08-000467TTS Seminole County School Board vs. Michelle S. Mcghee Status: Closed Recommended Order on Friday, March 6, 2009.

Summary: Petitioner did not meet its burden of proof. Respondent`s actions warrant sanctions, but not termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 08-0467

)

MICHELLE S. MCGHEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 12, 2009, in Sanford, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

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

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

For Respondent: Matthew Haynes, Esquire

Chamblee, Johnson & Haynes, P.A.

510 Vonderburg Drive, Suite 200

Brandon, Florida 33511

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's employment

should be terminated by Petitioner.

PRELIMINARY STATEMENT

On December 19, 2007, Bill Vogel, Superintendent of

Seminole County Public Schools, advised Respondent, Michelle S.

McGhee, via letter that Vogel intended to recommend to

Petitioner, Seminole County School Board, that Respondent's

employment be terminated. Respondent timely filed a response to

the letter, asking for a formal administrative hearing.

Petitioner then filed a Petition for Termination with the

Division of Administrative Hearings ("DOAH"), seeking to

terminate the employment of Respondent.

At the final hearing, Petitioner called five witnesses:

Lorry Coats, school secretary at Heathrow Elementary School

(hereinafter "Heathrow"); Dr. Barbara Nixon, principal at

Heathrow; Beverly Perrault, executive director of Elementary

Education; Michelle McGhee; and Dr. Bill Vogel, superintendent

of Seminole County Public Schools. Petitioner's Exhibits 1, 2,

5, 6, and 11 through 15 were admitted into evidence. Respondent

presented the testimony of three witnesses: Neil McGhee,

Respondent's husband; Barbara Johnson, former teacher at

Heathrow; and Shannon McGhee, Respondent's daughter. Respondent

offered Exhibits 1, 3, 4, 7 through 9, and 12, each of which was

admitted into evidence.

The parties advised the undersigned that a transcript would

be ordered of the final hearing. Upon request, the parties were

given 30 days from the date the transcript was filed at DOAH to

submit Proposed Recommended Orders. The Transcript was filed at

DOAH on January 26, 2009. Each party timely submitted a

Proposed Recommended Order and they were given due consideration

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Seminole County School Board (the "School

Board") is the public body responsible for, inter alia , hiring

and monitoring school teachers for Seminole County Public

Schools ("SCPS"). Bill Vogel is the superintendent of SCPS.

2. Respondent is a certified school teacher and has been

teaching school (primarily for grades 1 through 6) for 24 1/2

years. Respondent taught school at Heathrow for 16 1/2 years,

beginning with second grade for three years, first grade for two

years, then third grade for the duration.

3. On December 11, 2007, Respondent was suspended from her

position as a teacher at Heathrow, because she brought a loaded

handgun to school. Respondent has not worked as a school

teacher since that day. The circumstances surrounding this

incident form the issues in this case.

4. Respondent has a valid concealed weapon or firearm

license from the State of Florida. The license allows

Respondent to carry her weapon into public places. Respondent

owns a Smith & Wesson brand .357 caliber revolver which will be

referred to hereinafter as the Handgun.

5. Respondent first obtained her concealed weapons permit

as a result of two incidents in her life: First, she was

traveling with her husband and while staying at a motel,

encountered a very threatening and frightening group of people.

Respondent and her husband feared for their life and honestly

believed the group of people may attempt to force their way into

Respondent's motel room. Respondent and her husband felt

extremely vulnerable and unable to defend themselves. Second,

Respondent's home was broken into in 2004 or 2005. As a result

of these incidents, both Respondent and her husband purchased

handguns, took the requisite classes and training, and then

obtained concealed weapons permits.

6. Respondent took all appropriate safety classes after

purchasing the Handgun. She trains monthly by firing the

Handgun at a firing range and routinely reviews safety rules

relating to ownership and discharge of a firearm.

7. On December 11, 2007, Respondent was having plumbing

work done at her home. Respondent met the plumber at her house

at around 3:00 in the afternoon. Respondent's husband was not

home at that time. Feeling uncomfortable with the presence of

the plumber inside her house, Respondent took the Handgun from

its secure location in her bedroom and placed it in a table

drawer in the living room. Respondent sat next to that table

while the plumber was in her home. Respondent's husband arrived

home about 4:30 p.m.

8. After dinner, Respondent and her husband sat in the

living room for after-dinner coffee. At that time, the husband

noticed the Handgun in the table drawer. It was highly unusual

for the Handgun to be anywhere except its secured location in

Respondent's nightstand, so he questioned Respondent as to why.

Respondent told him about her discomfort with the plumber, then

said she was going grocery shopping later and would be taking

the Handgun with her (in accordance with her normal practice).

9. Respondent then set the Handgun on her purse, a large

black leather bag. The Handgun, in a black holster, set atop

the purse and blended into the black leather of the purse.

10. Respondent and her husband sat in the living room for

a while, but Respondent began to feel ill and decided not to go

shopping after all. (Respondent had recently had knee

replacement surgery and was still in some pain and using pain

medications.) Instead, Respondent fell asleep in the living

room and then later moved to her bedroom for the night.

11. The next morning, Respondent prepared for school as

normal. She normally kept her school papers and work materials

in a collapsible crate which had wheels and an extended handle.

As she regularly did, Respondent placed her purse and cell phone

on top of the crate and wheeled it out to her car. The Handgun

was still on top of the purse, but Respondent did not notice it.

12. Upon arrival at Heathrow, Respondent parked in the

same parking lot she normally used, the one adjacent to the "bus

loop" where school buses dropped off students each morning.

Respondent took her crate out of her car and wheeled it toward

the school building. As she crossed a short strip of grass just

before reaching the bus loop, the Handgun and cell phone

apparently jostled off the purse and fell onto the ground.

Respondent did not notice the items fall and went on into the

school building. 1

13. A few minutes later, Lorry Coats, the school secretary

at Heathrow, also parked her car in the same lot. As she walked

toward the school, she saw something on the ground. Upon closer

examination she found two items, Respondent's cell phone and

the Handgun. Coats picked up both items and took them into the

school administration building, being careful to conceal the

Handgun so as not to alarm anyone.

14. Once inside the administration building, Coats

notified Dr. Barbara Nixon, Heathrow's principal, about the

Handgun and cell phone. A search was conducted and Nixon

determined that Respondent was the owner of the cell phone.

Nixon called Respondent in Respondent's classroom and let her

know that the items had been found.

15. Respondent was very distraught when she discovered

that she had 1) brought her Handgun to school, and 2) dropped it

on the premises. She knows better than to bring a weapon on

campus and had no intention of doing so.

16. Nixon called Respondent to the office and then called

the police to report the incident. Respondent was then placed

under arrest for possession of a firearm on school property and

culpable negligence (exposing a person to possible injury). The

first charge was a third-degree felony; the second was a second-

degree misdemeanor. Both charges were eventually dismissed

(nolle prossed) by the State Attorney's Office.

17. Respondent was then placed on suspension by the

superintendent of SCPS pending a final decision by the School

Board.

18. Possession of a loaded firearm on campus is, according

to the superintendent, the most serious offense a person could

commit. It is the most dangerous situation for students, staff,

and visitors. Respondent committed an "extreme act of

carelessness" that warrants a severe penalty, according to

Superintendent Vogel.

19. Vogel addressed two other incidents involving the

possession of weapons on campus, but distinguished them as less

serious.

20. The first weapons incident involved the possession of

a replica weapon by a student. The student intentionally

brought the replica weapon to school and brandished it in a

threatening manner. The student emerged from a school restroom

and took a "shooting stance" toward police officers. After

failing to heed warnings and continuing to point his replica

weapon at SWAT team members, the student was shot to death by

police.

21. The second weapons incident involved another teacher

at Heathrow. The teacher, Mr. Diesbourg, drove to school with a

BB rifle on the roof of his car. Diesbourg had placed the BB

rifle on his car after shooting at a raccoon or squirrel at his

house. He forgot about the rifle being on his car and drove to

school. The rifle was noticed by another staff member and

safely put away before being seen by students or visitors. This

incident happened just eight days after the incident involving

Respondent.

22. Later, Diesbourg drove to school with a pruning saw in

his car. The pruning saw, left in plain sight in his unlocked

vehicle, was a "weapon" as far as school policy is concerned.

Again, once it was discovered by someone, the weapon was safely

put away. 2

23. Diesbourg was given a ten-day suspension without pay

for the BB rifle incident. He was given a letter of concern for

the pruning saw incident.

24. Clearly, a loaded .357 caliber revolver is more

dangerous than a replica firearm, or a BB rifle, or a pruning

saw.

25. Respondent is extremely sorry that she inadvertently

brought the Handgun onto the Heathrow campus. She certainly did

not intend to do so and knows better than to do so. Her remorse

is clear and sincere.

26. Further, after suffering the consequences of her

action (suspension from the job she loves, arrest by law

enforcement, depression and loss of self esteem), there is

little chance Respondent would ever make the same mistake.

There is probably no teacher under contract with SCPS who would

be more careful about such things than Respondent.

27. Nonetheless, Principal Nixon has some concerns about

Respondent returning to Heathrow. She was concerned that

something like this might happen again (although that seems

unlikely when viewing the demeanor and sincerity of Respondent).

Nixon also thinks that some parents may ask to have their

children transferred from Respondent's class due to their (the

parents') fear that Respondent would bring the Handgun to school

again. There is no competent substantial evidence to support

Nixon's concern, but, of course, the possibility exists that

some parents would be more fearful than others.

28. Respondent has a clear record as a teacher. She has

not been reprimanded or sanctioned in any fashion during her

24 plus years in the classroom. She is respected by peers and

by her students and their parents. Importantly, Respondent

loves her profession and is deeply committed to teaching

children.

29. While no one was injured or physically harmed by the

incident involving Respondent's Handgun, the possibility of some

harm did exist.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2008). 3

31. McGhee is a classroom teacher under the definition of

instructional personnel as set forth in Subsection

1012.01(2)(a), Florida Statutes.

32. The School Board has the authority to terminate a

classroom teacher pursuant to Section 1012.33, Florida Statutes.

However, a teacher may only be terminated for just cause. Just

cause includes immorality, misconduct in office, incompetency,

gross insubordination, willful neglect of duty, or conviction of

a crime involving moral turpitude. § 1012.33(1)(a).

33. The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal.

Florida Department of Transportation v. J.W.C. Company, Inc. ,

396 So. 2d 778 (Fla. 1st DCA 1981). In this matter, Petitioner

has the burden to prove by a preponderance of the evidence that

the allegations against Respondent are true and warrant

termination of Respondent's contract. See Sublett v. Sumter

County School Board , 664 So. 2d 1178 (Fla. 5th DCA 1995); and

Dileo v. School Board of Dade County , 569 So. 2d 883 (Fla. 3rd

DCA 1990).

34. Teachers or students who bring weapons onto school

property are subject to punishment. The greater the danger, the

greater the degree of punishment. However, as opined by

Superintendent Vogel at the final hearing, "Every circumstance

is different." Therefore, the facts of each case must be

examined before the proper penalty can be imposed.

35. No one argues that Respondent's failure to secure her

firearm and to allow it on campus was a serious breach of

safety. There is a "zero tolerance" at SCPS schools for

teachers or students who bring weapons on campus. That is, it

is a violation to bring a weapon on campus, and each violation

of that policy will be punished. The question in the instant

matter is what degree of punishment should be meted out.

36. In the Diesbourg case (discussed above), the teacher

did not bring an inherently dangerous weapon on campus. The BB

rifle, while a dangerous instrument, will not normally be used

to fatally wound a person. A .357 handgun, on the other hand,

will easily inflict mortal damage. But consider the case of the

student with the replica firearm: A replica will not inflict

mortal injury, but, in that case, the end result was death of

the student. That scenario could easily have been repeated with

Diesbourg's BB rifle. Yet his punishment was a ten-day

suspension. And when he brought yet another weapon, the pruning

saw, to school later, his punishment was again less than the

maximum.

37. Conversely, Respondent's weapon was deadly in and of

itself. If a child or other person had found the Handgun, they

could have intentionally or accidentally killed someone with it.

Luckily the Handgun was only on the ground for a few short

minutes and was found by a responsible individual.

38. To-date, Respondent has lost over one year's pay while

on suspension. She has suffered depression and loss of self

esteem and confidence. Despite that fact, she continues to

yearn for the opportunity to resume her chosen profession. She

is, clearly, remorseful for her mistake and had no intention to

violate the policy.

39. The facts of this case are very similar to those in

Hernando County School Board v. Ellison , DOAH Case No. 05-4195

(February 23, 2006). Ellison unintentionally left a firearm in

the glove box of his truck. When the school's auto mechanics

class removed the glove box while working on the truck, the

firearm was discovered. The students turned the weapon over to

their teacher who, in turn, gave it to a Sheriff's deputy. The

school board sought termination of Ellison's contract. As in

the instant case, Ellison was found to be remorseful, to have

been an excellent teacher, and to have committed the violation

unintentionally. Deputy Chief Judge Hooper, in his Recommended

Order, stated:

If one balances this single careless act

committed by Mr. Ellison with the overall

good to be gained by allowing Mr. Ellison

to continue his career as a teacher in the

Hernando County School District, the

inevitable conclusion is that just cause

for termination is absent.

40. Judge Hooper's eloquent statement is equally

applicable to the facts of this case. Respondent has a long,

unblemished history with SCPS and is well respected as a

teacher. It makes no sense to terminate her teaching contract

on the basis of a single mistake.

41. Further, just as in the case of School Board of

Pinellas County v. Hollis , DOAH Case No. 89-2447 (September 25,

1989), the scienter of intent is missing in the present action.

The evidence in the instant case is clear, bringing the weapon

on campus occurred due to a series of events which are

understandable. Respondent testimony as to those facts is

credible and persuading. She did not intend to bring the weapon

on campus, period. So, like Hollis, Respondent was guilty of

"[s]erious negligence, but under the terms and Rules applicable

in this case, negligence does not, under the circumstances of

this case, equate to misconduct sufficient to justify dismissal

after an honorable and long-standing period of employment."

Hollis , at Par. 37-40.

42. It has even been held that an intentional violation of

the no-weapons-on-campus policy does not warrant termination of

a contract. See Polk County School Board v. Bradley , DOAH Case

No. 07-3721 (December 6, 2007). Respondent's unintentional

violation certainly does not warrant a more severe penalty.

43. Petitioner has not met its burden of proof in this

case to establish that termination of Respondent's employment

contract is the appropriate sanction for Respondent's singular

act of negligence.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Seminole County School Board, imposing the following punishment

against Respondent, Michelle S. McGhee:

1. Written letter of reprimand for her negligence;

2. Suspension from teaching from December 12, 2007, until

the commencement of the 2009-2010 school year in August 2009;

3. A period of probation for her first year back in the

classroom.

DONE AND ENTERED this 6th day of March, 2009, 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 6th day of March, 2009.

ENDNOTES

1/ It should be noted that the Handgun fell onto the ground on

the side of the bus loop away from the school bus doors. That

is, students being dropped off by the bus would not be walking

on the side of the loop on which the Handgun was found. That is

not to say a student would not spot the Handgun through the bus

window and go to investigate, but the Handgun was not in an area

normally used by students getting to school.

2/ Coincidentally, the pruning saw was discovered by a

Department of Education prosecutor who was on campus to

investigate another incident.

3/ Unless otherwise stated herein, all references to Florida

Statutes shall be to the 2008 version.

COPIES FURNISHED :

Dr. Eric Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Bill Vogel

Superintendent of Schools

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

Matthew Haynes, Esquire

Chamblee, Johnson & Haynes, P.A.

510 Vonderburg Drive, Suite 200

Brandon, Florida 33511

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.