10-000372TTS Palm Beach County School Board vs. Jill Shadoff Status: Closed Recommended Order on Monday, June 28, 2010.

Summary: Petitioner failed to prove immorality in teacher's possession of her husband's OxyContin, so as to deliver to FedEx to send to him on trip, even though teacher pleaded to a third-degree felony of drug possession, for which adjudication was withheld.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 10-0372

)

JILL SHADOFF, )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing by

videoconference at sites in West Palm Beach and Tallahassee,

Florida, on April 26, 2010. The parties, attorneys for the

parties, witnesses, and court reporter participated by

videoconference in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Elizabeth T. McBride

Palm Beach County School Board

Post Office Box 19239

West Palm Beach, Florida 33416

For Respondent: Jeffrey Sirmons

Johnson and Haynes, P.A.

The Barrister's Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of immorality, in

violation of Florida Administrative Code Rule 6B-4.009(2) and,

if so, whether dismissal is too severe a penalty.

PRELIMINARY STATEMENT

By letter dated November 9, 2009, Petitioner's

superintendent informed Respondent that he intended to recommend

to the School Board that it terminate her employment as a

teacher. The letter cites as grounds violations of School Board

Policies 1.013 and 3.96(4), Florida Administrative Code Rules

6B-1.001(3) and 6B-4.009(2), and Article II, Section M(6) of the

collective bargaining agreement. Although the letter omits

mention of the factual bases for these alleged violations, it

refers to an investigation that commenced on March 6, 2009.

This investigation arose out of Respondent's arrest, on March 5,

2009, for violating Section 893.135, Florida Statutes, which

prohibits drug trafficking.

The Joint Pre-Hearing Stipulation filed on April 16, 2010,

identifies, as additional grounds for dismissal, the "failure to

exercise best professional judgment" and the commission of a

crime of moral turpitude. However, at the start of the hearing,

the Administrative Law Judge asked Petitioner's counsel to

identify the issues--including whether Petitioner was charging

Respondent with a crime of moral turpitude--and counsel informed

the Administrative Law Judge that the sole issue was whether

there was just cause to dismiss Respondent for a violation of

Florida Administrative Code 6B-4.009(2), which defines

immorality. The hearing proceeded accordingly.

At the hearing, Petitioner called three witnesses and

offered into evidence: Petitioner Exhibits 4-6, 11-14, and 16-

19. Respondent called three witnesses and offered into

evidence: Respondent Exhibits 1, 5-6, 10, 14-15, and 17. All

exhibits were admitted except Petitioner Exhibits 11 and 17 and

Respondent Exhibit 17, which were proffered. Also, Petitioner

Exhibit 4 was admitted only for the statements of Respondent.

The court reporter filed the Transcript on May 26, 2010.

The parties filed Proposed Recommended Orders on June 25, 2010.

FINDINGS OF FACT

1. Respondent has taught in the Palm Beach County School

District for 18 years. Most recently, Respondent was employed

as a special language teacher and learning strategist at

Tradewinds Middle School. In these capacities, Respondent co-

taught inclusion classes, which mainstream special-education

students with regular-education students. In recent years,

Respondent has worked with students with emotional/behavioral

disorders. Prior to her employment with Petitioner, Respondent

had taught six years in the Boston public school system as a

special education teacher.

2. Respondent was one of only three teachers at Tradewinds

Middle School to have achieved national board certification.

The present principal, as well as his predecessor, nominated

Respondent for the Dwyer Award, which is given annually to the

teacher who displays "above-and-beyond" commitment to her

students and their education. Respondent has also obtained

numerous grants for her school and program. According to the

present principal, Respondent, who has never been disciplined,

has enjoyed an excellent reputation as an educator at Tradewinds

Middle School and has always maintained good rapport with her

students and colleagues.

3. Respondent and her husband, with whom she has been

married for 22 years, suffer from chronic pain that is treated

by, among other things, prescription pain-killers, including

OxyContin. Planning a motorcycle trip from West Palm Beach to

Massachusetts, Mr. Shadoff did not want to carry with him more

than a minimal number of OxyContin pills on the trip north.

Therefore, he decided to send additional OxyContin pills,

sufficient for the duration of his stay and return trip to

Florida, to one of the persons with whom he would be staying in

Massachusetts.

4. Mr. Shadoff attributes his reluctance to carry with him

all of the OxyContin pills to a situation that arose several

years ago in New Jersey, where Mr. Shadoff feels he was unfairly

treated by New Jersey police, who discovered OxyContin pills

during a routine traffic stop. No evidence contradicts this

claim.

5. After informing the Massachusetts friend of his plans,

Mr. Shadoff wrapped, taped, and addressed a package of 30 80-mg

OxyContin pills that he needed for his visit and return trip.

Mr. Shadoff placed a fictitious return address on the package.

Mr. Shadoff attributes his practice of placing fictitious return

addresses on his mail to government surveillance in the 1930s of

the mail of his father's aunt, who was a suspected Communist.

No evidence contradicts this claim.

6. Mr. Shadoff asked his wife to take the package to a

FedEx office. On February 21, 2009, Respondent delivered the

package to a FedEx office for delivery to the friend in

Massachusetts. A FedEx employee suspected that the package

contained drugs and relayed his suspicion to a narcotics deputy

of the Palm Beach County Sheriff's Office. Another FedEx

employee opened the package and found the OxyContin pills, which

were not in a properly labeled prescription container. Nothing

in the record establishes what exactly Respondent did in

violation of the drug laws; it appears the violation was her

possessing her husband's prescription drugs not in a properly

labeled container, her presenting the package containing her

husband's prescription drugs to FedEx for delivery to a third

party, or both.

7. On February 25, 2009, two narcotics deputies visited

the Shadoff home. Identifying themselves as deputies, the two

men, who were not in uniform, confronted Respondent on the

street just outside her home and asked about her "mailing" a

package. Respondent denied doing so. She was rattled by being

approached by these two men, one of whom wore an earring. It is

possible that the deputies' use of "mailing," when applied to

FedEx services, may have momentarily confused Respondent.

8. Respondent consented to the deputies' entering her

house, where Respondent readily admitted that she had delivered

the package to FedEx for delivery of her husband's OxyContin to

the Massachusetts friend. She and her husband informed the

deputies that her husband was taking a trip and intended to pick

up his prescribed pills at the friend's house. Respondent or

her husband produced a properly labeled prescription container

for one of the deputies. Neither deputy asked why the pills

were not in a prescription container within the FedEx package or

attempted to contact the Massachusetts friend, who testified at

the administrative hearing and confirmed the arrangement.

9. On March 5, 2009, Respondent was arrested for oxycodone

trafficking in violation of Section 893.135(1)(c), Florida

Statutes. She spent twenty-four hours in jail. Respondent

timely reported her arrest to Petitioner.

10. On August 29, 2009, in Palm Beach County circuit

court, Respondent accepted a plea bargain and pleaded guilty to

one count of attempted trafficking in oxycodone, a second-degree

felony. The court adjudicated Respondent guilty and sentenced

her to three years' probation, 100 hours' community service, a

substance abuse evaluation, and random drug testing.

11. When entering the plea, Respondent and her criminal

attorney believed that the disposition of the case would not

affect Respondent's employment. At some point, Respondent

learned that the adjudication of guilt for a second-degree drug

felony rendered her ineligible for certification or employment

with direct contact with students.

12. Respondent retained another lawyer and negotiated with

the State Attorney's Office an agreement to vacate the earlier

plea and judgment in return for a guilty plea to possession of

oxycodone, a third-degree felony. By judgment entered

December 7, 2009, the court vacated the August 29 plea and

sentence and withheld adjudication, subject to completion of a

substance abuse evaluation (with credit for the evaluation

previously completed), random drug testing, payment of court

costs, 100 hours' community service, and three years' probation.

13. Among the sources of public reaction to Respondent's

offense of possession of her husband's lawfully prescribed

OxyContin is the circuit judge, who vacated the earlier plea and

sentence and allowed Respondent to plead to a lesser offense.

The attorneys informed the judge that the basis for the charge

and plea was Respondent's delivery of a mismarked package

containing her husband's lawfully prescribed OxyContin to FedEx

for forwarding to her husband on his trip. Uniquely aware and

reflective of community values, as least regarding criminal

justice matters, the judge expressed surprise that Respondent

was prosecuted on these facts and clearly did not find

Respondent's possession of her husband's lawfully prescribed

OxyContin to be of such notoriety as to bring Respondent or the

education profession into public disgrace or disrespect and

impair Respondent's service in the community.

14. In fact, there is no evidence whatsoever that

Respondent's possession of her husband's lawfully prescribed

OxyContin was of such notoriety as to bring Respondent or the

education profession into public disgrace or disrespect and

impair Respondent's service in the community.

15. The principal of Tradewinds Middle School received two

letters of support from teachers for Respondent. He was unable

to characterize the general reaction of teachers as anything

more than "curiosity and surprise." Due to Respondent's removal

from the classroom, the principal had to reassign a few teachers

and students to different classrooms, but he received no

objections from teachers, students, or parents. The assistant

principal herself expressed disbelief at the incident, based on

her knowledge of Respondent through working with her, and she

too was unaware of any negative opinion that followed

Respondent's arrest. After one meeting with Respondent, the

drug abuse counselor determined that she was not in need of

counseling.

16. However, on December 2, 2009, the superintendent

recommended that Petitioner suspend and terminate Respondent.

Petitioner subsequently adopted this recommendation, and

Respondent has been suspended without pay since December 3,

2009.

17. Petitioner has failed to establish by clear and

convincing evidence that Respondent has engaged in conduct that

is inconsistent with the standards of public conscience and good

morals. Undoubtedly, all drug offenses are serious matters,

but, as the circuit judge implied, Respondent's offense is of a

technical nature. There is no direct evidence that Respondent's

possession--although unlawful--of her husband's lawfully

prescribed medication is inconsistent with the standards of

public conscience and good morals. Nor is there a sufficient

evidentiary basis to infer any violation of the public

conscience and good morals.

18. Petitioner has failed to establish by clear and

convincing evidence that Respondent has engaged in conduct

sufficiently notorious to bring herself or the education

profession into public disgrace or disrespect and impair her

service in the community. There is no direct evidence of these

matters, nor is there a sufficient evidentiary basis to infer

these matters.

Conclusions of Law

19. The Division of Administrative Hearings has

Fla. Stat. (2009).

20. Section 1012.33(1)(a), Florida Statutes, provides for

the termination of an instructional employee for "just cause,"

which includes "immorality."

21. Florida Administrative Code Rule 6B-4.009(2) provides:

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.

22. This definition sets forth two elements: conduct that

is inconsistent with the standards of public conscience and good

morals and conduct that is sufficiently notorious to bring the

individual or profession into public disgrace or disrespect and

impair the individual's service in the community. Petitioner

must prove both elements. McNeill v. Pinellas County

School Board , 678 So. 2d 476, 477 (Fla. 1996). This Recommended

Order will characterize the first element as the wrongful factor

and the second element as the impairment factor.

23. Article II, Section M(1) of the applicable collective

bargaining agreement, which acknowledges that discipline must be

based on just cause, requires "clear and convincing evidence" in

support of the discipline.

24. The remaining authority cited in the letter of

November 9, 2009, which is the charging document, is irrelevant.

First, Petitioner disclaimed any reliance on such authority at

the start of the hearing. Second, the authority is otherwise

unavailable as grounds for dismissal of a teacher.

25. School Board Policy 1.013 outlines the duties of the

teacher, including providing leadership and guidance. Violating

the law governing the possession of prescription drugs is not

providing leadership and guidance, but this broad policy

statement of teacher responsibilities does not supplant more

specific policies and rules that predicate discipline upon

certain prohibited acts or omissions. Even if this policy

provided grounds for discipline, the record omits direct

evidence of the impact of this incident on Respondent's ability

to discharge her leadership and guidance duties, and, given the

standard of proof, there are insufficient grounds on which to

infer such an inability.

26. School Board Policy 3.96(4) likewise provides no basis

for discipline. The policy itself states that off-duty

"involvement . . . with controlled substances" may subject an

employee to discipline under Policies 3.12 and 3.13 and Florida

Administrative Code Rules 6B-4.009(2) and (5), and the

collective bargaining agreement.

27. Florida Administrative Code Rule 6B-1.001(3) provides:

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.

Standing alone, Rule 6B-1.001(3) does not provide a basis for

dismissing a teacher because it is aspirational in tone.

Florida Administrative Code Rule 6B-4.009(3) provides the means

for citing a violation of Rule 6B-1.001 as a ground for

dismissal, but requires that the violation of Rule 6B-1.001 be

"so serious as to impair the individual's effectiveness in the

classroom." Petitioner has not attempted to plead a misconduct

case.

28. Clear and convincing evidence requires:

[T]he evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts at issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005), quoting Slomowitz

v. Walker , 429 So. 797, 800 (Fla. 4th DCA 1983).

29. Petitioner has failed to prove by clear and convincing

evidence that Respondent is guilty of immorality due to her

unlawful possession of her husband's OxyContin.

30. The direct evidence fails to establish that this

incident constitutes conduct that is inconsistent with the

standards of public conscience and good morals. The direct

evidence fails to establish that this incident 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.

31. As noted in the Findings of Fact, the Administrative

Law Judge has also declined, on these facts, to infer either of

the two elements of immorality, the wrongful factor or the

impairment factor.

32. Case law recognizes that the determination of whether

Respondent's conduct violates the standards of public conscience

and good morals, whether based on direct evidence or inference,

is not a responsibility that the Administrative Law Judge shares

with the agency. In Bush v. Brogan , 725 So. 2d 1237 (Fla. 2d

DCA 1999), the Education Practices Commission entered a final

order finding a teacher guilty of gross immorality and an act of

moral turpitude, even though the Administrative Law Judge had

found the evidence insufficient to establish either of these

offenses. Reversing, the court cited with approval Holmes v.

Turlington , 480 So. 2d 150, 153 (Fla. 1st DCA), in which the

court held that a deviation from a standard of conduct is an

ultimate finding of fact within the realm of the hearing

officer's factfinding discretion and is not a matter infused

with policy considerations, so as to place it within the realm

of the agency's discretion. 725 So. 2d at 1240.

33. In later cases, courts have tended to allocate

exclusively to the Administrative Law Judge the responsibility

of direct and inferential factfinding on the wrongful factor and

to recognize agency discretion in inferential factfinding on the

impairment factor. The reasoning is that factfinding on

impairment involves policy considerations.

34. In Packer v. Orange County School Board , 881 So. 2d

1204 (Fla. 5th DCA 2004), the Administrative Law Judge found

that the teacher had not endangered the safety of his students.

The school board reversed this finding and dismissed the

teacher. Citing Greseth v. Department of Health and

Rehabilitative Services , 573 So. 2d 1004 (Fla. 4th DCA 1991),

the court noted: "Where reasonable people can differ about the

facts, an agency is bound by a hearing officer's reasonable

inference based on the conflicting inferences arising from the

evidence." 881 So. 2d at 1207. Citing Tedder v. Florida Parole

Commission , 842 So. 2d 1022, 1025 (Fla. 1st DCA 2003), the court

noted with approval that, as to factual issues not involving

policy issues, it is the role of the Administrative Law Judge,

not the agency, to resolve factual issues and draw permissible

inferences. Id. Rejecting the school board's contention that

it was merely resolving factual disputes concerning student-

safety issues, the court noted that the cases cited by the

school board involved agency factfinding on the impairment

factor after the Administrative Law Judge had found facts

establishing the wrongful factor. By contrast, in the case

before it, the Administrative Law Judge had found the facts

insufficient to establish the wrongful factor, and the court

held that the agency lacked the authority to set aside this

factfinding, even under a claim of factfinding infused with

policy considerations, because the agency lacked the authority

to disturb the Administrative Law Judge's factfinding on the

wrongful factor.

35. Among the cases cited by the Packer court is Purvis v.

Marion County School Board , 766 So. 2d 492 (Fla. 5th DCA 2000),

which is a case of misconduct in office under Florida

Administrative Code Rule 6B-4.009(3). Similar to immorality, as

mentioned above, misconduct in office comprises a wrongful

factor, in terms of a violation of Rule 6B-1.001, and an

impairment factor, in terms of impairment of effectiveness. In

Purvis , the Administrative Law Judge found that the teacher had

resisted arrest after a nightclub altercation and had lied under

oath at his ensuing criminal trial, but found a lack of a

preponderance of the evidence of impaired effectiveness. Based

on the testimony of the superintendent and principal that the

teacher lacked integrity and trustworthiness and thus lacked

effectiveness in the school system, the school board concluded

that it had proved impaired effectiveness and dismissed the

teacher. Thus, the Administrative Law Judge had found the

wrongful factor, but not the impairment factor. The agency

overturned the Administrative Law Judge's findings on the

impairment factor. The court sustained the school board's

action, reasoning that impaired integrity and trustworthiness

"are reasonable inferences" arising from the teacher's false

testimony at trial. 766 So. 2d at 496. The court characterized

the school board's determination of the impairment factor as a

legal conclusion within the expertise of the school board, not

the Administrative Law Judge. 766 So. 2d at 498-99. See also

Walker v. Highlands County School Board , 752 So. 2d 127 (Fla. 2d

DCA 2000) (in misconduct case involving a standard of

preponderance of the evidence, court sustained inference of loss

of effectiveness due to teacher's in-classroom conduct), rev.

denied 773 So. 2d 58 (Fla. 2000); Summers v. School Board of

Marion County , 666 So. 2d 175 (Fla. 5th DCA 1995) (court

inferred ineffectiveness in case in which order lacked a finding

on same).

36. Lastly, it is impossible to impute the impairment

factor based on the seriousness of the third-degree drug offense

to which Respondent pleaded guilty. Enacted in 2008, Section

1012.315(1), Florida Statutes, renders a person "ineligible" for

educator certification or employment as an administrator or

instructor, if such administrator or instructor would have

direct contact with students, upon conviction of any of 47

felonies or two misdemeanors. Even if Respondent had been

convicted of possession of OxyContin, her offense is not among

those listed in Section 1012.315(1) because it is merely a

third-degree felony, so this statute does not apply directly to

Respondent. § 1012.315(1)(qq), Fla. Stat. More importantly,

this recent legislative enactment precludes imputing the

impairment factor due to the notion of the Administrative Law

Judge or agency of the seriousness of Respondent's offense. To

impute the impairment factor for an offense omitted from Section

1012.315(1) would violate the doctrine of expressio unius est

exclusio alterius and frustrate the effort of the legislature to

draw the distinction between criminal offenses whose seriousness

preclude certification or employment in the education profession

and less serious criminal offenses.

37. Section 1012.33(6)(a), Florida Statutes, provides

that, if an employee is suspended without pay or dismissed for

just cause and the charges are not sustained, Petitioner shall

immediately reinstate the employee and restore her back salary.

RECOMMENDATION

It is

RECOMMENDED that the Palm Beach County School Board enter a

final order dismissing any and all charges against Respondent,

immediately reinstating her, and awarding her back salary for

the period of her suspension, as provided in Section

1012.33(6)(a), Florida Statutes.

DONE AND ENTERED this 28th day of June, 2010, in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 28th day of June, 2010.

COPIES FURNISHED :

Elizabeth McBride, Esquire

School Board of Palm Beach County

Post Office Box 19239

West Palm Beach, Florida 33416-9239

Jeffrey Scott Sirmons, Esquire

Johnson, Haynes, & Miller

510 Vonderburg Drive, Suite 305

Brandon, Florida 33511

Matthew E. Haynes, Esquire

Johnson and Haynes, P.A.

The Barrister's Building

1615 Forum Place, Suite 500

West Palm Beach, Florida 33401

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. Arthur C. Johnson, Superintendent

Palm Beach County School Board

3340 Forest Hill Boulevard, C316

West Palm Beach, Florida 33406-5869

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.