10-000532TTS Seminole County School Board vs. Michael Lindscog Status: Closed Recommended Order on Monday, November 8, 2010.

Summary: Respondent was in possession of cocaine and guilty of DUI; therefore, the school district had just cause to terminate him.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 0532

)

MICHAEL LINDS K OG , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to not ice, a formal hearing was held in this case

on July 28, 2010, in Sanford, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

For Respondent: Thomas B. Luka, Esquire

390 North Orange Avenue, Suite 163 0

Orlando, Florida 32801 - 1642

STATEMENT OF THE ISSUE

Whether Michael Lindskog (Respondent) should be terminated

from his employment with the School District of Seminole County,

Florida (School District) .

PRELIMINARY STATEMENT

On December 29, 2009, Respondent was arrested in Tampa,

Florida, and charged with possession of cocaine and operating a

vehicle while under the influence of alcohol. Subsequently,

Respondent advised his principal of the arrest, and the matter

was referred to School District personnel, who gathered

information regarding the incident. Ultimately, by letter,

dated January 8, 2010, the s uperintendent of Seminole County

Public Schools notified Respondent that he would be recommended

for termination of employment. The Seminole County School Board

(Petitioner or Board) suspended Respondent without pay on

January 26, 2010, and initiated termination proceedings.

Respondent timely contested the suspension and proposed

termination.

The case was forwarded to the Divisi on of Administrative

Hearings (DOAH) on February 4, 2010. Thereafter, the parties

engaged in discovery, delayed the case in order for Respondent

to address the criminal case on - going in Hillsborough County,

and submitted a Joint Pre - h earing Stipulation as directed in

this cause.

At the hearing conducted on July 28, 2010, Petitioner

presented testimony from Mark Russi, John Reichert, Kelly Stead,

and Bill Vogel. PetitionerÓs Exhibits 1 through 3 were admitted

into evidence. Respondent testified in his o wn behalf. The

Transcript of the proceeding was filed with DOAH on August 10,

2010. The parties were granted 30 days within which to file

their p roposed r ecommended o rders. Petitioner filed a proposed

order on September 10, 2010. Respondent has not fil ed a post -

hearing proposal. This Recommended Order is entered to address

the issues of the case and to relinquish jurisdiction back to

the Board.

FINDINGS OF FACT

1. Petitioner is a duly - constituted entity charged with

the responsibility and authority to operate, control, and

supervise the public schools within the Seminole County Public

School District . As such, it has the authority to regulate all

personnel matters for the School District . See § 1001.32, Fla.

Stat. (2009). 1

2. Bill Vogel (Vogel) is the superintendent of the public

schools for the School District.

3. Vogel has the authority to recommend suspension and/or

termination of employees for alleged misconduct.

4. At all times material to the allegations of this case,

Respondent was an em ployee of the Board. Respondent held a

professional service contract for the 2009 - 2010 school year as a

math teacher at Sanford Middle School. Respondent also coached

the boysÓ volleyball team.

5. At all times material to this case, the principal at

Sanford Middle School was Mark Russi (Russi). With the

exception of the matters alleged in this case, Russi found

Respondent to be a satisfactory teacher and coach. Prior to the

incident described in this case, Respondent had no previous

disciplinary inf ractions and enjoyed a Ðclean recordÑ with the

School District .

6. As of the date of hearing, Respondent was certified to

teach mathematics by the Florida Department of Education. There

is no indication that the Florida Education Practices Commission

ha s ever disciplined Respondent regard ing any educatorÓs

deficiency.

7. On December 29, 2009, Respondent was arrested by

Officer Kelly Stead (Stead) in the City of Tampa, Florida, for

the offenses of: possession of a controlled substance

(cocaine) , driving under the influence of alcohol (DUI) , and

refusal to submit to the DUI test.

8. When Respondent returned to Sanford Middle School after

the holiday break, he immediately sought out Russi and reported

the arrest incident , and the charges that had been lev ied

against him. In turn, Russi reported the allegations to the

BoardÓs Human Resources Professional Practices head, John

Reichert (Reichert). The notifications (Respondent to Russi,

Russi to Reichert) were done in accordance with Board policy.

Respond ent appropriately self - reported the incident.

9. To follow - up on the report, Reichert went into fact -

finding mode and contacted the police in Tampa, Florida, to get

a copy of the pertinent police documents. Reichert wanted to

confirm that the information given to the School District was

accurate and that any decision the Board might consider would be

supported by a record.

10. Subsequently, Reichert drafted a letter , that was

signed by Vogel , dated January 8, 2010. Reichert then provided

the letter (Pet itionerÓs Exhibit 1) to Russi on January 11,

2010. On the same day, Russi called Respondent to the office,

provided the letter to him, and directed that he sign the second

page acknowledging receipt of the letter.

11. In summary, the letter provided th at Vogel would

recommend to the Board that Respondent be suspended with a

further recommendation of termination of RespondentÓs employment

with the School District . Additionally, the letter gave

Respondent a point of entry to challenge the BoardÓs decisio n

through the administrative process. Respondent timely elected

to challenge the BoardÓs decision to suspend him without pay and

terminate his employment.

12. Concurrently, the criminal proceedings against

Respondent were in the Thirteenth Judicial Circu it, Hillsborough

County, Florida. By Information, Case No. 2009 - CF - 021466, the

s tate a ttorney charged Respondent with possession of cocaine in

violation of S ubs ection 893.13(6)(a), Florida Statutes; driving

under the influence in violation of S ubs ection 3 16.193(1),

Florida Statutes; and refusal to submit to testing in violation

of S ubs ection 316.1939(1), Florida Statutes. Subsequently,

Respondent entered a plea to the second and third charges and

was adjudicated guilty.

13. Respondent executed a Drug C ourt Agreement that

allowed him admission to the Pre - t rial Intervention Drug Court

Program. The p rogram requires Respondent to participate as

directed for a period of 18 months. If Respondent successfully

completes the p rogram, as determined by the s tate a ttorney, the

charge of possession of cocaine will be dismissed. Based upon

the date the agreement was executed, the time for such

completion will not end until approximately September 2011.

14. Respondent considers himself to be a good teacher and

doe s not believe this type of incident will happen again.

Respondent maintains he attends NA and AA classes regularly and

has a sponsor helping work toward recovery.

15. Other than the charges described above, Respondent has

never had criminal charges fil ed against him. Respondent took

responsibility for the incident complained of, admitted to

having cocaine in his pocket, and has complied with all

directives of the court with regard to drug testing, counseling,

community service, payment of fees associat ed with the Drug

Agreement, and attendance at meetings as ordered.

16. Respondent fully cooperated in reporting the incident

and completing work assignments before leaving school.

Respondent enjoyed success , as a teacher , at Sanford Middle

School. Nev ertheless, Russi, Reichert, and Vogel expressed

grave concerns regarding allowing Respondent back into the

classroom.

17. Russi does not have confidence that Respondent can

exercise the judgment necessary to deal with the rigors of

teaching inside and o utside of the classroom.

18. Additionally, Reichert opined that Respondent failed

to maintain the high standard of ethical and professional

conduct expected by Petitioner. Essentially, Petitioner is not

in a position to trust Respondent given its profoun d

disappointment at the lack of judgment Respondent displayed.

Reichert has recommended termination for other Board employees

who have had cases involving cocaine. According to Reichert , no

facts in this case warrant a different result.

19. Given the li mited time of RespondentÓs sobriety (six

months as of the date of hearing), Petitioner avers that

RespondentÓs lack of judgment makes it difficult to justify

putting Respondent back into the classroom. Entrusting the

education and well - being of students t o someone who has lost

effectiveness as a teacher (per Vogel) is not appropriate in

this case. Vogel maintains that Respondent cannot serve as a

role model when he has demonstrated such poor judgment.

CONCLUSIONS OF LAW

20. DOAH has jurisdiction over the parties to and the

subject matter of these proceedings. §§ 120.569 and 120.57(1),

Fla. Stat . (2010) .

21. Petitioner bears the burden of proof in this cause to

establish , by a preponderance of the evidence , that Respondent

committed the violations allege d. See McNeil v. Pinellas County

School Board , 678 So. 2d 476 (Fla. 2d DCA 1996).

22. Se ction 1012.33, Florida Statutes , provides, in

pertinent part:

All such contracts, except continuing

contracts as specified in subsection (4),

shall contain provisions for dismissal

during the term of the contract only for

just cause. 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 insubordina tion,

willful neglect of duty, or being convicted

or found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any involving moral turpitude.

23. In this case , Petitioner maintains that it has just

cause for termination due to Respondent's 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 .

24. Teachers in Florida are held to the highest standard

of ethical conduct. Florida Administrative Code Rule 6B - 1.001

provides:

6B - 1.001 Code of Ethics of the Education

Profession in Florida.

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for al l.

(2) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

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 oneÓs

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.

25. In this case, possession of cocaine, driving while

under the influence of some substance (presumably alcoholic

beverages), and refusal to submit to testing regarding such

substance constitutes just cause to terminate RespondentÓs

employment. Petitioner has consistently taken a no - tolerance

approach to the possession of controlled substances. Respondent

could be a wonderful teacher , but Petitioner is entitled to

require that its employees demonstrate the highest level of

conduct becoming School District personnel. Driving while

impaired and possession of cocaine does not meet that standard.

26. It is concluded Petitioner has established by a

preponderance of the evidence that Respondent committed acts

constituting misconduct sufficient to impair his e ffectiveness

as a teacher, failed to uphold the standard of conduct

reasonably expected of Board employees, and breached a level of

trust necessary to allow him to continue employment with the

Board. Such behavior demonstrates just cause for termination.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Seminole County School Board

enter a final order terminating Respondent's employment with the

School District .

DONE AND ENTERED this 8th day of Nov ember, 2010, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of November , 2010 .

ENDNOTE

1/ All statutory references are to Florida Statutes (200 9 ),

unless otherwise noted.

COPIES FURNISHED :

Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

Thomas B. Luka, Esquire

390 North Orange Avenue , Suite 1630

Orlando, Florida 32801 - 1642

Dr. Eric J. Smith, Commissioner of Education

De partment of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0 400

Dr. Bill Vogel, Superintendent

Seminole County School Board

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

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.