07-003924TTS Manatee County School Board vs. Todd Raven Status: Closed Recommended Order on Tuesday, February 5, 2008.

Summary: Respondent cannot be terminated for invoking his right to be advised by legal counsel during a school district investigation; Petitioner`s policy violates the Administrative Procedure Act. Respondent is entitled to back pay to the end of the school year.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 07 - 3924

)

TODD RAVEN , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal administrative hearing was held before Daniel M.

Kilbride, Administrative Law Judge of the Division of

Administrative Hearings, on October 18, 2007, in Bradenton,

Florida.

APPEARANCES

For Petitioner: Robert Shapiro, Esquire

School Board of Manatee Coun ty

Post Office Box 9069

Bradenton, Florida 34206 - 9069

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East 7 th Avenue, Suite 301

Tampa, Florida 3360 5

STATEMENT OF THE ISSUES

Whether Respondent's refusal to attend an investigatory

interview , scheduled for April 17, 2007, is a violation of the

Florida Administrative Code Rule and/or School Board policy.

Whether Respondent's conduct on April 17, 2007, rises to

the level of just cause to terminate Respondent's employment as

a teacher with Petitioner.

PRELIMINARY STATEMENT

On April 19, 2007, Roger Dearing, Superintendent of the

Manatee County School District, advised Respondent that he would

recommend to the School Board that Respondent be suspended

without pay, pending his recommendation that Respondent's

employment with Petitioner be terminated. The Superintendent's

recommendation was placed on the April 23, 2007 , School Board

agenda. On the same date, Petitioner filed with the School

Board a Petition for Evidentiary Hearing in which Petitioner

denied the ultimate facts alleged in the Superintendent's

recommendation. On August 28, 2007, this matter was referred to

the Division of Administrative Hearing s (DOAH) to conduct an

administrative hearing.

Following discovery and the filing of Pre - hearing

Stipulations by the parties, a formal administrative hearing was

conducted on October 18, 2007. Petitioner offered the testimony

of three witnesses: Dr. Roge r Dearing, Superintendent ; Debra

Horne, investigator for the Office of Professional Standards for

the School District ; and John Bowen, School Board Attorney.

Petitioner's E xhibits 1 through 7 were offered and admitted in

evidence. Respondent testified in his own behalf and offered

the testimony of Brady McCabe, a detective with the Manatee

County Sheriff's Office. Respondent's E xhibits 1 through 7 were

offered and admitted in evidence.

The parties were given 10 days from the filing of the

transcript to f ile proposed findings of fact and conclusions of

law. The Transcript was filed on November 20, 2007. Following

two requests by the parties, o rders granting extension s of time

in which to file propos ed orders we re issued . Each party timely

filed their P r oposals on December 14, 2007 . Each proposal has

been carefully considered in the preparation of this R ecommended

O rder.

FINDINGS OF FACT

1. Respondent's employment as a teacher on annual contract

with Petitioner began on August 1, 2005. Respondent's con tract

was renewed for the 2006 - 2007 school year, and he was assigned

to teach at Bayshore High School.

2. On March 14, 2007, Respondent received notification by

his principal that he was not being recommended for

reappointment for the 2007 - 2008 school yea r. Effective May 25,

2007, Respondent 's contract with the School District , as a

teacher at Bayshore High School , expired .

3. On or about March 27, 2007, Debra Ho rn e (Horne) , the

investigator for Petitioner's O ffice of Professional Standards

(OPS), beca me aware of an allegation that Respondent was

inappropriately close to a student in one of his classes .

4. The OPS investigator is considered a "caregiver" under

Chapter 39, Florida Statutes, and therefore, if she has a

suspicion of child abuse, it is her duty to report it to law

enforcement.

5 . On March 28, 2007, Child Protective Services (CPS)

informed Ho rne that there was an allegation of possible

inappropriate interaction against Respondent with a female

student at Bayshore High School. The CPS Inves tigator, Tequila

Crenshaw , advised her that she was in the process of conducting

a joint investigation into the allegations with Detective McCabe

from Crime s Against Children (CAC), a unit of the Manatee County

Sheriff's Office .

6 . Horne inquired as to wh ether she could move forward

with an OPS investigation . S he was told that the CPS and CAC

investigation s were ongoing. A t that point, Horne suspended her

investigation . This was consistent with her practi c e of not

mov ing forward until she got clearance from CPS and CAC . She

did not wish to interfere or impede in their investigation in

any way.

7 . On April 11 and 12, 2007, Horne received clearance from

CAC and CPS , respectively. The two agencies informed her that

they had concluded their investigatio ns , and no criminal charges

would be filed .

8 . Horne ha d continuing concerns about the alleged

inappropriate interactions . She determined to go forward and

conduct an internal investigation on behalf of the School

District .

9 . On April 12, 2007, Horne c alled Respondent, by

telephone, and directed him to report to the Office of

Professional Standards on the following day, April 13, 2007 , so

that she could conduct an investigatory interview . Respondent

was advised that failure to appear would result in a charge of

insubordination.

1 0 . During the telephone conversation with Respondent , he

confirmed that he was not a member of the union. Respondent

asked if he could have his private attorney present during the

investigatory interview . Horne responded that it was not

permissible.

1 1 . Prior to their telephone conversation, Horne had

received information from the Manatee Education Association

(MEA), the teacher's union, that Respondent was not a member of

the union .

1 2 . O n April 13, 2007, Horne had a teleph one message from

attorney Melissa Mihok (Mihok) , a specialist in labor and school

law, stating that Mihok had been retained by Respondent to

represent him in allegations of inappropriate interactions with

students a t Bayshore High School . Mihok asked if t he interview

scheduled on the 13th could be postponed until the 17th of the

month , so that she could meet with Respondent prior to the

interview .

1 3 . Soon a fter retrieving the telephone message from

Mihok, Horne was advised that Respondent and a different

attorney, James Dirmann, had arrived at the Office of

Professional Standards (OPS). After greeting Respondent and his

attorney, Horne requested that John Bowen , the Manatee County

School Board Attorney, sit in on the discussion , since the

employee's atto rney was present.

1 4 . Bowen, Dirmann, Raven, and Horne sat at the conference

table and discussed whether or not a private attorney would be

allowed to sit with Respondent during his interview relating to

this matter. During the conversation, Bowen made i t clear that

the private attorney would not be allowed to be present during

Horne's investigatory interview with Respondent. Dirmann then

advised Bowen and Horne that Respondent would not be answering

any questions because he was being denied representati on and ,

also, that he was invoking his Fif th Amendment privilege against

self incrimination.

1 5 . Bowen advised Dirmann to seek the advice of a labor

lawyer because his advice to his client, to not answer

questions, could result in the termination of Respo ndent's

employment.

1 6 . Melissa Mihok then participated in a subsequent

discussion, on the same day, by telephone, which included all of

the above participants. Dirmann and Mihok expressed a desire to

confer with their client prior to an interview. It w as agreed

to postpone the investigatory interview until April 17, 2007, at

10:00 a.m., at the OPS office.

17. Thereafter, Respondent received legal advice from

Mihok regarding his rights in connection with the investigation

by OPS. Respondent remained co ncerned that any information

obtained by Horne, during the interview, would be shared with

CAC and/or CPS, to his detriment.

1 8 . On April 17, 2007, Horne received a telephone call

from Dirmann who stated that he had spoken with Mihok and they

had advised Respondent not to participate in the OPS interview

that was scheduled for 10:00 a.m., on April 17, 2007.

1 9 . Subsequently, Horne received a letter by facsimile

from Dirmann , which stated in pertinent part:

After further thought and consultation with

me an d with Mrs. Melissa Mihok, Attorney at

Law, our client will respectfully decline to

answer any questions regarding your current

investigation .

20 . The letter from Dirmann to Horne, dated April 17,

2007, does not state that the reason Respondent would not submit

to an interview was because he was not permitted to have an

attorney present.

21 . Respondent did not appear at the reschedule d interview

on April 17, 2007.

2 2 . Respondent was suspended without pay by the School

Board effective April 24, 2007.

2 3 . Petitioner 's policy, denying a non - union employee from

having a private attorney present during an investigatory

interview, had not changed.

2 4 . The School Board's policy regarding representation of

School Board employees by private attorneys in investi gatory

interviews was subsequently delineated in a memorandum to School

Board members and the Superintendent from School Board Attorney

John Bowen in a memorandum , dated August 20, 2007.

2 5 . In that memorandum , which addressed "employee rights

when meetin g with the employer," Bowen stated that citizens do

not have the right to have an attorney with them at all times.

Bowen stated that, in accordance with the Sixth Amendment to the

United States Constitution, a citizen has the right "to have the

assistance of counsel for his defense , " but that right is

restricted to criminal prosecutions. Bowen noted that under

Sub section 120.57(1)(b), Florida Statutes (2007), a person whose

substantial interests are being determined by an agency is

entitled to "be represe nted by counsel or other qualified

representative" in a formal hearing , but that right is

restricted to the formal hearing itself. It does not extend to

meeting s between the employee an d the employee's supervisor or

other administrator s that precede the f ormal hearing. Bowen

stated that Subsection 120.62(2), Florida Statutes (2007),

provides that any person appearing "before any presiding officer

or agency in an investigation or in any agency proceeding" has

the right to be accompanied, represented, and a dvised by counsel

or other qualified representative." Bowen pointed out that the

right to counsel provided in Subsection 120.62(2) , does not

extend to meetings with an individual's supervisor or other

administrator as they are not a "presiding office r " an d they do

not constitute an "agency" and such meetings are not an "agency

proceeding. "

2 6 . Bowen further advised the members of the School Board

and the Superintend ent that Florida's Public Employees Relations

Commission (PERC) has held that a public empl oyee is entitled to

union representation, if requested, in any investigatory

interview where the employee has a reasonable belief that

disciplinary action may result from the interview.

2 7 . Bowen also noted that outside of the " Weingarten

right," an emplo yee does not have the right to have any

representative at a meeting with the employee's supervisor or

other administrator. The memorandum stated as follows:

"It is the inherent right of the employer to

direct employees. Employees have no r ight

to place c onditions on compliance with an

employer's lawful directive. It is

insubordination to refuse to meet as

directed or attempt to impose conditions not

agreed to by the employer. Such

insubordination subjects the employee to

discipline, including terminatio n of

employment. An attorney who counsels his or

her client to refuse to meet with an

employer puts that client in serious peril

of termination."

2 8 . It is the practice of the OPS investigator to advise

employees , who are not members of the MEA , that sh e has been

informed that the MEA does not represent non - members.

2 9 . Consistent with Bowen's memorandum to the School Board

Members and the Superintendent, employees , in the past, have

been disciplined by the School Board for refusing to submit to

an inve stigatory interview without their private attorney being

present.

30 . The OPS investigator has been authorized by the School

Board to investigate possible employee misconduct that may lead

to disciplinary action more serious tha n a written reprimand.

The Investigator conducts interviews in order to gather

information to either clear an individual of the allegations

made , or to substantiate the allegations based on the

information given to the investigator by the witnesses.

3 1 . The I nvestigator's direct s upervisor is the Staff

Attorney with whom she consults on her investigations. After

the investigation is completed , the investigator prepares an

investigatory report, which is reviewed by the Staff Attorney

for editing and addition of the "violations" sec tion, if any.

3 2 . Once the report is complete, the investigator sets a

meeting with the individuals in the chain of command of the

employee , and a meeting is held during which a recommendation to

the Superintendent is formulated. The OPS investigator att ends

the meeting . He r role is to answer questions about the report

that she has prepared and to answer questions about past

practices.

3 3 . After the meeting of these individuals , the Assistant

Superintendent for the District takes the information to the

Superintendent.

3 4 . Other employees of the School Board are also charged

with investigating complaints that may lead to discipline, but

only actions which may result in a n oral or written reprimand.

Any allegation that may result in discipline in excess of a

written reprimand is only investigated by the OPS investigator.

3 5 . Superintendent Roger Dearing ( Dr. Dearing) testified

that the factual basis for his recommendation that Respondent be

terminated was his refusal to come in and submit to an

investiga tory interview by the District's Office of Professional

Standards. Dr. Dearing testified that Respondent's

effectiveness had been impaired in the system as a result of his

actions in not submitting to the interview . Allegations were

made by peers , in thi s case , regarding Respondent, this

warranted an investigation to make sure the safety and ca re of

students was maintained.

36 . Dr. Dearing testified that he believed that

Respondent's effectiveness had been impaired by his refusal to

cooperate in an inves tigatory proceeding . This he is required

to do under the School Board's rule s and policies, and as a part

of his professional ethics as a certificated individual.

Dr. Dearing testified that Respondent 's failure to cooperate

left a "cloud of doubt" with the administration and the parents

of other children who would be in Respondent 's classroom . This

impaired his effectiveness.

3 7 . Dr. Dearing also testified that, in his opinion,

Respondent's refusal to cooperate constituted a violation of

Florida Admini strative Code Rule 6B - 1.001(3), which provides:

[ a ] ware of the importan ce 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

d egree of ethical conduct.

3 8 . Dr. Dearing also testified that he had a concer n about

an employee , who was allegedly having inappropriate interactions

with a female student and who did not submit to an investigatory

interview . This would be a violati on of Fl orid a Admin istrative

Code R ule 6B - 1.001(3) .

CONCLUSIONS OF LAW

39 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of these

proceedings, pursuant to Section 120.569 and Subsections

120.57(1) and 101 2.33(6)(a), Florida Statutes (2007). 1

40 . The School Board of Manatee County (Petitioner) is an

"agency" under the Florida Administrative Procedure Act,

Chapter 120, Florida Statutes (APA). §§ 120.52(1)(b) and (6) ,

Fla. Stat. e.g. Sublett v. District S chool Board of Sumter

County , 617 So. 2d 374, 377 (Fla. 5th DCA 1993).

4 1 . Respondent is a teacher, as defined by Subsection

1012.33(1)(a), Florida Statutes, and is employed by Petitioner

under an annual contract, for the school year 2006 - 2007.

4 2 . The S uperintendent has the authority to make

recommendations to the Petitioner that a teacher be dismissed

from employment, pursuant to Subsection 1012.27(5), Florida

Statutes. The School Board has the authority to terminate

teachers , pursuant to Subsections 1 001.42(5) and 1012.22(1)(f),

Florida Statutes , for just cause .

4 3 . Pursuant to Subsection 1012.33(1), Florida Statutes,

"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. "

4 4 . Section 1012.33, Florida Statutes, does not purport to

be an all inclusive list of conduct that constitutes "just

cause" for dismissal. By specifically providing that just cause

"includes, but is not limited to," the Florida Legislature has

given school boards wide discretion to determine what actions

constitute just cause for suspension or dismissal. Dietz v. L ee

County Schoo l Board , 647 So. 2d 217 (Fla. 2d DCA 1994) .

4 5 . Petitioner has the burden of proof in this employee

dismissal hearing and must meet that burden with a preponderance

of the evidence. Dileo v. School Board of Dade County , 569 So.

2d 883 (Fla. 3d DCA 1990). Preponderance of the evidence is

defined as "the greater weight" of the evidence.

4 6 . The Legislature has given local school districts great

discretion in drafting and interpreting their personnel

policies. § 1012.23 (1) (a), Fla. Stat. (2007)(districts can

"adopt rules governing personnel matters, including the

assignment of duties and responsibilities for all district

employees.") . Specifically, local districts can provide

procedures and policies for discipline of employees.

§ 1012.22(1), Fla. Stat. (2007). However, the School Board may

not exercise any power that conflicts with the Florida

Constitution or general law. § 1001.32(2), Fla. Stat. (2007).

4 7 . Petitioner has adopted a Policy and Procedures Manual,

which includes the district work rule s . It also creates the

Office of Professional Standards (OPS) and grants it the

authority to conduct investigations into alleged employee

misconduct and make recommendations.

4 8 . Section 6.13 of the Policies and Procedures of the

School Board of Manatee County provides that all board employees

shall cooperate fully with OPS or other appropriate authorities

who are conducting investigations. Failure to cooperate

completely and truthfully wi ll subject an employee to

disciplinary action.

49 . Section 6.11 o f the Policies and Procedures of the

School Board of Manatee County provides that any employee of the

School Board may be temporarily suspended, with or without pay,

or permanently terminated from employment for "just cause"

including, but not limited to i mmorality, misconduct in office,

incompetence, gross insubordination, willful neglect of duty,

drunkenness, conviction of a crime involving moral turpitude,

violation of the Policies and Procedures Manual of the School

District of Manatee County, violation of any applicable Florida

Statute, or violation of the Code of Ethics and the Principles

of Professional Conduct of the Education Profession in Florida.

5 0 . In this case, OPS was conducting an investigation into

the possible misconduct of a teacher. Und er the authority

granted to the OPS investigator under Petitioner's Policy

6.13(4), Respondent was ordered to appear at her office in order

to answer questions relating to her investigation. Respondent

appeared at the appointed time on April 13, 2007. Ho wever, he

was accompanied by private counsel. Respondent requested that

counsel be present and give him advise during the course of the

interview. This request was denied, based on the school board's

legal counsel's interpretation of Policy 6.13 and the fact that

Respondent was not a member of the MEA.

5 1 . The investigative interview was postponed until

April 17th. An e xperienced labor law attorney was consulted by

Respondent . O n Monday, April 17, 2007, Respondent, through

counsel, declined to partici pate in the interview and did not

appear at the rescheduled interview.

5 2 . Petitioner's position had not changed. Had Respondent

appeared for the interview with an attorney , legal counsel would

not be permitted to be present.

5 3 . Petitioner seeks to ter minate Respondent from his

employment as a teacher for his violation of the above cited

Policies, as well as, state law and regulations relating to

insubordination.

5 4 . However, since Petitioner is an "agency," under state

law, it is subject to the provi sions of the Florida

A dministrative P rocedure A ct .

5 5 . Section 120.62, Florida Statutes (2007), Agency

Investigations provides:

(1) Every person who responds to a request

or demand by any agency or representative

thereof for written data or an oral

state ment shall be entitled to a transcript

or recording of his or her oral statement at

no more than cost.

(2) Any person compelled to appear, or who

appears voluntarily, before any presiding

office r or agency in an investigation or in

any agency proceeding has the right, at his

or her expense, to be accompanied,

represented, and advised by counsel or other

qualified representative s .

5 6 . Respondent was compelled to appear before the OPS

investigator during the course of an official School Board

investigatio n. Therefore, Respondent was entitled to be

accompanied, represented, and advised by counsel at his own

expense , pursuant to Section 120.62, Florida Statutes .

5 7 . Petitioner argue s that Respondent was not entitled to

representation at the investigatory i nterview at issue, pursuant

to S ubs ection 120.62(2), Florida Statutes , based on the

assertion that the OPS investigator is not the agency or a

presiding officer. This argument is misplaced.

5 8 . Petitioner is the "agency" in this matter by

definition . § 120.52(1)(b)7. , Fla. Stat. The School Board

delegated all of its investigatory powers, including its power

to conduct investigatory interviews, to the OPS investigator,

under its Policy 6.13. Because the School Board delegated,

through an official polic y, all of its investigatory power to

OPS and its investigator, Horne is the authorized representative

of the agency for purposes of S ubs ection s 120.62 (1) and (2),

Fla. Stat. (2007).

59 . The School Board can act only through its agents or

representatives. e.g. McLeod v. Barber , 764 So. 2d 790, 793

(Fla. 5th DCA 2000); Cedar Hill Prop. Corp. v. Eastern Fe de ral

Corp. , 575 So. 2d 673 , 676 (Fla. 1st DCA 1991); State v.

Wellington Metals, Inc. , 510 So. 2d 902, 904 (Fla. 1987);

Buckner v. Lower Florida Keys Ho s p . Dist. , 40 3 So. 2d 1025,

1027 (Fla. 3d DCA 1981); Business Guides, Inc. v. Chromatic

Communication s Enterprises, Inc. , 498 U.S. 533, 548 (1991);

Will v. Michigan Dept. of State Police , 491 U.S. 58, 7 9 (1989).

Agency principles dictate that any action t aken by the "School

Board" is actually conducted by a representative of the School

Board, such as one of t he member s of the School Board, the

Superintendent, the School Board attorney, or other individuals

vested with the authority to act on behalf of the School Board.

The School Board, as a legal entity, cannot take any action

without the assistance of individuals. An agency "may as a

general rule employ others to assist [it] . . . and the

completed acts will be regarded as acts of the agen[cy]. . . ."

Shreveport Engraving Co. v. U.S. , 143 F.2d 222, 227 (5th Cir.

1944), citing, 2 Am. Jur. 199 ; Rest. 2d (Agency) § 78, Mechem

Agency , § 315. If the individual agent taking action on behalf

of the School Board is endowed with the authority to do so, and

is a cting within the scope of his or her employment, the School

Board is bound by the actions of the agent. e.g. Sparks v.

Pilot Freight Carriers Inc. , 830 F. 2 d 1554, 1558, (11th Cir.

1987) citing, Rest.2d (Agency) § 219(1) ; Hunter v. Allis -

Chalmers Corp., En gine Div. , 797 F.2d 1417, 1422 (7th Cir.

1986); U.S. v. Aisenberg , 247 F. Supp. 2d 1272, 1309 n. 15

(M.D. Fla. 1986 ). This liability is based upon the premise that

the delegation of authority by the agency is what empowered the

agent to act. Sparks , 830 F. 2 d at 1559 - 60, citing, Horn v. Duke

Homes, Div. of Windsor Mobile Homes, Inc. , 755 F.2d 599, 605

(7th Cir. 1985).

6 0 . The School Board has given the OPS investigator the

authority to use discretion in conducting employee

investigations. Horne decides first what allegations warrant an

investigation by OPS. If she determined that an investigation

is in order, Horne decides what course of action to take. S he

determines who, if anyone, should be interviewed, when the

interview takes place, and what quest ions she will ask. Horne

conducts whatever interview she sees fit, without any discussion

or guidance from the School Board, its chairman or members, the

Superintendent, or even her direct supervisor. She conducts all

investigations of all employees who may suffer discipline more

serious than a written reprimand with autonomy.

6 1 . Petitioner would not have suffered any hardship in

allowing Respondent to have representation at the investigatory

interview. This is evident by the fact that the OPS

investig ator would have permitted the representation if

Respondent was a member of MEA, or even if MEA had appointed a

representative to counsel Respondent for the purpose of the

interview, despite his non - member status. Any representative

who would have attended would have been prohibited from asking

questions or otherwise interfering with the interview. Simply

put, there was no reasonable rationale to deny Respondent the

right to representation. Even if the Petitioner did articulate

some hardship, one must ass ume that the L egislature considered

any such hardship that an agency may encounter when drafting

Subsection 120.62(2), Fl orida Stat utes , and found that the

policy concerns favored the employees' rights to representation.

See NASA v. Federal Labor Relation s Authority , 527 U.S. 229, 245

(1999) .

6 2 . It would be inconsistent with the intent of the

Legislature in enacting Subsection 120.62(2) , Florida Statutes ,

to allow an agency to circumvent the rights of an employee to

representation during an investigator y interview simply by

delegating the authority to conduct investigations to a

representative. See generally Tinker Air Force Base , Oklahoma

City Air Logistics Center , Oklahoma City, Oklahoma v. America

Fed. o f Gov't Employees Local 916 , 2001 WL 36022704, *6 - 7

(2001). To find otherwise would promote agencies to reorganize

their investigatory scheme to shirk duties imposed by the

Legislature and would be inconsistent with the purposes and

policies of the statute. Id. NASA , 527 U.S. at 2 3 9 - 4 0 (to

require an investigator to be from an agency that bargains with

the union would encourage employers to use conduits to conduct

investigations).

6 3 . Petitioner's refusal to allow Respondent to have legal

representation during the investigatory interview with the OPS

investigator , either on April 13th or April 17th, was a

violat ion of Subsection 120.62(2), Florida Stat utes .

6 4 . In view of the above, discussion of the parties

differing positions on the applicability of federal case law,

especially the case of National Labor Relations Board v.

Weingarten , 420 U.S. 251 (1975), and the right to employee

representation during an investigatory interview by an employer ,

commonly referred to as a "Weingarten right , " is unnecessary .

6 5 . In addition, the fact that Respondent may have also

sought to invoke his Fifth Amendment privilege against self -

incrimination during the interview cannot be held against him.

Respondent is only charged with refusal to attend an

investigatory interview. H e is not charged with failure to

answ er questions during an interview . Such a charge could only

have been made had an interview taken place and Respondent then

refused to answer questions posed by the OPS investigator. Only

then could Respondent be charged with violating Petitioner's

Policy 6.13(4) and disciplinary sanctions sought. Then,

Petitioner would have a right to inquire into matters under

investigation , and would be permitted to seek disciplinary

action , in the event its employees refuse to respond to those

inquiries.

6 6 . Petition er has failed to establish by a preponderance

of evidence that Respondent's refusal to attend an investigatory

interview and to provide any statement concerning the

allegations of misconduct without the presence of legal counsel

constituted a violation of Policy 6.13(4)(A) and (B) of the

Policies and Procedures Manual of the School Board of Manatee

County.

6 7 . Therefore, Petitioner has failed to establish by a

preponderance of evidence that Respondent's refusal to attend an

investigatory interview, concer ning the allegations of his

misconduct , with out the presence of legal counsel constituted a

violation of Florida Administrative Code Rule 6B - 4.009(3), which

defines misconduct in office as a violation of the Code of

Ethics of the Education Profession as ad opted in Florida

Administrative Code Rule 6B - 1.006, which is so serious as to

impair the individual's effectiveness in the school system.

68 . Petitioner has failed to establish by a preponderance

of the evidence that Respondent's continued refusal to atte nd an

investigatory interview, concerning allegations of his

misconduct , without the presence of legal counsel constituted a

violation of Florida Administrative Code Rule 6B - 4.009(4), which

defines gross insubordination or willful neglect of duty as a

cons tant or continuing intentional refusal to obey a direct

order, reasonable in nature, and given by and with proper

authority.

69 . Petitioner has failed to establish by a preponderance

of the evidence that Respondent's refusal to attend an

investigatory int erview , concerning allegations of his

misconduct , without the presence of legal counsel, constituted a

violation of Florida Administrative Code Rule 6B - 1.001(3), which

requires an employee to strive to achieve and sustain the

highest degree of ethical cond uct to maintain the respect and

confidence of his colleagues, students, parents and other

members of the community.

7 0. Although the April 17, 2007, letter from Dirmann to

the OPS investigator is devoid of any mention of the reason

Respondent was declini ng to be interviewed , Petitioner was well

aware that he sought the opportunity to have private counsel

present during any interview. The fact that the letter

constitutes a flat refusal to submit to the investigatory

interview under any circumstances, does not excuse Petitioner

for its violation of Respondent 's statutory right , by refusing

to allow Respondent to have legal counsel present .

7 1 . School Boards have broad discretion to renew or

decline to renew a teacher's annual contract. An Administrative

L aw Judge is without authority to order a School Board to

reinstate Respondent to his former position, if the date of the

recommended order is beyond the expiration date of the teacher's

contract. See generally Dietz v. L ee County School Board , 647

So. 2d 217 (Fla. 2d DCA 1994).

7 2 . An Administrative Law Judge is without authority to

reserve jurisdiction in a Subsection 120.57(1), Florida

Statutes , hearing, or to award attorney's fees and costs, unless

specifically authorized by statute to do so. Neither Chapter

120, nor Chapter 1012, Florida Statutes , grants such authority.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that t he School Board of Mana t ee Cou n ty enter a

final order finding :

1. Respondent did not violate any of the charges alleged

in the charging letter ;

2. Reverse Respondent 's suspension as a teacher without

pay ; and

3. Co mpensate Respondent for the period from April 24,

2007, until the expiration of his contract, May 25, 2007.

DONE AND ENT ERED this 5 th day of February , 2008 , in

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative 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 5 th day of February , 2008 .

ENDNOTE

1/ All references to Florida Statutes are to Florida S tatutes

(200 7 ), unless otherwise indicated.

COPIES FURNISHED :

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East 7th Avenue, Suite 301

Tampa, Florida 33605

Robert J. Shapiro, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Flo rida 342 06 - 9069

Dr. Roger Dearing

Superintendent

Post Office Box 9069

Bradenton, Florida 34206 - 9069

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

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.