10-002338TTS Ronald Mixon vs. Escambia County School Board Status: Closed Recommended Order on Friday, January 28, 2011.

Summary: Evidence did not show that Petitioner intentionally submitted false travel voucher, but did not know how to submit request and relied on others to correct. Failed to perform duties not warranted. Progressive discipline imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD MIXON , )

)

Petitioner , )

)

vs. ) Case No. 10 - 2338

)

ESCAMBIA COUNTY SCHOOL BOARD , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to Notice, a final hear ing in this matter was held

before the Division of Admini strative Hearings by Administrative

Law Judge Diane Cleavinger, on October 14 , 2010, in Pensacola ,

Florida.

APPEARANCES

For Pet itioner: H. B. Stivers, Esquire

Levine & Stivers

245 East Virginia Street

Tallahassee, Florida 32301

For Respondent: Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes

Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The issu e in this proceeding is whether just cause exists

to discipline or terminate PetitionerÓs employment with

Respondent based on misconduct.

PRELIMINARY STATEMENT

By letter dated October 16, 2009, Malcolm Thomas,

Supe rintendent of Escambia County School s, notified Petitioner,

Ronald Mixon , that he had recommended to the Escambia County

School Board that PetitionerÓs employment with the Board be

terminated. The School Board approved the SuperintendentÓs

recommendation terminating PetitionerÓs employment effective

October 21, 2010. Thereafter, the Petitioner requested a formal

hearing with the School Board. The matter was referred to the

Division of Administrative Hearings to conduct a formal hearing.

At the hearing , Petitioner testified in his own behalf and

offered seven exhibits into evidence . Respondent presented the

testimony of three witnesses and offered nine exhibits into

evidence . Add itionally, the parties offered two joint exhibits

into evidence.

After t he he aring, Petitioner submitted a Proposed

Recommended Order on November 24, 2010. Likewise, Respondent

submitted a Proposed Recommended Order on the same date.

FINDINGS OF FACT

1. Respondent, Escambia County School Board, is

responsible for grades K - 12 public education in Escambia County,

Florida. Many of the sch ools in Escambia County include

cafeterias where food services are provided to students. In the

schools that provide such services , cash is often received on a

daily basis from students for th e meals they purchase in the

cafeteria.

2. Petitioner, Ronald Mixon , was employed to work i n food

service by Respondent in 2000. He was first employed as a

substitute employee. Eventually, he wa s employed on a full - time

basis under the Collective Bargai ning Agreement (CBA) between

the School District of Escambia County and The Union of Escambia

Education Staff Professionals as a Food Service Assistant II in

the cafeteria at Ferry Pass Middle School.

3. As a Food service Assistant II, Petitioner was "t he

lead worker" r esponsible for the preparation and serving of food

in the cafeteria, as well as , assistance in inventory,

sanitization of the kitchen , and cash control . Additionally,

Petitioner might be responsible for managerial or supervisory

duties as assigned by his supervisor .

4. During the 2008 - 2009 school year, Petitioner was

supervised by the Food Service Manager , Virginia Mattox . Prior

to Ms. Mattox, Petitioner was supervised by Lisa Anderson.

5 . When Lisa Anderson was the Food Service Man ager,

Petitioner was not assigned the responsibility for bank deposits

of cafeteria funds. However, during the 2008 - 2009 school year,

Petitioner was required by his supervisor to make bank deposits

for the cash that was collected in the cafeteria at Ferry Pass.

The evidence did not demonstrate that Petitioner was given any

instructions regarding when to make these deposits when he was

first assigned this duty.

6 . A cco rding to School District Policy , all funds received

by a cafeteria were required to be d eposited in a bank on a

daily basis. Such deposits are reflected in a deposit ledger

generated by the bank. The ledger shows the date, time , and

location of each deposit. Initially, P etitioner was not aware

of the District's policy regarding deposit s .

7 . During the 2008 - 2009 school year, Diane Boland, a

financial officer with the School District responsible for

accounting of cafeteria funds, noticed in her review of the

bankÓs ledger that bank deposits of cafeteria funds from Ferry

Pass were not being m ade on a daily basis. To addres s the

situation, Ms. Boland contacted Ms. Mattox and told her that

deposits were not being made on a daily bas is from Ferry Pass.

She also advised her that not making daily deposits violated

District policy. However, the p ractice of not making daily bank

deposits continued and Ms. Boland contacted Ms. Mattox several

more times in an e ffort to resolve the problem .

8 . Sometime around the first part of January, Ms. Mattox ,

who has poor communication skills, spoke with Petiti oner about

making bank deposits. Although somewhat confusing, t he evidence

did not demonstrate that Petitioner was told such deposits were

required since Ms. Mattox, also, told Petitioner that if he

could not get by the bank to make the deposit each day, he

should leave the funds in the safe located in the cafeteria

office. Additionally , Ms. Mattox gave Petitioner a key to the

night deposit box at the bank so that he could make the deposit

aft er banking hours . Unfortunately , there was some difficulty

wit h the night deposit key , which was resolved by Petitioner

when he obtained a new key from the bank. Clearly Petitioner,

even to the present, does not understand the District's policy

regarding depos it of school funds since he state s that the

deposits shou ld be made daily, but also state s that he could

leave them in the safe overnight. He clearly talks about the

deposits without understanding and seems to use the term "daily

deposit" like a name, as opposed to meaning he deposited the

funds daily or that t hese funds s hould be deposited every day .

9. In late January 2009, sometime after the conversation

with Ms. Mattox, Petitioner gave Ms. Mattox a handwritten travel

reimbursement request for the period covering August 18, 2008

(the beginning of school) thr ough January 23, 2009. School

District policy authorizes employees to be reimbursed for

mileage when they travel in personal vehicles for School

District purposes as part of their job.

10. Petitioner , who has limited skills and limited

communication sk ills , had never filled out a travel

reimbursement form before and had never been instructed in how

to fill one out. The travel form reflected deposits being made

on a daily basis. However, Petitioner did not fill in the

number of miles he traveled becaus e he did not know that

information. Petitioner assumed someone would let him know if

the handwritten form was wrong and would correct any errors or

omissions he had made on the form . Unfortunately , inste ad of

discussing or helping Petitioner with the tra vel form,

Ms. Mattox gave Petitioner some sort of dramatic look and shook

her head. She assumed and expected Petitioner to interpret her

vague look and gesture as indicating she knew Petitioner's

travel form was false. Petitioner left the travel form wit h

Ms. Mattox who did not do anything with it and never

communicated anything to Petitioner regarding the form. Later ,

in a memo dated August 31, 2009, Ms. Mattox claim ed that she did

not sign the travel form because it contained trips made by

Petitioner o n his own that w ere not authorized by her.

Ms. Mattox did not indicate that she thought Petitioner's travel

voucher was falsified. The memo forwarded the handwritten

travel form to another administrator.

11. In late April 2009, Ms. Mattox showed Petitio ner an

email from Ms. Boland and spoke with him about making cafeteria

deposits on a daily basis. She also told him he could use the

safe if he could not make the deposits.

12 . However, Ms. Boland continued to notice that cafeteria

deposits from Ferry Pa ss were not being made on a daily basis.

Therefore, on May 15, 2009, Ms. Boland contacted Mary Gilliard ,

the Food Service Area Manager , and Ms. MattoxÓs supervisor .

Ms. Boland advised Ms. Gilliard that daily deposits of Ferry

Pass cafeteria funds had not been made since the beginning of

the school year in August 2008, and that she had been in contact

with Ms. Mattox multiple times over the issue without results .

Ms. Gilliard then contacted Ms. Mattox and instructed her to

make the deposits herself or hav e her assistant, Juanita Forest,

make the deposits. In a later memo on the subjec t, Ms. Mattox

made it sound as if she had just learned of the deposit problem

on May 15. Nevertheless , a round May 15, 2009 , just before the

end of the school year, the task of making daily dep osits was

removed from Petitioner . However, this date is uncertain and

Pet i tioner's deposit duties may have ended at a later date since

the deposits continued not being made on a daily basis.

13 . Sometime in early June 2009 , Petitioner asked

Ms. Mattox about the earlier travel form and was told that she

did not have it and to prepare another travel reimbursement

form. In fact, Ms. Mattox was untruthful and did have the

earlier travel form. On June 17, 2009, Petitioner again

prepared a handwritten request for travel reimbursement that

requested reimbursement for a period running from the first day

of school on August 18, 2008 , through the end of the school

year. Petitioner prepared the form by looking at a calendar to

determine the day s that school was in session. He was claiming

reimbursement for making deposits at the bank virtually every

day school was in session. Again, this form did not have the

miles travelled filled in and Petit i oner thought that any errors

or omissions would b e corrected by others .

14 . Petitioner called Ms. Mattox to find out when she

could review and sign the form. Ms. Mattox was not at the

school or her office and did not want to drive to the school to

look at and sign the t ravel form. She told Petitione r to have

the form approved by the Ferry Pass principal. Petitioner then

took the form to the school office where the school secretary,

Patricia Griffy, offered to type the travel reimbursement form

for Petitioner because the h andwritten form was messy.

Ms. Griffy typed the reimbursement request form from the

handwritten version provided by Petitioner . It was signed by

Petitioner w ith the certification that it was true and just in

all respects. Petitioner signed the form because he was told

to. He cont inued to believe others would correct any errors or

omissions in the travel form. The form was also signed by the

Ferry Pass school pr incipal. Once signed, Petitioner took the

reimbursement request form to the District office and de livered

it to Diane Bo land .

15 . Ms. Boland compared all the claimed trips to the bank

with the bankÓs deposit records. According to Ms. BolandÓs

reconciliation, there were 117 trips that bank deposit records

confirmed; however, Petitioner wa s claiming 183 trips.

Petitioner Ó s claimed trips for which he was requesting

reimbursement expenses, exceeded the bank record of deposits by

66 trips , totaling $117.48 in reimbursement requests not

supporte d by bank deposits. She did not authorize reimbursement

for trips made prior to th e last three mo nths of the s chool year

based on District policy that limited reimbursement to a period

of 90 days prior to the submission of the travel request. She

did authori ze reimbursement for the final three months of the

school year , paying Petition er for travel to the bank, to the

extent there were bank deposits to confirm the travel, through

May 29 , 2009, the last day of school.

16 . As a result of Ms. BolandÓs audit and the rev iew by

her supervisor, Petitioner was reimbursed for 184 miles, which

resulted in a check for $81.88. He was not overpaid for his

reimbursements. The difference in what was contained in the

claim form and what was actually paid by R espondent was $58.74.

Petitioner did not question the amount paid; he was relying on

the D istrict to pay him what was due. At heari ng, he admitted

that his request for reimbursement for trips to the bank that he

did not make was wrong and that he should be disciplined,

however, he did not believe that termination was appropriate

since it was n ot his intention to falsify his travel form .

17 . Petitioner received a letter dated October 16, 2009 ,

from the Superintendant of Schools . This letter was the

beginning of the disciplinary process under the CBA. The

October letter advised Petitioner th at he was being recommended

for termination based on the submission of Ðfalse and untrue

travel claims for mileage reimbursement in connection with

depositing food service funds collected at Ferry Pass Mi ddle

School.Ñ The misconduct was more specifically identified as

(1) You claimed mileage re imbursement for

trips to the ban k to make deposits when you

did not make deposits on the dates claimed.

18 . The letter also assert ed that Petitioner Ðdemonstrated

poor and unsatisfactory work performance.Ñ This conduct is then

described as follows:

(1) You have not performed assigned tasks

in a timely manner.

(2) You have previously been counseled for

leaving your work site without authorization

prior to scheduled departure time and not

completing assigned dut ies.

Other than the facts regarding the bank deposits and prior

counseling, no additional performance issues were alleged in the

October letter.

19 . Petitioner did not have any prior letters of reprimand

or suspen sions with or without pay. However, i n A ugust of 2008,

there was one incidence of Petitioner leaving the work site

without authorization prior to the authorized departure time,

not completing his assigned duties and leaving the work si te in

a substandard condition. On August 22, 2008, Petitione r

received a disciplinary action consideration notice and was

formally counseled for the August 2008 incident, a long with all

of the employ ees at the Ferry Pass cafeteria who had left early

that day. Later, Petitioner received improvement strategies for

t he 2008 - 2009 school year. Petitioner satisfactorily met and

completed the improvement strategies. Except for informal

counseling, t his is the least amount of discipline that

Respondent imposes on its employees .

20 . In her testimony, Ms. Mattox referen ced a n August 2009

" baking incident" to show that Mr. Mattox did not perform his

job when he fail ed to comply with menu components on the first

day of school due to a shortage of a certain baking ingredient s

to bake enough products to meet the requirements for that day's

menu. However, the evidence demonstrated that, at that point in

the school year, the lack of product was the responsibility of

Ms. Mattox and not Petitioner. Petitioner was never disciplined

for the incident and would not have been subjec t to discipline

for the incident.

2 1 . Moreover, Ms. Mattox completed PetitionerÓs annual

performance evaluation. Even though Ms. Mattox testified the

Petitioner was not consistently meeting performance standards,

the most recent evaluation for school yea r 2008 - 2009 completed

by Ms. Matt ox indicated that Petitioner met position duty

requirements and states, "Ron i s much improved in performance. .

. . " The better evidence regarding PetitionerÓs past

performance is the most recent employee evaluation of

Pet itioner . On the other hand, after this evaluation ,

Petitioner was instructed to deposit cafeteria funds on a daily

basis. He did not consistently perform this duty; h e also

submitted an inaccurate travel voucher. However, the evidence

did not demonstrat e that he intentionally submitted a false

travel form. At best, he was negligent in the preparation of

the form and too reliant on others to correct the form. In this

regard, Petitioner did not perform his assigned duties and

should be disciplined for th ese non - serious infractions

according to the progressive discipline policy of the CAB.

CONCLUSIONS OF LAW

2 2 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), F la. Stat. (2010).

23 . In this proceeding, Respondent seeks to terminate

PetitionerÓs employment. Respondent bears the burden of proof

to establish by a preponderance of the evidence that just cause

exists for PetitionerÓs termination or discipline . McNe ill v.

Pinellas C nty . Sch . Bd . , 678 So. 2d 476, 477 (Fla. 2nd DCA

1996); Allen v. Sch. Bd . of Dade Cnty . , 571 So. 2d 568 (Fla. 3d

DCA 1990); Dileo v. Sch. Bd . of Dade C n ty . , 569 So. 2d 883 (Fla.

3d DCA 1990) .

24 . The October 16, 2009 , Notice of Recommenda tion letter

from the Superintendent constitut ed the notice of charges to

Petitioner. The letter advised Petitioner of the recommendation

to the School Board that he be terminated from employment

effective October 21, 2009, and noti fied him that he was bei ng

terminated for allegedly submitting false and untrue travel

claims for mileage reimbursement in connection with depositing

Food Service funds collected at Ferry Pass Middle School. The

no tice letter also advised Petitioner that he had demonstrated

poor and unsatisfactory work performance in relation to those

deposits and the travel voucher . The letter d id not set forth

the state statute, rule, regulation, policy or collective

bargaining provision that the School District believed ha d been

violated. H o wever, the notice Ðneed not be set forth with the

technical nicety or formal exactness required of pleadings in

court. Ñ Sch . Bd . of Dade Cnty . v. Jones , Case No. 96 - 5169 ( DOAH

June 12, 1997; Dade Cnty . Sch. Bd., July 15, 1997), citing

Jacker v. Sch. Bd. o f Dade Cnty . , 426 So. 2d 1149, 1151 (Fla. 3d

DCA 1983)(concurring opinion of Judge Jorgenson). See Luskin v.

Ag cy . for Health Care Admin . , 731 So. 2d 67 (Fla. 4th DCA 1999);

Cottril v. DepÓt of I ns . , 685 So. 2d 1371 (Fla. 1st DCA 1996);

Klein v. Dep Ó t of Bus . and Prof Ó l Reg . , 625 So. 2d 1237 (Fla.

2nd DCA 1993).

25 . In this case, the notice receiv ed by Respondent only

referenced specific conduct related to the deposits and travel

voucher submitted by Respondent. No other conduct is raised

with any speci ficity. T hus , only conduct related to the

deposits and trav el voucher can form the basis for d isciplinary

action by t he S chool Board in this case . In that regard, the

letter of notice is sufficiently specific to put Petitioner on

notice as to the charges against him . However, c onduct outside

of these facts is not relevant on the question of whether

Petit i oner is subject to discipline by Respondent.

26 . In this case, where the employee is an Ðeducational

support employeeÑ who has successfully completed h is or her

probationary period, and the adverse action sought to be taken

against the employee is termination, the District School Board

must act in acc ordance with the provisions of s ection 1012.40 ,

Florida Statutes, which provides as follows:

(1) As used in this section:

(a) Ð Educational support employee Ñ means

any person employed by a district school

system as a teacher assistant, an education

paraprofessional, a member of the

transportation department, a member of the

maintenance department, a member of food

service, a secretary, or a clerical

employee, or any other person who by virtue

of his or her position of employment is not

required to be certified by the Department

of Education or district school board

pursuant to s. 1012.39. This section does

not apply to persons employed in

confidential or management positions. This

section applies to all employees who are not

temporary or casual and whose duties require

20 or more hours in each normal working

week. (Emphasis in original)

(b) Ð Employee Ñ me ans any person employed as

an educational support employee.

(2)(a) Each educational support employee

shall be employed on probationary status for

a period to be determined through

appropriate collective bargaining agreement

or by district school board ru le in cases

where a collective bargaining agreement does

not exist.

(b) Upon successful completion of the

probationary period by the employee, the

employeeÓs status shall continue from year

to year unless the district school

superintendent terminates th e employee for

reasons stated in the collective bargaining

agreement , or in district school board rule

in cases where a collective bargaining

agreement does not exist, or reduces the

nu mber of employees on a district - wide basis

for financial reasons. (Emp hasis supplied).

(c) In the event a district school

superintendent seeks termination of an

employee, the district school board may

suspend the employee with or without pay.

The employee shall receive written notice

and shall have the opportunity to form ally

appeal the termination. The appeals process

shall be determined by the appropriate

collective bargaining process or by the

district school board rule in the event

there is no collective bargaining agreement.

27 . Pursuant to section 1012.40, Petiti oner is an

ÐEducational Support Employee,Ñ who may be terminated by the

School Board pursuant to the standards provided in the CBA.

28 . The CBA defines discipline as Ðany action designed to

correct behavior or bring about desired performance

improvement.Ñ §IX, Master Contract between The School District

of Escambia County and The Union of Escambia Education Staff

Professionals, FEA NEA AFT (July 1, 2009 - June 30, 2012).

Additionally, the CBA provides that Ðall discipline shall be

progressive, fair and o nly for just cause.Ñ Master Contract ,

supra .

29 . The CBA does not define Ðjust cause. Ñ However,

section 1012.33(1)(a), which adop ts Ðjust causeÑ as the standard

for termination of instructional employees, provides guidance.

The statute sets forth a non - exclusive list of factors that may

constitute Ðjust cause,Ñ including (but not limited to)

Ðimmorality, misconduct in office, incompetence, gross

insubordination, and willful neglect of duty . . . .Ñ In

addition, case law establishes that Ðjust cause for discipline

is a reason which is rationally and logically related to an

employeeÓs conduct in the performance of the employeeÓs job

duties and which is concerned with inefficiency, delinquency,

poor leadership, lack of role modeling or misconduct.Ñ Saraso ta

C nty . Sch . Bd . v. Berry , Case No. 09 - 3557 (DOAH Jan. 27, 2010 ;

Sarasota Cnty. Sch. Bd. Mar. 4, 2010 ).

30 . T he CBA includes as discipline, Ðwarning conferenc e,

counseling, written reprimand, suspension with pay, suspension

without pay and dismissal.Ñ Master Contract , supra . T he CBA

contains no provision wherein the requirements of progressive

discipline do not apply. In short, p rogressive discipline is

required. Cf. Palm Beach C nty . Sch . Bd . v. Schmeider , Case No.

10 - 1527 (DOAH Aug. 23, 2010; Palm B ch. Cnty. Sch. Bd. Oct. 26,

2010) (CBA provided that except in cases that constitute a real

immediate danger to the District or other actions/inactions of

the employee constitute such clearly flagrant and purposeful

violations of reasonable school rules and regulations,

progressive discipline shall be administered as follows . . .)

and Manatee C nty . Sch . Bd . v. Rainville , Case No. 10 - 3355 (DOAH

Oct. 28, 2010; Manatee Cnty. Sch. Bd. Dec. 16,

2010 )(PetitionerÓs Proposed Order noting that the CBA expresses

a pr eference for following a pattern of progressive discipline).

31 . The evidence demonstrated that Petitioner was assigned

the duties of making bank deposits from Ferry Pass Middle School

on a daily basis. In late April 2009, h e knew the deposits were

requi red to be made on a daily basis. The deposit records from

the bank demonstrated he did not do so. In that respect, he did

not fulfill the work duties assigned him.

32 . Petitioner also submitted a travel reimbursement

request reflecting that he had mad e bank deposi ts of Ferry Pass

Middle School c afeteria funds on a daily basis for every day

school was in session during the 2008 - 2009 school year. The

dates included dates on which he did not ma ke any deposits.

33 . H owever, the evidence did not demonst rate that

Petitioner intentionally submitted false and untrue travel

claims. Petitioner clearly did not know how to complete a

travel reimbursement request form and mistakenly thought others

would correct his submission. The form he submitted was

inaccur ate, but not intentionally false or fraudulent. Given

these facts and Petitioner's failure to deposit cafeteria funds

on a daily basis , Petitioner failed to adequately perform his

job duties. However, he is not guilty of submitting a false and

untrue tra vel reimbursement form. Therefore, Petitioner should

be disciplined for failing to ma ke deposits of cafeteria funds

on a daily basis and for negligently failing to submit an

accurate travel reimbursement form .

34 . As indicated , the CBA applicable to Pe titioner

requires progressive discipline . While not specifically

defined, disciplinary progression runs generally from warning

conference, counseling, written reprimand, suspension with pay,

suspension without pay and dismissal . However, p rogressive

disc ipline does not require discipline to proceed in a step

fashion where the conduct is sufficiently egregious to support

termination or otherwise skip a step on the disciplinary scale .

Sarasota C nty . Sch . Bd . v. Berry , Case No. 09 - 3557 (DOAH

Jan. 27, 2010 ; Dade Cnty . Sch. Bd. Mar. 4, 2010 )(TeacherÓs

threat of violence was a flagrant violation within the meaning

of the CBA justifying termination without resort to progressive

discipline); Lee C nty . Sch. Bd . v. Bergstresser , Case No. 09 -

2414 (DOAH Sept. 25, 200 9 ; Lee Cnty. Sch. Bd. Oct. 20,

2009 )(RespondentÓs refusal to do assigned tasks, harassment of

co - workers, and threats of violence constituted just cause for

immediate termination . ).

35 . The misc onduct attributed to Petitioner in this case

involves the fai lur e to perform assigned duties , and dishonesty

in submitting a false and untrue travel claim. While dishonesty

in intentional ly submitting a false and untrue claim to the

School Board for monetary gain would justify termination, the

evidence did not demo nstrate such conduct on the part of

Petitioner. The evidence did demonstrate that Petitioner failed

to make the daily bank deposits as required and that he

negligently filed an inaccurate travel reimbursement request .

T he evidence did not demonstrate con duct sufficiently egregious

to justify termination without resort to any lesser discipline.

Since Petitioner has been disciplined once before, the lowest

level of disciplinary action is not appropriate . The next level

of discipline under the CBA is a wri tten reprimand. Therefore,

Petitioner should receive a written repr imand with appropriate

employee training in the preparation of travel vouchers

required .

RECOMMENDATION

Based upon the foregoing, Finding of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

T hat Respondent, Escambia County School Bo ard, enter a

F inal O rder reinstating the PetitionerÓs employment, i ssuing a

written reprimand to Petitioner , and requiring further employee

training by Petitioner .

DONE AND ENT ERED this 28th day of January , 201 1 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of January, 2011.

COPIES FURNISHED :

Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensa cola, Florida 32501 - 3125

H. B. Stivers, Esquire

Levine & Stivers

245 East Virginia Street

Tallahassee, Florida 32301

Malcolm Thomas, Superintendent

School District of Escambia County

215 West Garden Street

Pensacola, Florida 32502

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399

Dr. Eric J. Smith, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399

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 Fi nal Order in this case.