11-000873TTS Polk County School Board vs. Julie Harter Status: Closed Recommended Order on Thursday, July 14, 2011.

Summary: Petitioner established just cause to terminate Respondent's employment.

Case No. 11-0873

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD, RECOMMENDED ORDER )

)

Petitioner, )

vs. )

)

JULIE HARTER, )

)

Respondent. )

)

)

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge

Thomas P. Crapps, held a formal hearing in the above-styled case

on May 2, 2011, in Bartow, Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue

Post Office Drawer 30

Bartow, Florida 33831

For Respondent: Ellis R. Faught, Jr., Esquire

Ellis R. Faught, Jr., P.A.

206 Mason Street

Branford, Florida 33511-5212

STATEMENT OF THE ISSUE

Whether Petitioner established "just cause" to terminate

Respondent from her teaching job.

PRELIMINARY STATEMENT

On January 10, 2011, Petitioner, Polk County School Board

(School Board), informed Respondent, Julie Harter (Ms. Harter)

that the superintendent of Polk County School District (School

District), Dr. Sherrie B. Nickell, had suspended Ms. Harter as a

School Board employee and would recommend her termination. The

letter informed Ms. Harter that she would be terminated based on

her having an adjudication withheld for violating section

316.027, Florida Statutes (2010) 1/ , leaving the scene of an

accident with injuries; and violating section 843.02, Florida

Statutes, resisting or obstructing an officer without violence.

On January 18, 2011, Ms. Harter timely requested a hearing

concerning the intent to terminate her employment.

On February 15, 2011, the School Board requested the

Division of Administrative Hearings (DOAH) appoint an

Administrative Law Judge to conduct the hearing.

On February 18, 2011, Administrative Law Judge Thomas P.

Crapps was assigned the case, and an Initial Order was issued.

The hearing was initially set for March 24, 2011. The parties

filed a Joint Stipulation for Motion to Continue that was

granted, and the hearing was rescheduled for May 2, 2011.

At the May 2, 2011, hearing, the School Board presented the

testimony of Joe Farinas (Mr. Farinas) and moved into evidence

Exhibits 1, 2, and 3 without objection. Ms. Harter presented

the testimony of herself, Thomas Darby (Mr. Darby), Andrea

Whiteley (Ms. Whiteley), and Sharon Keener (Ms. Keener).

A one-volume Transcript of the proceedings was filed with

DOAH on May 25, 2011. On May 26, 2011, the School Board filed a

motion requesting an extension of time to file its proposed

recommended order. The undersigned granted the extension. On

June 13, 2011, the School Board filed its Proposed Recommended

Order, and Ms. Harter filed her Proposed Recommended Order on

June 17, 2011. Both proposed orders have been considered in

preparing this Recommended Order.

FINDINGS OF FACT

1. Ms. Harter is a special education teacher in the School

District. She is a long-time Polk County, Florida, resident and

has worked for the School District since 1985.

2. The School Board is responsible for the operation,

control, and supervision of free public schools in Polk County,

Florida.

3. On December 10, 2010, Ms. Harter entered a guilty plea

for leaving the scene of an accident, which is a third-degree

felony, and resisting or obstructing an officer without

violence, which is a first-degree misdemeanor. The circuit

court withheld adjudication and sentenced Ms. Harter to

36 months’ probation on the felony charge, a short period of

incarceration in the county jail, community service, fines, and

restitution. As of the hearing date, Ms. Harter had

successfully completed her community service hours and was

successfully completing the remainder of her probation.

4. Polk County School Board Policy 6Gx53-3.001 (School

Board Policy 3.001) sets out the Employment Procedures followed

by the School Board. In pertinent part, School Board Policy

3.001(V)(C)(4)(a), provides that:

"criminal offenses listed below will render

applicants and employees ineligible for

employment with Polk County Public Schools.

a) WILL NOT HIRE OR EMPLOY -- Felony

convictions including, but not limited to

the following: . . ."

The School Board Policy then lists 49 enumerated crimes that

specifically make a person ineligible for employment.

5. School Board Policy 3.001(V)(C)(4)(d)4, also provides

that a person may be considered for employment with the School

District on a "case-by-case basis" when a person is "on

probation [for] (Crimes not listed above)."

6. Mr. Farinas, the School District director of employee

relations, credibly testified that, it is the School Board's

practice to automatically terminate employees who plead guilty

to a felony charge, no exception. The School Board does not

employ anyone who has a felony conviction. Further, the School

Board, in considering whether or not to grant a "case-by-case"

analysis for employing a person who has been convicted of an

offense not listed in the School Board Policy, has limited its

consideration to misdemeanors. The record, however, shows that

the School Board has not been presented the question of whether

or not to consider a person for continued employment, who has a

felony conviction for a crime not listed in the School Board

Policy and is serving a probationary sentence.

7. Ms. Harter has worked for the School District in many

different capacities since 1985. It was undisputed that

Ms. Harter was an exemplary special education teacher, who is

respected by her peers and students. Ms. Harter has a long,

successful record of working with emotionally-handicapped

students. As Mr. Darby, an assistant principal who supervised

Ms. Harter stated, "without Julie's influence, a lot of those

students would have never made it through high school." It was

undisputed that Ms. Harter is a "very dedicated and responsible

teacher." For example, Ms. Whiteley credibly testified that

Ms. Harter "knew all of her students, knew everything about her

students, and worked very hard to get them to be successful, and

also job placements." The record clearly shows that Ms. Harter

is a dedicated special education teacher who loved her students

and did an excellent job.

CONCLUSIONS OF LAW

8. DOAH has jurisdiction over the parties and the subject

9. Ms. Harter presents two arguments in this case. First,

she argues that School Board Policy 3.001(V)(C)(4)(a)

impermissibly allows for a teacher's termination for felonies

not listed in chapter 435, Florida Statutes. 2/ Ms. Harter

reasons that, because she was not adjudicated guilty for one of

the enumerated felony offenses, the School Board cannot

automatically terminate her employment. Second, Ms. Harter

argues that, because she is serving a probationary sentence that

the School Board Policy 3.001(V)(C)(4)(d)4 directs, that the

School Board make a "case-by-case" determination about whether

or not to terminate her employment.

10. The School Board counters that it has the authority to

go "beyond the statutory list of offences to specify that a

conviction, guilty plea, or plea of nolo contendere to any

felony charge will render an individual ineligible to be

employed by the Polk County School Board." Petitioner's

Proposed Findings of Facts and Conclusions of Law at para. 15.

11. The School Board bears the burden of proving by a

preponderance of the evidence "just cause" to terminate

Ms. Harter as an employee. McNeill v. Pinellas Cnty. Sch. Bd. ,

678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd. of

Dade Cnty. , 569 So. 2d 883 (Fla. 3d DCA 1990). The

preponderance of the evidence standard requires proof by "the

greater weight of the evidence" or evidence that "more likely

than not" tends to prove a certain proposition. See Gross v.

Lyons , 763 So. 2d 276, 280 n.1 (Fla. 2000).

12. The School Board is responsible for the operation,

control and supervision of the free public schools in Polk

County. Art. IX, section 4(b), Fla. Const.; and § 1001.32(2),

Fla. Stat. ("district school boards shall operate, control, and

supervise all free public schools in their respective districts

and may exercise any power except as expressly prohibited by the

State Constitution or general law"). The School Board's

authority extends to personnel matters including the power to

Fla. Stat. Further, the law permits the School Board to adopt

policies "establishing standards of ethical conduct for

instructional personnel and school administrators. §

1001.42(6), Fla. Stat. This authority extends to the enactment

of "policies and procedures necessary for the management of all

Fla. Stat.

13. The law requires that an instructional employee, such

as teacher, be provided with a written contract that contains

"provisions for dismissal during the term of the contract only

for just cause." § 1012.33(1)(a), Fla. Stat. 3/

Section 1012.33(1)(a) provides that:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s. 1012.34,

two annual performance evaluation ratings of

unsatisfactory within a 3-year period under

s. 1012.34, three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under

s. 1012.34, gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude. [4/]

14. The statutory language of section 1012.33, setting out

that "just cause includes, but is not limited to . . ." shows

that the Legislature did not intend the list to be an exclusive

listing of the factors that constitute "just cause."

Consequently, other wrong-doing may also constitute "just cause"

for dismissal. See

Dietz v. Lee Cnty Sch. Bd. , 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-exclusive list of sins [set forth in section

231.36(1)(a), Florida Statutes (2001), the predecessor of

section 1012.33(1)(a)] constituting just cause, 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 legislature left that

determination to the respective wisdom of each school board by

providing no definite parameters to the term 'just

cause.'")(footnote omitted); Pinellas Cnty. Sch. Bd. v. Cole ,

Case No. 11-0250 (Fla. DOAH June 17, 2011), pending agency

review ("In the absence of a rule or written policy defining

just cause, the Board has discretion to set standards which

subject an employee to discipline."); Notter, as Superintendent

of Schools v. Gentile , Case No. 10-3399 (Fla. DOAH May 23,

2011), pending agency review ("By including in the definition of

the term 'just cause' the phrase 'includes, but is not limited

to,' the Legislature made clear that the items listed in the

definition were not intended to be exhaustive and that other

wrongdoing may also constitute 'just cause' for suspension or

dismissal.").

15. Recently, Judge McKibben reasoned in Pinellas Cnty

Sch. Bd. v. Cole , that even though a school board has discretion

to set standards for employee discipline, absent a definition of

"just cause," the "just cause for discipline must rationally and

logically relate to an employee's conduct in the performance of

the employee's job duties and which is concerned with

inefficiency, delinquency, poor leadership, lack of role

modeling, or misconduct." Id. at para. 35, citing State ex.

Rel. Hathaway v. Smith , 35 So. 2d 650 (Fla. 1948); and In Re:

Grievance of Towle , 665 A. 2d 55 (Vt. 1995).

16. In State ex. Rel. Hathaway v. Smith , the Florida

Supreme Court provided a definition for terminations for cause

when it stated, "[r]emoval for cause or terminations for cause

is employed frequently in statutes and constitutions relating to

the removal of officers and employees and has a well settled

connotation. It imputes removal or termination for misconduct,

some violation of the law or delict of duty on the part of the

officer or employee affected." Id. at 651; See also

Comprehensive Care Corp. v. Katzman , 2010 U.S. Dist. LEXIS 77121

(M.D. Fla. July 30, 2010)(citing State ex. Rel. Hathaway v.

Smith and finding that "misconduct" or "termination for cause"

refers to illegal activity, ethical breaches, or utter

abandonment or dereliction of a job).

17. Turning to the facts in the instant case, it is not

disputed that Ms. Harter pled guilty to a third-degree felony

and is currently serving a probationary sentence. School Board

Policy 3.001(V)(C)(4)(a) specifically recognizes certain

criminal offenses render a person ineligible for employment with

the Polk County schools. Furthermore, the language that the

School Board "WILL NOT HIRE OR EMPLOY -- Felony convictions

including, but not limited to the following: . . ." shows an

intent that the list of felonies that make a person ineligible

for employment is not exclusive. Under School Board

Policy 3.001 and section 1012.33, the School Board has broad

discretion to determine whether or not a felony conviction, not

listed in the enumerated offenses, is a disqualifying offense

for employment.

18. Further, applying the rule of law in State ex. Rel.

Hathaway and Cole to the facts here demonstrates support for

finding of "just cause" based on Ms. Harter's criminal

violation. In the instant case, the School Board has supplied a

definition of "just cause" to preclude a person for employment

who has any felony conviction, regardless of adjudication. As

shown earlier, School Board Policy 3.001 and section 1012.33

provide the School Board with broad discretion to determine that

a person with a felony conviction may be precluded from

employment. Although School Board Policy 3.001, on its face,

does not contain the bright-line rule that any felony conviction

results in an automatic termination, the record showed that the

School Board, in practice, follows an automatic termination for

employees who plead guilty to a felony regardless of

adjudication. Therefore, the School Board has supplied a

definition of "just cause" based on its authority and discretion

that a felony makes a person ineligible for employment. The

holding in State ex. Rel. Hathaway recognizes that "commitment

of a crime" is a basis for termination for cause. The

undersigned's conclusion that the School Board has met its

burden of proof is based on the fact that Ms. Harter pled guilty

to a third-degree felony and the language in State ex. Rel.

Hathaway that termination for cause could be based on "some

violation of law." One difficulty in this case is that the

School Board did not bring forward any evidence showing how

Ms. Harter's pleading guilty to leaving the scene of an accident

with injuries is logically and rationally related to her job

duties or effectiveness as a teacher. For example, the School

Board asked Ms. Whiteley hypothetically whether or not some

parents would be unhappy if their child was being taught by a

person who pled guilty to a felony. Ms. Whiteley "guessed" that

some might be unhappy, but that it would depend on the facts of

each case. In conclusion, the School Board established "just

cause" for termination by showing that it had defined "just

cause" to include any felony conviction, regardless of

adjudication, and the fact that Ms. Harter pled guilty to a

third-degree felony.

19. The School Board acknowledged that no one has

previously raised the issue brought forward by Ms. Harter

concerning whether or not a person serving a probationary

sentence for a felony, not enumerated by the School Board

Policy, could be considered on a "case-by-case" basis for

employment.

20. A reading of the School Board Policy indicates, that

the School Board may exercise its broad discretion to consider

Ms. Harter's termination on a "case-by-case" basis as set out in

School Board Policy 3.001(V)(C)(4)(d)4; because she is "[o]n

probation [for] (Crimes not listed above)." As shown earlier,

Ms. Harter is serving a probationary sentence for a felony that

was not listed by the School Board Policy. Although there is no

prohibition against the School Board exercising its broad powers

to consider Ms. Harter's felony conviction as "just cause" for

termination, the language of the School Board Policy also

contemplates that for persons serving a probationary sentence

based on a sentence for crimes not listed by the policy that the

School Board may make a "case-by-case" analysis. Here,

Ms. Harter is serving a probationary sentence for a crime not

listed by the policy. Therefore, it is appropriate that the

School Board consider Ms. Harter's employment on a "case-by-

case" basis.

21. In considering a recommendation, the undersigned

weighed the seriousness of Ms. Harter's pleading guilty to a

third-degree felony, and the fact that teachers are role models.

These factors carry great weight. At the same time, there is

compelling and undisputed facts concerning Ms. Harter. It was

undisputed that Ms. Harter is a well-respected special education

teacher. The record also showed that it was undisputed that in

over 25 years of working with the School District that

Ms. Harter was an exemplary employee. Moreover, based on the

record brought forward, it appears that the events that occurred

on March 3, 2010, the date that Ms. Harter committed her crimes,

are an isolated instance and not a full reflection of her

character. When weighed in the balance, the greater weight of

the evidence supports the finding that the School Board

established by the preponderance of evidence "just cause" to

terminate Ms. Harter as an employee.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that the School Board established "just cause" to terminate

Ms. Harter and that Ms. Harter's employment be terminated.

DONE AND ENTERED this 14th day of July, 2011, in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of July, 2011.

ENDNOTES

1/ All references to the Florida Statutes shall be the 2010

version, unless otherwise stated in the Recommended Order.

2/ Section 435.04 concerns the Level 2 background screening

standards conducted as condition for employment. Ms. Harter's

citation to section 435.04 is based on the School Board Policy's

statement that any person who

"has been found guilty of, regardless of

adjudication, or entered a plea of nolo

contendere or guilty to any offense outlined

in section 435.04, Florida Statutes (or any

similar statute of another jurisdiction) or

described below, they shall be released from

their probationary service/recommended for

termination or their contract for services

shall be cancelled." School Board Policy

3.001(V)(C)(3)(d).

3/ Section 1012.33(1)(a) exempts employees with "continuing

contracts," as set out in subsection 4 of the statute, from the

requirement of a written contract containing the "just cause"

provision. Because the facts in the instant case do not show

that Ms. Harter had a "continuing contract," that provision of

the statute is not relevant for this Recommended Order.

4/ Florida Administrative Code Rule 6B-4009, defines several of

the "just cause" factors set out in the section 1012.33(1)(a),

for purposes of dismissing an instructional personnel. Rule 6B-

4009 provides the definitions for incompetence, inefficiency,

incapacity, immorality, misconduct in office, gross

insubordination, drunkenness and moral turpitude.

COPIES FURNISHED :

Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue

Post Office Drawer 30

Bartow, Florida 33831

Ellis R. Faught, Jr., Esquire

Ellis R. Faught, Jr., P.A.

206 Mason Street

Branford, Florida 33511-5212

Dr. Sherrie B. Nickell, Superintendent

Polk County School District

1915 South Floral Avenue

Post Office Box 391

Bartow, Florida 33831

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Lois Tepper, Acting 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

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.