09-001268TTS Manatee County School Board vs. Karen Stolt Status: Closed Recommended Order on Friday, August 21, 2009.

Summary: Respondent's arrival for duty under the influence of prescription drugs, and in possession of illegal drugs, warrants termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-1268

)

KAREN M. STOLT, )

)

Respondent. )

)

RECOMMENDED ORDER

On May 5 and 6, 2009, a formal administrative hearing was

conducted in Bradenton, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Robert J. Shapiro, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206-9069

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

STATEMENT OF THE ISSUE

The issue in this case is whether the School Board of

Manatee County (Petitioner) has just cause to terminate the

employment of Karen M. Stolt (Respondent).

PRELIMINARY STATEMENT

By an Administrative Complaint dated March 5, 2009, the

Petitioner alleged that on September 17, 2008, the Respondent

reported for duty while under the influence of an unknown

substance and in possession of controlled medications for which

she did not have a valid prescription. The complaint further

alleged that the Respondent had previously reported for duty

while under the apparent influence of unknown substances and

that the Respondent had previously pled guilty in Michigan to a

1989 charge of "possession of dangerous drugs."

The Respondent denied the allegations and requested a

formal administrative hearing. The Petitioner forwarded the

dispute to the Division of Administrative Hearings, which

scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

ten witnesses and had Exhibits 1 through 3 admitted into

evidence. The Respondent testified on her own behalf, presented

the testimony of two witnesses, and had Exhibits 2 through 4

and 7 admitted into evidence.

A Transcript of the hearing was filed on June 29, 2009.

Both parties filed Proposed Recommended Orders on July 29, 2009,

that have been considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

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

employed by the Petitioner under a professional services

contract as a teacher at Oneco Elementary School, a unit of the

Manatee County School System.

2. The Respondent taught prekindergarten students,

generally three to four years of age.

3. On September 17, 2008, the Respondent took two

Hydrocodone tablets for back pain and then left her home in

Myakka City, Florida, and drove the approximate 45-minute trip

to the school.

4. After departing from her home and prior to arriving at

school, the Respondent took a Soma tablet. Soma was described

as a muscle relaxant.

5. After arriving at school, the Respondent went into the

classroom of another teacher, Gretchen Hatton, at about

7:30 a.m. It was not unusual for the Respondent to enter

Ms. Hatton's classroom at that time of day. No children were

present.

6. Ms. Hatton observed that the Respondent appeared tired,

that one side of her mouth was drooped, and that her speech was

slurred and repetitive.

7. When the Respondent began to exit from Ms. Hatton's

classroom, Ms. Hatton observed that the Respondent's gait was

unsteady. Ms. Hatton assisted the Respondent into a rocking

chair and then exited the classroom, locking it as she left.

8. Ms. Hatton went to the school's nurse, Mary Fischer, to

report that there was "something wrong with Karen."

9. Nurse Fischer and School Administrator Carol Cartwright

went to Ms. Hatton's classroom.

10. Ms. Cartwright observed the Respondent to be "out of

it." The Respondent's head was down, and she was generally non-

responsive, her speech limited and slurred.

11. When questioned by Ms. Cartwright, the Respondent

acknowledged that she had driven herself to the school.

12. A request was made for the Respondent's car keys, and

the Respondent attempted unsuccessfully to retrieve her keys

from her purse. The Respondent then directed Nurse Fischer to

retrieve the keys.

13. Nurse Fischer pulled the keys from the Respondent's

purse and noticed that a medicine bottle containing different

varieties of pills was visible in the purse. Both the keys and

the medicine bottle were removed from the Respondent's purse.

14. The Respondent was transported by wheelchair from

Ms. Hatton's classroom to the school clinic in an effort to

remove the Respondent from where students would be arriving for

class.

15. Nurse Fischer contacted poison control in an effort to

identify the types of pills in the bottle.

16. The pill bottle removed from the Respondent's purse

contained seven Soma tablets, five Hydrocodone tablets, and

18 Vicodin tablets.

17. As time passed, the Respondent's condition improved,

and she discussed the medication that was in the bottle with the

school's resource officer, who had been summoned to the clinic

by the school administrator.

18. After the Respondent was sufficiently recovered, she

was transported to a drug screening lab and then returned to

school. Thereafter, she was driven home in her vehicle by a

school employee.

19. The results of the drug test were "negative."

20. All of the medications contained within the pill

bottle are identified as controlled substances pursuant to the

drug schedules set forth in the Florida Statutes.

21. Vicodin is a combination of Hydrocodone and

Acetaminophen.

22. The Respondent did not have a prescription for

Vicodin. She obtained the medication from another school

employee with whom the Respondent traded pain medications.

23. At the hearing, several witnesses testified that prior

to September 17, 2008, the Respondent had been on school grounds

or at professional events, including a professional training

meeting and a "back-to-school" parent-teacher night, under the

apparent influence of unknown substances.

24. Although the Respondent testified that she had

previously combined Hydrocodone and Soma medications without

difficulty, the Respondent acknowledged being in an impaired

condition and unfit to teach at school on September 17, 2008.

She otherwise denied that she had ever been impaired while at

school or professional events.

25. The Respondent's behavior at the back-to-school event

resulted in the school's principal issuing a verbal reprimand to

the Respondent and a warning that repeated behavior could result

in termination of employment.

26. The greater weight of the evidence established that

the Respondent exhibited behavior indicative of intoxication or

impairment related to substance use on September 17, 2008, and

at other school events, including the back-to-school event, and

that her behavior was sufficient to preclude her participation

in the activities.

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

impairment on occasions other than September 17, 2008, was the

result of improper use of medication or other controlled

substances.

28. The Respondent was charged with unlawful possession of

a controlled substance (Vicodin), and she entered a pretrial

diversion program. She was sentenced to perform community

service and placed on probation for one year. At the time of

the hearing, the Respondent remained on probation.

29. At the hearing, the Respondent testified that she has

used prescription pain medication beginning approximately ten

years ago following surgery for a herniated disk in her back.

30. The Respondent testified that she suffered a broken

wrist in the spring of 2008 and bruised ribs in August of 2008.

Some school employees attributed the Respondent's injuries in

2008 to domestic violence. The Respondent testified that she

and her husband, whom she married in 1999 and to whom she

remained married at the time of the hearing, had "a lot of

difficulty" in 2008.

31. The school principal, Marian Summers, testified that

she felt that the Respondent's effectiveness as a teacher was

impaired by the events of September 17, 2008. Ms. Summers

further testified that she viewed the issue as a matter of

student safety, in that the Respondent exhibited an inability to

care for herself. Ms. Summers was also concerned that the

Respondent apparently drove herself to the school in an impaired

condition. Ms. Summers testified that she had expressed her

concern to the superintendent.

32. Superintendent of the Manatee County School System

Tim McGonegal testified that the sole reason for his

recommendation for termination of the Respondent's employment

was the incident on September 17, 2008. Superintendant

McGonegal stated that he took into consideration the fact that

the Respondent was a teacher in a prekindergarten class that

included some special needs children, that the Respondent was

under the influence of narcotics, and that she was essentially

non-functional at the time she arrived on campus. He noted that

the Respondent drove herself to the school. He expressed

concern about the quantity of medication which the Respondent

had in her possession at the time of the incident and the fact

that she did not possess a prescription for a substantial

portion of the medication.

33. Superintendant McGonegal testified that the school

system has an obligation to care for the students attending the

facility and that the Respondent's arrival at school campus on

September 17, 2008, under the influence of narcotics and in

possession of controlled substances, which were not prescribed

to her, indicated to him that he could not trust the Respondent

to appropriately provide care and attention required for the

students in her class or to fulfill her obligations as a

teacher. He testified that a teacher must "have all of their

senses and faculties" to deal with the students for whom they

are responsible and is of great concern as to the Respondent's

employment as a teacher of very young children.

34. Because she violated the trust placed in her, the

Respondent's effectiveness as an employee of the school system

was substantially impaired by her behavior. The superintendent

testified: that he lacked confidence that the Respondent would

not repeat the behavior, that he believed she disgraced herself

and the school by her behavior, and that he believed her actions

constituted immorality. The superintendent’s testimony is

credited in full.

35. At the hearing, Superintendent McGonegal testified

that the alleged 1989 incident in Michigan was not a factor in

his recommendation to terminate the Respondent's employment.

Accordingly, the allegation is deemed immaterial and has not

been addressed in this Recommended Order.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2008).

37. The Petitioner has the burden of proving by a

preponderance of the evidence the allegations underlying the

proposed termination of the Respondent's employment as set forth

in the Administrative Complaint. 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). The

burden has been met.

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

employed by the Petitioner under a professional services

contract. Subsection 1012.33(1)(a), Florida Statutes (2008),

states that persons employed under such contracts may be

dismissed during the term of the contract only for just cause,

and provides as follows:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or

being convicted or found guilty of, or

entering a plea of guilty to, regardless of

adjudication of guilt, any crime involving

moral turpitude.

39. Subsection 6.11(12)(c) of the Policies and Procedures

Manual of the School Board of Manatee County provides as

follows:

Involuntary termination:

Any employee of the School Board may be

terminated from employment for just cause

including, but not limited to, immorality,

misconduct in office, incompetence, gross

insubordination, willful neglect of duty,

drunkenness, or conviction of any crime

involving moral turpitude, violation of the

Policy and Procedures Manual of the School

District of Manatee County, violation of any

applicable Florida statute, violation of the

Code of Ethics and the Principles of

Professional Conduct of the Education

Profession in Florida.

40. Florida Administrative Code Rule 6B-4.009 provides the

following relevant definitions:

(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.

41. The evidence establishes that the Respondent's

behavior on September 17, 2008, constituted immorality because

it was "inconsistent with the standards of public conscience and

good morals" and was a disgrace to herself and the school

system.

42. The Code of Ethics of the Education Profession in

Florida, set forth at Florida Administrative Code Rule 6B-1.001

provides as follows:

6B-1.001 Code of Ethics of the Education

Profession in Florida.

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to 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.

43. The Principles of Professional Conduct for the

Education Profession in Florida are set forth at Florida

Administrative Code Rule 6B-1.006 and provide, in relevant part,

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.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

44. The evidence establishes that the Respondent's

behavior on September 17, 2008, constituted misconduct in

office. By arriving for duty under the influence of medication

so as be incapable of ambulation, coherent communication, or the

ability to care for herself, the Respondent failed to make a

reasonable effort to protect students from conditions harmful to

learning and to protect the student's health and safety,

violating Florida Administrative Code Rule 6B-1.006(3)(a) and

Subsection 1012.33(1)(a), Florida Statutes (2008).

45. The evidence further establishes that by denying that

she appeared under the influence of unknown substances at school

functions prior to September 17, 2008, despite substantial

credible evidence to the contrary, the Respondent failed to

maintain honesty in professional dealings, violating Florida

Administrative Code Rule 6B-1.006(5)(a) and Subsection

1012.33(1)(a), Florida Statutes (2008).

46. At the hearing, the Respondent testified that no one

ever advised her of any concern about her drug use, while at the

same time testifiying that she wished someone had advised her of

their concerns. Had the Respondent not appeared on campus under

the influence, there would have been no reason for anyone to

note her behavior at all. The greater weight of the evidence

establishes that other school employees were aware of her

impaired behavior, that such behavior was discussed with the

Respondent, and that a verbal warning was issued to the

Respondent specifically regarding the situation.

47. The Administrative Complaint alleged that the

Respondent had vioated Sections 2.20 and 6.11 of the Policies

and Procedures Manual of the School Board of Manatee County.

Section 2.20 was not offered into evidence and is not addressed

herein. Subsection 6.11(10) of the Policies and Procedures

Manual of the School Board of Manatee County provides in

relevant part as follows:

Alcohol and Drug-Free Workplace:

Employees are expected to be free from the

influence of, use of, possession, selling

and dispensing of drugs and alcohol while on

duty or while on School Board property.

Because of the special role the school

system plays in discouraging our students

from using controlled substances, employees

are further expected to refrain from

illegally using, possessing, manufacturing,

dispensing, or selling controlled substances

(illegal drugs) in their private lives.

48. The evidence establishes that on September 17, 2008,

the Respondent arrived on school grounds under the influence of,

and in possession of, controlled substances.

49. Subsection 893.13(6)(a), Florida Statutes (2008),

provides as follows:

It is unlawful for any person to be in

actual or constructive possession of a

controlled substance unless such controlled

substance was lawfully obtained from a

practitioner or pursuant to a valid

prescription or order of a practitioner

while acting in the course of his or her

professional practice or to be in actual or

constructive possession of a controlled

substance except as otherwise authorized by

this chapter. Any person who violates this

provision commits a felony of the third

degree, punishable as provided in

s. 775.082, s. 775.083, or s. 775.084.

50. The evidence establishes that on September 17, 2008,

the Respondent arrived on school grounds in possession of

controlled substances for which she had no valid prescription.

51. By arriving at the school under the influence of

controlled substances, and in possession of controlled

substances without a valid prescription, the Respondent

committed a violation of Subsection 6.11(10) of the Policies and

Procedures Manual of the School Board of Manatee County.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the School Board of Manatee County,

Florida, enter a final order terminating the employment of

Karen M. Stolt.

DONE AND ENTERED this 21st day of August, 2009, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 2009.

COPIES FURNISHED :

Robert J. Shapiro, Esquire

Manatee County School Board

Post Office Box 9069

Bradenton, Florida 34206-9069

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675-0638

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

Tim McGonegal, Superintendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 34206-9069

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.