10-009262TTS Broward County School Board vs. Richard Allen Status: Closed Recommended Order on Tuesday, July 26, 2011.

Summary: Just cause did not exist to suspend teacher who violated school policy governing collection of money from students, where violation not shown to constitute "immorality" or "misconduct in office," as alleged in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD , )

)

Petitioner, )

)

vs. ) Case No. 10 - 9262

)

RICHARD ALLEN , )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case

pursuant to s ections 120.569 and 120.57(1), Florida Statutes, 1

before Stuart M. Lerner, a duly - designated administrative law

judge of the Division of Administrative Hearings (DOAH), on

May 10, 2011 , by telephone and webcast at sites in Fort

L auderdal e and Tallahassee, Florida.

APPEARANCES

For Petitioner: Mark A . Emanuele , Esquire

Panza, Maurer and Maynard, P.A.

Bank of America Building, Third Floor

3600 North Federal Highway

Fort Lauderdale, Florida 33308

For Respondent: Jeffrey S. Sirmons , Esquire

Johnson and Sirmons

510 Vonderburg Drive, Suite 30 9

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether there exists just cause to suspend Respondent from

his teaching position for five days , without pay , for

"misconduct in office " and "immorality," as alleged in the

Administrative Complaint .

PRELIMINARY STATEMENT

On August 10, 2010 , the Broward County Superintendent of

Schools issued an Administrative Complaint recommending that the

Broward County School Board (School Board) suspend Respondent

from his position as a teacher for five days , without pay , based

on the following "[ a ] dminis trative [c]harges":

6 . Respondent, Richard Allen, informed

students in his American History class

toward the beginning of the 2009 - 2010 school

year that he would be purchasing a

subscription for a magazine that would be

used by the students in the class f or class

projects. Respondent informed the students

in the class that the magazine subscription

would cost each student three dollars

($3.00), which students were to provide to

Respondent. Respondent thereafter began

personally collecting three dollars ( $3.00)

from each student and keeping a record of

those students who had paid and those who

had not.

7. Respondent did not obtain approval from

the principal's designee prior to collecting

and/or distributing moneys from the

students, nor had he discussed or planned

the collection or distribution of the

students' moneys with the principal's

designee, as is required by school policy.

A copy of the school's policy regarding

collection of money by teachers is attached

hereto as Exhibit A and incorporated by

reference herein.

8. Respondent also did not inform the

bookkeeper of the moneys collected, nor did

he deposit the moneys with the bookkeeper

daily, as is required pursuant to the school

policy attached hereto as Exhibit A.

9. In all, Respondent collec ted three

dollars ($3.00) from approximately 75

students, totaling approximately two hundred

and twenty - five dollars ($225.00) toward the

purchase of the magazine subscription.

10. Despite personally collecting these

moneys from his students, Respondent never

provided to his students the magazine for

which they had paid, nor did Respondent

return the collected moneys to said

students.

According to the Administrative Complaint , Respondent's conduct,

as described in these "administrative charges , " amount ed to

"m iscondu ct in office " and "immorality," in violation of s ection

1012.33 , Florida Statutes, and Florida Administrative Code Rules

6B - 1.001, 6B - 1.006, and 6B - 4.009 , thus giving the School Board

just cause to take the recommended disciplinary action ag ainst

him .

Inasmuch as Respondent had requested a chapter " 120 hearing

[on] the validity of the [recommended] suspension," the matter

was referred to DOAH. The referra l was made on September 22,

2010 .

As noted above, the final hearing in the instant case was

held on May 10, 2011 . 2 Nine witnesses testified at the hearing:

J. D., S. G., Patrick Lowe, Robert Godwin, Sharon Grant, Enid

Valdez, Respondent, C. C. , and Richard Mijon. In addition to

the testimony of these nine witnesses, the following exhi bits

were offered and received into evidence at hearing :

Petitioner's Exhibits 1 through 7, 10 through 16, and 18 through

23, and Respondent's Exhibit 1 . Following the hearing, on

June 21, 2011, the record was reopened to receive an additional

exhibit, R espondent's Exhibit 4 ( consisting of Article 18 of the

collective bargaining agreement between the School Board and

Respondent's collective bargaining representative, the Broward

Teacher's Uni on , in effect during the 2009 - 2010 school year ).

At the conclusi on of the hearing on May 10, 2011 , the

undersigned announced on the record that the parties would have

30 days from the date of the filing of the hearing transcript

with DOAH to file their proposed recommended orders.

The hearing Transcript (consisting of two volumes) was

filed with DOAH on June 6, 2011 .

On July 1, 2011, Respondent filed an unopposed motion

requesting that the deadline for the filing of proposed

recommended orders be extended to July 20, 2011. The motion was

granted by Order issued July 5, 2011.

Respondent and Petitioner timely filed their Proposed

Recommended Orders on July 20, 2011 .

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as

a whole, the following findings of fact are made:

1. The School Board is respo nsible for the operation,

control , and supervision of all public schools (grades K through

12) in Broward County, Florida (including, among others, Piper

High School (Piper) ) , and for otherwise providing public

instruction to school - aged children in the co unty.

2. At all times material to the instant case, Enid Valdez

was the principal of Piper; Patrick Lowe, Robert Godwin, and

Sharon Grant were assistant principals at the school; and

Donavan Collins was the school 's social studies department

chair.

3. Respondent has been a social studies teacher at Piper

since 2002. He presently holds a professional services contract

with the School Board.

4. During the first semester of the 2009 - 2010 school year,

Respondent taught three American History classes at Pi per

(during the first, second, and fourth periods of the school

day ).

5. The previous school year, i n or aroun d February 2009,

Respondent had ordered, in his own name, a 25 - copy per issue

subscription for the upcoming 2009 - 2010 school year to "New York

Ti mes Upfront " (Upfront), a magazine for high school students

published by Scholastic, Inc., that Respondent believed to be an

"excellent [learning] tool" from which his students could

benefit academically . The total cost of the subscription

(Upfront Subscr iption) was $246.13. Respondent planned to use

the magazine in the classes he would be teaching at Piper the

following school year .

6. After receiv ing , in or around August 2009, 25 copies of

the Septem ber 2009 issue of Upfront , the first issue of the

2009 - 2010 school year , Respondent distribut ed them to the

students in his three American History classes for their review .

He told the students they each would have the option of using

Upfront, instead of School Board - provided materials, for class

assignm ents, provided they paid him $3.00 to help cover the cost

of the Upfront S ubscription. He subsequently asked each student

in his three classes whether or not that student wanted to

exercise this option and noted on the class roster those

students who resp onded in the affirmative (Upfront Option

Students) . For the next two or so months, he collected money

(in cash) from the Upfront Option Students and recorded each

payment he received .

7. On October 22, 2009, using his debit card, Respondent

made an initial payment to Scholastic of $124.00 for the Upfront

S ubscription (that he had ordered in or around February 2009 ) .

He made a second and final payment of $122.13 (again using his

d ebit card ) on November 3, 2009.

8. The money Respondent collected from the Upfront Option

Students was insufficient to cover the $244.13 cost of the

Upfront S ubscription. Respondent paid the shortfall out of his

own pocket.

9. Sometime in early November 2009, Respondent gave the

Upfront Option Students their first assignment from th e magazine

(copies of which Respondent had distributed to the students).

10. During the 2009 - 2010 school year, Piper had the

following policy concerning the collection of money ( Pi per

Collection of Money Policy) , which was published in the Piper

2009 - 2010 Faculty Handbook:

Money is never to be left in any classroom,

storage cabinet, or office desk. Collected

money is the responsibility of the teacher

and is deposited with the school bookkeeper

by the end of the day. A receipt will be

given when the money is deposited.

Money cannot be collected by any teacher

unless the collection and distribution of

the money has been previously discussed,

planned, and approved by the princip al's

designee and the bookkeeper has been

informed. All money must be deposited daily

with the bookkeeper.

(The document referred to in paragraphs 7 and 8 of the

Administrative Complaint as "Exhibit A" is a copy of th e Piper

Collection of Money Policy , as the parties stipulated at

hearing . 3 See pp. 66 and 67 of the hearing transc ript . )

11. Respondent was provided a copy of the Piper 2009 - 2010

Faculty Handbook prior to the beginning of the 2009 - 2010 school

year .

12. A t all times material to the inst ant case, Respondent

was aware of the Piper Collection of Money P olicy . Nonetheless,

in violation of t h at policy, he did not obtain , or even seek,

the necessary administrative approval to collect money from the

Upfront Option Students , nor did he deposit any of the money he

collected from these students with the bookkeeper, much less

inform her (or any school administrator, for that matter) of his

money collection activities. The foregoing notwithstanding, his

intent in acting as the conduit through which these students

purchased issues of Upfront for use in his classes was to help

the students achieve academic success, not to exploit them for

his own personal gain or advant age. He never had any intention

of doing anything with the mo ney he collected from the students

other than using it (as he ultimately did ) to help cover the

cost of the Upfront Subscription .

13. It was not until on or about October 19, 2009, that

the Piper administration first learned about Respondent's money

colle ction activities as a result of discussions that Assistant

Principal Lowe had with students in Respondent's classes. After

having been briefed by Mr. Lowe regarding what these students

had reported , Principal Valdez asked Assistant Principal Grant

to spea k with Respondent. During his meeting with Ms. Grant,

Respondent admitted to collecting money from the Upfront Option

Students to help pay for the Upfront Subscription , and he

acknowledged that he had not sought approval from anyone in the

school administration to do so .

14. On or about October 26, 2009, Principal Valde z sent a

Personnel Investigation Request to the School Board's Office of

Professional Standards and Special Investigative Unit (SIU)

through which she requested that SIU conduct an investigation of

the matter .

15. An investigation was authorized by SIU on October 28,

2009 , and an SIU investigator was assigned the case a week

later .

16. On or about November 3, 2009, Respondent was provided

with a letter from Craig Kowalski, the SIU Acting Executive

Director, advising Respondent of SIU's "investigation into a

complaint . . . regarding an alleged violation [by Respondent]

of the Principles of Professional Conduct of the Education

Profession in Florida, Rule 6B - 1 .006(2)(h) [sic],[ 4 ] to include

the collection of money from students to purchase magazines."

17. After the SIU investigation was completed, an

investigative report was prepared and presented to the School

Board's Professional Services Committee for its c onsideration .

18. The Professional Services Committee found " probable

cause. " A pre - disciplinary conference was then held, after

which the Superintendent , on August 10, 2010, issued an

Administrative Complaint recommend ing Respondent's suspension ,

withou t pay, "for a period of five (5) days effective from

June 3, 2010 through June 9, 2010."

CONCLUSIONS OF LAW

19. DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to c hapter 120 .

20. " In accordance with the provisions of s. 4(b) of Art.

IX of the State Constitution, district school boards [have the

authority to] operate, control, and supervise all free public

schools in their respective districts and may exercise any power

except as expressly prohibited b y the State Constitution or

general law. " § 1001.32(2).

21. Such authority extends to personnel matters and

includes the power to suspend and dismiss employees. See §§

1001.42(5), 101 2.22(1)(f), and 1012.23(1).

22. A district school board is deemed to be the " public

employer, " as that term is used in c hapter 447, Part II, " with

respect to all employees of the school district. " § 447.203(2).

As such, it has the right " to direct its employees, take

disciplinary action for proper cause, and relieve its e mployees

from duty because of lack of work or for other legitimate

reasons, " provided it exercises these powers in a manner that is

consistent with the requirements of law. § 447.209.

23. At all times material to the instant case, district

school bo ards have had the right, under s ection 1012.33 (6)(a) ,

to suspend or dismiss , for "just cause , " classroom teachers and

other instructional personnel 5 having professional service

contract s .

24. At all times material to the insta nt case, "just

cause," as used s ection 1012.33, has been legislatively defined

(in s ubsection (1)(a) of the statute) to include, "but . . . not

[be] limited to, the following instances, as defined by rule of

the State Board of Education: immorality, misconduct in office,

incompetency, g ross 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." The "but . . . not limited to" language makes

abundantly clea r that the list of things constituting "just

cause" was intended by the Legislature to be non - exclusive and

that other wrongdoing may also constitute "just cause" for

suspension or dismissal , provided such wrongdoing is at least of

the same seriousness or magnitude as those misdeeds specifically

mentioned in the statute . See Dietz v. Lee C nty . Sch. B d . , 647

So. 2d 217, 218 - 19 (Fla. 2d DCA 1994)(Blue, J., specially

concurring)("We assume that drunkenness and immorality, which

are not included in the non - exc lus ive list of sins [set forth in

s ection 231.36(1)(a), Florida Statu tes (2001), the predecessor

of s ection 1012.33 (1)(a) ] constituting just cause, [ 6 ] would also

be grounds for dismissal. . . . In amending section 231.36 and

creating a new contract status for teachers (professional

service) and by failing to further define just cause, the

legislature gave school boards broad discretion to determine

when a teacher may be dismissed during the contract term. . . .

I agree with the majority -- that the legislat ure left that

determination to the respective wisdom of each school board by

providing no definite parameters to the term 'just cause.'") ;

and Miami - Dade C nty . Sch. B d . v. Singleton , Case No. 07 - 0559,

2006 Fla. Div. Adm. Hear. LEXIS 614 *51 (Fla. DOAH Oct. 26,

2006; Miami - Dade Cnty. Sch. Bd. Aug. 10, 2007)("Neither offense

is specifically mentioned in [s] ection 1012.33(1)(a), Florida

Statutes, as an example of 'just cause,' although the statutory

list of such instances, as we have seen, is not intended to be

exclusive. Yet, the doctrine of ejusdem generis , . . . requires

that for 'just cause' to be found based upon an unexemplary

instance, the unexemplary instance must bear a close a ffinity to

one of the exemplary instances."); see also Pro - Art Dent al Lab,

Inc. v. V - Strategic Gr p . , LLC , 986 So. 2d 1244, 1257 (Fla. 2008)

("[T]he term ' including' is not one of all - embracing definition,

but connotes simply an illustrative application of the general

principle." ); and Peninsular Indus. Ins. Co. v. State , 61 Fla.

376, 380 - 381 (Fla. 1911) (" From t hese statutory provisions it is

clear that the obligation to pay the two per cent tax upon gross

receipts is placed upon ' each insurance company, or association,

firm or individual doing bu siness in this State, including' some

that are specially enumerated; but such enumeration man ifestly

is not complete for the less extensive word 'including' is used

merely as illustrative and not e xclusive.").

25. " Immorality" has been defined "by rule of the State

Board of Education" (specifically Florida Administrative Code

Rule 6B - 4.009(2) 7 ) as follows:

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.

26. "Misconduct in office" has been defined "by rule of

the State Board of Education" (specifically Florida

Administrative Code Rule 6B - 4.009(3)) as follows:

Misconduct in office is defined as a

violation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C., which is so serious as to

impair the individual's ef fectiveness in the

school system.

27. The Code of Ethics of the Education Profession ( as set

forth in Florida Administrative Code Rule 6B - 1.001 ) provide s as

follows:

(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 w ill seek

to exercise the best profes sional 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.

28. Florida Administrative Code Rule 6B - 1.006, which

contains t he Principles of Professional Conduct for the

Education Profession in Florida , provides as follows:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Ed ucation Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educator's

certificate, or the other pena lties as

provided by law.

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student's mental

and/ or physical health and/or safety.

(b) Shall not unreasonably restrain a

student from independent action in pursuit

of learning.

(c) Shall not unreasonably deny a student

acc ess to diverse points of view.

(d) Shall not intentionally suppress or

distort subject matter relevant to a

student' s academic program.

(e) Shall not intentionally expose a

student to unnecessary e mbarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student's legal rights.

(g) Shall not harass or discriminate

against any student on the basis of race,

color, religion, sex, age, national or

ethnic origin, political beliefs, marital

status, handicapping condition, sexual

orientation, or social and family background

and shall make reasonable effort to assure

that each student is protected from

harassment or discrimination.

(h) Shall not exploit a relationship with a

student f or personal gain or advantage.

(i) Shall keep in confidence personally

identifiable information obtained in the

course of professional service, unless

disclosure serves professional p urposes or

is required by law.

(4) Obligation to the public requires that

the individual:

(a) Shall take reasonable precautions to

distinguish between personal views and thos e

of any educational institution or

organization with which the individual is

affiliated.

(b) Shall not intentionally distort or

misrepresent facts concerning an educational

matter in direct or indirect public

expression.

(c) Shall not use institutiona l privileges

f or personal gain or advantage.

(d) Shall accept no gratuity, gift, or

favor that might in fluence professional

judgment.

(e) Shall offer no gratuity, gift, or favor

to obtain special advantages.

(5) Obligation to the profession of

educat ion requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

(b) Shall not on the basis of race, color,

religion, sex, age, national or ethnic

origin, political beliefs, marital status,

handicapping condition if otherwise

qualified, or social and family background

deny to a colleague professional benefits or

advantages or participation in any

professional organization.

(c) Shall not interfere with a colleague's

exercise of political or civi l rights and

responsibilities.

(d) Shall not engage in harassment or

discriminatory conduct which unreasonably

interferes with an individual's performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusi ve, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

(e) Shall not make malicious or

intentionally false statements about a

colleague.

(f ) Shall not use coercive means or promise

special treatment to influence profess ional

judgments of colleagues.

(g) Shall not misrepresent one's ow n

professional qualifications.

(h) Shall not submit fraudulent information

on any document in connection with

pr ofessional activities.

(i) Shall not make any fraudulent statement

or fail to disclose a material fact in one's

own or another's applicatio n for a

professional position.

(j) Shall not withhold information

regarding a position from an applicant o r

misrepresent an assignmen t or conditions of

employment.

(k) Shall provide upon the request of the

certificated individual a written statement

of specific reason for recommendations that

lead to the denial of increments,

significant changes in employmen t, or

term ination of employment.

(l) Shall not assist entry into or

continuance in the profession of any person

known to be unqualified in accordance with

these Principles of Professional Conduct for

the Education Profession in Florida and

other applicab le Florida Statutes and S tate

Board of Education Rules.

(m) Shall self - report within forty - eight

(48) hours to appropriate authorities (as

determined by district) any arrests/charges

involving the abuse of a child or the sale

and/or possession of a contr olled substance.

Such notice shall not be considered an

admission of guilt nor shall such notice be

admissible for any purpose in any

proceeding, civil or criminal,

administrative or judicial, investigatory or

adjudicatory. In addition, shall self -

report any conviction, finding of guilt,

withholding of adjudication, commitment to a

pretrial diversion program, or entering of a

plea of guilty or Nolo Contend [e] re for any

criminal offense other than a minor traffic

violation within forty - eight (48) hours

aft er the final judgment. When handling

sealed and expunged records disclosed under

this rule, school districts shall comply

with the confidentiality provisions of

Sections 943.0585(4)(c) and 94 3.059(4)(c),

Florida Statutes.

(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 Sectio n

231.28(1), Florida Statutes.

(o) Shall seek no reprisal against any

individual who has reported any allegation

of a violat ion of the Florida School Code or

State Board of Education Rules as defined in

Sectio n 231.28(1), Florida Statutes.

(p) Shall comply with the conditions of an

order of the Education Practices Commission

imposing probation, imposing a fine, or

restricting the authorized scope of

practice.

(q) Shall, as the supervising

administrator, cooperate with the Education

Practices Commission in monitoring the

probation of a subordinate. [ 8 ]

29. As was stated in Miami - Dade Cnty. Sch. Bd. v. Brenes ,

Case No. 06 - 1758, 2007 Fla. Div. Adm. Hear. LEXIS 122 n. 12

* *42 - 43 (Fla. DOAH Feb. 27, 2007; Miami - Dade Cnty. Sch. Bd. Apr.

25, 2007):

Rule [ 6B - 4.009(3) ] plainly requires that a

violation of both the Ethics Code and the

Principles of Professional Educat ion be

shown, not merely a violation of one or the

other. The precepts set forth in the Ethics

Code, however, are so general and so

obviously aspirational as to be of little

practical use in defining normative

behavior. It is one thing to say, for

exampl e, that teachers must "strive for

professional growth." See Fla. Admin. Code

R. 6B - 1.001(2). It is quite another to

define the behavior which constitutes such

striving in a way that puts teachers on

notice concerning what conduct is forbidden.

The Princ iples of Professional Conduct

accomplish the latter goal, enumerating

specific "dos" and "don'ts." Thus, it is

concluded that that while any violation of

one of the Principles would also be a

violation of the Code of Ethics, the

converse is not true. Put another way, in

order to punish a teacher for misconduct in

office, it is necessary but not sufficient

that a violation of a broad ideal

articulated in the Ethics Code be proved,

whereas it is both necessary and sufficient

that a violation of a specific r ule in the

Principles of Professional Conduct be

proved. It is the necessary and sufficient

cond ition to which the text refers.

30. Both "i mmorality" and "m isconduct in office " may be

established in the absence of " specific " or " independent "

evidence of impairment, but only where the conduct engaged in by

the teacher is of such a nature that it " speaks for itself " in

terms of its seriousness and its adverse impact on the teacher ' s

service and effectiveness. In such cases, proof that the

teac her engaged in the conduct is also proof of impaired

effectiveness. See Purvis v. Marion C nty . Sch. B d . , 766 So. 2d

492, 498 (Fla. 5th DCA 2000); Walker v. Highlands C nty . Sch.

B d . , 752 So. 2d 127, 128 - 29 (Fla. 2d DCA 2000); and Summers v.

Sch . B d . of Mar ion C nty . , 666 So. 2d 1 75, 175 - 76 (Fla. 5th DCA

1995).

31. "[U]nder Florida law, a [district] school board's

decision to [suspend or] terminate an employee is one affecting

the employee's substantial interests; therefore, the employee is

entitled to a for mal hearing under section 120.57(1) if material

issues of fact are in dispute. " 9 McIntyre v. Seminole C nty . Sch .

B d. , 779 So. 2d 639, 641 (Fla. 5th DCA 2001).

32. Pursuant to s ection 1012.33(6)(a), the hearing may be

conducted , "at the district school board's election," either by

the district school board itself or by a DOAH administrative law

judge (who, following the hearing, makes a recommendation to the

district school board).

33. The teacher must be given written notice of the

specific charges p rior to the hearing. Although the notice

" need not be set forth with the technical nicety or formal

exactness required of pleadings in court, " it should " specify

the [statute,] rule, [regulation, or policy] the [district

school board] alleges has been vio lated and the conduct which

occasioned [said] violation. " Jacker v. Sch. B d . of Dade C nty . ,

426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J.,

concurring). The teacher may be suspended , without pay , pending

the outcome of the proceeding; "but, if th e charges are not

sustained, the employee shall be immediately reinstated [ unless,

in the case of a proposed suspension, the employee has already

served the full period of the proposed suspension and returned

to work ] , and his or her back salary shall be p aid."

§ 1012.33(6)(a).

34. At the hearing, the burden is on the district school

board to prove the allegations contained in the notice. T he

district school board's proof need only meet the preponderance

of the evidence standard. See Cisneros v. Sch. B d . of Miami -

Dade C nty . , 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008)("As the ALJ

properly found, the School Board had the burden of proving the

allegations of moral turpitude by a preponderance of the

evidence."); McNeil l v. Pinellas Cnty. Sch. B d . , 678 So. 2d 476,

477 (Fla. 2d DCA 1996)("The School Board bears the burden of

proving, by a preponderance of the evidence, each element of the

charged offense which may warrant dismissal."); Sublett v.

Sumter C nty . Sch. B d . , 664 So. 2d 1178, 1179 (Fla. 5th DCA

1995)( "We agree with the hearing officer that for the School

Board to demonstrate just cause for termination, it must prove

by a preponderance of the evidence, as required by law, that the

allegations of sexual misconduct were true . . . ."); Allen v.

Sch. B d . o f Dade C nty . , 571 So. 2d 568, 569 (Fla. 3d DCA

1990)("We . . . find that the hearing officer and the School

Board correctly determined that the appropriate standard of

proof in dismissal proceedings was a preponderance of the

evidence. . . . The instant c ase does not involve the loss of a

license and, therefore, Allen's losses are adequately protected

by the preponderance of the evidence standard."); and Dileo v.

Sch. B d . of Dade C nty . , 569 So. 2d 883, 884 (Fla. 3d DCA

1990)("We disagree that the required quantum of proof in a

teacher dismissal case is clear and convincing evidence, and

hold that the record contains competent and substantial evidence

to support both charges by a preponderance of the evidence

standard."). This burden "is not satisfied by pr oof creating an

equipoise, but it does not require proof beyond a reasonable

doubt." Dep' t of H RS v. Career Serv. Comm' n , 289 So. 2d 412,

415 (Fla. 4th DCA 1974).

35. In determining whether the district school board has

met its burden of proof, it is n ecessary to evaluate it s

evidentiary presentation in light of the specific allegation(s)

made in the written notice of charges. Due process prohibits a

district school board from disciplining a teacher based on

matters not specifically alleged in the notice of charges . See

Pilla v. Sch . B d . of Dade Cnty . , 655 So. 2d 1312, 1314 (Fla. 3d

DCA 1995 ); and Texton v. Hancock , 359 So. 2d 895, 897 n.2 (Fla.

1st DCA 1978) ; see also Sternberg v. Dep't of Prof' l Reg . , 465

So. 2d 1324, 1325 (Fla. 1st DCA 1985) (" Fo r the hearing officer

and the Board to have then found Dr. Sternberg guilty of an

offense with which he was not charged was to deny him due

process. ").

36. In the instant case, t he written notice of charges

( namely , the Administrative Complaint) alleges that "just cause"

exists to suspend Respondent from his teaching position for five

days , withou t pay , for "misconduct in office " and "immorality"

based on hi s having violated the Piper Collection of Money

Policy in connection with his collecting an d handling of money

from students for "the purchase of [a] magazine subscription"

(as alleged in paragraphs 7 and 8 of the Administrative

Complaint) ; and based on his having failed to either "provide[]

to his students the magazines for which they had paid" or to

"return the collected moneys to said students" (as alleged in

paragraph 10 of the Administrative Complaint ) . At hearing, t he

School Board proved by a preponderance of the evidence that

Respondent violated the Piper Collection of Money Policy in the

manner described in paragraphs 7 and 8 of the Adminis trative

Complaint; however, its evidentiary presentation fell short of

proving by that same quantum of evidence the more serious

allegation made in paragraph 10 of the Administrative Complaint.

Indeed, the record evidence affirmatively establishes that

Respondent did "provide[] to his students the ma gazines for

which they had paid " and did not misappropriate the money he had

collected from them.

37. Establishing that Respondent violated the Piper

Colle ction of Money Policy in the manner described in paragraphs

7 and 8 of the Administrative Complaint was necessary , but not

sufficient, by itself, to meet the School Board's burden of

proof in this case. See , e.g. , Miami - Dade Cnty. Sch. Bd. v.

Myers , Case No. 08 - 4126 , 2009 Fla. Div. Adm. Hear. LEXIS 312

*10 - 11 (Fla. DOAH Mar. 5, 2009; Miami - Dade Cnty. Sch. Bd . Apr.

30, 2009)( " Violations of [school or] School Board rules do not,

of themselves, [necessarily] constitute just cause to disc ipline

an employee pursuant to [s] ection 1012.33(1)(a) and (6)(a) ." )

To establish the existence of the "just cause" for suspension

alleged in the Administrative Complaint, it was incumbent upon

the School Board to prove , not only that Respondent committed

this violation of school policy , but also that, in s o doing , he

engaged in "misconduc t in office" and/or "immorality, " as those

terms are used in section 1012.33 and defined in Florida

Administrative Code Rule 6B - 4.009 .

38. The School Board failed to make such a showing . It

cannot be said that Respondent's f ail ure to follow the

technical, procedural requirements of the Piper Collection of

Money Policy (as alleged in paragraphs 7 and 8 of the

Administrative Complaint) was conduct " inconsistent with the

standards of public conscience and good morals " and of such

notoriety as to "bring [Respondent] or the education profession

into public disgrace or disrespect " ; that it violate d any of the

Principles of Professional Conduct for the Education Profession

in Florida set forth i n Florida Administrative Code Rule 6B -

1.006 ; or that it cause d any impairment in Respondent's

effectiveness in the school system or the community. No

finding, therefore, can be made that this violation of school

policy committed by Respondent amounted to either "misconduct in

office" or "immorality."

39. In view of the foregoing, the School Board has failed

to sustain its c harges against Respondent.

40. A ccordingly, these charges must be dismissed, and

Respondent must be awarded any "back salary" he is due pursuant

to section 1012.33(6)(a).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Broward County School Board issue a

final order finding that the charges against Respondent have not

b een sustained , dismissing these charges, and awarding

Respondent any "back salary" he may be owed.

DONE AND ENTERED this 2 6 th day of July, 2011 , in

Tallahassee, Leon County, Florida.

S

___________________________________

STUART M. LERNER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 6 th day of July, 2011 .

ENDNOTES

1 Unless otherwise noted, all references in this Recommended

Order to Florida Statutes are to Florida Statute s (2010).

2 The hearing was originally scheduled for October 22, 2010, but

was continued several times before it was held on May 10, 2011.

3 There was also a School Board policy in effect which addressed

the "Collection of Monies" (School Board Policy 6301), but

neither it, nor any other School Board or Piper policy, aside

from the Piper Collection of Money Policy, is referenced in the

Admini strative Complaint.

4 There is no Florida Administrative Code Rule 6B - 1.006( 2 )(h),

but there is a Florida Administrative Code Rule 6B - 1.006( 3 )(h),

which provides as follows:

Obligation to the student requires that the

individual:

Shall not exploit a relationship with a

student for personal gain or advantage.

5 Pursuant to section 1012.01(2), the term "instructional

personnel," as used in section 1012.33, includes "classroom

teachers."

6 "Immorality" was added to the "non - exclusive list of sins" in

section 1012.33(1)(a) by section 28 of chapter 2008 - 108, Laws of

Florida, effective July 1, 2008.

7 Florida Administrative Code Rule 6B - 4.009 "define[s]" the

"basis for charges upon which dismissal action against

instructional personnel may be pursued."

8 The Administrative Complaint does not specify which of these

"principles" Respondent allegedly breached. In its Proposed

Recommended Order, however, the School Board identifies the

"principles" set forth in subsections (3)(a) and (h) and (4) (a)

and (c) of the rule as those which it contends Respondent

violated.

9 "A county school board is a state agency falling within

[c]hapter 120 for purposes of quasi - judicial administrative

orders." Sublett v. Dist. Sch. Bd. of Sumter Cnty. , 617 So. 2d

374, 377 (Fla. 5th DCA 1993); see also Sch. Bd. of Palm Beach

Cnty. v. Survivors Charter Sch., Inc. , 3 So. 3d 1220, 1231 (Fla.

2009)(" No one disputes that a school board is an 'agency' as

that term is defined in the APA."); Volusia Cnty. Sch. Bd. v.

Volus ia Homes Builders Ass'n , 946 So. 2d 1084, 1089 (Fla. 5th

DCA 2006)("[T] he School Board is an agency subject to the

Administrative Procedure Act."); and Witgenstein v. Sch. Bd. of

Leon Cnty. , 347 So. 2d 1069, 1071 (Fla. 1st DCA 1977) ("It was

obviously the l egislative intent to include local school

districts within the operation of [c]hapter 120.").

COPIES FURNISHED:

Mark A Emanuele, Esquire

Panza, Maurer and Maynard, P.A.

Bank of America Building, Third Floor

3600 North Federal Highway

Fort Lauderdale, Florida 33308

Jeffrey S. Sirmons, Esquire

Johnson and Sirmons

510 Vonderburg Drive, Suite 30 9

Brandon, Florida 33511

Donnie Carter , Interim Superintendent

Broward County School Board

600 Southeast Third Ave

Fort Lauderdale, Florida 33301

Gerard Robinson , Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper , Interim Genera l Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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.