10-010087TTS Manatee County School Board vs. Charles E. Willis Status: Closed Recommended Order on Thursday, March 31, 2011.

Summary: The evidence failed to establish that termination was warranted for teacher's Facebook posts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 10 - 10087

)

CHARLES E. WILLIS , )

)

Respondent . )

)

RECOMMENDED ORDER

On January 18 and 19, 2011, a formal administrative hearing

was conducted by video tele conference in Tallahassee and

Sarasota, Florida, before William F. Quattlebaum, Administrative

Law Judge, Divisi on of Administrative Hearings.

APPEARANCES

For Petitioner: Scott A. Martin, Esquire

Manatee County School Board

215 Manatee Avenue West, Second Floor

Bradenton, Florida 34205

For Respondent: Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

The issue in this case is whether the Manatee County School

Board (Petitioner) has just cause to terminate the employment of

Charles Willis (Respondent).

PRELIMINARY STATEMENT

By an Administrative C omplaint dated October 7, 2010, the

Petitioner alleged that during 2010, the Respondent maintained

accounts on Facebook and Formspring, wherein he posted comments,

allegedly inappropriate and unprofessional, which were

accessible to the public, including s tudents. The Petitioner

further alleged that the Respondent was verbally inappropriate

in class , that he used school property without authorization for

the purpose of organizing a private trip to New York in which

some students participated, that he provi ded students with

passes from class without complying with school policy, and that

he left the Braden River High School ( BRHS ) campus during the

school day without complying with school procedures. The

Administrative Complaint included additional allegati ons,

unrelated to those set forth herein, that were dismissed by the

Petitioner prior t o the hearing.

The Respondent denied the allegations and requested a

formal administrative hearing. The Petitioner forwarded the

dispute to the Division of Administrati ve Hearings , which

scheduled and conducted the proceeding.

At the hearing, the Petitioner presented the testimony of

11 witnesses and had Exhibits 1 through 10 admitted into

evidence. The Respondent testified on his own behalf, presented

the testimony of 14 witnesses, and had Exhibits 1 through 24

admitted into evidence.

A three - volume T ranscript of the hearing was filed on

February 3, 2011 . Both parties filed Proposed Recommended

Orders that have been considered in the preparat ion of this

Recommended Or der.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

a drama teacher employed by the Petitioner to work at BRHS

pursuant to a professional services c ontract.

2. During 2010, the Respondent had an account on Facebook,

a socia l networking internet website.

3. Facebook allows an individual user to create and

maintain a personal "page" including text and photographs, which

can be viewed by other users. Users can also provide links to

content posted elsewhere on the internet , and viewers can access

the linked information.

4. Facebook allows users to establish privacy settings

that restrict access to various types of content. Such privacy

options include the identification of other Facebook users as

"friends." Privacy settings ca n be established that prevent

users from posting comments to content posted by a user, or from

viewing c omments posted by other users.

5. Social networking websites are used by some teachers to

communicate classroom assignments or other educational

infor mation to students. Social networking websites are widely

used by students and, at least based on the testimony presented

at the hearing, by par ents and other adults as well.

6. Prior to the allegations underlying this dispute, the

Respondent's privacy s ettings permitted his Facebook "friends"

to view all con tent posted by the Respondent.

7. The Respondent had in excess of 100 BRHS students

identified as fr iends on his Facebook account.

8. At all times material to this case, the Petitioner had

no policy , written or otherwise, that restricted an employee

from having an account on a social networking website, or

regulated the use of any social netw orking website by an

employee.

9. At various times during 2010, the Respondent posted

remarks on his Facebook page that included certain acronyms.

Such acronyms, and their commonly understood meaning, included

the following:

WTF (What the Fuck)

OMFG (Oh My Fucking God)

F'n (Fucking)

LMAO (Laughing My Ass Off)

ROTFLMFAO (Rolling On The Floor Laughing My

Fucking Ass Off)

10. At the hearing, the Respondent asserted that he

intended the "F" in the above acronyms t o be understood as

"fricking."

11. There was no credible evidence that any student or

parent who read the Respondent's Facebook remarks understo od the

"F" to mean anything other than "fucking."

12. On his Facebook page dated July 31, 2010, the

Respondent posted a remark that stated "[I]t's not who you know,

it's who you blow , " in an apparently derogatory reference to the

jud ging of a student comp etition.

13. On his Facebook page dated March 30, 2010, the

Respondent posted a photograph of a bumper sticker that read

"[F]uck the man, become the man" that was taken by a student on

a trip to New York. The Respondent explained his posting of the

photo by claiming that the people on the trip had agreed that

all photos taken on the trip would be posted without censorship

and that he had posted several hund red trip photos onto

Facebook.

14. On his Facebook page dated August 7, 2010, the

Respondent posted a photograph (titled "Accidental Porn") that

he obtained from another Facebook user's page. The photograph

displayed a television weatherman standing in fro nt of a map

showing an elongated weather system. Based on the location of

the weatherman and the weather system, the image was perceived

by some viewers as depicting the broadcaster holding his penis

in a sexually - suggestive position. Comments on the Respondent's

Facebook page made it apparent that his viewers we re aware of

the perception.

15. On hi s Facebook page dated August 20, 2010, the

Respondent posted a link to content titled "[I]t's a great day

to whoop somebody's ass."

16. On his Facebook page dated June 26, 2010, the

Respondent, apparently intoxicated, posted remarks indicating

that he'd c onsumed excessive alcohol one evening and then posted

remarks on the next day indicating that he had a headac he

related to the consumption.

17. Although the Respondent asserted that some of the

posts referenced herein occurred during summer months when he

was not "on contract" as a teacher, his students, past and

future, were able to freely access the Respondent's Fac ebook

pages during the summer.

18. The Respondent also had an account on Formspring,

another social networking internet website. Formspring presents

user content in a "questions and answer" format.

19. In an undated post to the Respondent's Formspring

page, a student commented "[T]hanks for letting me skip your

class today." The Respondent wrote in response, "[Y]ou're

welcome, but now you owe me ... . LOL ... . just do an am azing job at

the encore show."

20. The Respondent acknowledged that he allowed the

student to miss his class i n order to attend a rehearsal.

21. While the Respondent may have failed to comply with

school attendance policy by permitting the student to miss

class, the Petitioner's assertion that the posting created the

impression of an inappropriate arrangement between a teacher and

a student was not s upported by credible evidence.

22. In another undated post to the Respondent's Formspring

page, an unidentified Formspring user asked "what h appened with

the whole UP dvd thing , " apparently in reference to an incident

wherein the Respondent played a movie in class. The Respondent

replied, "I got areprimand [s ic ] for showing an unauthorized

video and not following the counties [ sic ] video polic y."

23. The Petitioner's assertion that the Respondent's

response was an inappropriate discussion of an employer/employee

disciplinary matter with a student was not supported by credible

evidence. The reprimand was public record. The identity of the

p erson posting the question was unknown.

24. Upon the initiation of this disciplinary action, the

Respondent altered his privacy settings on the social networking

sites to limit access of personal content to adults.

25. There was no evidence that social n etworking internet

websites cannot be used for appropriate educational purposes.

26. On more than a few occasions, the Respondent was known

in the classroom to use "spoonerisms" in speech, wherein letters

in various words were deliberately switched to alt er a

verbalization of a phrase. While in class and in the presence

of students, the Respondent used phrases such as "nucking futs"

or "doggammit." The school received a complaint about the

practice. On one occasion in the classroom, the Respondent

refer red to his former wife as a "bitch." On at least one

occasion, the Respondent used a hand gesture in the presence of

students to signify the word "bullshit." On April 30, 2010, the

BRHS p rincipal directed the Respondent to refrain from making

such statem ents and gestures. There was no credible evidence

that the Respondent continued to engage in such verbal or

physical communication after the April 30 , 2010, directive.

27. At the start of the 2009 - 2010 school year, the

Respondent approached the BRHS p rin cipal to inquire about

organizing a theatre trip to New York for some of his drama

students. The p rincipal declined to authorize the travel as a

school - sponsored event. The Respondent thereafter organized the

trip on a private basis. Eight students expr essed interest in

going on the trip, and the trip ultimately occurred with a

number of parent s traveling as chaperones.

28. At times , the Respondent discussed the proposed trip

in his classes. The announcement of an organizational meeting

occurred during class. The meeting was conducted on the school

grounds at a time and place where play rehearsals were

occurring, which had been previously arranged by the Respondent.

29. There was no evidence that the Respondent mislead any

participant to incorrectly presume that the trip was sponsored

by the school. The participants in the trip were aware that the

travel was not a school - sponsored event. There was no credible

evidence that any participant or parent believed that the trip

was a school - sanctioned eve nt.

30. The Respondent failed to comply with the school

procedure for private use of the facility, which requires

application and approval by school administration. Although

execution of a facility lease may be required for larger groups,

there was no evidence that such a lease would have been required

for this meeting.

31. There was no evidence that there was any adverse

consequence to the Respondent's failure to seek permission to

hold the organizational meeting in the previously - approved play

rehearsal space. The time and location of the organizational

meeting was not unreasonable, given the nature of the trip and

the expected participants.

32. Teachers who need to leave BRHS grounds during the

workday are directed to obtain permission from a school

administrator and then document the early departure in a log

book ma intained in the school office.

33. The school administrators are the p rincipal and the

a ssistant p rincipals, who are identified as such during formal

meetings at the beginning of the school year.

34. On September 2, 2 0 1 0, the Respondent needed to go home

on his lunch break and switch cars with his wif e.

35. The Respondent testified that he could not locate an

administrator and that he thereafter went to the off ice of Bob

McCabe, the BHRS "administrative parent liaison" and advised

Mr. McCabe that the Respondent was leaving campus early.

36. Mr. McCabe is not a school administrator and has no

authority to approve a request to leave school grounds.

Mr. McCabe w orks with parents and on student disciplinary

matters.

37. Mr. McCabe told the Respondent that he would tell the

administrators, and the Respondent left the school. Mr. McCabe

testified that shortly after the Respondent left, an assistant

principal inq uired as to whether the Re spondent had left the

grounds.

38. Mr. McCabe also testified that the assistant principal

had told him that she was present in her office at the time the

Respondent claimed to be unable to find her, but the hearsay

testimony w as not otherwise corroborated.

39. The evidence establishes that, had the Respondent

requested to leave campus, the request would have most likely

been granted, as such authorization, absent use of leave, was

routinely granted by school administrators.

40. There was no credible evidence that other teachers who

have left school grounds without prior administrative approval

have been subjected to discipline for the infraction.

41. The Petitioner presented the expert testimony of Terry

Osborn, d ean of the Univ ersity of South Florida College of

Education, Sarasota - Manatee campus, who opined that some of the

Respondent's social networking interactions could have had

negative effects on the learning environment, could cause

anxiety for some students, and potential ly result in a loss of

credibility by the educator. Mr. Osborne essentially based his

opinion on very limited literature. There was no credible

evidence that any of the adverse impacts identified by the

witness ha s occurred.

CONCLUSIONS OF LAW

42. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

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

43. The Petitioner has the burden of proving by a

preponderance of the evidence the allegations set forth in the

Administrative Complaint underlying the proposed termination of

the Respondent's employment. McNeill v. Pinellas Cnty . Sch .

Bd . , 678 So. 2d 476 (F la. 2d DCA 1996); Dileo v. Sch . B d. of

Dade Cnty . , 569 So. 2d 883 (Fla. 3d DCA 1990). In this case,

the evidence failed to establish that the Respondent's

employment should be terminated based on the allegations set

forth in the Administrative Complaint.

44. Manatee County School Board Policy 6.11(12)(c) states

as follows:

Any employee of the School Board may be

terminated from employment for just cause,

including, but not limited to, immorality,

misconduct in office, gross insubordination,

willful neglec t of duty, drunkenness, or

conviction of any crime involving moral

turpitude, violation of the Policies and

Procedures Manual of the School District of

Manatee County, violation of any applicable

Florida statute, violation of the Code of

Ethics and the Pri nciples of Professional

Conduct of the Education Profession in

Florida.

45. The Administrative Complaint filed in this case

alleged that the Respondent committed misconduct in office and

gross insubordination sufficient to warrant termination.

46. Flo rida Administrative Code Rule 6B - 4.009 sets forth

the following applicable definitions:

The basis for charges upon which dismissal

action against instructional personnel may

be pursued are set forth in Section 231.36,

Florida Statutes. The basis for each of

such charges is hereby defined:

* * *

(3) 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., w hich is so serious as to

impair the individualÓs effectiveness in the

school system.

47. The Administrative Complaint alleged that the

Respondent violated the following provisions of the Code of

Ethics of the Education Profession as set forth at Florida

Administrative Code Rule 6B - 1.001:

6B - 1.001 Code of Ethics of the Education

Profession in Florida.

* * *

(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 integri ty.

(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.

48. The e vidence established that the Respondent failed to

exercise the best professional judgment in his use of social

networking internet websites. The evidence failed to establish

that the violation of the Code of Ethics was so serious as to

impair the Responde nt's effectiveness in the school system.

49. Students were permitted to view material that some

persons regarded as unsuitable. Although there was testimony

from persons who felt that the Respondent's use of the sites was

inappropriate, others testifie d that students commonly used the

same a cronyms as did the Respondent.

50. A number of educational employees, including the

Respondent, use the sites for educational purposes. At the time

of the hearing, the Petitioner had no policy related to the u se

of such sites by employees.

51. The evidence failed to establish that the Respondent

was made aware of any problem with his use of social networking

sites until the initiation of this disciplinary action. The

evidence established that , when the Respondent became aware of

the issue, he altered the privacy settings to limit student

acces s to the content on his pages.

52. The Administrative Complaint alleged that the

Respondent violated the following provision of the Principles of

Professional Conduct for the Education Profession in Florida as

set forth at Florida Administrative Code Rule 6B - 1.006:

6B - 1.006 Principles of Professional Conduct

for the Education Profession in Florida.

(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 studentÓs mental and/

or physical health and/or safety.

53. The evidence was insufficient to establish that the

Respondent engaged in any actions harmful to learn ing, or to the

he alth or safety of any student.

54. The Petitioner asserted that the Respondent committed

gross insubordination. Rule 6B - 4.009 sets forth the following

applicable definitions:

The basis for charges upon which dismissal

action against instructional personnel may

be pursued are set forth in Section 231.36,

Florida Statutes. The basis for each of

such charges is hereby defined:

* * *

(4) Gross insubordination or willfu l

neglect of duties is defined as a constant

or continuing intentional refusal to obey a

direct order, reasonable in nature, and

given by and with proper authority.

55. The evidence failed to establish that the Respondent

intentionally refused to obey any direct order in this case.

56. The Petitioner asserted that on September 2, 2010, the

Respondent was absent without leave from school grounds.

57. Section 1012.67, Florida Statutes (2010) , provides as

follows:

Absence without leave. -- Any district sc hool

board employee who is willfully absent from

duty without leave shall forfeit

compensation for the time of such absence,

and his or her employment shall be subject

to termination by the district school board.

58. Manatee County School Board Policy 6 .2(2)(a) provides

the following definition:

An employee is determined to be on

unauthorized leave at any time when the

employee is absent from performance of

required duties without giving notice and

without having made provisions for

appropriate leave as defined in these

procedures.

59. The evidence established that , on one occasion, the

Respondent left school grounds during the lunch hour without

obtaining approval from a school administrator. The evidence

established that, had the Respondent located a n administrator

and requested permission to leave the school grounds, he would

in all likelihood have received permission.

60. There was no evidence that the Respondent has abused

leave privileges. There was no evidence that the Respondent was

actually absent from the performance of his duties on

September 2, 2010. There was no evidence that termination of

employment would be an appropriate penalty for a single

violation of the s chool's leave approval policy.

61. The Administrative Complaint alleged t hat , on

September 22, 2010, the Respondent was arrested and charged with

a violation of s ection 827.03(1)(b), Florida Statutes (2009) .

The Administrative Complaint specifically stated that the

Respondent's "actions violated Section 827.03(1)(b), Florida

Statutes (2009)." The referenced statute provides as follows:

827.03 Abuse, aggravated abuse, and neglect

of a child; penalties. --

(1) ÐChild abuseÑ m eans:

* * *

(b) An intentional act that could

reasonably be expected to result in physical

or mental injury to a child . . .

A person who knowingly or willfully abuses a

child without causing great bodily harm,

permanent disability, or permanent

disfigurement to the child commits a felony

of the third degree, punishable as provided

in s. 775.082, s. 775.083, or s. 775.084.

62. The charges were referenced in the Petitioner's

investigative report that formed the basis for the disciplinar y

decision underlying this proceeding. Prior to the hearing, the

Petitioner dismissed the alleg ations related to the charges.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Manatee County School Board enter

a f inal o rder, dismissing the Administrative Complaint filed

against Charles E. Willis .

DONE AND ENTERED this 31st day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 H earings

this 31st day of March , 2011 .

COPIES FURNISHED :

Scott A. Martin, Esquire

Manatee County School Board

215 Manatee Avenue West, Second Floor

Bradenton, Florida 34205

Melissa C. Mihok, Esquire

Kelly & McKee, P.A.

1718 East Seventh Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

Lois Tepper, Acting General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Eric J. Smith, Commissioner of Education

Departme nt of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Tim McGonegal, Superintendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 34206 - 9069

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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.