAP) to set up an appointment. The

original appointment was for May 2, 2007. However, the

Respondent was contacted by EAP and informed that the

appointment had been changed to May 3, 2007. 1

24. Mr. Lundquist has received no negative communications

or comments from teachers regarding the Respondent.

25. Several teachers who were members of the Respondent's

department, and several teachers that observed the Respondent's

arrest, asked Mr. Lundquist about the matter. 2

26. Several students also had questions about the matter

of the Respondent's arrest. Mr. Lundquist did not respond to

the students.

27. Mr. Lundquist has received no communications, either

written or oral, from parents regarding the matter.

28. To Mr. Lundquist's knowledge no information about the

matter was published in local papers or broadcast by local radio

or television stations.

29. Mr. Lundquist confirms that the Respondent's

performance as department chair, classroom teacher, and boys'

volleyball coach during Mr. Lundquist's tenure as principal of

Oviedo High School has met all performance expectations of the

Petitioner and that the Respondent has continuously met the

assessment criteria as specified in Section 1012.34, Florida

Statutes, and as found in the official agreement between the

Seminole Education Association, Inc., and the Petitioner.

30. Mr. Lundquist believes that a teacher's role goes

beyond what is taught in the classroom on a daily basis.

31. Mr. Lundquist believes that a teacher has an

obligation to his or her colleagues, students, students'

parents, and the community to uphold moral standards.

32. Mr. Lundquist believes that a teacher is expected by

students and the community to be a person of integrity and to

display good sound judgment and moral character, both in school

and in their community.

33. Mr. Lundquist's trust in the Respondent has been

destroyed by the Respondent's use and possession of cocaine and

marijuana.

34. Mr. Lundquist believes that the Respondent's use and

possession of controlled substances, cocaine and marijuana,

constitutes a betrayal of the trust reposed in the Respondent by

Mr. Lundquist regardless of the fact that the Respondent

voluntarily admitted to law enforcement that he used and

possessed cocaine and marijuana at the time of the consent

search of his home.

35. Mr. Lundquist believes that the Respondent's conduct

would diminish his effectiveness in the classroom and that it

would be an error in judgment to place him back in the

classroom.

36. Mr. Lundquist believes that he can no longer trust the

Respondent to supervise students involved in an extracurricular

activity, e.g. , volleyball, especially in light of

Mr. Lundquist's belief that the Respondent apparently ignored

the "heads-up" that Mr. Lundquist gave him during their

conversation about what Mr. Lundquist had heard from law

enforcement about the Respondent's suspected drug use.

37. Dr. Vogel is aware that the criminal charge against

Respondent was dismissed upon the Respondent's completion of a

pretrial diversion program.

38. Dr. Vogel believes that the Respondent's effectiveness

as a role model for students was destroyed by his admitted

criminal conduct and that a teacher's behavior extends beyond

the classroom and the teacher's school's campus.

39. Dr. Vogel believes that he can no longer trust the

Respondent to be in presence of students, either as a teacher or

a coach, because he can no longer serve as an effective role

model for students.

40. Dr. Vogel's recommendation for suspension without pay

and termination is solely based on the nature of the conduct,

the Respondent's arrest for possession and use of cocaine.

41. Dr. Vogel acknowledges that he has received no

complaints regarding the Respondent from teachers, students, or

parents; that he is aware of no publicity regarding the

Respondent's arrest; and that he is aware that the Respondent's

performance as a teacher and department chair was satisfactory.

42. It is Dr. Vogel's professional belief that a teacher

who possesses and uses cocaine can no longer serve as a positive

role model for students and, thus, is no longer effective as a

teacher.

43. The Respondent was arrested along with a friend in

1981 for possession of marijuana.

44. The Respondent participated in a pre-trial diversion

type plan through the Orange County, Florida, court system, and

the charge was ultimately dismissed upon his completion of the

program.

45. The Respondent did not acknowledge the 1981 arrest for

marijuana on his application for employment with the Petitioner

because he believed that the charge had been expunged or sealed. 3

46. The Stipulation of Facts included expressions of

support for the Respondent by various colleagues which are set

forth verbatim as follows:

a. Diana N. Cabana has been a teacher for

10 years, during which Dale Reichard was the

Department Chair for Social Studies, and is

aware of the reasons for Mr. Reichard’s

termination. Ms. Cabana describes

Mr. Reichard as a colleague and friend, who

has also been an excellent mentor. In

addition to being a colleague of

Mr. Reichard, Ms. Cabana is the parent of

two students taught by Mr. Reichard, and

believes that he was instrumental in their

development both as students, and as

citizens active in the community.

Ms. Cabana further describes Mr. Reichard as

an excellent teacher, and stated her sincere

hope that he would be allowed to complete

his teaching career.

b. Jean Davis has been a colleague of

Mr. Reichard for 15 years, during which time

Mr. Reichard was also the volleyball coach

of Ms. Davis' son. Ms. Davis is aware of

the reasons for Mr. Reichard’s termination.

Ms. Davis describes Mr. Reichard as an

individual worthy of appreciation from both

the school system and parents for his

diligence and hard work. Ms. Davis states

that Mr. Reichard is highly motivated and a

self-starter who encourages students to get

involved in their school activities, such as

homecoming and powder puff football, as well

as clubs and sports. According to

Ms. Davis, Mr. Reichard has established a

solid reputation as a highly regarded

teacher and coach. Parents viewed

Mr. Reichard as a role model, instilling

sportsmanship, building confidence, and

motivating students to congratulate the

other team with a positive attitude – win or

lose. In short, Ms. Davis believes that

Mr. Reichard has clearly demonstrated

through his job performance and dedication

that he is an asset to the Seminole County

School District.

c. Joan Stone has been a colleague of

Mr. Reichard for approximately 20 years, and

she is aware of the reasons for his

termination. Ms. Stone describes

Mr. Reichard as very enthusiastic and states

that his attitude made an impact on the

social studies department at Oviedo High

School. According to Ms. Stone,

Mr. Reichard had a great way with the

students, and many of his past students

would be glad to tell you that he was and

still is their all-time favorite teacher.

Ms. Stone stated that Mr. Reichard’s keen

interest in his subject-–American Government

--influenced his students who developed

their own interest in politics. Many of the

students registered to vote as a result of

his encouragement. Finally, Ms. Stone

states that Mr. Reichard’s presence at

Oviedo High School is definitely missed.

d. Mary Ellen Woods first became acquainted

with Mr. Reichard in 1985 when he was placed

in her classroom as a senior intern from the

University of Central Florida. According to

Ms. Woods, it was quickly apparent that

Mr. Reichard was no ordinary intern in that

his depth of knowledge and enthusiasm for

the subject he was teaching far surpassed

any other intern she had in her classroom

before or after that time. Ms. Woods took

pride in Mr. Reichard’s development over the

years, including when Mr. Reichard was

awarded Teacher of the Year and was

appointed Social Studies Department

Chairman. Ms. Woods also states that

Mr. Reichard was not only an outstanding

classroom teacher but a dedicated coach as

well. He mentored numerous young people on

the volleyball court and soccer field.

Ms. Woods worked with Mr. Reichard in

coaching powder puff football for many

years, and his rapport with students was

superb both in the classroom and through

athletics. According to Ms. Woods,

Mr. Reichard has created countless active

citizens by inspiring an interest in this

country’s democratic process as a teacher of

American Government. Mr. Reichard made sure

the young people in his class had the

opportunity to register to vote thus

establishing a lifelong habit of active

participation in the political process.

Mr. Reichard also inspired young people to

have confidence in themselves through his

coaching. According to Ms. Woods, Mr.

Reichard was an integral part of the Oviedo

High School family. He always had a smile

for everyone and was universally liked and

respected by the entire faculty and staff-–

and still is. Mr. Reichard was a teacher

that everyone knows because his students

spoke so highly of him people made a point

to see who he was. He generously helped

anyone who needed it, and assisted many new

teachers in getting acclimated to the high

school environment. He was a good friend to

those who needed an ear. He has always been

a good friend to me and many others.

Finally, Ms. Woods states that Mr. Reichard

is the most naturally gifted teacher she

have ever known, and that she sincerely

hopes he will be permitted to share that

gift once more.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2007).

48. 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). Because the statute and rules providing

grounds for terminating the Respondent's employment are penal in

nature, they must be construed in favor of the employee.

Rosario v. Burke , 605 So. 2d 523 (Fla. 2d DCA 1992); Lester v.

Department of Professional Regulations , 348 So. 2d 923 (Fla. 1st

DCA 1977). In this case, the burden has not been met.

49. The letter from Dr. Vogel to the Respondent dated

May 10, 2007, advises that the basis for the proposed

termination is "misconduct in office" and cites the requirements

of Florida Administrative Code Rules 6B-1.001 and 6B-1.006.

50. 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.

51. Florida Administrative Code Rule 6B-1.001 states 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 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 of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct. (Emphasis

supplied)

52. Florida Administrative Code Rule 6B-1.006 provides as

follows:

6B-1.006 Principles of Professional Conduct

for the Education Profession in Florida.

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator’s

certificate, or the other penalties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student’s mental and/

or physical health and/or safety.

(b) Shall not unreasonably restrain a

student from independent action in pursuit

of learning.

(c) Shall not unreasonably deny a student

access to diverse points of view.

(d) Shall not intentionally suppress or

distort subject matter relevant to a

student’s academic program.

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student’s legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

(h) Shall not exploit a relationship with a

student for personal gain or advantage.

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves professional purposes or

is required by law.

(4) Obligation to the public requires that

the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and those

of any educational institution or

organization with which the individual is

affiliated.

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

(c) Shall not use institutional privileges

for personal gain or advantage.

(d) Shall accept no gratuity, gift, or

favor that might influence professional

judgment.

(e) Shall offer no gratuity, gift, or favor

to obtain special advantages.

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

(b) Shall not on the basis of race, color,

religion, sex, age, national or ethnic

origin, political beliefs, marital status,

handicapping condition if otherwise

qualified, or social and family background

deny to a colleague professional benefits or

advantages or participation in any

professional organization.

(c) Shall not interfere with a colleague’s

exercise of political or civil rights and

responsibilities.

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual’s performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

(e) Shall not make malicious or

intentionally false statements about a

colleague.

(f) Shall not use coercive means or promise

special treatment to influence professional

judgments of colleagues.

(g) Shall not misrepresent one’s own

professional qualifications.

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

(i) Shall not make any fraudulent statement

or fail to disclose a material fact in one’s

own or another’s application for a

professional position.

(j) Shall not withhold information

regarding a position from an applicant or

misrepresent an assignment or conditions of

employment.

(k) Shall provide upon the request of the

certificated individual a written statement

of specific reason for recommendations that

lead to the denial of increments,

significant changes in employment, or

termination of employment.

(l) Shall not assist entry into or

continuance in the profession of any person

known to be unqualified in accordance with

these Principles of Professional Conduct for

the Education Profession in Florida and

other applicable Florida Statutes and State

Board of Education Rules.

(m) Shall self-report within forty-eight

(48) hours to appropriate authorities (as

determined by district) any arrests/charges

involving the abuse of a child or the sale

and/or possession of a controlled substance.

Such notice shall not be considered an

admission of guilt nor shall such notice be

admissible for any purpose in any

proceeding, civil or criminal,

administrative or judicial, investigatory or

adjudicatory. In addition, shall self-

report any conviction, finding of guilt,

withholding of adjudication, commitment to a

pretrial diversion program, or entering of a

plea of guilty or Nolo Contendre for any

criminal offense other than a minor traffic

violation within forty-eight (48) hours

after the final judgment. When handling

sealed and expunged records disclosed under

this rule, school districts shall comply

with the confidentiality provisions of

Sections 943.0585(4)(c) and 943.059(4)(c),

Florida Statutes.

(n) Shall report to appropriate authorities

any known allegation of a violation of the

Florida School Code or State Board of

Education Rules as defined in Section

231.28(1), Florida Statutes.

(o) Shall seek no reprisal against any

individual who has reported any allegation

of a violation of the Florida School Code or

State Board of Education Rules as defined in

Section 231.28(1), Florida Statutes.

(p) Shall comply with the conditions of an

order of the Education Practices Commission

imposing probation, imposing a fine, or

restricting the authorized scope of

practice.

(q) Shall, as the supervising

administrator, cooperate with the Education

Practices Commission in monitoring the

probation of a subordinate. (Emphasis

supplied)

53. The facts to which the parties have stipulated fail to

establish that the Petitioner has committed misconduct in office

as defined by Florida Administrative Code Rule 6B-4.009(3).

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

that an educator strive "to achieve the highest degree of

ethical conduct" in order to maintain the respect and confidence

of one's colleagues." The facts to which the parties have

stipulated fail to establish that the Petitioner has committed a

violation of the cited rule.

55. Although Mr. Lundquist and Dr. Vogel have concluded

that the Respondent's behavior was unethical and sufficient to

cause a loss of trust and confidence in the Respondent, the

stipulated facts fail to include sufficient information to

support a determination that the conclusions are reasonable.

56. The mere fact of drug use or possession, absent

additional information, is insufficient to reasonably lead to a

conclusion that the Respondent was acting unethically in this

matter.

57. The fact that the principal warned the Respondent that

the law enforcement community suspected the Respondent was

involved with drugs and encouraged him to seek assistance

suggests that such involvement alone is so egregious as to

warrant termination of employment.

58. There is no evidence or stipulated fact that

establishes that the matter has been the subject of any negative

reaction by anyone other than the principal and the

superintendent. The conclusory opinions offered by each to

support the proposed termination are unsupported by evidence and

insufficient to warrant termination. MacMillan v. Nassau County

School Board , 629 So. 2d 226, 230 (Fla. 1st DCA 1993); McNeill

v. Pinellas County School Board , 678 So. 2d 476, 478 (Fla. 2nd

DCA 1996).

59. As to other provisions of the referenced

administrative rules presumably applicability to this matter,

the Petitioner has failed to establish that the Respondent did

not disclose a material fact on his job application, as required

by Florida Administrative Code Rule 6B-1.006(5)(i), because the

stipulated facts fail to establish what information was sought

by the relevant application question.

60. The Petitioner has failed to establish that the

Respondent did not comply with the requirement that he report

his arrest within the 48-hour period required by Florida

Administrative Code Rule 6B-1.006(5)(m).

61. Careful review of the remaining requirements of the

cited rules indicates that no others are applicable to the

matter at hand.

62. The Petition for Termination stated that the

Respondent's conduct "constitutes just cause for suspension and

termination" pursuant to Subsection 1012.13(6)(a), Florida

Statutes, and to "Article VIII, Section F, Agreement Between the

Seminole Education Association, Inc. and The School Board of

Seminole County, Florida."

63. The Stipulation of Facts did not include sufficient

information related to the collective bargaining agreement to

ascertain the requirements of the contract, and this Recommended

Order does not include any consideration of such requirements.

64. Subsection 1012.13(6)(a), Florida Statutes, does not

exist. The correct citation is presumably Section 1012.33,

Florida Statutes (2007), which, in relevant part, provides as

follows:

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

the instructional staff in any district

school system 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 specified 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.

* * *

(6)(a) Any member of the instructional

staff, excluding an employee specified in

subsection (4), may be suspended or

dismissed at any time during the term of the

contract for just cause as provided in

paragraph (1)(a) . . . (Emphasis supplied)

65. As addressed previously herein, the stipulated facts

fail to establish that the Respondent's actions constitute

misconduct in office.

66. The Petition for Termination filed against the

Respondent also stated that the basis for the proposed

termination is "conduct unbecoming an employee of The School

Board of Seminole County, Florida" and contains citations to the

same administrative rules as the May 10 letter. The cited rules

contain no reference to "conduct unbecoming" an employee of a

school board, and the phrase is otherwise undefined in the

Petition for Termination.

67. The phrase "conduct unbecoming" a public employee has

been defined as behavior that falls below a "reasonable standard

of conduct" prescribed by the employer. Seminole County Board

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

1982).

68. The facts to which the parties have stipulated fail to

establish that the Petitioner has a standard of conduct which

requires termination of employment of a teacher arrested for

personal drug possession or use at a private residence. The

Petitioner has failed to establish that the Respondent's

behavior in this matter constitutes conduct unbecoming an

employee of the school board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Petitioner enter a final order

reinstating the employment of the Respondent, Dale W. Reichard.

DONE AND ENTERED this 2nd day of June, 2008, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of June, 2008.

ENDNOTES

1/ The stipulated facts do not indicate whether the Respondent

kept any appointment with the EAP or participated in any program

offered through the EAP.

2/ The stipulated facts do not specifically indicate whether

Mr. Lundquist responded to the teachers' inquiries, or if so,

what information the teachers were provided.

3/ The Stipulation of Facts does not include specific detail

regarding the inquiry set forth on the employment application.

The extent to which any disclosure was required by the

application is unclear.

COPIES FURNISHED :

Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

Thomas Johnson, Esquire

Chamblee, Johnson & Haynes, P.A.

510 Vonderburg Drive, Suite 200

Brandon, Florida 33511

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Bill Vogel, Superintendent

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

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.