08-001596TTS Orange County School Board vs. James Deshay Status: Closed Recommended Order on Friday, December 19, 2008.

Summary: Petitioner met burden to prove misconduct by Respondent, but not to warrant dismissal as a sanction.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-1596

)

JAMES DESHAY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on August 27 and 28, 2008, in Orlando, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Brian F. Moes, Esquire

Orange County School Board

445 West Ameila Street

Post Office Box 271

Orlando, Florida 32802-1129

For Respondent: Tobe M. Lev, Esquire

Egan, Lev & Siwica, P.A.

231 East Colonial Drive

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated

misconduct rules relating to educators and, if so, whether

discipline, up to and including dismissal, should be imposed by

Petitioner.

PRELIMINARY STATEMENT

Respondent is a professional service contract teacher with

the Orange County Public Schools ("OCPS"). On or about

March 25, 2008, Petitioner filed an Administrative Complaint

against Respondent alleging violations of an express work rule

of OCPS and other enumerated offenses, including misconduct in

office, willful neglect of duty, conduct unbecoming a public

employee, and breach of employment agreement. Respondent denied

the allegations and requested a formal administrative hearing

before the Division of Administrative Hearings.

At the final hearing held on the dates specified above,

Petitioner called seven witnesses: Eric Close, technology

coordinator at Winter Park High School ("WPHS"); Susan Gluckman,

technology representative at WPHS; Andrew Huffman, Systems

Engineer III; Michael Byrne, assistant principal at WPHS; Demiki

Joiner, assistant principal at WPHS; Gina Dole, senior manager

of OCPS Employee Relations; and William Gordon, principal at

WPHS. Petitioner offered the following exhibits which were

received into evidence: 1, 3 through 5, 6a, 6b, 6c, 8a, 8b, 8c,

10 through 12, 17, and 19 through 22, and 24. Respondent

presented the testimony of two witnesses: Betty Crawford,

retired OCPS teacher; and Mary Woolridge, retired OCPS employee.

Respondent also offered the following exhibits which were

received into evidence: 3, 4, 6 through 11, 15, 16, and 20.

A single joint exhibit was also accepted into evidence.

At the close of the evidentiary portion of the final

hearing, the parties requested and were allowed 20 days from the

filing of the hearing transcript within which to file their

respective proposed recommended orders. A three-volume hearing

Transcript was filed on November 3, 2008. The parties then

requested and were given until December 1, 2008, to file their

post-hearing submissions. Both parties filed Proposed

Recommended Orders containing proposed findings of fact and

conclusions of law. The parties' proposals have been carefully

considered during the preparation of this Recommended Order.

At the time its Proposed Recommended Order was filed,

Respondent requested leave to file color graphs in conjunction

with its written submission. Petitioner opposed the motion.

Upon review of the motion, the response and the graphs, the

undersigned determined that the motion would be granted to the

extent the graphs are merely demonstrative of statements from

the final hearing. To the extent the graphs indicate data

outside the testimony and exhibits accepted at final hearing,

they will be ignored and will not serve as a basis for any

finding of fact herein.

FINDINGS OF FACT

1. Petitioner, Orange County School Board, is responsible

for the operation of all public schools within the Orange County

Public School system. Petitioner is responsible for hiring and

monitoring qualified individuals who teach students within the

OCPS system. Teachers may be either Professional Service

Contract employees or employed under an annual contract.

Professional service contract employees are entitled to all

rights, privileges, and responsibilities set forth in the

Contract Between [Petitioner] and The Orange County Classroom

Teachers Association.

2. Respondent received his teaching certificate in the

State of Florida in 1985 and has taught school in Orange County

since that time. At all times material hereto, Respondent was

employed as a Professional Service Contract employee with OCPS.

Respondent transferred to WPHS at the beginning of the 2003-2004

school year. Prior to that time, Respondent had been a teacher

at Jones High School, also within the OCPS system.

3. Jones High School is a predominantly African-American

school which had received two consecutive "F" grades from the

Department of Education due to student achievement (or lack

thereof) on the Florida Comprehensive Assessment Test (FCAT).

WPHS, on the other hand, was a predominantly white school which

had not received "F" grades relating to the FCAT. 1

4. Respondent was transferred to WPHS to teach Algebra I,

primarily to students who were struggling with Algebra. His

students were, by and large, tenth graders who were taking

Algebra I, which normally is a ninth grade class. Some of the

students had previously failed Algebra; others were taking the

class for the first time.

5. When Respondent was assessed by an assistant principal

for school year 2004-2005, he received an "ER" grade in planning

and delivering instruction. "ER" meant effective, but with

recommendations. A comment to his assessment stated,

"Mr. DeShay needs to work on motivating his students so they

will want to perform to higher standards within his class."

6. The following year (2005-2006), Respondent received

another "ER" grade in planning and delivering instructions.

This time, the comment stated, "Mr. DeShay needs to plan his

instructional time so that students are constantly engaged

during the period. This will also assist in classroom

management problems."

7. Because Respondent received two consecutive "ER"

grades, he was placed on a Professional Improvement Plan (PIP)

for the 2006-2007 school year. The PIP targeted three areas of

competencies: classroom management and discipline; planning and

delivery of instruction; and professional responsibility. The

PIP commenced on October 26, 2006, and was to run for a period

of 90 school days, i.e., until April 19, 2007.

8. At the end of the PIP period, Respondent had not made

improvements in the areas of "planning and delivery of

instruction" and "classroom management and discipline." As a

result, Respondent received a grade of "NI" on his final

assessment. "NI" means the instructor needs improvement in

order to meet expected standards. The PIP was then extended

another 30 school days, commencing at the start of the 2007-2008

school year.

9. Respondent had never received an "NI" grade on an

evaluation before the final assessment in April 2007.

Respondent had never been disciplined during the course of his

employment with the OCPS system prior to coming to WPHS. He had

a reputation as an effective and respected teacher while at

Jones High School and previously.

10. During the 2007-2008 school year, while Respondent was

still under the extended PIP, Eric Close, a technology

coordinator at WPHS, had occasion to log on to Respondent's

school computer. Close was, at the request of another teacher,

seeking to retrieve a copy of math software believed to exist on

Respondent's H drive, located on the school network. While

Close was retrieving the software, he noticed a Word document

entitled, "Your Neighbor is Watching You." Upon a quick scan of

the Word document, Close ascertained that it contained

potentially inappropriate material. Close reported his finding

to his superior and to administration.

11. When administration reviewed the "Neighbor" story, it

was determined to be objectionable and inappropriate due to its

content. The story was about a somewhat benign voyeuristic

encounter between neighbors, but was certainly not appropriate

for high school students. It did, in fact, violate

administration's interpretation of OCPS Management

Directive A-9.

12. Management Directive A-9 is a work rule prohibiting

employees from using school computers for certain specified

activities or purposes. Pertinent portions of Management

Directive A-9 state:

3. Employee Access to Network

* * *

d. District employee shall not conduct a

private enterprise, defined as offering or

providing goods or services for personal use

on school time. District equipment or

supplies, including technology, computers

and other equipment . . . may not be used

for private business . . . unless expressly

authorized by the Superintendent . . .

e. The District authorizes employees to

use District computer technology resources

and data bases for assigned

responsibilities. These resources shall be

used by employees to enhance job

productivity as it relates to District

business. These resources shall be used for

District-related purposes and not for

personal use or gain or for the benefit of

private, "for profit" or "not for profit"

organizations.

4. Network Security and Acceptable Use

a. Employees shall not use the Web or FTP

to search or download obscene or

inappropriate material from the Internet.

Employees using District computers who

discover they have connected with a web site

that contains sexually explicit, racist,

violent or other potentially offensive

material must immediately disconnect from

that site. The ability to connect with a

specific web site does not in itself imply

that permission is granted to visit that

site.

* * *

6. Due Process

a. Any employee failing to comply with

this Management Directive may be subject to

disciplinary action as well as civil

liability or criminal charges.

7. Searches and Seizures

a. Employees have limited privacy

expectation in the contents of their

personal files on the District Network. . .

At any time and without prior notice, the

District reserves the right to examine

electronic mail messages, files on personal

computers, web browser cache files, web

browser bookmarks, and other information

stored on or passing through District

computers.

b. Routine maintenance and monitoring of

the Network may lead to discovery that a

user has violated this Management Directive

or the law. An individual search in

collaboration with the employee's supervisor

or Employee Relations will be conducted if

there is a reasonable suspicion that a user

has violated the law or this Management

Directive.

13. All employees are expected to be aware of and adhere

to Management Directive A-9. Each time a user logs on to a

District computer, a "pop-up" appears that includes a warning

against improper use. The pop-up says in pertinent part:

NOTICE TO USERS

This is an Orange County Public Schools

owned computer. It is for authorized use

only. You are responsible for all access

that occurs using your logon and

password. . . Unauthorized or improper use

of this system may result in disciplinary

action as specified in Management Directive

A-9 . . . as well as civil and/or criminal

penalties. [Site to Management Directive

A-9 is provided.]

14. The log-on pop-up appeared on Respondent's screen each

time he logged on at school. Respondent was aware of Management

Directive A-9, but doesn't know if he ever read the entire five-

page directive in its entirety. He does, however, acknowledge

that he is bound by the terms of that directive.

15. After Close found the seemingly incriminating document

on Respondent's computer, Administration conducted a full review

of Respondent's H drive and computer in its entirety. Numerous

personal files were found which, in the view of school

administration, violated Management Directive A-9. A partial

list of the questioned files and documents follows:

• Stories entitled, "Your Neighbor is

Watching You" and "Life Changes Quickly"

(about a male business executive's sexual

interest in his newly hired secretary),

and "Luvystory."

• Security reports for a job where

Respondent had worked part time.

• On-line business (money-making)

opportunities.

• Information about an on-line business

(www.Getestore.com).

• Shopping from internet retailers,

including www.Amazon.com,

www.Perfume.com, www.Walmart.com and

others.

• Digital pictures of scantily clad women

related to a proposed business venture by

Respondent.

• A social networking site called

www.blackmembervoices.com with

Respondent's profile, photo and contact

information.

• Numerous non-educational sites relating

to funny videos, court TV, vacation

sites, golf sites, etc.

• Personal correspondence written by

Respondent.

16. It is clear Respondent used his school computer on

many occasions to at least visit suspect web sites, engage in

business and/or work on non-school-related documents. What is

less clear is the extent to which those sites or documents were

accessed during classroom periods.

17. Petitioner's technology personnel were able to

identify all of the sites and documents existing on Respondent's

computer. An exhaustive list of each site, including when each

had been accessed, was provided at final hearing. The list

clearly shows that Respondent accessed sites or opened

questionable files during classroom periods, during Respondent's

planning period, and before and after school. The technology

people could not, however, ascertain how long each site or

document remained on Respondent's screen once it was opened.

18. Respondent maintains that he only worked on documents

for brief periods of time and perhaps only accessed them to

transfer from a pen drive or diskette to his H drive without

working on them at all. He says that he did not open any

inappropriate documents in the presence of students. No

students, as far as he knows, ever accessed Respondent's

computer.

19. It is clear that Respondent's school computer

contained documents and materials that violated Management

Directive A-9. It is clear those documents, materials and

questionable web sites were accessed numerous times. It is not

clear how much time Respondent spent on the documents, viewing

the sites, or engaging in personal business on the computer.

20. "Willful neglect of duty" has been defined as a

constant and continuing intentional refusal to obey a direct

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

authority. See Fla. Admin. Code R. 6B-4.009(4). Respondent's

continued use of his school computer for personal reasons,

however brief each use might have been, constitutes willful

neglect of duty under this definition.

21. By having objectionable and potentially harmful

information and documents on his computer, Respondent breached

his employment agreement. Respondent was not protecting

students from conditions harmful to their learning. Although no

students were known to actually see the material, its mere

existence was in violation of Respondent's obligations.

Further, by taking time out of his work day to engage in

personal business and other interests, Respondent has

subordinated his professional obligation to his students.

22. Respondent's explanations about his use of the

computer bear some discussion. The explanations do not deny the

existence of the materials or access to web sites, but seek to

minimize the significance of the use (or misuse).

23. As for the short stories on the computer, Respondent

says he was taking an on-line literature class and the stories

were part of his assignments. He would submit stories and they

would be evaluated by instructors. Respondent's intent was to

receive some sort of certification of completion from the class

and submit that to his employer (OCPS) as evidence that he was

attempting to enhance his education. Respondent never finished

the on-line course. 2

24. As for use of the school computer, Respondent says (at

page 444 of the hearing Transcript), "So anytime I'd use those

things, I would--if I had some spare time, I'd pop it in and

work on it, and I'd save it on my H drive." This testimony

somewhat contradicts Respondent's claim that the documents were

only accessed when he was downloading them from a pen drive.

25. The pictures of scantily clad women were explained by

Respondent as merely advertisements that had been part of a web

sites (Men's Health magazine) he had accessed during school

hours. He did not download the pictures to his H drive.

26. Also appearing on the computer were some pictures

described as "modeling photos." Respondent says those were

pictures he accessed from a modeling site with the intent of

creating a DVD or PowerPoint presentation for use by the models

in marketing themselves. Respondent says he did not know any of

the models and that this proposed business never came to full

fruition. Respondent says he worked on that project using his

school computer, but during after-school hours.

27. Respondent says that although he had documents and

information about his personal businesses on the school

computer, he never used the computer to order supplies for his

business. He admits ordering some Beanie Babies, but says those

were ordered as gifts for people, not as replacement goods for

his vending company business. Respondent did draft contracts on

his school computer, but says he never used them in conjunction

with his business.

28. The security logs on Respondent's computer were done

for a friend. Respondent had worked as a part-time security

guard at an apartment complex. When he could no longer do so

because of the requirements of his teaching job, Respondent was

able to turn the job over to a friend. That friend could not

write well, so Respondent would do the friend's weekly logs for

him on the computer.

29. In total, it is clear that Respondent did utilize his

school computer for personal matters and that some of the

personal matters were not appropriate for high school students

in his charge. The fact that no students saw the inappropriate

material--as far as anyone knows--does not minimize the

seriousness of Respondent's actions.

CONCLUSIONS OF LAW

30. DOAH has jurisdiction over the parties and subject

matter of this case pursuant to Sections 120.569 and 120.57,

Florida Statutes (2008).

31. Petitioner has the burden of establishing the facts of

the case by a preponderance of the evidence sufficient to

warrant discipline against Respondent, up to and including

dismissal. 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).

32. Section 1012.33, Florida Statutes (2007), which allows

District School Boards to dismiss professional service contract

teachers for just cause, 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.

33. Florida Administrative Code Rule 6B-4.009 addresses

the various criteria for suspending or dismissing a teacher:

6B-4.009 Criteria for Suspension and

Dismissal.

The basis for charges upon which dismissal

action against instructional personnel may

be pursued are set forth in Section 231.36,

Florida Statutes. The basis for each of

such charges is hereby defined:

(1) Incompetency is defined as inability

or lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a

relative term, an authoritative decision in

an individual case may be made on the basis

of testimony by members of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated failure

to perform duties prescribed by law (Section

231.09, Florida Statutes); (2) repeated

failure on the part of a teacher to

communicate with and relate to children in

the classroom, to such an extent that pupils

are deprived of minimum educational

experience; or (3) repeated failure on the

part of an administrator or supervisor to

communicate with and relate to teachers

under his or her supervision to such an

extent that the educational program for

which he or she is responsible is seriously

impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specialization.

(2) Immorality is defined as conduct that

is inconsistent with the standards of public

conscience and good morals. It is conduct

sufficiently notorious to bring the

individual concerned or the education

profession into public disgrace or

disrespect and impair the individual’s

service in the community.

(3) 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.

(4) Gross insubordination or willful

neglect of duties is defined as a constant

or continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

34. It is clear that Respondent used his school computer

to view materials that were not intended to further the

education of students. Further, Respondent's computer contained

documents which had no relation whatsoever to Respondent's

teaching duties and responsibilities. Some of the information

stored on Respondent's school computer was inappropriate,

whether or not such information was disseminated to students or

other individuals.

35. Petitioner has met its burden of proof by

establishing, by a preponderance of the evidence, that

Respondent is guilty of misconduct in office. Further, that

misconduct is in direct violation of an OCPS policy. However,

the extent of that misconduct and its impact on Respondent's

effectiveness as a teacher has not been sufficiently established

to warrant dismissal.

36. Nonetheless, Respondent's conduct does warrant

sanctions and remedial education.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Orange

County School Board finding Respondent guilty of misconduct in

office and imposing the following sanctions: Uphold

Respondent's suspension to date; reinstate Respondent's

professional services contract commencing as soon as

practicable; and require Respondent to complete remedial

training concerning professionalism and use of school property.

DONE AND ENTERED this 19th day of December, 2008, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of December, 2008.

ENDNOTES

1/ Although both parties brought out the racial makeup of the

schools in testimony, there was no plausible explanation as to

why that fact was relevant to the instant case.

2/ The "Neighbor" story is replete with grammatical errors,

misspellings, fractured sentences and disjointed paragraphs. It

was, in essence, not indicative of writing done by a

professional with Respondent's educational background. However,

Respondent maintains that it was his work, and there is nothing

to refute that testimony.

COPIES FURNISHED :

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Ronald (Ron) Blocker, Superintendent

Orange County School Board

445 West Amelia Street

Orlando, Florida 32801-0271

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Tobe M. Lev, Esquire

Egan, Lev & Siwica, P.A.

231 East Colonial Drive

Orlando, Florida 32801

Brian F. Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802-1129

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.