09-006719TTS Orange County School Board vs. Maria Garrison Status: Closed Recommended Order on Friday, July 23, 2010.

Summary: Just cause to terminate professional service contract exists, but termination is not reasonable under the circumstances.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 09-6719

)

MARIA GARRISON, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

final hearing of this case for the Division of Administrative

Hearings (DOAH) on June 10, 2010. The ALJ conducted the hearing

by video teleconference in Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: John C. Palmerini, Esquire

Orange County School Board

445 West Amelia Street

Orlando, Florida 32801

For Respondent: Tobe M. Lev, Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

231 East Colonial Drive

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues are whether Petitioner has just cause, within

the meaning of Subsection 1012.33(1)(a), Florida Statutes

(2007), 1 to terminate Respondent’s professional service contract

as an instructional employee, and, if so, whether termination of

the contract is reasonable under the facts and circumstances of

this case.

PRELIMINARY STATEMENT

On September 21, 2009, Petitioner filed an Administrative

Complaint against Respondent. Respondent requested an

administrative hearing.

At the hearing, Petitioner presented the testimony of four

witnesses and submitted 15 exhibits for admission into evidence.

Respondent presented the testimony of two witnesses and

submitted two exhibits.

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the Transcript of the hearing

filed with DOAH on June 25, 2010. Petitioner and Respondent

filed their respective Proposed Recommended Orders on July 6,

2010.

FINDINGS OF FACT

1. Petitioner employed Respondent as a classroom teacher

from some time in 1998 until September 8, 2009, pursuant to a

professional service contract. Petitioner relieved Respondent

from the duties of her employment without pay on September 8,

2009.

2. On September 21, 2009, Petitioner filed an

Administrative Complaint against Respondent. Most of the

material facts in the Administrative Complaint are undisputed.

3. On December 12, 1999, Respondent was arrested for

cocaine possession, a third-degree felony, and narcotic

equipment possession, a first-degree misdemeanor. Respondent

successfully completed a pretrial diversion program, and the

charges were nolle prossed and expunged.

4. Respondent did not report the criminal matter to

Petitioner. The failure to report the criminal matter violated

the self-reporting requirements in Management Directive A-10,

Guidelines on Self-Reporting of Arrest and Convictions by

Employees (the self-reporting requirements).

5. On July 10, 2000, Respondent was arrested for driving

under the influence (DUI), which was a first conviction.

Respondent pled nolo contendere to a reduced charge of reckless

driving and entered and successfully completed a pretrial

diversion program.

6. Respondent did not report the DUI matter to Petitioner.

The failure to report the DUI matter violated applicable self-

reporting requirements.

7. On June 18, 2002, Respondent was arrested on a

misdemeanor battery charge. The alleged victim dropped the

charge, but Respondent did not report the incident to Petitioner

in violation of the applicable self-reporting requirements.

8. On July 6, 2006, Respondent violated Petitioner's Drug

Free Workplace Policy by reporting to work at Rolling Hills

Elementary School under the influence of alcohol. On July 9,

2006, Respondent entered into an agreement with Petitioner

identified in the record as a Last Chance Agreement.

9. The Last Chance Agreement was in effect for the 2006-

2007 and 2007-2008 school years. The Last Chance Agreement

provides, in relevant part, that if justifiable grounds of

discipline, rising to the level of a written reprimand or

dismissal, occur during the school year, Respondent shall

forfeit her right to be employed by Petitioner, and the Last

Chance Agreement shall constitute a voluntary resignation from

employment.

10. The 2007-2008 school year ended on June 6, 2008. On

May 30, 2008, Respondent failed to disclose on the renewal

application for her Florida Educator's Certificate the expunged

criminal record, pretrial diversion program, and plea of nolo

contendere previously discussed. Respondent checked "no" to the

following question:

Have you ever had any record sealed or

expunged in which you were convicted, found

guilty, had adjudication withheld, entered a

pretrial diversion program or pled guilty or

nolo contendere (no contest) to a criminal

offense other than a minor traffic violation

(DUI is not a minor traffic violation)?

10. On March 20, 2009, the Education Practices Commission

imposed several penalties against Respondent's teaching

certificate for the violations that occurred during the 2007-

2008 school year. The Commission issued a written reprimand,

imposed administrative fines in undisclosed amounts, and placed

Respondent on two years’ probation.

11. The disputed issue is whether Respondent's failure to

disclose her criminal history on the renewal application for her

Florida Educator's Certificate was intentional. Respondent

claims the failure was not intentional, but was induced by post-

traumatic stress syndrome (PTSS) caused by two statutory rapes

that occurred when Respondent was 13 and 15 years old.

12. When Respondent was 13 years old, a man who was

approximately 33 years old "took her virginity." Respondent had

an abortion, experienced a great deal of shame and guilt, and

began self-medicating with alcohol and drugs.

13. When Respondent was 15 years old, one of Respondent's

high school teachers molested her. Respondent again experienced

guilt and shame, did not disclose the incident, and continued

using alcohol and drugs.

14. Respondent presented expert testimony concerning the

effects of PTSS. The expert testimony concludes that PTSS could

have caused Respondent to drink excessively and fail to disclose

her criminal history on the renewal application for her Florida

Educator's Certificate. However, the expert testimony fell

short of concluding that PTSS in fact induced Respondent to fail

to disclose the criminal history on her application.

15. Respondent's own testimony is that she had five or six

glasses of wine the night she completed the application.

Respondent completed the application without giving it much

thought. On balance, a preponderance of the evidence does not

support a finding that PTSS caused Respondent to fail to

disclose her criminal history on the renewal application for her

Florida Educator's Certificate.

16. Several mitigating facts support a penalty less than

termination of the professional service contract. The non-

disclosure of facts was a harmless error to Petitioner.

Petitioner had actual prior knowledge of all of the facts that

Petitioner complains Respondent omitted from the application.

17. The state licensing authority has knowledge of the

non-disclosed facts. Respondent has already been disciplined

for non-disclosure to the state licensing authority.

18. When the Last Chance Agreement was entered into in

2006, Respondent was incorrectly diagnosed and treated for

bipolar disorder. The treatment for bipolar disorder was

ineffective during the term of the Last Chance Agreement.

19. Respondent has been alcohol-free since September 2008,

when she placed herself in a residential alcohol treatment

program in Clearwater, Florida. Beginning in the early part of

2010, Respondent has been correctly diagnosed and treated for

PTSS by Joseph Lim, Ed.D, a licensed mental health counselor

and addiction specialist. That diagnosis and treatment appears

to be effective for Respondent.

20. Based on the testimony of the school principal who

testified for Respondent, Respondent is an experienced and

competent teacher who has not lost her effectiveness in the

classroom. For each school year from 1998-1999 through 2004-

2005, Petitioner evaluated Respondent as effective in the

classroom.

21. Respondent has already received a reasonable penalty

for violating the Last Chance Agreement, when Respondent was

improperly diagnosed and treated for bipolar disorder.

Petitioner has suspended Respondent from her employment without

pay from September 8, 2009, to the present.

CONCLUSIONS OF LAW

22. DOAH has jurisdiction over the parties and subject

matter in this proceeding. §§ 120.569, 120.57(1), Fla. Stat.

(2009). DOAH provided the parties with adequate notice of the

final hearing.

23. The burden of proof is on Petitioner. Petitioner must

show by a preponderance of the evidence that just cause exists

to terminate Respondent's professional service contract for the

reasons stated in the Administrative Complaint and that

termination is an appropriate penalty. 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).

24. Petitioner satisfied its burden of proof that just

cause exists to impose discipline against Respondent's

professional service contract. However, a preponderance of the

evidence does not support a finding that termination of the

contract is reasonable under the circumstances.

25. The failure of Respondent to disclose her criminal

history on the renewa l application for her Florid a Educator's

Certificate was not an intentional at tempt to deceive the

licensing auth ority. The fact -finder must reso lve conflicts in

the evidence and decide fact questions one way or the other.

Dunham v. High lands County School Board , 652 So. 2d 89 4, 896 (Fla.

2d DCA 1995); Heifetz v. Department of Business Regulation,

Division of Al coholic Bevera ges & Tobacco , 475 So. 2d 1277, 1281

(Fla. 1st DC A 1985); Department of Professional Regulation v.

Wagner , 405 So. 2d 471, 473 (Fla. 1st DC A 1981).

26. The trier of fa ct resolved the evid ential conflict in

favor of Respondent. The fact-finde r is the sole arbiter of

credibility. Bejarano v. State, Department of Ed ucation, Division

of Vocational Rehabilitation , 901 So. 2d 891, 892 (Fla. 4th DCA

2005); Hoover, M.D. v. Ag ency for Health Ca re Administration , 676

So. 2d 1380, 1384 (F la. 3d DCA 1996); Goss v. District School

Board of St. Johns County , 601 So. 2d 1232, 1234 (Fla. 5th DCA

1992).

27. A preponderance of evidence does no t support a finding

of dishonesty. The adequacy of Re spondent’s conduct is not

infused with agency ex pertise. The evaluation of Respondent’s

conduct is a question of fact to be determ ined by th e trier of

fact. See Yeoman v. Constr uction Industry Licensing Board , 919

So. 2d 542 (Fla. 1st DCA 2005); Palamara v. State, Department of

Professional Regulation , 855 So. 2d 706 (F la. 4th DCA 2003); Bush

v. Brogan , 725 So. 2d 1237, 1239-1 240 (Fla. 2d DCA 1999); Dunham

v. Highlands Coun ty School Board , 652 So. 2d 894, 896 (Fla. 2d DCA

1995); Albert v. Flor ida Department of Law Enforcem ent, Criminal

Justice Standa rds and Training Commission , 573 So. 2d 187 (Fla. 3d

DCA 1991).

28. In assessing conduct involving the non-disclosure of

criminal history, the ALJ has been guided by analogous judicial

precedent involving applicants for admission to the Florida Bar.

As officers of the court, licensed attorneys are not held to a

lesser standard of conduct than classroom teachers. The Florida

Supreme Court has held that a n a t t o r n e y w h o o m i t t e d a p r i o r

criminal conviction for possession of marijuana from his

application to the Florida Bar is not precluded fr om practicing

law in the state. In Re: Applicatio n of VMF For Ad mission To The

Florida Bar , 491 So. 2d 1104 (Fla. 1986).

2 9 . S o m e c a s e s s t a n d fo r the proposition that the trier of

fact may draw an inference of impaired effectiveness from the

nature of the offense. Purvis v. Marion County School Board ,

766 So. 2d 492 (Fla. 5th DCA 2000); Walker v. Highland County

School Board , 752 So. 2d 127 (Fla. 2d DCA 2000); Summers v.

School Board of Marion County , 666 So. 2d 175 (Fla. 5th DCA

1996). Unlike the cited cases, this proceeding includes direct

evidence in the testimony of Respondent's principal that

Respondent continues to be an effective educator. An inference

authorized in the cited cases would require the fact-finder to

ignore the direct evidence of unimpaired effectiveness.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Orange County School Board enter a

final order reinstating Respondent's employment with her current

principal, requiring Respondent to continue her current therapy

with Drim, requiring Respondent to submit to random drug

screening, and extending the term of the Last Chance Agreement

for another two years.

DONE AND ENTERED this 23rd day of July, 2010, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 23rd day of July, 2010.

ENDNOTE

1/ References to subsections, sections, and chapters are to

Florida Statutes (2007), unless otherwise stated.

COPIES FURNISHED :

John C. Palmerini, Esquire

Orange County School Board

445 West Amelia Street

Orlando, Florida 32801

Tobe M. Lev, Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 2231

231 East Colonial Drive

Orlando, Florida 32801

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

Ronald (Ron) Blocker, Superintendent

Orange County School Board

445 West Amelia Street

Orlando, Florida 32801-0271

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.