12-000801TTS Manatee County School Board vs. Anne J. Wampole Status: Closed Recommended Order on Thursday, August 16, 2012.

Summary: Petitioner failed to meet its burden of establishing just cause for terminating Respondent's professional services contract. Petitioner did, however, establish just cause for imposing discipline other than termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 0801TTS

)

ANNE J. WAMPOLE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice , a final hearing was held in this case on

May 25, 2012, in Bradenton, Florida, before Administrative Law

Judge Linzie F. Bogan of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Erin G. Jackson, Esquire

Thompson, Sizemore, Gonz alez

and Hearing, P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 33602

For Respondent: Robert F. McKee, Esquire

Kelly and McKee, P.A

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33605

STATEMENT OF THE ISSUE

Whether Petitioner established, pursuant to section

1012.33(1)(a), Florida Statutes (2011), 1/ "just cause" to

terminate Respondent from employment based on a breath alcohol

level of 0.112 , as a lleged in the Administrative Complaint dated

February 8, 2012.

PRELIMINARY STATEMENT

On or about February 8, 2012, Petitioner, Manatee County

School Board (Petitioner), through Timothy McGonegal , as

s uperintendent of Schools, served on Respondent, Anne J. Wampole

(Respondent), an Administrative Complaint and recommended therein

Respondent's termination from employment. Respondent timely

filed her request for administrative hearing , and on February 29,

2012, the matter was referred to the Division of Admin istrative

Hearings for a disputed fact hearing. The disputed fact hearing

was held on May 25, 2012.

During the final hearing, Petitioner offered the testimony

of Dr. Craig Trigueiro, Penny Thien - Schwartz, David Underhill,

Ginger Collins, and Baron McComb s. In addition to testifying on

her own behalf, Respondent offered the testimony of A.M., a

minor, and Michele Neathery. Petitioner's Exhibits 1 through 20

were admitted into evidence. Respondent did not offer any

evidentiary exhibits.

A Transcript of the proceeding was filed with the Division

of Administrative Hearings on June 14, 2012. By agreement, each

party filed its Proposed Recommended Order (PRO) on July 24,

2012. The respective PROs were considered in the preparation of

this Recommended Order .

FINDING S OF FACT

1. In January 2003, Petitioner hired Respondent to teach

exceptional student education courses. Since commencing her

employment with Petitioner, Respondent has always received an

annual performance evaluation rating of no less than fu lly

satisfactory.

2. Respondent has a bachelor's degree in exceptional

student education and , most recently , received a master's degree

with an endorsement in reading and special education.

3. For the 2011 - 2012 academic school year, Respondent was

em ployed by Petitioner pursuant to a professional services

contract. Respondent's professional services contract provides

that "THE TEACHER SHALL BE BOUND TO SERVE AS PROVIDED IN SECTION

1012.33, FLORIDA STATUTES," and "SHALL NOT BE DISMISSED DURING

THE TER M OF THIS CONTRACT EXCEPT FOR JUST CAUSE AS PROVIDED IN

SECTION 1012.33(1)(a), FLORIDA STATU T ES." (Capitalization in

original). The contractual term of Respondent's contract covered

the period of August 16, 2011, through June 8, 2012.

4. On the morni ng of January 13, 2012, Respondent began her

day by dressing both herself and her two - year - old daughter.

Respondent safely drove her daughter to daycare and then

proceeded to safely drive herself to Bayshore High School.

Respondent arrived at school arou nd her customary time of between

7:15 a.m. and 7:25 a.m., parked her car in the school's parking

lot , without incident , and then entered the school building where

she checked her mail, walked to her classroom, and made general

preparations for the school d ay , which included briefly

exchang ing pleasantries with her colleague , Michele Neathery.

Although the exchange between Respondent and Ms. Neathery was

brief, at no time during the encounter did Ms. Neathery smell

alcohol about Respondent's person or obser ve Respondent behaving

in a way that would suggest impairment.

5. Respondent's first instructional period of the day on

January 13, 2012, started at 8:50 a.m. , and ended at 10:20 a.m.

A.M. was a student in Respondent's first class and also served as

Res pondent's classroom aide. At the time of the final hearing ,

A.M. was 19 years old.

6. A.M. testified that on January 13, 2012, Assistant

Principal Ginger Collins came to Respondent's classroom and asked

her to step into the hallway. Before this occu rred, A.M. had

conversed with Respondent for about ten minutes , and during this

time , he did not notice anything unusual about Respondent's

appearance or her behavior.

7. At approximately 10:20 a.m., on the day in question,

Ms. Collins had gone to the cl assroom occupied by Respondent to

discuss with her a situation from the previous day that involved

one of Respondent's students. Ms. Collins entered the classroom

occupied by Respondent and asked Respondent to step into the

hallway with her so that they c ould discuss the situation from

the previous day.

8. Respondent complied with the request from Ms. Collins ,

exited the classroom , and positioned herself outside of her

classroom door so that she could speak with Ms. Collins and

simultaneously monitor h er students through the window of the

door to the classroom. Respondent, while speaking with

Ms. Collins in the alcove to her classroom, observed that two of

her students were not on - t ask. Ms. Collins, from her vantage

point, did not observe the two stud ents that Respondent saw who

were off - task and otherwise did not witness any "rambunctiousness

or loud behavior" in Respondent's classroom. Respondent, in an

attempt to alert the two students to the fact that they were

being monitored and to otherwise get them back on - task, slapped

her hand against the door three times. Ms. Collins had never

observed Respondent use this student management technique.

9. Because Ms. Collins did not see that two of Respondent's

students were off - task during the time whe n she conversed with

Respondent, Ms. Collins thought it was odd and out of character

for Respondent to have slapped the classroom door for what to Ms.

Collins, was no apparent reason. Although Ms. Collins thought it

"odd" when Respondent slapped the door, Respondent's student ,

A.M. , credibly testified that prior to January 13, 2012, he had

witnessed Respondent slap her hand against the door a "couple of

times before" as a technique for refocusing her students.

10. There was no evidence offered during t he hearing that

slapping a door with one's hand is an inappropriate classroom

management technique. Respondent 's act of slapping the door with

her hand is not evidence of Respondent's normal faculties being

impaired but is instead, under the circumstances , evidence that

her faculties were intact. Respondent was able to observe and

appreciate that two of her students were off - task and she

responded by taking appropriate corrective action to redirect the

errant students. Had Respondent not taken such corre ctive

action, it would certainly make for a more credible assertion

that her normal faculties were impaired because , then , it could

be said that Respondent was unable to appreciate the need to

correct her students because of alcohol - related influences on h er

judgment. This, however, is not the case.

11. Furthermore, the evidence establishes that all of

Respondent's students were on - task until Respondent was asked to

step into the hallway by Ms. Collins. The fact that all of

Respondent's students were on - task when Ms. Collins initially

entered Respondent's room is further indica tion that Respondent

was in control of her classroom and not suffering from diminished

faculties related to alcohol consumption.

12. When Ms. Collins conversed with Respondent outside of

Respondent's classroom, Ms. Collins became concerned about

allowing Respondent to return to the classroom because

Ms. Collins observed that Respondent "was covering her mouth"

with her hand when she spoke, was shifting her body "from side to

sid e," had a strong smell of alcohol emanating from her person,

and was speaking louder than usual. Although Ms. Collins had

concerns about Respondent's ability "to return to the classroom,"

Ms. Collins did not monitor Respondent's performance in the

classro om upon completion of their conversation.

13. According to evidence stipulated to by the parties, one

of the behaviors associated with alcohol - related impairment is

"decreased inhibition." The word "inhibition" is defined as "a

mental process imposin g restraint upon behavior or another mental

process." Merriam - Webster O nline D ictionary . Respondent's act

of covering her mouth while speaking is not evidence of decreased

inhibition , but is , instead , evidence of heightened inhibition.

Respondent was co gnizant of the smell of her breath and by

covering her mouth with her hand , she was taking steps which were

reasonably designed to deflect any offending breath - related odor.

Had Respondent suffered from "decreased inhibition," then it is

certainly more li kely that Respondent would have spoken to

Ms. Collins in such a way as to not have shielded Ms. Collins

from any smells that may have been emanating from Respondent's

mouth.

14. After completing her initial conversation with

Respondent, Ms. Collins imm ediately shared her concerns about

Respondent with Assistant Principal Baron McCombs, Respondent's

supervisor. Within a few minutes of being alerted to the

situation by Ms. Collins, Mr. McCombs went to Respondent's

classroom.

15. Mr. McCombs entered R espondent's classroom and asked

Respondent to accompany him to his office. The total time that

Mr. McCombs was in Respondent's classroom was "[j]ust a matter of

seconds." During the few seconds that Mr. McCombs observed

Respondent in her classroom, he no ticed that Respondent "was

acting very out of character . . . sort of flamboyantly, [and]

[h]er voice was sort of boisterous, and her hands were sort of

flailing, and her speech patterns were sort of elongated."

Mr. McCombs described Respondent as usually being a very reserved

person. Although Mr. McCombs observed Respondent behaving in a

manner that he considered "out of character , " he did not believe

that Respondent's behavior was detrimental to her students.

Respondent admits the behaviors described b y Mr. McCombs , but

credibly testified that the observed behaviors were intentionally

orchestrated because she was trying to get her students ex c ited

about learning about President George Washington and his false

teeth. Mr. McCombs and Respondent exited he r classroom and

walked together to his office.

16. During the walk to his office, Mr. McCombs did not

observe Respondent staggering or otherwise having difficulty

ambulating. Once in Mr. McCombs' office, Respondent and

Mr. McCombs spoke briefly about an incident from the previous day

involving one of Respondent's students. Respondent did not

elongate her words while speaking with Mr. McCombs in his office ,

and according to Mr. McCombs, Respondent's demeanor at the time

was "reserved."

17. Ms. Coll ins entered Mr. McCombs office within a few

minutes of Respondent's arrival, and once Ms. Collins took her

seat , the conversation shifted to the real reason why Respondent

had been summoned to the office by Mr. McCombs. Mr. McCombs

informed Respondent tha t she was suspected of being under the

influence of alcohol. Respondent's initial response to the

accusation was to say, "Oh my God, I can't believe that this is

happening," and she then became emotional and started to cry.

When questioned, Respondent ad mitted that she had been drinking

the night before. Specifically, Respondent admitted that she had

her last drink "somewhere around 1:00 or 1:30 in the morning."

Mr. McCombs left the room to report the matter to school

Principal David Underhill.

18. While waiting for Mr. Underhill to arrive, Respondent

continued to converse with Ms. Collins. Respondent asked

questions about the protocols and procedures related to the

allegations and also wanted to know the impact of the situation

on her employment. While discussing these issues with Respondent

for more than an hour, Ms. Collins did not detect that

Respondent's "speech was slowed or sluggish." Mr. Underhill

eventually arrived and explained to Respondent the procedures and

protocols associated with su spected impairment testing.

19. At about 12:30 p.m. Ms. Collins, who had been with

Respondent the entire time since entering Mr. McCombs' office,

prepared to transport Respondent to the medical clinic for

suspected impairment testing. Before leaving for the clinic,

Ms. Collins escorted Respondent to her car to retrieve some

items. The walk to Respondent's car took about five minutes.

During the walk, Ms. Collins observed that Respondent did not

experience any difficulty walking and that Respondent was

coherent. Ms. Collins drove Respondent to the medical clinic for

suspected impairment testing.

20. Once at the medical clinic, Respondent provided two

breath samples for a breathalyzer testing machine that measured

Respondent's breath - alcohol level at 0 .112. Since commencing

employment with Petitioner, this was Respondent's first positive,

confirmed alcohol test. The testing protocol at the medical

clinic was such that Respondent met with a nursing assistant and

stayed in the presence of the nursing as sistant throughout the

testing process. During the 20 or so minutes that Respondent was

with the nursing assistant, it was observed by the nursing

assistant that Respondent was coherent, she understood

instructions that were given to her, and her speech w as not

sluggish. The nursing assistant did observe that Respondent had

glassy eyes. After completing her final breathalyzer test,

Respondent met with medical doctor Craig Trigueiro for about five

to ten minutes.

21. Drigueiro has been a physician for 37 years. When

Dr. Trigueiro evaluates patients for suspected alcohol

impairment, he described his process for face - to - face evaluation

as follows:

I look at them. I smell their breath. I

observe their behavior. I ask them various

questions, and th en I document everything on

the drug testing forms. [T - 17]

22. When Drigueiro met with Respondent , he noted the

following on her drug testing form:

Admits to last p.m. drinking until 1:00 a.m.

In Alcoholics Anonymous. Glassy eyed. Has

alcohol on breath. Breath alcohol, 0.112

and 0.112. Assistant principal. Ginger

Collins here. Legally under the influence.

Acutely intoxicated and cannot drive.

23. Drigueiro stated that he noticed that Respondent

was "a little unsteady on her feet," but on cross - examination ,

admitted that Respondent's apparent unsteadiness could have been

related to causes other than alcohol consumption. Dr. Trigueiro,

contrary to his stated practice of "document[ing] everything on

the drug testing form," did not note on Respondent's drug - testing

form that she was "a little unsteady on her feet."

24. Drigueiro also testified that he noticed that

Respondent was "sluggish in her speech." On cross - examination

Drigueiro admitted that he did not mention on Responden t's

drug - testing form that Respondent was "sluggish in her speech."

25. Drigueiro testified that the reason why he did not

note on Respondent's drug - testing form his observations of

Respondent's sluggish speech and her being unsteady on her feet,

wa s because he "didn't think that this type of situation would

end up in court."

26. Drigueiro stated that had the instant case been one

involving "great bodily harm or death," as opposed to one merely

involving an employer for - cause breath test, he wo uld have

performed a higher level of medical examination that would have

included diagnostic exams , such as the "finger to nose" and "heel

to toe" test. In Drigueiro's opinion, Respondent's

intoxication was "cut and clear" because she had a breath - alc ohol

test which showed that Respondent was "legally intoxicated."

27. Contrary to Drigueiro's conclusion that Respondent

was "legally intoxicated," a breath - alcohol level of 0.08 or

higher does not establish , ipso facto, "legal intoxication , " but

i nstead merely establish es a rebuttable presumption, as it

relates to the operation of a motor vehicle, that a person is

under the influence of alcoholic beverages to the extent that his

normal faculties are impaired. § 316.1934(2)(c), Fla. Stat.

Specifica lly, section 316.1934(2) provides that the presumption s

created therein do "not limit the introduction of any other

competent evidence bearing upon the question of whether the

person was under the influence of alcoholic beverages to the

extent that his or her normal faculties were impaired." Id.

28. Ms. Collins was with Respondent when she was seen by

Drigueiro. According to Ms. Collins, when Drigueiro

spoke to Respondent "he was very upset" and treated Respondent

quite harshly. When Respondent told Drigueiro that she had

been drinking until about 1:00 a.m., Drigueiro said to

Respondent: "Do you think I'm a fool?" Drigueiro went on to

state that he had been practicing medicine for over 30 years and

that Respondent could not have co nsumed her last drink at the

stated hour and then some twelve hours later have a breath -

alcohol level of 0.112. Despite this initial assertion by

Dr. Trigueiro, he , nevertheless , admitted on cross - examination

that some people are more tolerant of alcohol than others and

that not all individuals metabolize alcohol at the same rate.

According to Drigueiro :

The more alcohol someone drinks, the more

enzymes in the liver exist to detoxify

alcohol, which is why someone who drinks all

the time has to drink more alcohol to . . .

get a buzz to become -- you know, feel the

central nervous system effects of the

alcohol. So someone who drinks a lot has to

drink more alcohol simply because the liver

enzymes are revved up to detoxify alcohol;

whereas someone who doe sn't drink much

alcohol would become intoxicated at a much

lower beverage intake, alcohol intake

because the liver enzymes are not induced by

chronic drinking.

Dr. Trigueiro did not perform any tests on Respondent to

determine that rate at which her body metabolizes alcohol.

29. Drigueiro's medical opinion establishes that

Respondent had glassy eyes , but does not establish that

Respondent's normal faculties were impaired. When asked

specifically if Respondent's "normal faculties were impaired,"

Dr igueiro could only state that Respondent was "clinically

impaired." Petitioner did not offer any evidence as to whether

"clinical impairment" is synonymous with impairment of one's

normal faculties , and Drigueiro's response suggests that the

two s tandards are not synonymous.

30. Drigueiro was more concerned with lecturing

Respondent about her alcohol consumption , as opposed to

conducting a thorough assessment of Respondent's level of

functional impairment. Drigueiro obviously believed that a

more thorough evaluation of Respondent's level of cognitive

functioning was unwarranted because in his opinion, Respondent's

case was "cut and clea r " due to her breath - alcohol level of 0.112

and the fact that this was merely a case involving an empl oyer

for - cause evaluation.

31. The greater weight of the competent substantial

evidence establishes that when Respondent reported to school on

January 13, 2012, and through and including the time that she met

with Drigueiro, she was coherent, she w as able to process

information that was communicated to her and provide appropriate

responses thereto, she was oriented to time and place, her speech

was not sluggish or slurred, and she did not have any difficulty

ambulating. The greater weight of the co mpetent substantial

evidence also establishes that during all times relevant hereto,

the glassy appearance of Respondent's eyes was the only objective

manifestation of the alcohol that was in Respondent's system and

that the presence of "glassy eyes" does not establish in and of

itself that a person ' s normal faculties are impaired.

32. Respondent admits to being a recovering alcoholic. She

is actively involved in an alcoholics support group and consults

with her sponsor regularly.

33. Near the end of the 2010 - 2011 academic school year,

Respondent was experiencing difficulty in maintaining sobriety.

There was no evidence presented that Respondent's challenges with

maintaining sobriety during the previous school year negatively

impacted her performance in the classroom. In recognition of her

challenges, Respondent self - disclosed to the school princip al ,

Mr. Underhill , her challenges with alcohol and requested a leave -

of - absence so that she could receive in - patient treatment.

Respondent's request for l eave - of - absence was granted , and she

attended and completed a rehabilitation program.

34. Mr. Underhill, when asked about whether he had concerns

about Respondent being in the classroom with students with

alcohol in her system, testified that he "would b e extremely

concerned when a teacher in a classroom has to make multiple

decisions, all at any given time, that any type of circumstances

can arise [and Respondent's] level of [breath] alcohol is going

to impair good judgment." Petitioner did not offer an y credible

evidence establishing that on January 13, 2012, Respondent's

judgment was impaired or that she had difficulty , or would likely

have difficulty , making appropriate decisions while in her

classroom.

CONCLUSIONS OF LAW

35. The Division of Admini strative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (201 2 ).

36. Petitioner seeks to terminate Respondent's employment.

Petitioner bears the burden of proving by a preponderanc e of the

evidence that just cause exists for Respondent's termination.

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).

I. Drunkenness

37. Paragraph 12 of the Administrative Complaint alleges

that "Wampole's actions violated Rule [6A - [ 2/ ]

in which drunkenness is defined as the condition which exists

when an individual publicly is under the influence of alcoholic

beverages or drugs to suc h an extent that his or her normal

faculties are impaired." 3/

38. For instructional staff employed pursuant to a

professional services contract, section 1012.33(1)(a) provides

that just cause for dismissal during the term of the contract, as

defined by the State Board of Education, includes "immorality,

misconduct in office, incompetency, 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." There is no express

reference to "drunkenness" contained in section 1012.33(1)(a).

There is , however, an express reference to "drunkenness" in

section 1012.33(4)(c) , which applies only to certain district

employees that are em ployed pursuant to a "continuing contract."

Respondent is not employed pursuant to a continuing contract.

39. In Dietz v. Lee County School Board , 647 So. 2d 217

(Fla. 2nd DCA 1994), Judge Blue (specially concurring) stated the

following:

I agree sectio n 231.36, Florida Statutes

(1991), provides no objective standard by

which school boards are required to judge

the conduct of instructional staff,

resulting in school boards exercising a

nearly pure subjective analysis when

deciding to terminate a teacher during the

term of a professional service contract. I

write because I am not sure the legislature

intended to endow school boards with this

absolute discretion. If not, section 231.36

should be amended to clarify the conduct

that would warrant the dismis sal of teachers

holding a professional services contract.

Section 231.36 appears to provide for three

status categories for instructional staff:

continuing contract, professional service

contract, and probationary status. Each

category carries a separate standard for

dismissal. Probationary status provides no

rights to continuing employment and is

required for three years preceding either a

continuing contract or a professional

service contract.

A continuing contract applies only to

instructional staff attaining their contract

status before July 1984. Persons holding

continuing contracts are subject to

dismissal for conduct constituting one of

the so - called 'seven deadly sins:'

immorality, misconduct in office,

incompetency, gross insubordination, willf ul

neglect of duty, drunkenness, or conviction

of a crime involving moral turpitude.

§ 231.36(4)(c).

By statute, all contracts except continuing

must contain provisions allowing dismissal

during the term only for just cause .

§ 231.36(1)(a). The statute th en defines

'just cause' as including but not limited

to: misconduct in office, incompetency,

gross insubordination, willful neglect of

duty, or conviction of a crime involving

moral turpitude. Just cause therefore

includes but is not limited to five of t he

seven deadly sins. We assume that

drunkenness and immorality, which are not

included in the non - exclusive list of sins

constituting just cause, would also be

grounds for dismissal.

40. Five years after Dietz was decided, the Legislature, in

1999, am ended section 231.36(1)(a). The 1999 amendment took from

local school boards the "absolute discretion" to define just

cause as it relates to the dismissal of instructional staff

during the term of the employee's professional services contract

and vested w ith the State Board of Education the authority to

define by rule what constitutes just cause.

4 1 . In 2002, the "Florida K - 20 Education Code" was created

by chapter 02 - 387, Laws of Florida. Though section 231.36 was

repealed by the adoption of the Flor ida K - 20 Education Code, the

provisions found in section 231.36(1)(a) and (4)(c) were

re - established in se ction 1012.33(1)(a) and (4)(c) .

4 2 . In 2008, section 1012.33(1)(a) was amended and

"immorality" was added to the list of five deadly sins. The

Le gislature did not, however, expand the original five deadly

sins to expressly include "drunkenness."

4 3 . Effective July 1, 2011, section 1012.33(1)(a) was again

amended to expand the definition of "just cause" to include

matters related to unsatisfacto ry performance evaluations. As in

previous years, the Legislature, with respect to section

1012.33(1)(a), did not enumerate drunkenness as one of the

grounds for just cause.

4 4 . Rule [6A - 5.056], as it existed at the time of the

alleged violation asserte d herein, stated as follows:

The basis for charges upon which dismissal

action against instructional personnel may

be pursued are set forth in Section 231.36,

F.S. The basis for each of such charges is

hereby defined:

(1) Incompetency is defined as inab ility or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity. Since incompetency is a

relative term, an authoritative decision in

an individual case may be made on the basis

on testimony by members of a panel of expert

witnesses appropriately appointed from the

teaching profession by the Commissioner of

Education. Such judgment shall be based on

a preponderance of evidence showing the

existence of one (1) or more of the

following:

(a) Inefficiency: (1) repeated fail ure to

perform duties prescribed by law (Section

231.09, F.S.); (2) repeated failure on the

part of a teacher to communicate with and

relate to children in the classroom, to such

an extent that pupils are deprived of

minimum education experience; or

(3) re peated failure on the part of an

administrator or supervisor to communicate

with and relate to teachers under his or her

supervision to such an extent that the

educational program for which he or she is

responsible is seriously impaired.

(b) Incapacity: (1) lack of emotional

stability; (2) lack of adequate physical

ability; (3) lack of general educational

background; or (4) lack of adequate command

of his or her area of specialization.

(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

disrespect and impair the individual's

service in the community.

(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., which is so ser ious as to

impair the individual's effectiveness in the

school system.

(4) Gross insubordination or willful

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 p roper authority.

(5) Drunkenness is defined as:

(a) That condition which exists when an

individual publicly is under the influence

of alcoholic beverages or drugs to such an

extent that his or her normal faculties are

impaired; or

(b) Conviction of the charge of drunkenness

by a court of law.

(6) Moral turpitude is a crime that is

evidenced by an act of baseness, vileness or

depravity in the private and social duties,

which, according to the accepted standards

of the time a man owes to his or her f ellow

man or to society in general, and the doing

of the act itself and not its prohibition by

statute fixes the moral turpitude.

45. Effective July 8, 2012, Florida Administrative Code

Rule 6A - 5.5056 was amended by the Florida Department of

Educatio n. Paragraph (6) of Rule 6A - 5.5056 provides , in part ,

that "[d]runkenness applies only to persons who hold a contract

issued on or before July 1, 1984. . . ." Although recently

amended rule 6A - 5.5056 is not applicable in the instant dispute

because it su bstantively amends the previous rule and was not in

effect when the alleged violation occurred herein, it is ,

nevertheless , instructive because the recently amended rule

contains the Department of Education's interpretation of section

1012.33; a statute fo r whose administration the agency is

responsible. See Bd. of Podiatric Med. v. Fla. Med. Ass'n ,

779 So. 2d 658, 660 (Fla. 1st DCA 2001)(an agency is accorded

deference in the interpretation of statutes which it

administers).

46. When the L egislature ree nacts a statute, it is presumed

to know the construction placed thereon by courts or

administrators. Peninsular Supply Co. v. C.B. Day Realty of

Fla . , Inc. , 423 So. 2d 500, 502 (Fla. 3rd DCA 1982)(citing Nat'l

Lead Co. v. U . S . , 252 U.S. 140, 147 (1920); S tate ex rel. Szabo

Food Servs., Inc. of N . Carolina v. Dickinson , 286 So. 2d 529

(Fla. 1974) ) . Furthermore, w hen the L egislature amends a

statute, it is presumed that "it intended the statute to have a

different meaning than that accorded it before the am endment."

State v. Mark Marks, P.A. , 698 So. 2d 533, 541 - 42 (Fla. 1997).

47. It has been 18 years since Judge Blue authored his

special concurrence in Dietz . During this period, the

Legislature has amended section 1012.33(1)(a) and its

predecessor , s ection 231.36 , several times . By the Legislature,

in 2008, adding "immorality" to the list of five deadly sins

found in section 1012.33(1)(a) and three years later in 2011 ,

making other significant amendments to section 1012.33(1)(a) ,

while simultaneously electing to not expressly enumerate

"drunkenness" as grounds for just cause, it is reasonable to

conclude that the Legislature intend ed to exclude "drunkenness"

as an independent basis for establishing just cause in cases

involving professional services c ontracts. The Department of

Education has obviously reached a similar conclusion given the

language in rule 6A - 5.5056, effective July 8, 2012, which limits

"drunkenness" as a basis for just cause to contracts "issued on

or before July 1, 1984." According ly, there is no legal basis

for charging Respondent with "drunkenness" as alleged in the

Administrative Complaint.

48. The above notwithstanding, even if "drunkenness" were a

permissible basis for terminating Respondent's employment

contract, Petitioner failed to meet its burden of establishing

that Respondent's conduct on January 13, 2012, satisfies the

definition of "drunkenness."

49. In order to meet the definition of drunkenness as

defined by r ule [6A -

1) Be in a pu blic place;

2 ) While under the influence of alcoholic

beverages or drugs; and

3) The influence of alcoholic beverages or

drugs must be to such an extent that the

individual's normal faculties are impaired.

50. Rule [6A - word "publicly"

to denote the place where an individual must be while under the

influence of alcoholic beverages or drugs. Rule

[6A -

"publicly." According to Black's Law Dictionary , a public place

is "a place in which the public has an interest as affecting the

safety, health, morals, and welfare of the community."

Black's Law Dictionary 1107 (5th ed. 1979). Bayshore High School

is a public high school in Manatee County and is clearly a place

where the citizens of the community have a legally recognizable

interest. The evidence establishes that Respondent was in a

public place when she was observed by school officials on

January 13, 2012.

51. Respondent reported to work on January 13, 2012, at

ap proximately 7:30 a.m. , and remained at work until such time as

she was transported for reasonable suspicion testing. When

tested at 1:29 p.m. and 1:46 p.m. , Respondent's breathalyzer test

results, for both tests, was 0.112 percent by weight of alcohol.

W ithout question, Respondent had alcohol in her system w hen she

was at work January 13, 2012.

52. However, there was insufficient evidence offered by

Petitioner establishing that Respondent's normal faculties were

impaired while she was at work. See , e .g. , Cannon v. State ,

91 Fla. 214, 217 (Fla. 1926)("Though all persons intoxicated by

the use of alcoholic liquors are 'under the influence of

intoxicating liquors,' the reverse of the position is not true,

for a person may be under the influence of intoxi cating liquors

without being intoxicated.").

53. Neither rule [6A -

School Board defines the phrase "normal faculties" as used in

rule [6A -

person's "normal faculti es" routinely arises in the context of

operating a vehicle or vessel while alleged to be under the

influence of an intoxicant. Recently, the Florida Supreme Court,

In re : Std. Jury Instructions in Crim. Cases , No. SC10 - 2434,

37 Fla. L. Weekly S94 (as revi sed May 3, 2012), recognized a

definition of "normal faculties" which provides that "'[n]ormal

faculties' include, but are not limited to, the ability to see,

hear, walk, talk, judge distances . . . make judgments, act in

emergencies and, in general, to no rmally perform the many mental

and physical acts of our daily lives." This jury instruction

trac k s the langua ge found in section 316.1934(1) .

54. Petitioner did not submit sufficient evidence to

establish that on January 13, 2012, Respondent's normal fa culties

were impaired while she was at school. To the contrary, the

greater weight of the competent substantial evidence presented

during the final hearing actually demonstrates that Respondent

was in control of her faculties during all times relevant her eto.

II. Misconduct in Office

55. Paragraph 10 of the Administrative Complaint alleges as

follows:

Wampole engaged in misconduct in office as

defined in Rule 6B - 4.009(3), F.A.C. which

provides that misconduct in office is a

violation of the Code of Eth ics of the

Education Profession as adopted in Rule

6B - 1001, 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 effectiveness in t he

school system.

56. Related to paragraph 10 of the Administrative Complaint

is paragraph 13. This paragraph alleges, as to the allegation

that Respondent committed misconduct in office , that "Wampole's

actions violated Rule 6B - 1.006(3)(a), F.A.C., wh ich requires that

the individual make a 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."

57. As stated in Miami - Dade Cnty. Sch. Bd. v. Brenes , Case

No. 0 6 - 1758, 2007 Fla. Div. Adm. Hear. LEXIS 122 at *42 n.12

(Fla. DOAH Feb. 27, 2007; Miami - Dade Cnty. Sch. Bd. Apr. 25,

2007):

Rule [6A -

violation of both the Ethics Code and the

Principles of Professional Education 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

example, that teac hers 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 principles of Pro fessional Conduct

accomplish the latter goal, enumerating

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

concluded 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 rule in the

Princi ples of Professional Conduct be

proved. It is the necessary and sufficient

condition to which the text refers.

58. As noted in the Findings of Fact, the only impact that

Respondent's alcohol consumption had on her system during times

relevant hereto wa s that the alcohol caused Respondent to

experience glassy eyes. Respondent's act of being in class with

glassy eyes is not sufficient proof that Respondent exposed her

students to conditions harmful to their learning, health, or

safety as contemplated by rule 6B - 1.006(3)(a). Accordingly,

Petitioner failed to meet its burden of establishing that

Respondent engaged in misconduct in office.

III. Drug - Free Workplace Act

59. Florida's Drug - Free Workplace Act (hereinafter the

"Act") is found in Part I of c hapter 112, Laws of Florida.

Section 112.0455(8)(n)1 of the Act provides , in part , that "no

employer may discharge, discipline, or discriminate against an

employee on the sole basis of the employee's first positive

confirmed drug test. . . ." The Act def ines "employer" as "an

agency within state government that employs individuals for

salary, wages, or other remuneration." § 112.0455(5)(h).

Respondent asserts that Petitioner is "an agency within state

government" as defined by section 112.0455(5)(h) and that she is,

therefore , entitled to the protections afforded by the Act.

Respondent 's argument is not persuasive.

60. In addition to the Drug - Free Workplace Act, Part I of

c hapter 112 contains other provisions that are instructive as to

this issue. On e of these provisions is section 112.042(1) , which

makes it unlawful "for the governing body of any county or

municipal agency, board, commission, department, or office" of

this state to discriminate in employment decisions against

certain individuals. An other provision is section 112.044 , which

defines "employer" to mean "the state or any county ,

municipality, or special district or any subdivision or agency

thereof." ( e mphasis added ).

61. In comparing the definition of "employer" found in

section 112 .0455 with the definitions found in sections 112.042

and 112.044, it is clear, for purposes of Part I of c hapter 112,

that "an agency within state government" does not include within

its definition the governing board of a "county." According to

section 1 000.30, Florida Statutes, "[e]ach county shall

constitute a school district. . . ."

62. Respondent, in support of her contention that the

Manatee County School Board is an agency within state government,

relies upon Hernando Cnty. Sch. Bd. v. Provost , Case No. 09 - 2259

(Fla. DOAH Sept. 9, 2009), rejected in part , Case No. ED09 - 0001

(Sch. Bd. Hernando Cnty. Dec. 8, 2009). In Provost , the

R ecommended O rder concluded that the Hernando C ounty S chool B oard

was an agency within state government as contemplate d by section

112.0455(5)(h). In its F inal O rder, the s chool b oard rejected ,

on essentially two grounds , the legal conclusion that the s chool

b oard is an agency within state government. First, the school

board found that in reviewing the statutory framewo rk , there is

no indication that the Legislature intended for the term " agency "

to include school boards and , second , that the jurisdiction of

school boards, unlike state agencies, does not extend throughout

the S tate of Florida. The undersigned finds pers uasive the

rationale espoused by the Hernando County School Board in

Provost .

63. In further support of her contention that the Manatee

County School Board is an agency within state government,

Respondent relies on McIntyre v. Seminole C ounty School Boa rd ,

779 So. 2d 639 (Fla. 5th DCA 2001). In McIntyre , the school

board terminated an employee working under an employment contract

after the employee tested positive for marijuana. The central

issue before the court was whether the employee was improperly

denied a chapter 120 administrative hearing. As part of the

opinion, the court addressed the school board's drug - free policy

and stated that it was unclear whether the employee "violated the

School Board's policy against any employee 'using . . . marijua na

. . . before, during or after school hours at school or in any

other school district location,' because there is nothing in the

record which indicates where [the employee's] alleged drug use

took place." Id. at 644. Additionally, the court noted that the

"School Board's drug - free policy does not provide for

termination , but states: '[a]ny School Board employee who

violates this policy shall be treated in accordance with

appropriate Florida Statutes and/or appropriate Contract

Agreement." The court co ncluded that "this language does not

make it clear that McIntyre violated the School Board's drug - free

policy." Id .

64. The court's holding in McIntyre relating to the Act

presumes the applicability of the act , but does not address

whether county school boards fall within the act's definition of

"employer." Contrary to Respondent's assertion, the court's

holding in McIntyre does not resolve the question of whether the

Act applies to county school boards.

65. The Manatee County School Board is not an "agency

within state government" as de fined by section 112.0455(5)(h).

Cf. Dunbar Electric Supply, Inc. v. The Sch. Bd. of Dade Cnty.,

Fl a. , 690 So. 2d 1339 (Fla. 3rd DCA 1997)("School boards do not

fall within the executive branch of the state governme nt . "); Op.

Att'y. Gen. Fla. 84 - 68 (1984)(school boards "are not a part of

the executive branch of state government and therefore are not

'state agencies' for the purposes of the fiscal affairs of the

state. . . ."). Because Petitioner is not an "employer" within

the meaning of the Act, Petitioner is free to discipline

Respondent, as appropriate , for her first positive , confirmed

alcohol test.

I V . Violation of School Board P olicy and P rocedure

66 . Paragraph 11 of the Administrative Complaint alleges

that Respondent "violated Section 2.20 of the Policies and

Procedures Manual of the School Board of Manatee County which

provides that no person shall be in possession of or under the

influence of an intoxicating beverage on school board property."

As dra fted, the Administrative Complaint does not assert that

Respondent's alleged violation of section 2.20 of the Policies

and Procedures Manual of the School Board of Manatee County

constitutes just cause pursuant to section 1033.12(1)(a). In

other words, th e Administrative Complaint asserts that the

violation of Policy 2.20 is itself a sufficient basis for

terminating Respondent's professional services contract.

6 7 . As previously noted, Respondent's professional services

contract expressly provides that Re spondent "SHALL NOT BE

DISMISSED DURING THE TERM OF [HER] CONTRACT EXCEPT FOR JUST CAUSE

AS PROVIDED IN SECTION 1012.33(1)(a), FLORIDA STATU TE S."

6 8 . The violation of a local school board rule or policy

may not, standing alone, establish just cause for terminating a

professional services contract during its term. There must be a

nexus between an alleged violation of a local school board rule,

section 1012.33(1)(a) and rule [6A - 5.5056]. See Broward Cnty.

Sch. Bd. v. Allen , Case No. 10 - 9262, pg. 24 - 25 ( Fla. DOAH

July 26, 2011 , Broward Cnty. Sch. Bd. , Dec. 15, 2011)("To

establish the existence of 'just cause' . . . it was incumbent

upon the School Board to prove, not only that Respondent

committed this violation of school policy, but also that, in so

doin g, he engaged in 'misconduct in office' . . . as [this] term

[is] used in section 1012.33 and defined in Florida

Administrative Code Rule [6A - 5.056]."). To allow otherwise,

would render meaningless that portion of section 1012.33(1)(a)

which grants to the State Board of Education the authority to

define by rule what constitutes just cause for dismissing

instructional staff.

6 9 . Additionally, charging Respondent with violating

Policy 2.20 without linking the charge to section 1012.33(1)(a)

and rule [6A - 5. 5056] is inconsistent with the ejusdem generis

canon of statutory construction which, as applied to Policy 2.20,

"requires that for 'just cause' to be found based upon an

unexemplary instance (i.e. Policy 2.20), the unexemplary instance

must bear a close a ffinity to one of the exemplary instances

(i.e. § 1012.33(1)(a))." Miami - Dade Cnty. Sch. Bd. v. Singleton ,

Case No. 07 - 0559, 2006 Fla. Div. Admin. Hear. LEXIS 614 *51 (Fla.

DOAH Oct. 26, 2006; Miami - Dade Cnty. Sch. Bd. , Aug. 10, 2007).

In considering Pol icy 2.20, it is evident that the policy imposes

a significantly lesser standard for termination than that found

in section 1012.33(1)(a) and rule [6A - 5.056] because the policy

does not require any evidence of impairment whatsoever, whereas

section 1012.33( 1)(a) and rule [6A - 5.056] do require such

evidence of impairment.

70 . Also, by charging Respondent with a violation of the

lesser standard found in Policy 2.20, Petitioner is impermissibly

attempting to do indirectly that which it is unable to do

direct ly; to wit, charge Respondent with "drunkenness" as

previously explained. See gen erally N. Port Rd. & Drainage Dist.

v. W. Vill s. Improvement Dist. , 82 So. 3d 69, n.4 (Fla. 2012)(the

drainage district "cannot do indirectly what it cannot do

directly.").

71. Policy 2.20 does not provide just cause for terminating

Respondent's employment. A violation of Policy 2.20 does ,

however , provide Petitioner with just cause for suspending

Respondent as authorized by section 1012.33(6)(a). See Abrams v.

Seminole Cn ty . Sch. Bd. , 73 So. 3d 285 (Fla. 5th DCA 2011)(Just

cause did not exist for termination, but did exit for lesser

disciplinary sanction of suspension without pay.) .

72. Although there was insufficient evidence to establish

that Respondent's normal facult ies were impaired on the day in

question or that she exposed her students to conditions harmful

to their learning, the evidence , nevertheless , established that

Respondent had a considerable amount of alcohol in her system and

that her glassy eyes were rela ted to her consumption of alcohol.

Respondent violated Policy 2.20 by being under the influence of

alcohol while on school property , and she should , therefore , be

disciplined.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that :

1. The violations alleged in paragraphs 10, 12, 13, and 14

of the Administrative Complaint should be dismissed.

2. The violation alleged in paragraph 11 of the

Administrative Complaint should be dismissed to the extent that

it s eeks to establish just cause for termination of Respondent's

employment.

3. Paragraph 11 of the Administrative Complaint should be

sustained to the extent that it establishes grounds for imposing

non - terminable discipline against Respondent.

4. Respond ent shall be suspended , without pay , for a period

of 60 calendar days. Respondent shall not be eligible to use any

accrued leave during her period of suspension.

5. Upon return from her suspension, Respondent, during the

remainder of the 2012 - 2013 acade mic year, shall at her expense be

subject to random alcohol testing as determined by the Manatee

County School Board or its designee. A positive alcohol test

shall result in further disciplinary action.

6. Upon return from her suspension, Respondent, du ring the

remainder of the 2012 - 2013, shall be assigned to a position where

she does not have responsibility for the supervision of students.

7. During Respondent's period of suspension , she shall

remain eligible to participate in the Employees' Assistance

Program and shall enroll in and successfully complete an alcohol

dependency program. Respondent may be subject to disciplinary

action should she fail to successfully complete the alcohol

dependency program.

DONE AND ENTERED this 1 6 th day of August , 2012 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing ( 850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 6 th day of August , 2012 .

ENDNOTE S

1/ All subsequent references to Florida Statutes will be to 2011,

unless otherwise indicated.

2/ Effective Apr il 5, 1983, Florida Administrative Code Rule

6B - 4.009 was transferred to Florida Administrative Code Rule

6A - 5.056. The Administrative Complaint correctly references the

substance of the rule and corresponding numbered paragraphs, but

incorrectly referen ces the chapter number for the rule.

Consequently, rule 6A - 5.056 will be substituted herein and

designated by the utilization of brackets ([]).

3/ As written, paragraph 12 of the Administrative Complaint

merely charges Respondent with violating the defi nition of

drunkenness and omits therefrom any reference to section

1012.33(1)(a) , which provides the statutory authority for

terminating a professional services contract during its term. In

disciplinary proceedings, the statutes and rules for which a

viol ation is alleged must be strictly construed in favor of

Respondent. Elmariah v. Dep't of Prof'l Reg. , 574 So. 2d 164

(Fla. 1st DCA 1990); Taylor v. Dep't of Prof'l Reg. , 534 So. 2d

782, 784 (Fla. 1st DCA 1988). Consistent with this principle, it

is impro per to charge Respondent with simply violating a

definition. See Dep't of Bus. & Prof'l Reg. v. Rhea , Case

No. 11 - 3009PL, RO at 30 (Fla. DOAH Feb. 17, 2011)("[T]he

undersigned cannot conclude that Respondent may be found guilty

of violating a definition." ).

COPIES FURNISHED:

Gerard Robinson, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1 244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Tim McGonegal, E d .D., Superintendent

Manatee County School Board

215 Manatee Avenue West

Bradenton, Florida 34205 - 9069

Erin G. Jackson, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 3360 1 - 0639

Robert F. McKee, Esquire

Kelly and McKee, P.A

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 336 7 5 - 0638

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Al l 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.