09-005329TTS Manatee County School Board vs. Tammy M. Johnson Status: Closed Recommended Order on Wednesday, June 9, 2010.

Summary: Respondent, a senior secretary, is not "instructional personnel," but is subject to School Board rules and policies; Respondent violated Petitioner's alcohol policy on European trip and coming on campus under the influence. Recommend termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-5329

)

TAMMY M. JOHNSON, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held before Daniel

M. Kilbride, an Administrative Law Judge of the Division of

Administrative Hearings (DOAH), in Bradenton, Florida, on

March 4-5, 2010.

APPEARANCES

For Petitioner: Brian C. Ussery, Esquire

Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

201 North Franklin Street, Suite 1600

Tampa, Florida 33601

For Respondent: Richard G. Groff, Esquire

1506 Scarlet Oak Lane

Bradenton, Florida 34209

STATEMENT OF THE ISSUES

Whether there was “just cause” for the termination of

Respondent’s employment, as that term is referred to in section

6.11 of the Policies and Procedures Manual of the School Board

of Manatee County, Florida, by:

(1) Respondent’s using school district property for

personal gain, by working on tasks related to a student-based

educational European trip through Education First (EF) during

her district duty hours in the spring of 2009.

(2) Respondent’s consuming excessive alcoholic beverages

in the presence of students and parents of Buffalo Creek Middle

School (BCMS) during an EF trip in the summer of 2009.

(3) Respondent’s reporting to BCMS on August 14, 2009, in

order to collect her personal belongings, and appearing to be

inebriated

(4) Respondent’s contacting witnesses to the investigation

to discuss details of the investigation.

(5) Respondent’s coming on school grounds on December 7,

2009, while under the influence of alcoholic beverages.

PRELIMINARY STATEMENT

On September 21, 2009, the Superintendent of the Manatee

County School District recommended to the School Board that

Respondent be suspended without pay and that Respondent’s

employment be terminated. Respondent timely requested an

administrative hearing. Petitioner referred the matter to DOAH

to conduct an administrative hearing on September 30, 2009, and

discovery followed. Petitioner was granted leave to file an

amended petition on two occasions and the final hearing on the

matter was continued until March 4, 2010. An Amended Joint Pre-

hearing Stipulation was filed on February 22, 2010.

At the hearing, Petitioner presented the testimony of

Respondent as an adverse witness, and five witnesses: Debra

Horne, Rebecca Keefer, Jessica Vieira, Valerie Hosier and

Matthew Guhl. Seven exhibits were admitted into evidence for

Petitioner. Respondent testified in her own behalf, and

presented the testimony of one witness, Scott Cooper. Six

exhibits were admitted into evidence for Respondent.

The two-volume Transcript was filed on March 26, 2010.

Each party timely filed Proposed Recommended Orders, which have

been carefully considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. The School Board of Manatee County, Florida, is the

duly-authorized entity responsible for providing public

education in Manatee County, Florida.

2. Respondent, Tammy M. Johnson, has been employed with

the School District of Manatee County since February 8, 2000.

She was most recently employed as the senior secretary at BCMS.

As the senior secretary to the principal of BCMS, Respondent

served as the point person for the principal of the school,

working hand-in-hand with the principal. Her duties included

screening the principal’s mail and phone calls, handling

substitute teachers, performing payroll duties, handling leave

forms, coordinating clerical office staff, and handling

emergency situations as they arose within the school.

Respondent was exposed to confidential school information on a

regular basis, such as complaints regarding faculty and staff

and policy changes being considered within the district.

3. Respondent was employed on an annual contract basis,

which was renewed from year to year. Her employment contract

was for a term of 11 months and lasted typically from early

August to June of the following year.

4. While employed full-time as the senior secretary, in

the fall of 2008 and the spring of 2009, Respondent organized a

trip to Europe through the student-based educational travel

company EF. Respondent sought to recruit BCMS students and

their family members to sign up for the trip by placing fliers

on campus, posting a sign-up board at the incoming students’

open house, and placing a notice about the trip in the school

newsletter. Respondent routinely included a signature line in

her school-assigned email address that identified her not only

as a Senior Secretary but as an EF tour guide in every email

that she sent from her school account. Announcements about

informational meetings related to the EF trip were made over the

school intercom and these meetings occurred on school property

in the evenings.

5. Respondent made fliers at BCMS advertising the EF trip

on at least two occasions using school equipment. On one

occasion, she made 750 fliers using school paper.

6. During the time Respondent was conducting these

activities, her principal was Scott Cooper. Cooper knew of

Respondent’s activities in promoting the trip, and that she was

using school resources to accomplish it. He did not object or

tell Respondent to stop doing so; in fact, he encouraged such

trips.

7. Respondent ultimately recruited 10 student participants

for the EF trip, all of whom were students at BCMS. The trip

also included 15 adult participants, all of whom were family

members of BCMS students.

8. In exchange for her work organizing, promoting and

chaperoning the EF European trip, Respondent was to receive, and

did receive a free spot on the trip to Europe.

9. Respondent served as the group leader for the EF group

of BCMS students and parents. Three other BCMS teachers became

involved in the EF trip as chaperones: Joseph Baker, Malissa

Baker and Jessica Vieira. They also used school resources to

promote the trip.

10. The EF trip to Europe took place from June 22, 2009,

to July 1, 2009.

11. On June 17, 2009, the Office of Professional Standards

(OPS) received a complaint that Respondent was misusing school

resources for personal gain. OPS opened an investigation into

these allegations.

12. Shortly before Respondent left for Europe, Scott

Cooper was replaced as principal. The newly-appointed BCMS

Principal Matt Gruhl, met with Respondent to discuss his concern

that she included an EF tagline in the signature block of all of

her school emails. Gruhl asked Respondent to remove the EF

tagline from her email, take the EF poster off of her door, make

any necessary copies at a non-school location, and pay standard

rates in the future for any advertising done in the school

newsletter. Respondent complied with the directive.

13. On June 22, 2009, the flight for the EF trip left from

Tampa. Prior to the flight’s departure, Respondent purchased

several small bottles of vodka in the airport duty-free shop.

Several students observed Respondent doing so. Respondent drank

two vodka-and-cranberry drinks on the flight to Europe in the

presence of BCMS students and parents.

14. Upon arrival in London, Respondent went with several

other parents to a pub across the street from the hotel. While

there, Respondent had too much to drink that evening and became

intoxicated. Several BCMS students said that Respondent was

speaking so loudly that they were able to hear her all the way

across the street and up to the fifth story of the hotel. These

students were upset by Respondent’s behavior. Respondent was

very loud when she returned from the pub. BCMS parents had to

help Respondent into the lobby, as she was falling over and

laughing loudly. The adults tried to persuade Respondent to go

to bed, but she insisted on ordering another drink in the lobby.

Respondent was finally coaxed to go upstairs to bed, and she

began banging on all the doors to the hotel rooms in the

hallway. Respondent had to be physically restrained from

banging on the doors.

15. On more than four occasions Respondent was observed

mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup

before leaving the hotel with students for the day.

16. The BCMS students on the EF trip commented on multiple

occasions about Respondent’s drinking on the trip. The students

did not want to go off alone with Respondent because they did

not feel safe with her. The students also made observations

that Respondent was drunk and stumbling around.

17. On the return plane ride from Europe to Tampa,

Respondent again was drinking alcoholic beverages to excess and

exhibiting loud and boisterous behavior.

18. While Respondent was in Europe with the EF trip, she

had received a text message notifying her that she may be under

an OPS investigation.

19. Shortly after Respondent returned, she approached

Gruhl and asked him whether there was an investigation

concerning her being conducted by OPS. When Gruhl declined to

comment on any pending OPS investigations, Respondent then

called Debra Horne, specialist in the Office of Professional

Standards, and asked whether there was an investigation being

conducted. Horne confirmed that there was an open investigation

and told Respondent that it might not be resolved until after

school started because it involved students and parents.

20. After speaking to Horne, on or about July 20, 2009,

and being made aware that she was involved in an open

investigation, Respondent called Vieira and told her that they

needed to get their stories straight. Respondent also left

messages for Joe and Malissa Baker stating that she heard that

there was an OPS investigation and wanted to know if they had

any information or had heard anything about the investigation.

21. Respondent was only partially aware of a School Board

rule which prohibited contacting potential witnesses during an

investigation, although she was aware that she was expected to

abide by all School Board rules.

22. Gruhl spoke to Horne and reported Vieira and Malissa

Baker’s concerns.

23. Horne expanded her open investigation to include the

allegations about Respondent’s behavior on the trip.

24. Effective August 3, 2009, Respondent was removed from

her position and placed on administrative leave with pay pending

the completion of an investigation of her conduct by the

Petitioner’s Office of Professional Standards. During the time

of paid leave she was required to report daily to her principal

and could not travel outside the country without permission.

25. After Respondent was placed on paid administrative

leave, she came to the BCMS campus on August 14, 2009, to pick

up her belongings from her office. She met Gruhl and Assistant

Principal Nancy Breiding at the school. Gruhl observed that

Respondent smelled strongly of alcohol. She had difficulty

keeping her balance and ran into walls, ran into doorways and

almost fell when she tried to adjust her flip-flop. Respondent

also had great difficulty following the line of conversation

when she was speaking with Gruhl and repeated herself numerous

times. Concerned, Gruhl permitted Respondent to leave campus

after observing that her husband was driving her. He did not

seek to send her for drug or alcohol testing, as provided in

school board rules.

26. Respondent testified that she had “just one” vodka and

grapefruit drink at lunch earlier that day. She denied that

Gruhl’s observations were accurate, but also alleged that she

was on a prescription medication, Cymbalta, and stated that it

caused her to be increasingly emotional and somewhat dizzy.

However, she testified that she was completely unaware that

combining the medication with alcoholic beverages would have an

adverse effect on her. Respondent’s testimony in this regard is

not credible.

27. Gruhl’s observations of Respondent’s behavior on

August 14, 2009, were incorporated into the OPS investigation.

28. Horne interviewed Respondent on August 20, 2009,

regarding the allegations made prior to the trip and the

allegations made concerning her behavior on the EF trip.

29. On September 1, 2009, the results of the OPS

investigation was presented within the chain-of-command, who

recommended to Superintendant Tim McGonegal that Respondent’s

employment be terminated.

30. The Superintendant concurred with their

recommendation, and on September 21, 2009, the Superintendant

notified Respondent that he intended to seek termination of her

employment, or, should she request an administrative hearing,

suspension without pay pending the outcome of that hearing.

Respondent requested an administrative hearing. At their

meeting on October 13, 2009, the School Board suspended

Respondent without pay.

31. While on unpaid suspension, Respondent had no duties,

was not required to report to anyone, and was not limited in her

ability to travel. However, she was still a School District

employee.

32. On December 7, 2009, while on suspension without pay,

Respondent returned by car to the BCMS campus while school was

in session to check her son out early for a doctor’s

appointment. Aware that she was under investigation for

excessive drinking, Respondent admitted that she nonetheless had

a drink at lunchtime before going to pick up her son from school

around 2 p.m. While on campus, Respondent’s eyes were glassy,

she smelled of alcohol, and she was unkempt, which was out of

keeping with her usual appearance.

33. When Gruhl learned of the incident on December 7,

2009, he recommended to the Superintendant that Johnson not be

permitted to return to the BCMS campus

34. On December 7, 2009, the OPS opened an addendum

investigatory file on Respondent concerning the events of

December 7, 2009. The addendum OPS investigation alleged that,

on December 7, 2009, Johnson entered the BCMS campus while under

the influence of alcohol.

35. The testimony of Horne, Keefer, Vieira, Hosier and

Gruhl is credible. Respondent’s testimony is found to be

unreliable.

CONCLUSIONS OF LAW

36. DOAH has jurisdiction over the parties and the subject

matter of these proceedings, pursuant to Section 120.569 and

Subsection 120.57(1), Florida Statutes (2009). 1

37. The Superintendent of the District has the authority

to recommend to the School Board that educational support

employees be suspended and/or dismissed from employment.

§ 1012.27, Fla. Stat. The School Board of Manatee County has

the authority to terminate and/or suspend without pay

educational support employees. § 1012.22(1)(f), Fla. Stat.

38. The statute and rules which provide grounds for

termination of Respondent's employment are penal in nature;

therefore they must be construed in favor of the employee.

Rosario v. Burke , 605 So. 2d 523, 524 (Fla. 2d DCA 1992).

39. The burden of proof applicable to this proceeding is

preponderance of the evidence. McNeill v. Pinellas County

School Board , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v.

School Board of Dade County , 569 So. 2d 883 (Fla. 3rd DCA 1990).

evidence,” or evidence that more likely than not tends to prove

a certain proposition. Gross v. Lyons , 763 So. 2d 276, 280 n.1

(Fla. 2000).

40. Respondent is subject to Section 6.11(1) of the

Policies and Procedures Manual of the School Board of Manatee

County, Florida, which provides:

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, immorality, misconduct in office,

incompetence, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude,

violation of the Policies 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.

41. Petitioner has the burden of establishing just cause

by a preponderance of the evidence. McNeill v. Pinellas County

School Board , supra .

42. The petition sets forth the specific conduct and

violations upon which Respondent's proposed discipline is based.

Respondent cannot be disciplined for conduct or violations that

are not set out in the Petition. Respondent is entitled to fair

notice and an opportunity to be heard on each of the charges

against her. Pilla v. School Board of Dade County, Florida , 655

So. 2d 1312, 1315 (Fla. 3d DCA 1995); Florida State University

v. Tucker , 440 So. 2d 37, 38 (Fla. 1st DCA 1983).

43. Respondent is a senior school secretary. Secretaries

are defined as "educational support employees" in Subsections

1012.40(1)(a) and 1012.01(6)(c), Florida Statutes.

44. As a senior school secretary acting as a close

assistant to the principal, Respondent is further classified as

a “confidential employee,” defined in Subsection 447.203(5),

Florida Statutes. Confidential employees are specifically

exempted from Subsection 1012.40(1)(a), Florida Statutes.

Accordingly, that section does not apply to Respondent. The

section of the Florida Education Code which defines Respondent’s

job is Subsection 1012.01(6)(c), Florida Statutes.

45. Prior cases before DOAH involving school boards have

held that the boards can construe by implication, regulations

applicable on their faces to instructional personnel, to apply

to educational support employees. Those holdings were based on

a finding that the employees in question were educational

support employees defined in Subsection 1012.40(1)(a), Florida

Statutes. Lee County Board vs Strawder , Case No. 08-5085 (DOAH

April 13, 2009) (adopted in toto) (educational support employee

held to standards applicable to instructional personnel “to the

extent they are applicable.”) See also Lee County School Board

v. Balogh , Case No. 07-5130 (DOAH March 18, 2008) (adopted in

toto) (bus operator); Lee County School Board v. Denson ,

Case No. 06-4995 (DOAH April 18, 2007) (adopted in toto) (lawn

maintenance worker).

46. The rationale for those holdings is that Subsection

1012.40(1)(a), Florida Statutes, includes in the definition of

“educational support employee,” two classes of non-certified

instructional personnel (teacher assistant, and education

paraprofessional) arguably justifying the extension of

“instructional personnel” regulations to “educational support

employees” of all job descriptions contained in Subsection

1012.40(1)(a), Florida Statutes.

47. In addition to Respondent’s being exempt from

Subsection 1012.40(1)(a), Florida Statutes, the definition of

educational support employee in Subsection 1012.40(1)(a),

Florida Statutes, applies only to that section. It is not

applicable across the entirety of Chapter 1012, or any

regulations applicable thereto.

48. To the contrary, however, the definitions in

Subsection 1012.01(6)(c), Florida Statutes, apply to the entire

chapter, and to Respondent.

49. The maxim expressio unius est exclusio alterius

prohibits applying the definition of an educational support

employee found in Section 1012.40(1)(a), Florida Statutes, to

any other statute in Chapter 1012, Florida Statutes, by analogy

or otherwise. The law clearly requires that the legislative

intent be determined primarily from the language of the statute

because a statute is to be taken, construed and applied in the

form enacted. The reason for this rule is that the Legislature

must be assumed to know the meaning of words and to have

expressed its intent by the use of the words found in the

statute. Thayer v. State , 335 So. 2d 815, 817 (Fla. 1976).

50. Unlike the definitions in Subsection 1012.40(1)(a),

Florida Statutes, the definition of “educational support

employee” in Subsection 1012.01(6)(c), Florida Statutes,

includes no instructional personnel, certified or non-certified.

The non-certified instructional jobs referenced in Subsection

1012.40(1)(a), Florida Statutes, are included in Subsection

1012.01(2)(e), Florida Statutes, a sub-section distinct from the

definition of educational support employees in Subsection

1012.01(6)(c), Florida Statutes. Accordingly, the rationale

advanced in the cases cited above does not apply to Respondent

in this case.

51. Accordingly, any statute, regulation or rule that by

its terms applies to instructional personnel does not apply to

Respondent.

52. In the Amended Complaint, paragraphs 11, 14 and 18

allege violations of Florida Administrative Code Rule 6B-4.009.

This regulation states in part:

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: . . . .

53. This section defines the criteria for dismissal set

forth in Section 231.36, [now § 1012.33] Florida Statutes.

Respondent cannot violate this rule as it merely contains

definitions. See Lamar of Tallahassee v. DOT , DOAH Case Nos.

08-1136 and 1137 (July 16, 2008) (adopted in toto) (a statute

that lists definitions cannot be violated). In addition, it

applies by its terms to instructional personnel. Therefore, as

stated above, this regulation cannot be extended to apply to

Respondent.

54. Petitioner has not shown by a preponderance of the

evidence that Respondent is instructional personnel subject to

this rule, and has failed to meet its burden as to paragraphs

11, 14 and 18 of the Amended Complaint.

55. Amended Complaint paragraphs 12 and 17 allege

violations of Florida Administrative Code Rule 6B-1.006. This

regulation states in part:

(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.

56. “Educator” is not defined in the Florida

Administrative Code or statutes, although its context throughout

the Florida Education Code and the Florida Administrative Code

clearly implies a certified teacher.

57. Petitioner introduced no evidence that Respondent is a

member of the education profession or has an educator’s

certificate. Thus, Petitioner has not shown by a preponderance

of the evidence that this section applies to Respondent and has

failed to meet its burden as to paragraphs 12 and 17 of the

Amended Complaint.

58. Moreover, the penalty for violation of this section is

revocation or suspension of the individual’s educator’s

certificate. Termination from employment is not an authorized

penalty. Because she is not instructional personnel, Respondent

has no educator’s certificate to revoke.

59. Amended Complaint paragraphs 13 and 15 allege

violations of Florida Administrative Code Rule 6B-1.001. This

regulation states:

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.

60. Petitioner introduced no evidence that Respondent is

an educator or that this section otherwise applies to her.

Petitioner has not shown by a preponderance of the evidence that

this section applies to Respondent and has failed to meet its

burden as to paragraphs 13 and 15 of the Amended Complaint.

61. Amended Complaint paragraph 10 alleges Respondent’s

actions constitute just cause under Manatee County School Board

Policy 6.11, which states, in part:

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 , immorality, misconduct in office,

incompetence, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude,

violation of the Policies 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.

62. Although Respondent argues that there is no allegation

that Respondent violated this section, and that the terms

“immorality, misconduct in office, incompetence, gross

insubordination, willful neglect of duty, drunkenness,” are not

defined in the policy, the contents of the Amended Complaint

itself put Respondent on notice of the conduct to which she was

expected to conform. In addition, these terms are not so vague

and indefinite as to cause this allegation to be dismissed.

63. The policy states “drunkenness” is cause for

discharge. Although it does not define drunkenness, the School

Board can look to the Florida Administrative Code for guidance.

Florida Administrative Code Rule 6B-4.009(5) defines, in

pertinent part, drunkenness as “[t]hat condition which exists

when an individual publicly is under the influence of alcoholic

beverages or drugs to such an extent that his or her normal

faculties are impaired.”

64. The testimony of the credible witnesses establishes

that Respondent’s faculties were impaired both on the European

trip and when she arrived at school on August 14, 2009 (and also

on December 7, 2009) as she was observed stumbling, bumping into

things, and having difficulty carrying on a coherent

conversation.

65. Additionally, Respondent was drunk in front of both

students and parents on the EF European trip, which undermined

her authority in their eyes. And, although the trip to Europe

was not strictly a school function, her conduct prior to

departure made it appear to be a school endorsed trip, and

Respondent had an obligation to conduct herself accordingly.

66. More seriously, after her return from the trip,

Respondent arrived at school intoxicated on two separate

occasions. On both occasions, Respondent was aware that she was

under investigation and had been placed on administrative leave

from her position as Senior Secretary. In fact, on December 7,

2009, Johnson elected to drive onto campus while school was in

session after she had been drinking earlier that day. This

occurred while she was admittedly aware that the investigation

into her actions concerned her excessive use of alcohol. This

placed the safety of BCMS students, parents, faculty and staff

in jeopardy.

67. In addition, Petitioner has established by a

preponderance of evidence that Respondent violated Section 2.20

of the Policies and Procedures Manual of the School Board of

Manatee County, Use of Alcohol, Mood-Modifying Substances and

Tobacco Products in School Board Facilities, which provides that

employees are expected to be free of the influence of, use of,

possession, selling and dispensing of drugs and alcohol while on

duty or while on School Board property. Respondent was in clear

violation of this policy when she entered School Board property

while under the influence of alcohol on August 14, 2009, and

December 7, 2009.

68. A person serving in the position of senior secretary

is essentially the gatekeeper to the principal of the school.

She is often the first person that parents and students go

through when trying to reach the principal and serves as his

liaison to the BCMS community. By compromising her reputation

with these parents and students, Respondent impaired her

effectiveness in the position. Additionally, the position is

one of a confidential employee and the level of trust between a

principal and the Senior Secretary is critical to effectiveness

in the position. Here, Respondent’s actions impaired this

relationship to the point that Principal Gruhl no longer trusted

her. With this trust destroyed, it would have been impossible

for Respondent to effectively perform the position of Senior

Secretary.

69. Petitioner has established by a preponderance of

evidence that Respondent engaged in immorality, as contemplated

in Manatee County School Board Policy 6.11. Immorality is

conduct that is inconsistent with the standards of public

conscience and good morals. It is conduct sufficiently

notorious to bring the individual concerned into public disgrace

or disrespect and impair the individual’s service to the

community. Here, not only was Respondent’s conduct sufficiently

notorious to bring her into disrespect and disgrace, there is

testimony that she lost the respect of those who observed her

excessive drinking and lost respect by attempting to interfere

with the investigation.

70. Petitioner has established by a preponderance of

evidence that Respondent violated School Board Policy

6.13(3)(a), which states that any employee who is the subject of

an investigation shall not directly or indirectly contact,

intimidate, threaten, harass or retaliate against any witness or

complaining person related to or associated with the

investigation, or in any way interfere with an investigation.

Petitioner contacted at least three potential witnesses after

she was aware that she was involved in an investigation. In her

conversation with one of them, she attempted to persuade her

that “nothing happened.” This attempt to coax a witness’s

testimony presents a very real chance of interfering in the OPS

investigation and is a violation of the policy.

71. Petitioner has established by a preponderance of

evidence that Petitioner violated Manatee County School Board

Policy 6.11, which requires that the individual shall not use

institutional privileges for personal gain or advantage, by

using school resources to promote the EF European trip, where

through this promotion she received a free trip through the EF

tour company.

72. Respondent’s violations collectively constitute just

cause for her termination pursuant to Chapter 6.11 of the

Policies and Procedures Manual of the School Board of Manatee

County, Florida Statutes (2008).

CONCLUSION

Based on the foregoing proposed Findings of Fact and

Conclusions of Law, it is RECOMMENDED that the Manatee County

School Board enter a final order that:

1. Dismisses paragraphs 11, 12, 13, 14, 15, 17, and 18 of

the Amended Complaint;

2. Holds that Respondent is guilty of violating Manatee

County School Board Policy 6.11, 2.20 and 6.13(3)(a); and

3. Holds that the violations, collectively, are sufficient

to constitute just cause to terminate Respondent’s employment

with the Manatee County School District.

DONE AND ENTERED this 9th day of June, 2010, 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

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of June, 2010.

ENDNOTE

1/ All statutory references are to Florida Statutes (2009),

unless otherwise noted.

COPIES FURNISHED :

Richard G. Groff, Esquire

1506 Scarlet Oak Lane

Bradenton, Florida 34209

Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez & Hearing, P.A.

Post Office Box 639

Tampa, Florida 33602

Brian C. Ussery, Esquire

Thompson, Sizemore, Gonzalez & Hearing, P.A.

201 North Franklin Street, Suite 1600

Tampa, Florida 33601

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

Post Office Box 9069

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.