11-000638TTS Duval County School Board vs. Steven Makowski Status: Closed Recommended Order on Monday, November 21, 2011.

Summary: School speech therapist is guilty of immorality and misconduct in office. In addition to suspension, remedial training is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 11 - 0638TTS

)

STEVEN MAKOWSKI , )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to noti ce, a formal hearing was held in this case

on July 20 , 2011 , in Jacksonville , Florida, before Lawrence P.

Stevenson, the designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: D avid J. D'Agata , Esquire

Office of the General Counsel

117 West Duval Street, Suite 480

Jacksonville , Florida 3 2202

For Respondent: David A. Hertz , Esquire

Duval Teache rs United

1601 Atlantic Boulevard

Jacksonville , Florida 3 2207

STATEMENT OF THE ISSUE

The issue is whether Petitioner, the Duval County School

Board, may terminate Respondent's employment as an instructional

employee based upon the conduct alleged in the letter titled

"Notice of Termination of Employment Contract and Immediate

Suspension Without Pay" (the "Notice") from Superintendent of

Schools Ed Pratt - Dannals to Respondent dated January 28 , 2011 .

PRELIMINARY STATEM ENT

On or about January 28 , 2011 , Respondent Steven Makowski

received a copy of the Notice, which set forth the following

charge and factual allegations in support thereof:

CHARGE I : Violation of regulations relating

to the public school system, those

vio lations being:

Code of Ethics :

6B - 1.00 1 (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

highes t degree of ethical conduct.

Florida Statutes :

1012.795(1)(d) -- Has been guilty of

gross immorality or an act involving moral

turpitude as defined by rule of the State

Board of Education.

[ 1012.795 [ 1 / ] -- Upon investigation

has been found guilty of personal conduct

that seriously reduces that person's

effectiveness as an employee of the district

school board.

-- Has violated the

Principles of Professional Conduct for the

Education Profession prescribed by State

Board of Education rules.

Duval School Board Policy :

Policy 8.71 -- Acceptable Use Policy

SUMMARY OF NATURE AND SPECIFICATION OF

CHARGE :

From August 23, 2010, through August 31,

2010, the Duval County Public Schools' IT

Department received alerts on th e District

software filters that your District - issued

computer was being used to conduct

inappropriate website searches during work

hours on school property. The searches were

of a sexual nature including adult

pornography.

The Notice informed M r. Makows ki of his right to a formal

hearing to contest the factual allegations recited in the

Notice, and, should he invoke h is right to a formal hearing,

that the Duval County School Board (the "School Board") would

act to suspend h im from employment without pay as of February 2 ,

2011 , pursuant to s ection 1012.33, Florida Statutes. On

January 31 , 2011, Mr. Makowski timely invoked h is right to a

formal hearing via a n email from h is counsel to Vicki Reynolds,

the School Board's chief human resources officer .

On February 8, 2011 , the School Board referred the matter

to the Division of Administrative Hearings ("DOAH") for the

assignment of an Administrative Law Judge and t he conduct of a

formal hearing. Th e matter was scheduled for final hearing on

May 19, 2011. The case was continued once before the final

hearing was held on July 20, 2011 .

At the hearing, the School Board presented the testimony of

James Culbert, the School Board's information security manager;

John McCallum, an investigator in the School Boar d's

Professional Standards Office; Ms. Reynolds; and Mr. Makowski.

The School Board's Exhibits 1 through 14 were admitted into

evidence without objection . Respondent presented no direct

testimony on his o wn behalf and called no witnesses . Respondent

off ered no exhibits into evidence .

The one - volume Transcript of the hearing was filed at DOAH

on August 8, 2011 . Petitioner's motion to extend the time for

filing proposed recommended orders was granted on August 5,

2011. In compliance with the order granti ng extension,

Petitioner filed its P roposed R ecommended O rder on August 24,

2011. Respondent's P roposed R ecommended O rder was filed in

compliance with the order granting extension on August 25 , 2011.

FINDINGS OF FACT

1. Respondent Steven Makowski has b een employed by the

School Board as a speech therapist since September 2008 . He had

previously been employed by the School Board from 2002 until

January 2008, when he resigned to relocate to Broward County .

Mr. Makowski is a certified instructional emplo yee covered by

the Duval County Teacher Tenure Act, Chapter 21197, Laws of

Florida (1941), as amended ("Tenure Act") and the Collective

Bargaining Agreement ("CBA") between Duval Teachers United and

the School Board for 2009 - 201 2 . At the time of the event s at

issue in this proceeding, Mr. Makowski was an itinerant speech

therapist assigned to Ch affee Trail Elementary School and

Dinsmore Elementary School .

2. James Culbert is the information security manager for

the School Board. His department operates t he School Board's

I nternet content filter, which monitors the entire school

district's internet access according to the IP addresses of

individual users. The conte nt filter separates the internet

content into 180 separate content categories.

3. Every Mon day morning, the content filter generates a

report that Mr. Culbert scans for activity in violation of the

School Board's "Staff Network and Internet Acceptable Use and

Security Policy and Guidelines," commonly referred to as the

"Acceptable Use Policy." Pursuant to direction from the School

Board, Mr. Culbert looks for activity in three of the 180

content categories: pornographic materials; "R - rated" sexual

materials; and "obscene and tasteless" materials. 2 / Mr. Culbert

emphasized that he searches for a large number of hits on

forbidden sites, not merely a one - time hit that could be

accidental.

4. The report of Monday, August 30, 2010 , showed that

Mr. Makowski had used his employer - issued laptop computer to

access or attempt to access a large number of i nappropriate web

sites over the past week . This finding caused Mr. Culbert to

run a more detailed history of Mr. Makowski's internet use.

5. Mr. Culbert found that Mr. Makowski had conducted many

internet searches using terms such as "boners in public, "

"casual erection," "hard on," "male anal intercourse," and

"penis size," as well as searches for nude photos of various

celebrities. These searches led to the display of web sites

containing photos and videos ranging from fully clothed men on a

fashion runway, to shirtless male celebrities, to nude men

displaying erect penises or buttocks in full close - up. None of

the photos depicted sex acts or approached the legal definition

of obscenity, nor did they involve children. 3 /

6. After reviewing the histor y and satisfying himself that

Mr. Makowski's internet searches were not accidental,

Mr. Culbert contacted John McCallum, an investigator with the

School Board's Office of Professional Standards.

7 . On the morning of August 31, 2010, Mr. McCallum and

Mr. C ulbert drove to Dinsmore Elementary School to interview

Mr. Makowski about the internet filter report. Mr. Makowski was

at the school but was not yet conducting classes because he was

still setting the schedule for his speech therapy sessions with

Dinsmor e students.

8 . Upon arriving at the school, Mr. McCallum and

Mr. Culbert first met with Dinsmore principal Christina Gribben.

Mr. McCallum asked Ms. Gribben about Mr. Makowski's job

performance. Ms. Gribben made positive comments, particularly

regarding Mr. Makowski's initiative in performing his own duties

and in assisting other employees at the school. Mr. McCallum

explained to Ms. Gribben why he was there, but refrained from

giving her graphic details of the internet filter report.

9 . Mr. McCallum requested that Ms. Gribben accompany

Mr. Culbert to Mr. Makowski's classroom to quietly ask him down

to the principal's office for a meeting. At the hearing,

Mr. McCallum stressed that his concern is to avoid embarrassing

or humiliating the teacher in th ese situations by causing a

disruption in the hallway or creating a scene that resembles a

"perp walk."

10. Mr. Makowski came to the principal's office.

Ms. Gribben did not attend the meeting. After introductions

were made, Mr. Culbert asked Mr. Makowsk i about his I nternet

usage. He asked first about innocuous searches found on the

filter report, such as "Bank of America" and "Emmy a wards."

Mr. Makowski agreed that he had made those searches.

Mr. Culbert then began to question Mr. Makowski about his

i nappropriate searches.

11. Mr. Makowski denied knowing anything about the

inappropriate searches. He stated that he kept his user name

and password on a Post - it note in his computer case, and that

someone else must have used his laptop to make those sear ches.

12. Mr. McCallum explained that this could not be the case

because the searches to which Mr. Makowski had admitted were

intermingled with the inappropriate searches. It was very

unlikely that Mr. Makowski was looking at the Emmy awards site

one m inute, and the next minute someone else was looking at an

inappropriate site on the same laptop.

13. Mr. McCallum urged Mr. Makowski to be honest.

Mr. Makowski declined to say anything further and asked to speak

to his union representative. Mr. McCall um suggested that a

lawyer would be more help at that point than a union

representative. Mr. McCallum gave Mr. Makowski the name and

phone number of Duval Teachers United's general counsel . He

told Mr. Makowski that he and Mr. Culbert were not law

enforc ement officers and this was not a police investigation.

Mr. Makowski nonetheless declined to answer any further

questions. Mr. McCallum decided not to press the matter. The

meeting ended after about fifteen minutes.

14. Mr. Makowski surrendered his lap t op computer to

Mr. Cu lbert, who later used EnCase forensic software to create

an image of the laptop's hard drive and from that create a 41 -

page report containing a representative snapshot of the

inappropriate material found on Mr. Makowski's laptop. The

report covered the period from August 23 through August 30,

2010. In addition to the photos and videos 4 / described in

Finding of Fact 5 , supra , the report contained numerous pages

from Craigslist in which men in the Jacksonville area solicit ed

sex with o ther men. Many of the listings included nude photos,

presumably of the authors of the solicitations. The report also

contained recovered fragments of emails in which Mr. Makowski

appeared to be arranging meetings with other men for the express

purpose of engaging in sexual activity. None of the emails

appeared to have been sent during school hours.

15. On September 27, 2010, Mr. McCallum submitted his

investigative report to John Williams, who was then the director

of the Office of Professional Standard s. In his report,

Mr. McCallum concluded that Mr. Makowski had used his computer

to conduct inappropriate website searches of a sexual nature.

Mr. McCallum expressly noted that "none of these sites displayed

children nor were the search terms used relate d to children.

All of the sites were adult oriented." Mr. McCallum further

noted that the timeframe of the improper searches was confined

to the first ten days of the 2010 - 2011 school year, and that

Mr. Makowski had never before been detected by the Scho ol

Board's filtering software as engaging in inappropriate internet

searches.

16. Mr. McCallum's report concluded as follows:

On Monday, September 20, 2010 , after

Mr. Culbert concluded his report, the report

was reviewed by HR Chief Vicki Reynolds,

Direct or John Williams, Culbert and

McCallum. It was determined that his use of

the DCPS Network and Laptop computer was

inappropriate and a serious exercise of poor

judgment, a violation of DCPS Policy

regarding the Computer Acceptable Use Policy

as well as th e 2000 Federal Children's

Online Privacy Protection Act.

The Principals of both schools were

conta cted. Both Ms. Gribben and [Beverly

Walker , principal of Chaffee Trail

Elementary] agreed that students had not

been assigned to Makowski during the times

t hese sites were accessed. They both spoke

highly of his attitude; Ms. Walker cited him

for his helpful attitude and volunteering to

help during the morning student arrival

process. This reinforces the finding of

this investigation that elementary student s

were neither targeted in his searches nor

exposed to them in the school setting.

Based upon the foregoing, it was determined

that there was substantial evidence to

sustain the charges of the exercise of poor

judgment and inappropriate Web - Site Access

by accessing pornography and/or sexually

explicit material not appropriate for

students against Steven J. Makowski for his

role in this incident.

The Professional Standards Office sustains

the charges of the exercise of poor judgment

and inappropriate Web - S ite Access by

accessing pornography and/or sexually

explicit material not appropriate for

students.

Steven J. Makowski will receive Step III

Progressive Discipline from the Office of

Professional Standards as a result of these

charges.

17. "Step III Pro gressive Disc i pline" under the CBA is

suspension without pay. Despite the definitive nature of the

disciplinary statement in Mr. McCallum's report, the evidence

established that in a case involving suspension without pay or

termination of an employee, the Office of Professional Standards

make s only a recommendation to the School Board, which makes the

final decision. Mr. McCallum and Ms. Reynolds testified that

their recommendation to the School Board was that Mr. Makowski

should receive a ten - day suspens ion without pay.

18. Ms. Reynolds testified that she appeared at a School

Board workshop prior to the formal meeting at which the

recommendation would be considered. Ms. Reynolds stated that

each of the seven School Board members voiced objections to the

leniency of the recommendation. She characterized the members

as "reading me the riot act for not taking this more seriously."

After the workshop, Superintendant Ed Pratt - Dannals issued the

Notice that is at issue in this proceeding. 5 /

19. At the heari ng, Mr. McCallum testified that he had not

reviewed Mr. Culbert's full report at the time he recommended a

suspension for Mr. Makowski, hinting that h e might have

recommended termination had he fully reviewed the report.

Mr. McCallum conceded that the ful l report was available to him

and was in fact attached to his own investigative r eport. He

offered no explanation for his failure to review Mr. Culbert's

report in full prior to completing his own investigative

memorandum .

20. Ms. Reynolds testified that prior to making her

recommendation she had only seen excerpts of Mr. Culbert's

report selected by Mr. McCallum and Mr. Culbert to give her a

feel for the subject at hand. She testified that if she had

seen the entire report including the email fragments , she would

have recommended termination.

21. Ms. Reynolds believed that Mr. Makowski's behavior had

crossed the line into "gross immorality" because he was

performing inappropriate internet searches in a place where

there were small children. She believe d that if Mr. Makowski

had made these internet searches "on his own time in his own

home, this may not be gross immorality."

22. During a deposition that was admitted into evidence a t

the hearing, Mr. Makowski admitted that he lied during the

meeting with Mr. McCallum and Mr. Culbert when he denied having

made the inappropriate searches. He attributed his lack of

candor to "shock" at being suddenly confronted with evidence of

his own "bad judgment . "

23. Mr. McCallum , who had approximately 35 years'

exper ience as a police officer and detective prior to joining

the Office of Professional Standards in January 2009, testified

that it is "more the rule than the exception" for a person in

Mr. Makowski's position to initially deny any wrongdoing.

24. At the hea ring, Mr. Makowski conceded that he made the

I nternet searches in question, that the searches were made using

his School Board laptop computer, and that the searches were

made during regular working hours on days when Mr. Makowski was

present at one of the two schools to which he was assigned.

25. Mr. Makowski admitted that he has used Craigslist to

find men with whom to engage in sexual relations, but he

credibly denied having done so at work. There was no proof that

Mr. Makowski originated any of the Cr aig s list postings in

Mr. Culbert's report. Mr. Makowski was merely browsing these

very explicit solicitations, and conceded that he should not

have been doing so on school grounds during school hours with

equipment issued by the School Board.

26. At the hearing, the School Board was able to establish

the negative proposition that Mr. Makowski at times did not know

whether the men he was observing on YouTube and Craigslist were

under 18 years of age; however, the School Board did not

establish that Mr. Mak owski was seeking out images of minor

children. Mr. Makowski credibly denied any such intention.

27. No children were present when Mr. Makowski performed

these inappropriate searches, and no children saw anything

improper on Mr. Makowski's computer.

28. Ms. Reynolds testified that t he allegations against

Mr. Makowski resulted in an article in the local newspaper. The

article was not produced at the hearing. Therefore, it is not

possible to make findings as to its impact.

29. Ms. Reynolds testified t hat she was approached by one

mother who was concerned that Mr. Makowski was still at the

school attended by her son. Ms. Reynolds did not know whether

other parents had contacted the schools to which Mr. Makowski

was assigned.

30 . Mr. Makowski has not b een subject to discipline by the

School Board prior to this case.

31 . In a two - count Administrative Complaint dated May 11,

2011, the Education Practices Commission ("EPC") initiated a

disciplinary proceeding, Case No. 101 - 1344, against Mr. Makowski

based on the same events at issue in this case. On June 9,

2011, Mr. Makowski executed a settlement agreement with the EPC

in which he agreed to accept a letter of reprimand and a two -

year probation period during the first year of which he would

take a college level course in ethics. He neither admitted nor

denied the allegations of the Administrative Complaint. As of

the date of the hearing, the EPC had yet to ratify the

settlement agreement.

32 . The evidence established that Mr. Makowski used his

District - issued computer to conduct inappropriate website

searches during work hours on school property, and that these

searches were of a sexual nature.

33. However, the evidence also establ ished: that this is

Mr. Makowski's first offense of any kind; that he a ppeared to be

a valued employee at both schools to which he was assigned; that

h is inappropriate I nternet activity was confined to a single

ten - day period at the beginning of the 2010 - 2011 school year ;

that n o children were exposed in any way to the conten ts of

Mr. Makowski's internet searches ; that Mr. Makowski presents no

danger to the children placed in his care ; that i t is extremely

unlikely that Mr. Makowski will ever repeat the extremely bad

judgment he used in the events that led to this proceeding ; and

that, pursuant to the Notice, Mr. Makowski has been suspended

without pay since February 2, 2011 .

34 . In light of these considerations, it is recommended

that the School Board exercise its discretion to approve a

lesser penalty than the proposed ter mination , and impose a

suspension without pay covering the period from February 2 , 2011

through the date of the Final Order in this case .

CONCLUSIONS OF LAW

35 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matte r of this

proceeding pursuant to s ection 120.569 and s ubsections 120.57(1)

and 1012.33(6 )(a), Florida Statutes . 6 /

36 . The School Board has the burden to establish by a

preponderance of the evidence the grounds for disciplining

Mr. Makowski . See , e.g. , Mc Neill v. Pinellas Cnty . Sch . Bd . ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cnty .

Sch . Bd . , 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v.

Sch . Bd . of Dade Cnty . , 571 So. 2d 568, 569 (Fla. 3d DCA 1990);

Dileo v. Sch . Bd . of Dade Cnty . , 569 So. 2d 883, 884 (Fla. 3d

DCA 1990).

37 . Under the Tenure Act, Mr. Makowski is a tenured

teacher whose employment can be terminated only for "cause."

Section 4 of the Tenure Act provides that causes for the

discharge of a teacher include "immoral cha racter or conduct,

insubordination or physical or mental incapacity to perform the

duties of the employment" and "persistent violation of or

willful refusal to obey the laws of the State of Florida or

regulations adopted by authority of law, relating to th e public

schools or the public school system . "

38 . Mr. Makowski is an instructional employee as defined

by s ubsection 1012.01(2), Florida Statutes. The School Board

has the authority to suspend or terminate instructional

employees pursuant to s ubsection s 1012.22(1)(f) and

1012.33(6)(a), Florida Statutes .

39 . In the Notice, the School Board correctly stated that

Mr. Makowski's suspension without pay and his right to

subsequent hearing were pursuant to s ection 1012.33, Florida

Statutes. However, in the s ubstantive allegations, the School

Board charged Mr. Makowski with violations of s ection

1012.795(1)(d),(g), and (j), Florida Statutes. Section

1012.795(1) provides as follows, in relevant part:

(1) The Education Practices Commission may

suspend the edu cator certificate of any

person as defined in s ection 1012.01(2) or

(3) for up to 5 years, thereby denying that

person the right to teach or otherwise be

employed by a district school board or

public school in any capacity requiring

direct contact with st udents for that period

of time, after which the holder may return

to teaching as provided in subsection (4);

may revoke the educator certificate of any

person, thereby denying that person the

right to teach or otherwise be employed by a

district school boa rd or public school in

any capacity requiring direct contact with

students for up to 10 years, with

reinstatement subject to the provisions of

subsection (4); may revoke permanently the

educator certificate of any person thereby

denying that person the rig ht to teach or

otherwise be employed by a district school

board or public school in any capacity

requiring direct contact with students; may

suspend the educator certificate, upon an

order of the court or notice by the

Department of Revenue relating to the

payment of child support; or may impose any

other penalty provided by law, if the

person:

* * *

(d) Has been guilty of gross

immorality or an act involving moral

turpitude as defined by rule of the State

Board of Education.

* * *

(g) U pon investigation, has been

found guilty of personal conduct that

seriously reduces that person's

effectiveness as an employee of the district

school board.

* * *

(j) Has violated the Principles of

Professional Conduct for the Education

Professio n prescribed by State Board of

Education rules....

40 . By its terms, s ection 1012.795 authorizes the EPC to

take disciplinary action against an educator's certificate. It

confers no disciplinary authority to local school board s .

Therefore, the School B oard erroneously charged Mr. Makowski

with violations of s ection 1012.795, a statute that the School

Board is without authority to enforce. However, the School

Board's allegations are cognizable under s ection 1012.33,

Florida Statutes, as discussed below.

41 . The standard for termination of instructional

personnel is "just cause ," pursuant to s ubsection 1012.33(1)(a),

Florida Statutes. 7 / In the Notice, the School Board correctly

cited s ection 1012.33 as its authority for suspending

Mr. Makowski pending an administrative hearing, and as authority

for the hearing itself.

42 . Subsection 1012.33(1)(a), Florida Statutes, provides,

in pertinent part:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Ed u cation:

immorality, misconduct in office,

incompetency, two consecutive annual

performance evaluation ratings of

unsatisfactory under s ection 1012.34 , two

annual performance evaluation ratings of

unsatisfactory within a 3 - year period under

section 1012 .34 , three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under

s ection 1012.34 , gross insubordination,

willful neglect of duty, or being convicted

or found guilty of, or ente ring a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude.

43 . The School Board in this case has not cited a specific

aspect of the statutory "just cause" definition as the basis for

M r. Makowski 's termination. H owever, the facts alleged in the

Notice would, if proven, amount to "immorality" and/or

"misconduct in office" constituting just cause to terminate h is

e m ployment or impose some lesser penalty .

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

(2 ) 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

disre spect and imp air the individual' s

service in the community.

45 . Florida Administrative Code Rule 6B - 4.009(3) provides:

(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 P rinciples of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C., which is so seri ous as to

impair the individual' s effectiveness in the

school system.

46 . By the definition quoted above, "immorality" consists

of conduct "sufficiently notorious" to "impair the individual's

service in the community." " M isconduct in office" consists of a

violation " so serious as to impair the individual's

effectiveness in the school system. " Impairment may be

established by dir ect evidence or may be inferred from the

nature of the violation itself. Purvis v. Marion Cnty. Sch.

Bd. , 766 So. 2d 492, 498 (Fla. 5th DCA 2000).

47 . The evidence established that Mr. Makowski used his

District - issued computer to conduct inappropriate w ebsite

searches during work hours on school property, and that these

searches were of a sexual nature. The images introduced into

evidence at the hearing were highly inappropriate in a school

setting. None of them w as "obscene" under current legal

standa rds, 8 / but many could be termed pornographic. The very

nature of Mr. Makowski's actions -- searching for pornographic

images while he sat in the classroom of an elementar y school --

show such a failure of good judgment as to permit the inference

that his ef fectiveness in the school system and his service in

the community have been impaired.

4 8 . To magnify this point, counsel for the School Board

cites Miami - Dade Cty . Sch . Bd . v. Epstein , Case No. 03 - 4041

(DOAH May 26, 2004 ; Miami - Dade Sch. Bd. July 19, 20 04 ) as

authority for the proposition that downloading pornography to a

district - owned computer during work hours so impairs the

individual's effectiveness as to require his dismissal.

However, in Epstein , the teacher in question had been

downloading porno graphy (including explicit images of women

performing oral sex on men) on his school computer for a period

of seven months, had intentionally bypassed the school

district's internet filter to access pornographic web sites, had

stored the pornographic image s in folders on his computer, and

on fifteen to twenty occasions had masturbated in his classroom

during work hours. None of these factors w as present in

Mr. Makowski's case.

49 . Smith v. Weiss , Case No. 08 - 3476 (DOAH Nov . 14, 2008 ;

EPC Apr. 6, 2009 ), an EPC licensure case, is also

distinguishable. In Weiss , the teacher was using his school

computer to view pornographic websites when he knew that

students were likely to use his computer, and then attempted to

blame the students for accessing the pornogra phic websites.

Mr. Makowski took no actions that threatened to expose children

to the images on his computer. In the first flush of discovery,

he attempted to deny responsibility, but then owned up to his

actions.

50 . Counsel for the School Board also c ites Orange County

Sch . Bd . v. Deshay , Case No. 08 - 1596 (DOAH Dec . 19, 2008) as

authority that the mere downloading of pictures of "scantily

clad women" and "female modeling photos" supports dismissal. In

fact, the Administrative Law Judge in Deshay did n ot recommend

dismissal but the lesser penalty of upholding the suspension to

date and requiring training concerning professionalism and the

proper use of school property. Such a penalty would be

appropriate for Mr. Makowski.

51 . The School Board specific ally charged Mr. Makowski

with violating Florida Administrative Code Rule 6B - 1.001(3),

which provides:

Aware of the importance of maintaining th e

respect and confidence of one' s colleagues,

of students, of parents, and of other

members of the community, th e educator

strives to achieve and sustain the highest

degree of ethical conduct.

52 . While Mr. Makowski's actions met the definitions of

"immorality" and "misconduct in office," the undersigned does

not conclude that they were "unethical" in the sense of

affecting the professionalism with which Mr. Makowski approaches

the substance of his duties as a speech therapist and a School

Board employee. Both principals who worked with Mr. Makowski

spoke highly of him as an employee.

53 . Finally, there is no que stion that Mr. Makowski's

conduct violated the School Board's Acceptable Use Policy , which

provides in relevant part:

Electronic Communications

There are various forms of electronic

communications available on computer

networks, including the Internet. All

computers, networks, electronic mail and

voice mail are to be used for district

business and educational purposes.

* * *

Appropriateness of Materials

Access to the Internet provides

opportunities for staff and students to

explore thousands of r esources outside the

walls of their school or office. The

district acknowledges the fact that

inappropriate materials exist and will do

everything it can to actively avoid them,

including the use of filtering software.

The district has implemented techno logy

protection measures that filter Internet

access to block visual displays that are

obscene, pornographic or harmful to minors,

but this technology is not 100% effective.

No software can filter out all of the

materials that are unacceptable for academic

purposes and it should be clearly understood

by all staff and all students and their

parents/guardians that intentional access to

such material, in any form, is strictly

forbidden. The network is designed to

achieve and support the districtÓs business

an d instructional goals and any information

that does not support the goals is to be

avoided. The district wants staff and

students to use this valuable tool, but at

the same time cannot condone the use of

inappropriate information or unauthorized

access.

If a staff or student unintentionally

accesses such information while doing

legitimate research, he/she should contact

the teacher or the person responsible for

technology at his/her site for appropriate

action.

It is the responsibility of all users, staf f

and students to ensure that at all times

while in the Duval County Public Schools,

the computers, the network and the Internet

are being used primarily for educational or

district business purposes.

* * *

Appropriate Behavior

Staff members are res ponsible for

appropriate behavior on the district' s

computers, business systems, network and the

Internet and should adhere to all relevant

federal, state, and local laws; district

policies, guidelines, standards, procedures

and controls; and the Code of E thics and the

Principles of Professional Conduct of the

Education Profession in Florida. Users who

disregard the federal, state and local laws

and codes, district policies, guidelines,

standards, procedures and controls may have

their privileges suspended , revoked, and

disciplinary action taken against them,

including termination. Users granted access

to the network through the district' s

computer systems assume personal

responsibility and liability, both civil and

criminal, for uses of the network not

au thorized by this policy and the districtÓs

guidelines. Employees should only use the

information from business systems or the

network in the performance of their

duties/responsibilities with the school

system. Information should not be shared

with any ot her person in or out of the

school system unless that is a direct

responsibility of the employee.

The district does not sanction any use of

its computer systems or the Internet that is

not authorized by or conducted strictly in

compliance wi th this policy and the

district' s guidelines, standards, procedures

and controls. Users who disregard this

policy and the district ' s guidelines,

standards, procedures and controls may have

his/her privileges suspended or revoked and

disciplinary action taken against th em.

Users granted access to t he network through

the district' s computers assume personal

responsibility and liability, both civil and

criminal, for uses of the network not

authorized by this policy and the districtÓs

guidelines, standards, procedures and

c ontrols.

The district retains the right to remove

from its information systems any material it

views as offensive or potentially illegal.

The district declares unethical and

unacceptable behavior as just cause for

disciplinary action, the revocation of

network access privileges, termination

and/or the initiation of legal action for

any activity through which an individual:

1. uses the district ' s computers and/or

network for illegal, inappropriate, or

obscene purposes, or in support of such

activities .

a. Illegal activities shall be defined

as a violation of local, state and/or

federal laws. Inappropriate use shall

be defined as a violation of the

intended educational use of the

network .

b. Obscene activities shall be defined

as a violation of genera lly accepted

social standards for use of a publicly

owned and operated communication

vehicle . . . . (Emphasis added) .

54 . In summary, the School Board has met its burden of

establishing, by a preponderance of the evidence, that

Mr. Makowski is guilty of immorality, misconduct in office, and

violation of the School Board's Acceptable Use Policy. However,

the extent of Mr. Makowski's misconduct and its impact on his

effectiveness as a teacher, in light of the many extenuating

factors present in his case, d oes not warrant dismissal.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the School Board enter a final order

finding Respondent guilty of immorality and misconduct in office

and imposing the fol lowing sanctions: uphold Respondent's

suspension from February 2, 2011 through the date of the final

order, and require Respondent to complete remedial training

concerning professionalism and the proper use of school

property.

DONE AND ENTERED this 21st da y of November, 2011 , in

Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 21st day of November , 20 11 .

ENDNOTES

1 / The Notice actually refer enced "1012.795(g)" and

"1012.795(j)," which do not exist. However, the Notice

correctly quoted subsections (1)(g) and (1)(j), leaving no doubt

as to the statutes under which Mr. Makowski was being charged.

However, as more fully discussed in the Concl usions of Law

below, s ection 1012.795, Florida Statutes, sets forth the

criteria by which the Education Practices Commission may

discipline an individual's educator's certificate. Its

provisions grant no authority to local school boards to

discipline teac hers.

2 / Mr. Culbert also referenced a possible fourth category, child

pornography. However, it was unclear from the testimony whether

this constituted a stand - alone category or was subsumed within

the general category of pornography. In any event, th ere was no

evidence that Mr. Makowski accessed materials involving persons

under the age of 18.

3 / A few of the photos were of young men who may or may not have

been less than 18 years old. However, the School Board

presented no evidence that Mr. Makow ski was intentionally

seeking images of minors.

4 / The report contained still screenshots of YouTube videos,

including shirtless male celebrities, rugby players losing their

pants, and medical examinations of male genitalia. Mr. Makowski

could not recal l whether he actually watched any of the YouTube

videos in the report.

5 / At some point prior to issuance of the Notice, the

recommendation changed from a ten day suspension to a thirty - day

suspension without pay, to which Mr. Makowski informally agree d.

However, neither of the suspension options was ever officially

placed before the School Board for a vote.

6 / Unless otherwise indicated, references to the Florida

Statutes are to the 2011 edition.

7 / The CBA, excepts of which were entered as the S chool Board's

Exhibit 14, provides at Article V. C. that employees may be

"suspended without pay only for just cause and only by action of

the School Board." Article V.D.7 provides that an employee "may

be suspended without pay only for just cause and onl y by action

of the School Board." Though the agreement appears to be silent

as to the standard for termination, it stands to reason that

"just cause" would be required for the ultimate sanction as well

as for the quoted lesser penalties.

8 / They did, however, likely meet the definition of "obscene

activities " set forth in the Acceptable Use Policy: "Obscene

activities shall be defined as a violation of generally accepted

social standards for use of a publicly owned and operated

communication vehicle."

COPIES FURNISHED :

David A. Hertz, Esquire

Duval Teachers United

1601 Atlantic Boulevard

Jacksonville, Florida 32207

David J. DÓAgata, Esquire

Office of the General Counsel

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Ed Pratt - Dannal s, Superintendent

Duval County School Board

1701 Prudential Drive

6th Floor , Room 642

Jacksonville, F lorida 32207

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 04 00

Charles M. Beal, General 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

1 5 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.