12-001271TTS Manatee County School Board vs. James A. Withers Status: Closed Recommended Order on Monday, October 8, 2012.

Summary: Petitioner established just cause to suspend without pay Respondent's employment for ten days.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1271TTS

)

JAMES A. WITHERS , )

)

Respondent . )

)

RECOMMENDED ORDER

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

August 8, 2012, in Bradenton, Florida, before Administrative Law

Judge Linzie F. Bogan, a designated Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Erin G. Jacks on, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 3360 1 - 0639

For Respondent: Melissa C. Mihok, Esquire

Kelly and McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tampa, Florida 33675 - 0638

STATEMENT OF THE ISSUE

Whether there is just cause for the Manatee County School

Board to suspend without pay the employment of James A. Withers

for a period of ten school d ays.

PRELIMINARY STATEMENT

On or about April 3, 2012, Petitioner, Manatee County School

Board (Petitioner), through Timothy McGonegal, as superintendent

of Schools, served on Respondent, James A. Withers (Respondent),

an Administrative Complaint and recom mended therein Respondent's

suspension from employment for a period of ten days without pay.

Respondent timely filed his request for administrative hearing,

and on April 12, 2012, the matter was referred to the Division of

Administrative Hearings for a di sputed fact hearing. At the

request of the parties, t he disputed fact hearing was held on

August 8, 2012.

During the final hearing, Petitioner offered the testimony

of Deborah Houston, Tawanda Means, and Debra Horne. Respondent

testified on his own beha lf and offered the testimony of no other

witnesses. Petitioner's Exhibits 1, 14 (with attachments),

and 15 through 19 were admitted into evidence. Respondent did

not offer any evidentiary exhibits.

A Transcript of the proceeding was filed with the Divis ion

of Administrative Hearings on August 27, 2012. By agreement,

each party filed its Proposed Recommended Order (PRO) on

September 17, 2012. The respective PROs were considered in the

preparation of this Recommended Order.

FINDING S OF FACT

1. Petition er is the duly authorized entity responsible for

providing public education in Manatee County, Florida.

2. Respondent is currently employed by Petitioner as a

member of the instructional staff. Respondent's employment is

subject to section 1012.33, Flor ida Statutes, 1/ which provides

that his employment will not be suspended or terminated , except

for just cause. As a teacher, Respondent is required to abide by

all Florida Statutes which pertain to teachers, the Code of

Ethics of the Educational Professio n in Florida (Code of Ethics),

the Principles of Professional Conduct of the Education

Profession in Florida ( Principles of Conduct ) , and the Policies

and Procedures Manual of the School Board of Manatee County,

Florida (Policies and Procedures Manual) , to the extent that the

policies and procedures do not conflict with Florida Statutes.

3. During the 2010 calendar year, Petitioner counseled

Respondent and issued him a written reprimand for inappropriate

behavior. Specifically, Respondent was counseled or disciplined

as follows:

A. On March 24, 2010, while Respondent was a

teacher at Prine Elementary, he was given a

written directive from Principal Dr. Guy

Grimes that instructed Respondent to refrain

from making physical contact with any student

unless an emergency arose in which the

student was attempting to harm himself or

others.

B. On October 5, 2010, Respondent received a

written reprimand for his actions on

September 27, 2010, and September 28, 2010,

wherein he had an inappropriate conversation

with his class regarding the discipline of

one of his students and an unprofessional

conversation with his peers. Respondent's

behavior was deemed by Petitioner to be in

violation of the Code of Ethics and the

Principals of Professional Conduct of the

Edu cation Profession in Florida. Respondent

was instructed to attend sensitivity training

and warned that any recurrence of such

behavior would result in further discipline,

up to and including termination of

employment.

C. On October 29, 2010, Petitioner' s Office

of Professional Standards ("OPS") conducted

an investigation based on an allegation that

Respondent made an inappropriate comment to a

female staff member. Specifically,

Respondent, who was dressed as a cowboy for

the school parade, allegedly com mented to a

female staff member that she should "save a

horse, ride a cowboy." OPS determined that

the allegation was unfounded and no

disciplinary action was warranted.

Respondent, however, was issued a written

directive from his supervisor to cease and

desist from making comments that could be

considered offensive.

4. During the 2011 - 2012 academic school year, Respondent

was employed as a special area science teacher at Prine

Elementary School ("Prine"). Due to a shortage of traditional

classrooms at the school, Respondent was assigned to teach his

classes on the stage in the school's cafetorium. A cafetorium is

a multi - purpose room that serves as both a cafeteria and an

auditorium. Respondent's classroom consisted of a desk for his

use and long r ectangular tables for use by the students during

periods of instruction. Curtains were available in order to

partition the classroom from the rest of the cafetorium , if

necessary.

5. Special events are often scheduled on the stage in the

cafetorium. Whenever a special event is scheduled, Respondent is

notified in advance so that he can make arrangements to report to

his students' homeroom in order to teach his class.

6. On January 3, 2012, fellow Prine employee, Amy Moore

(Ms. Moore), emailed Respo ndent to inform him that a dance party

for students would be held in the cafetorium on February 3, 2012.

The dance party was part of an incentive program that awarded

students for good behavior. On February 1, 2012, Ms. Moore sent

an email to Prine staff , including Respondent, informing them

that the dance party was rescheduled to February 10, 2012. On

February 6, 2012, Ms. Moore sent staff another email reminding

them of the dance party and included in the email the following

schedule which details when students were to report to the

cafetorium:

8:45 Î 9:15 Kdg. and PK

9:25 Î 9:55 2nd

10:05 Î 10:35 3rd

1 Î 1:30 1st

1:40 Î 2:10 4th

2:20 Î 2:50 5th

Ms. Moore's February 6, 2012, email reminder to staff also noted

therein that "Ms. Means, the DJ [ d isk jockey ,] will start on time

for each party, so have your children in the auditorium on time."

Respondent knew , or certainly should have known , that his

classroom would be used for the dance party on February 10, 2012.

7. Tawanda Means (Ms. Means), who works for Petitioner as a

music and movement teacher at Virgil Mills Elementary (Virgil

Mills), was assigned by Petitioner to serve as DJ and host for

the dance party at Prine. On Friday, February 10, 2012,

Ms. Means reported to Prine around 8:15 a.m., which allowed her

plenty of time to set - up her equipment for the dance party. Upon

her arrival, Ms. Means checked - in at the school's front office

and then spoke with one of the school's custodians about her need

to use one of the school's golf carts so that she could transport

her equipment from her car to the stage in the cafetorium.

8. When Ms. Means arrived at the cafetorium, she observed

that Brenda Flach, music teacher at Prine, and Respondent were

having a conversation. She also observed that a portion of the

stage in the cafetorium was set up as a classroom. During the

several other times when Ms. Means had used the cafetorium for

dance party events, the stage had never been set up as a

classroom. Ms. Means was surprised to see the stage configured

i n this manner , so she proceeded to investigate the set - up so as

to ensure that it would not interfere with the dance party. As

Ms. Means began setting up her equipment, Respondent rudely said

to her, "Hey, what are you doing in my classroom?" Ms. Flach

a lso made statements to Ms. Means that were rude in tone.

Ms. Means informed Respondent that she was there "to do the

dance," to which Respondent replied "I know that . . . [b]ut I

thought you [were] supposed to use the outside." Ms. Means

sensed that Re spondent was feeling possessive of his classroom

space , and she also sensed that Respondent was getting angry.

Ms. Means was offended by Respondent's behavior , and in order to

avoid continued conflict with Respondent , she felt it necessary

to seek assista nce from Ms. Houston, the a ssistant p rincip a l at

Prine. Ms. Means left the cafetorium and immediately went to the

front office to report the situation to Ms. Houston.

9. Ms. Means met with Ms. Houston and explained the

situation regarding Respondent's b ehavior. Ms. Houston assured

Ms. Means that the cafetorium was the correct location for the

dance party and returned with Ms. Means to the cafetorium so as

to ensure that the situation was resolved without further

conflict. Upon arrival at the cafetorium , Ms. Houston reminded

Respondent that Ms. Means would be using the stage throughout the

day for the dance party. Ms. Houston assisted Ms. Means with

completing the set - up of her equipment and then Ms. Houston

returned to her office. Respondent did not o ffer to assist the

two ladies with setting up the equipment.

10. During the first dance party session hosted by

Ms. Means, Respondent remained in the cafetorium and stood to the

side of the stage with his arms folded while glaring at

Ms. Means. Ms. Mea ns observed Respondent's posture. According

to Ms. Means, Respondent's conduct of "giving her the eye , " while

simultaneously "standing there with his arms folded , " was

"freaking [her] out , " and it made her very uncomfortable.

Respondent admits that he wa s standing with his arms crossed. He

claims , however, that there was nothing threatening about his

posture and that he was essentially in a joyous mood due to the

pleasure that he experienced while watching the children dance.

Respondent's testimony in t his regard is not credible. Not only

was Respondent not in joyous mood, but he was perturbed by the

fact that he had been essentially evicted from his classroom and

was relegated to what was essentially a nomadic form of existence

for the remainder of the work day.

11. There were no dance party sessions scheduled on the day

in question between 10:35 a.m. and 1:00 p.m. Ms. Means used this

block of time to screen lyrics for upcoming sessions. When

screening lyrics, Ms. Means listens to songs through her h eadset ,

while simultaneously using her computer to reconcile the written

lyrics with what she is hearing audibly. The process of using

the headset prevents others in the room from hearing what the

user of the headset hears.

12. During the time when Ms. Means was screening lyrics,

Respondent claims that he tried unsuccessfully to get her

attention. Ms. Means was unware of the fact that Respondent was

in the cafetorium at this time or that he was trying to get her

attention. Respondent made himself know n to Ms. Means when he

approached her from behind, reached over her shoulder while she

was seated at her computer, and gestured in such a way as to

reasonably cause Ms. Means to believe that Respondent was trying

to get to her computer. Upon observing Res pondent's actions,

Ms. Means stated to Respondent, "What are you doing? Don't touch

my things!" Respondent then told Ms. Means that there was no

reason for her to be on the stage and that she should leave.

Respondent then pulled back the table at which Ms. Means was

seated , thereby , causing her equipment to become unplugged.

Respondent offered to assist Ms. Means with reconnecting the

equipment , but Ms. Means reasonably refused the offer and

immediately left the stage to report Respondent's conduct to

M s. Houston.

13. Respondent desired for Ms. Means to leave the stage ,

because he wanted to use his classroom to instruct his students

during the time between dance parties. On days when special

events are held in the cafetorium, especially events that las t

the entire school day, it is standard protocol, as previously

noted, for Respondent to conduct his classes in his students'

homeroom. In order to conduct the classes in the respective

homerooms, Respondent was required to plan ahead so as to ensure

that the homerooms would be available.

14. As early as January 3, 2012, Respondent was given a

"heads up" about the upcoming dance party so that he could "plan

ahead." It is not clear from the record how the change of dates

for the dance party from Februar y 3, 2012, to February 10, 2012,

impacted Respondent's planning, if at all. What is clear ,

however , is that Respondent expected to use his classroom during

the block of time between 10:35 a.m. and 1:00 p.m. Whatever

Respondent's expectation may have been regarding the use of his

assigned classroom on the day in question; there is no excuse for

Respondent's conduct of stealthily maneuvering himself behind

Ms. Means, reaching over her shoulder in an attempt to get to her

computer, and then telling Ms. Means that she needed to leave the

stage. If Respondent had concerns about the use of the classroom

by Ms. Means, the professional thing to do would have been for

Respondent to go to Ms. Houston to discuss the situation , instead

of trying to bully Ms. Means in to submission.

15. When Ms. Means reported the "computer" incident to

Ms. Houston, she was so upset by Respondent's conduct that she

requested that Ms. Houston allow her to contact Michael Rio, her

princip al at Virgil Mills Elementary, so that she could advise

him of the situation and secure permission to immediately return

to her home school. Ms. Houston informed Ms. Means that it was

not necessary for her to contact Mr. Rio and assured Ms. Means

that she would take care of the situation with Responden t.

16. Ms. Houston reported to the stage and discussed the

incident with Respondent. Ms. Houston told Respondent that

"Ms. Means was upset" and that she thought he was being very

rude, as partially evidenced by him attempting to turn off her

computer. M s. Houston asked Respondent to apologize to Ms. Means

since she was a guest at the school. Respondent became

defensive ; he said he did not do anything wrong and that he did

not feel like he needed to apologize to Ms. Means. Ms. Houston

gave Respondent a specific directive to apologize to Ms. Means

and "make it right." Ms. Houston's directive to Respondent was

reasonable , and as the a ssistant p rincip al , she possessed the

authority to issue this directive to Respondent.

17. Respondent left the stage and r eported to Ms. Houston's

office to speak with Ms. Means. Ms. Houston stayed in the

cafetorium with Respondent's students. After a minute or two,

Ms. Houston decided that she should be present when Respondent

apologized to Ms. Means. Accordingly, Ms. Hou ston then escorted

Respondent's students to the foyer area near her office so that

she could join Respondent and Ms. Means in her office.

18. According to Ms. Means, she was sitting in a chair in

Ms. Houston's office when Respondent arrived. Upon enterin g the

office, Respondent approached Ms. Means and put his finger within

inches of her face. Respondent then stated to Ms. Means , in a

raised voice, "What is your problem? Why won't you just do what

I ask you to do?" Respondent stood over Ms. Means for s everal

minutes while speaking to her in a harsh and loud tone.

Respondent did not apologize to Ms. Means as he had been

instructed to do.

19. When Ms. Houston arrived at her office, she observed

Respondent "standing over" Ms. Means and talking to her in a loud

and unprofessional tone. He was not apologizing to Ms. Means as

he had been instructed to do. Ms. Houston quickly intervened and

asked Respondent what he was doing. Respondent told Ms. Houston

that Ms. Means was not telling the truth and that he was

surprised that Ms. Houston was not supporting him. Ms. Houston

instructed Respondent to "stop yelling" at her, but he ignored

Ms. Houston's reasonable directive and continued to "rant and

rave" in a very aggressive and raised voice.

20. Respondent testified that he believed Ms. Houston was

"disrespecting" him by not believing his side of the story and

that Ms. Houston was more concerned with getting him "to be

quiet" as opposed to listening to what he had to say.

Incredibly, at one point during th e hearing , Respondent testified

that he believed that Ms. Houston and Ms. Means had conspired to

"set him up." Contrary to what Respondent may believe, he is not

the victim in this case .

21. During the time when Respondent was yelling at

Ms. Houston, Ms. Means exited Ms. Houston's office. Although

Ms. Means closed the door behind her, she could still hear

Respondent "yelling" at Ms. Houston. Upon leaving the office,

Ms. Means saw Respondent's students sitting near Ms. Houston's

office. Ms. Means mov ed the students away from the office area

and started playing hand games with the students , because she did

not want them to hear Respondent yelling at Ms. Houston.

22. After several minutes, Respondent exited Ms. Houston's

office and started to walk d own the hallway. Respondent did not

notice that his students were in the area. Ms. Houston called

out to Respondent to let him know that his class was in the

foyer. When Respondent heard his name being called by

Ms. Houston, he turned towards her and s aid , "What?" in a very

loud and unprofessional tone. Ms. Houston, in reply to

Respondent, said , "Excuse me? Your class is over there."

23. Approximately ten minutes after leaving Ms. Houston's

office, Respondent returned and informed the office secreta rial

staff that he was going home. Respondent signed out for the day

at 11:55 a.m. , and noted on the sign - out sheet that he was

"sick." After signing out, Respondent briefly stopped by

Ms. Houston's office and said to her, "I'm sick, I am leaving. "

24. It is standard protocol at Prine that if a teacher

signs out prior to the end of the school day for non - emergency

reasons, then it is the responsibility of the teacher to make

arrangements with other instructional staff to cover the

teacher's classes for t he remainder of the day. Respondent

failed to make proper arrangements to have his classes covered

following his departure from campus , and this resulted in a

disruption to the orderly operation of the school because other

teachers were unexpectedly requi red to cover Respondent's last

three classes of the day.

25. When Respondent returned to work, he submitted a Leave

of Absence Request for February 10, 2012, for the time period

beginning at 11:55 a.m. , and ending at 3:30 p.m. On the form,

Respondent ci rcled the type of leave requested as "illness . "

Respondent admits that for the period in question, he was not

physically sick , but was , instead , "emotionally sick" and

"upset."

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdict ion over the parties and the subject matter of this

proceeding. §§ 120.569 & 120.57(1), Fla. Stat. (2012).

27. Petitioner bears the burden of proving by a

preponderance of the evidence that just cause exists for the

suspension of Respondent ' s employment. 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).

28. Pursuant to section 1012.27(5), the s uperintendent has

authority to recommend to the School Board that an employee be

suspended.

29. Pursuant to sections 1012.22(1)(f) and 1012.33(6)(a) ,

the School Board has the authority to suspend employee s like

Respondent for just cause. Section 1012.33(1)(a) provides , in

part , that "[j]ust cause includes, but is not lim ited to, the

following instances as defined by rule of the State Board of

Education: immorality, misconduct in office, incompetency, gross

insubordination, willful neglect of duty, or conviction of a

crime involving moral turpitude." Section 1012.33 does not

purport to be an all - inclusive list of conduct that constitutes

"just cause" for suspending an employee. By specifically

providing that "just cause includes, but is not limited

to . . .," the Florida Legislature gave school boards limited

discretion to determine what actions constitute just cause for

suspension or dismissal. See Dietz v. Lee Cnty . Sch. Bd. ,

647 So. 2d 217 (Fla. 2d DCA 1994) (per curiam affirmed); Manatee

Cnty. Sch. Bd. v. Wampole , Case No. 12 - 0801 (Fla. DOAH Aug. 16,

2012)(Recommende d Order) .

30. As a member of the School Board's instructional staff,

Respondent's employment is subject to section 6.11(1) of the

Policies and Procedures Manual, which provides that,

Any employee of the School Board may be

temporarily suspended, with or w ithout pay,

or permanently terminated from employment,

for just cause including, but not limited to,

immorality, misconduct in office,

incompetence, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of any crime involving moral tur pitude,

violation of the Policies and Procedures

Manual of the School District of Manatee

County, violation of any applicable Florida

Statute, [or] violation of the Code of Ethics

and the Principles of Professional Conduct of

the Education Profession in Fl orida.

I. Gross insubordination

31. Paragraph 25 of the Administrative Complaint alleges

that Respondent " engaged in misconduct as defined in Rule

[6A - 5.056( 4 [2/] which provides that gross

insubordination or willful neglect of duties is a c onstant or

continuing intentional refusal to obey a direct order, reasonable

in nature, and given by and with proper authority . "

32. The evidence establishes that Ms. Houston, who

possessed authority to do so, gave Respondent a specific

directive to "ma ke it right" and to "apologize" to Ms. Means.

Respondent refused to do so. The evidence also establishes that

Ms. Houston instructed Respondent to "stop yelling" at her, but

Respondent also ignored this directive and continued to "rant and

rave" in a ver y aggressive and raised voice. The two incidents

where Respondent refused to comply with Ms. Houston's directives

did not occur as part of a single outburst , but were , instead ,

separate, stand - alone acts. Cf. , Smith v. Sch. Bd. of Leon Cnty.

Fla. , 405 So . 2d 183, 185 (Fla. 1st DCA 1981)(isolated outburst

is not constant or continuing within meaning of "gross

insubordination."). The s uperintendent has met its burden of

establishing that Respondent's unreasonable refusal to comply

with Ms. Houston's reason able directives constitutes gross

insubordination.

II. Harassment

33. Paragraph 26 of the Administrative Complaint alleges

that Respondent's " actions violated rule 6B - 1.006(5)(d), Florida

Administrative Code, which requires that the individual shall n ot

engage in harassment or discriminatory conduct which unreasonably

interferes with an individual's performance of professional or

work responsibilities or with the orderly processes of education

or which creates a hostile, intimidating, abusive, offensiv e, or

oppressive environment. . . ." The s uperintendent established by

a preponderance of the evidence that Respondent's conduct created

a hostile, intimidating and offensive work environment for fellow

school board employee , Ms. Means , and that said cond uct

constitutes harassment within the meaning of rule 6B - 1.006(5)(d).

III. Misconduct

34. Paragraph 24 of the Administrative Complaint alleges

that Respondent "engaged in misconduct as defined in rule

[6A - A violation

of this rule requires a showing that the alleged misconduct "is

so serious as to impair the individual's effectiveness in the

school system." While Respondent's conduct is reprehensible, the

school board failed to offer sufficient evidence e stablishing

impairment to Respondent's effectiveness in the school system.

35. Petitioner argues that Respondent's unprofessional and

rude behavior towards to Ms. Houston and Ms. Means is of such a

nature that it "speaks for itself" for purposes of establ ishing

impairment of Respondent's effectiveness in the school system.

See , e.g. , Purvis v. Marion Cnty. Sch. Bd. , 766 So. 2d 492, 498

(5th DCA 2000); Walker v. Highlands Cnty. Sch. Bd. , 752 So. 2d

127, 128 - 29 (Fla. 2d DCA 2000); Brevard Cnty. Sch. Bd. v. Jones ,

Case No. 06 - 32 1033, 2006 Fla. Div. Admin. Hear. LEXIS 287 *17

(Fla. DOAH June 30, 2006) (Recommended Order)("[T]he need to

demonstrate 'impaired effectiveness' is not necessary for

instances where the misconduct by a teacher speaks for itself, or

c an be inferred from the conduct in question."). While

Respondent's conduct certainly deviated from the norm, the

conduct does not rise to the level of being so repulsive that it

constitutes per se evidence of misconduct. Anecdotally, had

Respondent's all eged conduct been sufficiently egregious so as to

satisfy the "speaks for itself" standard, then it certainly seems

reasonable that Petitioner would have sought disciplinary action

far greater than ten days ' suspension without pay. Petitioner

has failed t o meet its burden as to this allegation.

IV. Sick leave

36. Paragraphs 28 and 29 of the Administrative Complaint

charge Respondent with violating rule 6B - 1.006(5)(a) and (h) ,

because he allegedly misrepresented the nature of his illness

when he left cam pus on the day in question. Conspicuously absent

from Petitioner's proof as to this issue, is a copy of the School

Board's p olicy or p rocedure governing the proper use of sick

leave. Petitioner argues that Respondent was dishonest when he

represented on his leave form that he was "sick" because

Respondent was only "emotionally sick" and the form contemplates

use only in instances of "physical illness." There is nothing on

either the sign - out sheet or the Leave of Absence Request form

signed by Respondent that distinguishes physical illness from

emotional illness. In the absence of an established policy or

procedure governing the use of sick leave, there is no objective

standard by which the undersigned is able to evaluate or

otherwise judge Respondent's behavior. See generally Purvis v.

Dept. of Prof'l Reg. , 461 So. 2d 134 (Fla. 1st DCA 1984).

Petitioner has failed to meet its burden as to the allegations

set forth in paragraphs 28 and 29 of the Administrative

Complaint.

IV. Code of Ethics

37. Paragra ph 27 of the Administrative Complaint alleges

that Respondent's "actions violated rule 6B - 1.001(3), Florida

Administrative Code, which states " the educator is aware of the

importance of maintaining the respect and confidence of one's

colleagues, of student s, or parents, and of other members of the

community, and therefore strives to achieve and sustain the

highest degree of ethical conduct." Rule 6B - 1.001 is the Code of

Ethics.

38. As stated in Miami - Dade C ou nty Sch ool B oar d v. Brenes ,

Case No. 06 - 1758, 2 007 Fla. Div. Adm. Hear. LEXIS 122 at *42 n.12

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

2007):

The precepts set forth in the Ethics Code

. . . are so general and so obviously

aspirational as to be of little practical use

in defining nor mative behavior. It is one

thing to say, for example, that teachers must

" strive for professional growth. " See Fla.

Admin. Code R. 6B - 1.001(2). It is quite

another to define the behavior which

constitutes such striving in a way that puts

teachers on not ice concerning what conduct is

forbidden. The principles of Professional

Conduct [found in rule 6B - 1.006] accomplish

the latter goal, enumerating specific " dos "

and " don ' ts. " Thus, it is concluded that

while any violation of one of the Principles

would a lso 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,

wher eas it is both necessary and sufficient

that a violation of a specific rule in the

Principles of Professional Conduct be proved.

39. Petitioner, as noted above, proved that Respondent

violated certain Princi ples of Conduct . Petitioner also proved

that Respondent violated the Code of Ethics by showing that

Respondent's behavior towards Ms. Means and Ms. Houston fell

below the standard of conduct contained in rule 6B - 1.001(3),

which requires that an educator maintain respect for one's

colleagues.

40. R espondent's violations, individually and collectively,

constitute just cause for his ten - day suspension from employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Manatee County School Boar d enter

a final order that:

1. Dismisses paragraphs 24, 28, and 29 of the

Administrative Complaint; and

2. Concludes that the violations, individually and

collectively, constitute just cause to suspend Respondent's

employment with the Manatee County Sch ool Board for ten school

days without pay. 3/

DONE AND ENTERED this 8th day of October , 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 8th day of October , 2012 .

ENDNOTE S

1/ All subsequent re ferences to Florida Statutes will be to 2011,

unless otherwise indicated.

2/ Effective April 5, 1983, Florida Administrative Code Rule

6B - 4.009 was transferred to Florida Administrative Code Rule

6A - 5.056. The Administrative Complaint correctly referen ces the

substance of the rule and corresponding numbered paragraphs, but

incorrectly references the chapter number for the rule.

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

designated by the utilization of brackets ([]).

3/ There was cred ible evidence offered that Respondent's hasty

departure from school during the middle of the work day on

February 10, 2012, caused a disruption to the orderly operation

of the school. There were , however, no allegations that

Respondent's midday departure violated any specific policy or

procedure established by the Manatee County School Board.

Accordingly, any final disciplinary action to be imposed against

Respondent by Petitioner should not be based upon any findings

set forth herein that relate to the d isruption caused by

Respondent's hasty departure from school.

COPIES FURNISHED:

Pam Stewart, Interim Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Lois Tepper, Interim Gen eral Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Bob Gagnon, Interim Superintendent

Manatee County School Board

215 Manatee Avenue West

Bradenton, Florida 34205 - 9069

Erin G. Jac kson, Esquire

Thompson, Sizemore, Gonzalez

and Hearing, P.A.

201 North Franklin Street, Suite 1600

Post Office Box 639

Tampa, Florida 3360 1 - 0639

Melissa C. Mihok, Esquire

Kelly and McKee, P.A.

1718 East 7th Avenue, Suite 301

Post Office Box 75638

Tamp a, Florida 33675 - 0638

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

wi ll issue the Final Order in this case.