09-002905TTS Collier County School Board vs. Russell Wheeler Status: Closed Recommended Order on Tuesday, December 22, 2009.

Summary: Respondent failed to disclose the circumstances surrounding his resignation from Lee County when he applied for a teaching position with Collier County.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

COLLIER COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-2905

)

RUSSELL WHEELER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on September 9 and October 16, 2009, in Naples, Florida, before

Susan B. Harrell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jon D. Fishbane, Esquire

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman, P.A.

Post Office Box 2089

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause

to terminate the employment of Respondent.

PRELIMINARY STATEMENT

By letter dated May 18, 2009, the superintendent of the

Collier County School District (School District) advised

Respondent, Russell Wheeler (Mr. Wheeler), that he intended to

recommend to Petitioner, Collier County School Board (School

Board), that Mr. Wheeler be terminated from his employment with

the School District. Mr. Wheeler requested an administrative

hearing, and the case was forwarded to the Division of

Administrative Hearings for assignment of an Administrative Law

Judge. The case was originally assigned to Administrative Law

Judge R. Bruce McKibben, but was transferred to Administrative

Law Judge Susan B. Harrell to conduct the final hearing.

The final hearing was scheduled for July 30, 2009. On

July 22, 2009, the School Board filed Petitioner’s Stipulated

Motion for Continuance, which was granted by Order dated

July 23, 2009.

At the final hearing, the School Board called the following

witnesses: Russell Wheeler, Manny Touron, Debra Ogden, Linda

Salazar, Troy Ann Kirkland, Dawn Holmer, Debbie Terry, and Peggy

Aune. Mr. Wheeler called Rita Healy as his witness. Joint

Exhibit 1 was received in evidence. Petitioner’s Exhibits 1

through 31 were admitted in evidence. Respondent’s Exhibits 1

through 29 and 31 through 36 were admitted in evidence at the

final hearing. Mr. Wheeler was given leave to file Respondent’s

Exhibit 30 as a late-filed exhibit. Respondent’s Exhibit 30 was

filed on November 3, 2009, and is admitted in evidence.

The two-volume Transcript was filed on November 6, 2009.

On November 16, 2009, the parties filed their Proposed

Recommended Orders, which have been given careful consideration

in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Mr. Wheeler was employed as a teacher with Lee County

School District (Lee County) from 1989 to May 6, 2004. From

1994 to 2003, Mr. Wheeler taught driver education at Lehigh

Senior High School (Lehigh). Mr. Wheeler taught health at

Lehigh during the 2003-2004 school year.

2. In addition to teaching at Lehigh during 2000 to 2004,

Mr. Wheeler owned a driver training school and traffic school.

When Mr. Wheeler taught driver education at Lehigh, he was

authorized by the Department of Highway Safety and Motor

Vehicles (DHSMV) to be a third-party tester. As a third-party

tester, Mr. Wheeler was allowed to test secondary school

students on their knowledge of road rules and road signs and

their road skills. Mr. Wheeler was authorized to issue Driver

Education Licensing Assistance Program (DELAP) waivers to his

high school students who passed the tests and were applying for

a driver license so that they could bypass the driver license

tests conducted by the DHSMV. The DELAP waivers had to be

signed by an authorized representative of Lehigh.

3. Mr. Wheeler misused his authorization as a third-party

tester and granted DELAP waivers to students in his private

driving school, who were not high school students.

4. Sometime in the summer of 2003, Mr. Wheeler became the

subject of a criminal investigation concerning the issuance of

DELAP waivers to students through his employment at Lehigh to

students in his private driving school.

5. On August 6, 2003, the DHSMV received a complaint

against Mr. Wheeler concerning his issuance of a DELAP waiver to

a person who was not a high school student. On the same date,

the DHSMV stopped accepting any DELAP waivers issued by

Mr. Wheeler.

6. On August 29, 2003, the Department of Education (DOE)

notified Mr. Wheeler that a complaint had been filed against

him, alleging that he had engaged in inappropriate conduct.

7. On January 22, 2004, Mr. Wheeler was arrested on

charges of driver license fraud. On April 16, 2004, a No

Information Notice was filed by the State Attorney’s Office,

advising the Clerk of the Court of the Twentieth Judicial

Circuit that the State Attorney’s Office was declining to

prosecute Mr. Wheeler. No further criminal actions were taken

against Mr. Wheeler based on the issuance of DELAP waivers.

8. By letter dated February 11, 2004, the DHSMV advised

Mr. Wheeler that his certification as a commercial driving

school instructor had been cancelled.

9. In early 2004, Lee County began investigating

Mr. Wheeler for possible disciplinary action regarding his

issuance of DELAP waivers. By letter dated March 30, 2004, Lee

County advised Mr. Wheeler that probable cause was found to

discipline him and that a recommendation would be made to the

Lee County superintendent of schools to terminate Mr. Wheeler’s

employment.

10. Mr. Wheeler resigned from his employment with Lee

County effective May 6, 2004, citing that the reason for his

resignation was personal reasons. Mr. Wheeler’s resignation was

accepted by Lee County on the condition “that should

[Mr. Wheeler] apply at a later time for employment with the

District, the District in its sole and exclusive discretion, may

refuse such application and/or deny him employment should it

believe [Mr. Wheeler] has not been sufficiently rehabilitated in

relation to the issues raised in the investigation which

preceded his resignation.” Mr. Wheeler agreed to the condition

imposed by Lee County.

11. On May 11, 2004, Mr. Wheeler submitted an on-line

application to the School Board for employment as an instructor.

On his application he stated that he had 16 years of teaching

experience. However, he listed his employment at Lehigh as

commencing in 1994 and ending in 2000; his employment at Gulf

Middle School as commencing in 1992 and ending in 1993; and his

employment at Riverdale High School as commencing in 1989 and

ending in 1992. The employment dates listed for these three

schools totaled 11 years. Mr. Wheeler also listed that he had

been employed from December 2000 to February 2004 as the owner-

instructor of a private driving school.

12. On his application, Mr. Wheeler listed the reason for

terminating his employment with Lee County as personal.

Although this reason is technically correct, Mr. Wheeler should

have disclosed the circumstances under which he resigned,

meaning that he should have disclosed that Lee County intended

to discipline him and that he reached a settlement agreement in

which he resigned for personal reasons. Mr. Wheeler listed

Brian Botts, who was an assistant principal at Lehigh, as a

reference. Although Mr. Botts completed a reference form,

nothing on the form eluded to the problems that Mr. Wheeler had

when he taught at Lee County.

13. Mr. Wheeler submitted a resume to the School Board as

part of his application package. The resume correctly listed

his employment dates with Lee County and correctly listed his

employment with Lehigh as commencing in 1994 and ending in 2004.

In addition, Mr. Wheeler’s resume listed a year of employment at

Temple Christian School in Connersville, Indiana. The number of

years of teaching experience listed on the resume totaled

16 years as he had stated on his on-line application.

14. On August 25, 2004, the School Board received a

Verification of Teaching/Experience from Lee County, showing

that Mr. Wheeler had been continuously employed by Lee County

from 1989 to 2004.

15. Mr. Wheeler was hired by the School Board as a

substitute teacher effective August 18, 2004.

16. Although Mr. Wheeler incorrectly listed the dates of

employment at Lehigh on his on-line application, such incorrect

listing was not intentional based on the evidence as a whole,

particularly the submission of the resume as part of the

application package, the listing of Brian Botts as a reference,

and the statement on the on-line application that correctly

showed the number of years Mr. Wheeler had been employed as a

teacher. The School Board was not duped concerning the number

of years that Mr. Wheeler had taught at Lehigh because the

School Board had received an employment verification form from

Lee County, which accurately showed the number of years that

Mr. Wheeler had worked as a teacher at Lehigh.

17. Although Mr. Wheeler did not intend to deceive the

School Board about the number of years that he worked for Lee

County, he should have at least informed the School Board of the

circumstances surrounding his resignation from Lee County. Such

information had a direct bearing on his qualifications for

teaching and should have been disclosed.

18. For the 2004-2005 school year, Mr. Wheeler worked for

the School Board as a substitute teacher. Most of his teaching

during this period was done at Immokalee High School

(Immokalee). Mr. Manny Touron was the principal at Immokalee

during the time Mr. Wheeler worked as a substitute teacher.

Msoy Kirkland, an assistant principal at Immokalee, was

familiar with Mr. Wheeler’s work while he was substituting.

19. By letter dated April 1, 2005, DOE notified

Mr. Wheeler that a complaint had been filed with DOE, alleging

that Mr. Wheeler had engaged in inappropriate conduct. DOE

further advised Mr. Wheeler that an investigation was being

conducted based on the allegations.

20. In the summer of 2005, a full-time teaching position

came open at Immokalee for a health teacher. Mr. Touron

recommended Mr. Wheeler for the position. Mr. Touron completed

a Recommendation/Personnel Action Form, indicating that he had

contacted two references concerning Mr. Wheeler. One of the

references was Ms. Kirkland. The other reference was

Ms. Darlene Weber, who had worked with Mr. Wheeler at Lehigh.

21. At the time Mr. Touron recommended Mr. Wheeler for the

health teacher position, he was aware Mr. Wheeler had been

arrested for fraud at one time. On July 18, 2004, Mr. Touron

sent an e-mail to an investigator with the School Board’s Human

Resources Department. The e-mail stated:

Peter, I just sent a recommendation for

Russell Wheeler for the position of Health.

He has been subbing for us all year and has

done a great job. He taught at Riverdale

and Lehigh. At Lehigh there was an issue

that he was arrested for fraud. Something

to do with drivers [sic] licenses. I need

to know if he has been cleared from that

charge. I assume that he has because of his

sub status. Please let me know.

Two days later Mr. Touron received a reply from the

investigator, stating that Mr. Wheeler had been cleared of the

criminal charges.

22. On July 22, 2005, Mr. Wheeler completed a Criminal

Record form in which he omitted to say whether he had ever had a

criminal record expunged. At some time, Mr. Wheeler did have

his arrest records expunged, but he does not know when that was

done.

23. Mr. Wheeler was hired on an annual contract basis,

effective August 3, 2005, as a full-time health teacher at

Immokalee. In November 2005, a full-time position for a driving

education teacher position came open at Immokalee. Mr. Touron

recommended Mr. Wheeler for the position, and Mr. Wheeler’s

assignment was changed from health teacher to driver education

teacher.

24. Ms. Debra Ogden, who was the coordinator of the driver

education program, gave Mr. Wheeler an Application for Driver

Education Teacher Certification as a Third Party Tester to

complete and submit. 1 Mr. Wheeler did not advise Ms. Ogden that

his certification as a third-party tester had been cancelled

when she asked him to complete and submit the application form.

Mr. Wheeler submitted the application certification as a third-

party tester, and the application was denied in December 2005.

Ms. Ogden learned of the denial in January 2006.

25. Ms. Ogden asked Mr. Wheeler about the denial of his

application, and he explained that he had lost his certification

as a third-party tester and that his certification as a

commercial driving school instructor had been cancelled. He

told her that he had had some problems in Lee County concerning

DELAP waivers, but that he was trying to take care of the

problem and was working on getting recertified as a third-party

tester.

26. Ms. Ogden contacted a driver education teacher at

another school in Collier County and arranged to have that

teacher do the third-party testing for the students at

Immokalee. She advised Mr. Touron that she had arranged to have

another teacher do the third-party testing for Mr. Wheeler.

27. On April 3, 2006, the commissioner of education filed

a six-count Administrative Complaint against Mr. Wheeler,

alleging that Mr. Wheeler “engaged in inappropriate and

unprofessional conduct in that he fraudulently issued waivers to

individuals who were not students at Lehigh Senior High School

but in fact were customers of his private business” and that he

“resigned in lieu of termination.” The Administrative Complaint

charged that Mr. Wheeler violated Subsections 1012.795(1)(c),

Florida Administrative Code Rules 6B-1.006(4)(c), 6B-

Administrative Complaint, he did not advise any of the School

Board’s administrators, including Mr. Touron, that an

administrative complaint had been filed against him.

28. On July 24, 2006, Mr. Wheeler and the commissioner of

education entered into a settlement agreement (Settlement

Agreement), which was contingent on being accepted by the

Education Practices Commission (EPC). The Settlement Agreement

stated that Mr. Wheeler “neither admits nor denies, but elects

not to contest the allegations set forth in the [commissioner of

education’s] Administrative Complaint.” Mr. Wheeler agreed to

accept a letter of reprimand and to be placed on probation for

two employment years. The Settlement Agreement further provided

that, if Mr. Wheeler was currently employed as a teacher, the

probation would begin upon the issuance of a final order by the

EPC, accepting the Settlement Agreement. Among other

conditions, the Settlement Agreement provided that Mr. Wheeler

would contact DOE within ten days of the issuance of the final

order and provide the name and address of his work site as well

as the name, address, and telephone number of his immediate

supervisor. The Settlement Agreement required Mr. Wheeler to

“make arrangements for his immediate supervisor to provide the

EPC with a true and accurate copy of each written annual

performance evaluation or assessment prepared by his supervisor

within ten (10) days of it[s] preparation.” At the time he

entered into the Settlement Agreement, Mr. Wheeler did not

advise any of the School Board’s administrators that he had

executed a settlement agreement with the commissioner of

education.

29. The School Board gave Mr. Wheeler an annual contract

for the 2006-2007 school year.

30. By letter dated October 5, 2006, Mr. Wheeler was

advised by the EPC that the Settlement Agreement had to be

accepted by the EPC and that a final order would be issued by

the EPC upon the EPC’s acceptance of the Settlement Agreement.

31. The EPC filed its Final Order on February 8, 2007,

accepting the Settlement Agreement. On February 20, 2007,

Mr. Wheeler sent a facsimile transmission to Rita Healy, his

probation officer with DOE, advising her that his supervisor was

Mr. Touron and providing contact information.

32. Mr. Touron was advised by Mr. Wheeler that a Final

Order had been issued, placing Mr. Wheeler on probation for two

years. Mr. Wheeler also told Mr. Touron that Mr. Touron would

need to provide to DOE a copy of Mr. Wheeler’s annual evaluation

when it was completed.

33. On March 20, 2007, Ms. Healy advised Mr. Touron that a

Final Order had been issued by the EPC, placing Mr. Wheeler on

probation for two years. Ms. Healy sent a copy of the Final

Order to Mr. Touron by facsimile transmission and by e-mail.

For some unknown reason, the Final Order was never placed in

Mr. Wheeler’s personnel file,

34. In the 2006-2007 school year, Immokalee was on status

as an “F” school. In order to rehabilitate the school, a new

principal, Ms. Linda Salazar, was appointed as principal at

Immokalee for the 2007-2008 school year. Ms. Salazar met with

the faculty at Immokalee to determine which teachers she would

retain for the 2007-2008 school year. She interviewed

Mr. Wheeler, and there was no discussion concerning the Final

Order that had been issued by the EPC, reprimanding Mr. Wheeler

and placing him on probation for two years. Mr. Wheeler thought

that Ms. Salazar knew about the disciplinary action against him

because he had told Mr. Touron about the Final Order.

Mr. Touron did not advise Ms. Salazar or the School Board’s

Human Resources Department about the Final Order disciplining

Mr. Wheeler.

35. By letter dated March 15, 2007, Ms. Salazar notified

Mr. Wheeler that he had been selected to teach at Immokalee for

the 2007-2008 school year. His employment at Immokalee for the

2007-2008 school year was on an annual contract basis.

36. Mr. Wheeler sent Ms. Healy a copy of his evaluation

for the 2006-2007 school year after he received it in

April 2007. Mr. Wheeler also sent a copy of his evaluation for

the 2007-2008 school year to Ms. Healy. Although, the

Settlement Agreement required that Mr. Wheeler make arrangements

for his immediate supervisor to provide the EPC with a copy of

the annual evaluation, Ms. Healy considered it to be

Mr. Wheeler’s responsibility to make sure that she received

copies of the evaluations, regardless of who actually sent them.

There was no dispute regarding the authenticity of the

evaluations which Mr. Wheeler provided to Ms. Healy.

37. On June 11, 2008, Mr. Wheeler entered into a

professional service contract with the School Board. Unlike the

annual contracts, the professional service contract was to “be

renewed each year in accordance with and subject to the

provisions of F.S. §1012.33 and in conformity with Board policy

and any applicable collective bargaining agreement then in

place.”

38. In August 2008, Mr. Wheeler again applied to the DHSMV

for his third-party tester certification. On or about August 1,

2008, he dropped off the application for Ms. Salazar to sign as

representative of Immokalee. At this time, Ms. Salazar was

unaware that Mr. Wheeler’s third-party tester certification had

been canceled and assumed that the application was a

recertification document that teachers often left in her mail

box to be signed. Ms. Salazar signed the application form.

39. On September 9, 2008, Ms. Ogden sent an e-mail to

Ms. Salazar, requesting that Ms. Salazar write a letter of

recommendation for Mr. Wheeler for his third-party tester

application. The e-mail stated:

Hi, Linda, would you be willing to write a

letter of support for Russ Wheeler to become

a Third Party Tester through the DMV, so he

can legally administer the written and road

test and issue waivers for your students? I

am not sure if you know the history, but

there were charges brought against him in

Lee Co. and the [sic] he is having trouble

getting the state to allow him to become a

Third Party Tester. I will be writing one

for him and if you are willing, here is the

contact information. . . .

40. Ms. Salazar asked Mr. Wheeler to come and talk about

the charges that had been brought against him. Mr. Wheeler

brought all the documentation that he had relating to the

criminal charges. He explained to Ms. Salazar that the charges

had been dropped. He told her that he had owned a private

driving school and that he had been framed for fraud, and that

was the reason that he resigned from Lee County. No mention was

made by Mr. Wheeler that disciplinary action had been taken

against him by the EPC. Mr. Wheeler assumed that Ms. Salazar

knew about his probation because he had discussed the issue with

Mr. Touron. Ms. Salazar declined to write a letter of support

on behalf of Mr. Wheeler. At this time, Ms. Salazar was unaware

that Mr. Wheeler had been reprimanded and was on probation.

41. Mr. Wheeler received his third-party tester

certification on October 24, 2008.

42. On November 21, 2008, Ms. Debbie Terry, the School

Board’s director of Staffing, Recruitment, and Retention,

conducted an Administrator Academy Training for personnel of the

School Board, which included training school principals on the

use of the internet website, myfloridateacher.com, which is

maintained by DOE to document discipline taken against teachers

holding Florida Educator’s Certificates. Ms. Terry advised the

administrators attending the training that in hiring a new

teacher they would be required to contact the applicant’s

previous employers, access the DOE website to determine if there

had been disciplinary action against the applicant, and to speak

with the applicant’s references.

43. The School Board had instituted a policy of not

renewing annual contracts of teachers who had been disciplined

by the EPC. Additionally, applicants for teaching positions who

had been disciplined by the EPC were not hired.

44. Ms. Terry checked the DOE website and found that

Mr. Wheeler was listed as having been disciplined by the EPC.

In December 2008, Ms. Terry called Ms. Salazar to inquire why

Mr. Wheeler had been recommended for a professional service

contract when he had been disciplined by the EPC. Ms. Salazar

was unaware until Ms. Terry contacted her that Mr. Wheeler had

been reprimanded and placed on probation by a Final Order from

the EPC.

45. The School Board started an investigation concerning

Mr. Wheeler. The investigation included interviewing Ms. Healy,

who told the School Board’s staff that she had sent a copy of

the Final Order to Mr. Touron. Mr. Wheeler was also

interviewed.

46. On December 12, 2008, the School Board sent

Mr. Wheeler’s evaluations for the prior two years to Ms. Healy.

On December 5, 2008, Mr. Wheeler again sent Ms. Healy by

facsimile transmission copies of his evaluations. The fax cover

sheet stated that Ms. Salazar was the principal at Immokalee.

47. After the investigation was complete, the

superintendent advised Mr. Wheeler by letter dated May 18, 2009,

that he would be recommending to the School Board that

Mr. Wheeler’s employment be terminated. The superintendent

alleged in the Notice of Intent Recommendation to Terminate

Employment that the recommendation for termination was based on

the following acts:

Count 1 : [He] falsely indicated the reasons

for [his] separation from Lee County,

Florida schools. In addition, [he] failed

to disclose pertinent and relative

information on [his] employment application;

specifically, that [he] resigned from Lee

County, Florida, schools “in lieu of

termination.”

Count 2 : [He] falsely represented in [his]

employment application the correct

termination date of May 6, 2004, leaving a

four-year employment discrepancy.

Count 3 : [He] violated the terms of [his]

probation and settlement agreement with the

Florida Department of Education by failing

to disclose that [his] immediate supervisor,

effective August 2007, was Linda Salazar,

principal of Immokalee High School. In

addition, [he] did not disclose the fact to

Ms. Salazar that [he] entered into a

settlement agreement. At some point in

time, Ms. Salazar confronted [him] after

learning that there was an issue relative to

[his] certifying drivers’ education

certificates; however, [he was] not

forthcoming and indicated to her that there

wasn’t a problem and assured her that the

FLDOE case had been dropped.

Count 4 : In furtherance of [his] deception,

[he] failed to follow the directive of [his]

settlement that required that [his]

evaluations be forwarded to the FLDOE by

[his] supervisor. [He] directly forwarded

the evaluations to FLDOE without the

knowledge of [his] supervisor and the FLDOE.

Count 5 : [He was] found “guilty of an act

involving gross immorality or an act

involving moral turpitude” and attempted to

conceal this knowledge from the school

district.

48. On May 5, 2008, Mr. Wheeler was approved to teach a

driver education course for migrant students during summer

school. Mr. Wheeler was to work 32 hours per week for nine

weeks at a rate of pay of $40 per hour. His total compensation

for the summer school employment was to have been $11,520. By

e-mail dated May 27, 2009, Ms. Salazar advised Mr. Wheeler that

he could not teach during summer school because of the

recommendation to terminate his employment.

49. Mr. Wheeler successfully completed his probation with

DOE. Ms. Healy notified Mr. Wheeler by letter dated March 20,

2009, that the probation was closed. Ms. Healy did not consider

that any actions by Mr. Wheeler during his probation constituted

a breach of the Settlement Agreement which would be prosecuted

by the EPC.

CONCLUSIONS OF LAW

50. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2009).

51. Subsection 1012.33(1), Florida Statutes (2008), 2

provides that instructional staff may be dismissed for just

cause and provides that 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.”

52. The School Board has the burden to establish by a

preponderance of the evidence that it has just cause to

terminate Mr. Wheeler’s employment. See Sublett v. Sumpter

County School Board , 664 So. 2d 883 (Fla. 5th DCA 1995); Dileo

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

1990).

53. The School Board alleged in its Notice of Intent

Recommendation to Terminate Employment that Mr. Wheeler

committed the following violations:

(1) violated the terms of [his] settlement

agreement with the FLDOE (Section 5);

(2) fraudulently signed the disclosure on

[his] employment application in which [he]

attested, among other things, “that the

facts contained in this application are true

and complete to the best of my knowledge and

belief . . .”;

(3) violated [his] responsibilities and

obligations under Section 6B-1.006(5),

Principles of Professional Conduct for the

Education Profession in Florida, F.A.C.,

subsections (a), (g), (h), (i), and (n); 6B-

1.001, Code of Ethics of the Education

Profession in Florida, subsections[1-3];

(4) violated School Board Policies #3120

(Employment of Instructional Staff), #3121

(Application for Employment and Re-

Employment of Instructional Staff), #3139

(Educator Misconduct), and #3210 (Code of

Ethics).

54. Florida Administrative Code Rule 6B-1.006(5) provides:

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(g) Shall not misrepresent one’s own

professional qualifications.

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

(i) Shall not make any fraudulent statement

or fail to disclose a material fact in one’s

own or another’s application for a

professional position.

* * *

(n) Shall report to appropriate authorities

any known allegation of a violation of the

Florida School Code or State Board of

Education Rules as defined in Section

231.28(1), Florida Statutes.

55. Florida Administrative Code Rule 6B-1.001 provides:

(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.

56. The School Board’s Policy 3121 provides:

False or misleading statements or answers or

omissions made by a person in connection

with seeking employment may bar a person

from employment with the Board or, if

discovered after employment, may result in

disciplinary action, including termination

upon the recommendation of the

Superintendent and the approval of the

Board. Each case shall be considered on its

own merits.

57. In Count 1, the School Board alleges that Mr. Wheeler

falsely indicated his reasons for separation from Lee County and

failed to disclose pertinent and relative information on his

employment application, specifically that he resigned from Lee

County in lieu of termination. Mr. Wheeler did not falsely

indicate his reasons for separation from Lee County. His

reasons were personal. However, Mr. Wheeler did fail to state

the circumstances under which he resigned. That information was

pertinent and relevant to his resignation and should have been

disclosed to the School Board. Thus, the School Board has

established by a preponderance of the evidence that Mr. Wheeler

violated Florida Administrative Code 6B-1.006(5)(i) and School

Board Policy 3121.

58. In Count 2, the School Board alleges that Mr. Wheeler

falsely represented on his employment application the date of

his termination from Lee County. Mr. Wheeler did inaccurately

state on his application that his employment with Lee County

ended in 2000. However, this inaccuracy was not intentional and

was a scrivener’s error. This conclusion is based on

Mr. Wheeler stating in the application that he had 16 years of

teaching experience. Additionally, Mr. Wheeler listed

Mr. Botts, who was an assistant principal at Lehigh, as a

reference. If Mr. Botts were contacted, Mr. Botts could verify

Mr. Wheeler’s dates of employment. Mr. Wheeler provided the

School Board with a copy of his resume which accurately showed

the dates of his employment with Lee County. The School Board

received a verification of employment from Lee County accurately

stating the dates of employment of Mr. Wheeler. There was no

intention of Mr. Wheeler to deceive the School Board concerning

his employment with Lee County. The School Board has failed to

establish the allegations in Count 2 by a preponderance of the

evidence.

59. In Count 3, the School Board alleges that Mr. Wheeler

violated the Settlement Agreement with DOE by failing to

disclose that his supervisor had changed from Mr. Touron to

Ms. Salazar. The School Board has failed to establish this

allegation.

60. The Settlement Agreement did not specifically require

Mr. Wheeler to notify DOE if his supervisor changed; however,

the requirement that he advise DOE within ten days of the

issuance of the Final Order could be understood to mean that the

requirement to notify DOE of the name of his supervisor was a

continuing requirement. Even if it were considered to be a

continuing requirement, no time frame is stated for advising DOE

of a supervisory change. Mr. Wheeler notified Ms. Healy in

February 2007 that his supervisor was the principal at

Immokalee. Mr. Wheeler had sent his evaluations for 2006-2007

and for 2007-2008, and both evaluations showed that Mr. Wheeler

continued to be employed at Immokalee. He continued to be

supervised by the principal of Immokalee. Thus, any question

that Ms. Healy had concerning Mr. Wheeler’s supervision or

performance would have been directed to the principal of

Immokalee. Mr. Wheeler sent a facsimile transmission to

Ms. Healy on December 5, 2008, which clearly showed that

Ms. Salazar was the principal of Immokalee.

61. In Count 3, The School Board also alleges that

Mr. Wheeler failed to advise Ms. Salazar that he had entered

into a settlement agreement with the EPC. Mr. Wheeler had

previously advised Mr. Touron that he had entered into the

Settlement Agreement and that a Final Order had been issued.

Mr. Wheeler fulfilled his obligation to the School Board to

notify it of the Settlement Agreement and Final Order when he

advised Mr. Touron of same and was under no obligation to advise

Ms. Salazar. If Mr. Touron had fulfilled his responsibilities,

Mr. Wheeler’s personnel file would have contained the pertinent

information, and Ms. Salazar would have known of the Final

Order. The School Board can not fault Mr. Wheeler for the

failure of its administrator to take appropriate action.

Mr. Wheeler was understandably under the impression that the

School Board was aware of the Final Order because he had

notified Mr. Touron.

62. In Count 3, the School Board also alleges that when

Ms. Salazar confronted him about his third-party tester

certification, he was not forthcoming and indicated that there

was not a problem and assured her that the DOE case had been

dropped. The School Board has failed to establish this

allegation by a preponderance of the evidence. Mr. Wheeler was

forthcoming concerning the criminal charges against him. He

never told Ms. Salazar that the DOE case had been dropped

against him. In fact, at the time that Mr. Wheeler and

Ms. Salazar had the conversation concerning third-party tester

certification, the EPC had entered a Final Order, and

Mr. Wheeler thought that Ms. Salazar was aware because he had

informed Mr. Touron.

63. In Count 4, the School Board alleges that Mr. Wheeler

“failed to follow the directive of the settlement agreement that

[his] evaluations be forwarded to the FLDOE by [his]

supervisor.” The Settlement Agreement required that Mr. Wheeler

“make arrangements for his immediate supervisor to provide the

EPC” with a copy of the evaluation within ten days of its

preparation. Mr. Wheeler did talk to Mr. Touron about the

requirement of sending the evaluations to DOE, and Mr. Wheeler

had no reason to think that Mr. Touron would not comply.

Ms. Healy considered that Mr. Wheeler had the ultimate

responsibility to make sure that she got copies of the

evaluation, and he fulfilled that responsibility by sending in

evaluations himself. The School Board has failed to establish

the allegations in Count 4 by a preponderance of the evidence.

64. In Count 5, the School Board alleges that Mr. Wheeler

was “’found guilty of an act involving gross immorality or an

act involving moral turpitude’” and attempted to conceal this

knowledge from the School District. Mr. Wheeler was not found

guilty of any criminal charges. A Final Order was entered

against Mr. Wheeler based on the Settlement Agreement which had

been accepted by the EPC. The Final Order does not make a

finding of guilt of the violations set forth in the

Administrative Complaint, and the Settlement Agreement

specifically states that Mr. Wheeler neither admits nor denies

the allegations in the Administrative Complaint but elects not

to contest them.

65. Mr. Wheeler did not attempt to hide the existence of

the Final Order from the School Board. He notified Mr. Touron

that a Final Order had been issued. Additionally, Ms. Healy

contacted Mr. Touron and advised him that a Final Order had been

issued and provided Mr. Touron a copy of the Final Order by

facsimile transmission and by e-mail. Mr. Wheeler is not at

fault if Mr. Touron failed to advise the School Board’s Human

Resources Department and Ms. Salazar of the existence of the

Final Order. The School Board has failed to establish the

allegations in Count 5 by a preponderance of the evidence.

66. In its Proposed Recommended Order, the School Board

states that Mr. Wheeler failed to answer a question on his new-

hire paperwork on July 22, 2005, which concerned whether

Mr. Wheeler had ever had a criminal record expunged. The School

Board also stated in its Proposed Recommended Order that

Mr. Wheeler did not advise the School Board that an

administrative complaint had been filed against him by DOE.

Such allegations were not raised in the notice of intent to

terminate and cannot serve as a basis now for discipline. See

Aldrete v. Department of Health, Board of Medicine , 879 So. 2d

1244, 1246 (Fla. 1st DCA 2004); Shore Village Property Owners'

Association, Inc. v. Department of Environmental Protection ,

824 So. 2d 208, 210 (Fla. 4th DCA 2002); and Delk v. Department

of Professional Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA

1992).

67. Based on the totality of the circumstances of this

case, termination is not warranted. However, the School Board

has established that Mr. Wheeler failed to disclose relevant and

pertinent information to the School Board on his 2004 employment

application. Therefore, Mr. Wheeler should be disciplined for

failing to disclose this information.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order finding that

Mr. Wheeler is guilty of failing to disclose the relevant and

pertinent information on his employment application in violation

of Florida Administrative Code Rule 6B-1.006(5)(i) and School

Board Policy 3121; finding that Mr. Wheeler is not guilty of the

other violations set forth in the notice of intent to terminate;

suspending Mr. Wheeler without pay for eight months, beginning

May 18, 2009; and reinstating Mr. Wheeler to his employment at

the end of his suspension.

DONE AND ENTERED this 22nd day of December, 2009, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 22nd day of December, 2009.

ENDNOTES

1/ At the beginning of the 2005-2006 school year, all the driver

education teachers were retested and retrained as a result of

DHSMV changing its DELAP system and requiring all third party

testers to reapply for certification. Thus, as the incoming

driver education teacher, Mr. Wheeler would be required to

reapply for certification.

2/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2008 version.

COPIES FURNISHED :

Robert J. Coleman, Esquire

Coleman & Coleman, P.A.

Post Office Box 2089

Fort Myers, Florida 33902

Jon D. Fishbane, Esquire

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109

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

Dr. Dennis L. Thompson, Superintendent

Collier County School Board

5775 Osceola Trail

Naples, Florida 34109-0919

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.