12-001601TTS Broward County School Board vs. Richard Allen
 Status: Closed
Recommended Order on Wednesday, October 31, 2012.


View Dockets  
Summary: School Board failed to meet its burden and demonstrate just cause to terminate Respondent from his teaching position.

1Case No. 12-1601

4STATE OF FLORIDA

7DIVISION OF ADMINISTRATIVE HEARINGS

11BROWARD COUNTY SCHOOL BOARD, RECOMMENDED ORDER )

18)

19Petitioner, )

21vs. )

23)

24RICHARD ALLEN, )

27)

28Respondent. )

30)

31)

32Pursuant to notice, a hearing was conducted in this case on

43June 27 and 28, 2012, at video teleconferencing sites in Fort

54Lauderdale and Tallahassee, Florida, before Administrative Law

61Judge June C. McKinney of the Division of Administrative

70Hearings, pursuant to the authority set forth in sections

79120.569 and 120.57(1), Florida Statutes (2010). 1 /

87APPEARANCES

88For Petitioner: Mark A. Emanuele, Esquire

94Lydecker, Diaz, P.A., LLC

981221 Brickell Avenue, 3rd Floor

103Miami, Florida 33131

106For Respondent: Jeffrey Scott Sirmons, Esquire

112Johnson & Sirmons, P.A.

116510 Vonderburg Drive, Suite 309

121Brandon, FL 33511

124STATEMENT OF THE ISSUE

128The issue in this case is whether there is just cause to

140terminate Richard Allen's employment with the Broward County

148School Board based upon the allegations made in its Amended

158Administrative Complaint dated March 6, 2012.

164PRELIMINARY STATEMENT

166By letter dated June 28, 2011, Richard Allen ("Respondent"

176or "Allen") was notified that Superintendent James F. Notter

186would recommend to the Broward County School Board ("Petitioner"

196or "School Board") termination of Respondent's employment.

204Respondent timely elected to dispute the reasons for the

213termination and requested a hearing. Because he requested a

222formal proceeding, the matter was referred to the Division of

232Administrative Hearings ("DOAH"). An Administrative Complaint

240was filed on November 14, 2011, and a final hearing was

251scheduled to start February 15, 2012. Petitioner voluntarily

259dismissed the complaint before DOAH on February 13, 2012.

268The School Board filed an Amended Administrative Complaint

276with DOAH on May 3, 2012, in which it charged Allen with

288violation of sections 1002.20, 1002.22, and 1012.33, Broward

296County School Board policies 5100.1 and 5306, 20 U.S.C.A.

305section 1232(g), and Florida Administrative Rules 6(B)-1.001,

312B)-

3134.009(1)(2)and (3). On May 16, 2012, the case was scheduled for

324hearing on June 27 and 28, 2012. The matter proceeded as

335scheduled.

336At hearing, Petitioner presented the testimony of three

344witnesses: Enid Valdez ("Valdez"), Principal; David Golt,

353Executive Director of Professional Standards and of the Special

362Investigative Unit; and Katherine Francis, Executive Director of

370Student Support Services. Petitioner's Exhibits numbered 1

377through 26 were admitted into evidence. Respondent testified on

386his own behalf. Respondent's Exhibit 1 was admitted into

395evidence.

396At the close of the hearing, the parties stipulated that

406the proposed recommended orders would be due 30 days after the

417filing of the transcript. The proceedings were transcribed and

426the parties availed themselves of the right to submit proposed

436recommended orders after the filing of the transcript. The

445Transcript of the final hearing was filed with DOAH on

455August 24, 2012. The due date for the proposed recommended

465orders was originally September 24, 2012. Both parties filed

474timely Proposed Recommended Orders, which have been considered

482in the preparation of this Recommended Order.

489FINDINGS OF FACT

4921. Petitioner is a duly-constituted school board charged

500with the duty to operate, control, and supervise all free public

511schools within Broward County Florida. Article IX, Florida

519Constitution; § 1001.32, Fla. Stat. Specifically, the School

527Board has the authority to discipline employees.

534§ 1012.22(1)(f), Fla. Stat.

5382. Allen started his employment with Petitioner in 2002.

547He was employed pursuant to a professional services contract.

5563. During the 2010-2011 school year, Respondent was

564assigned to Piper High School ("PHS") as an American government

576teacher.

5774. For the school year, Allen received all relevant

586policies and procedures including the PHS Faculty Handbook,

594Computer Acceptable Use Policy, Instructional Performance

600Assessment System Policy, Code of Ethics, and Principles of

609Professional Conduct. The handbook also covered ethics for

617computer networking, online communication, and professional

623standards as well as provided directions to obtain website

632locations for the Code of Ethics, Principles of Professional

641Conduct for the Education Profession in Florida, School Board

650policy 5306, and rules regarding confidentiality of records.

6585. During the prior 2009-2010 school year, Allen had been

668investigated by Petitioner and the Florida Department of

676Education ("DOE") for failing to follow district policy

686regarding collection of student funds when Respondent collected

694money from his students and obtained a personal magazine

703subscription that he used in his classroom without going through

713the bookkeeper ("magazine incident"). Written student

721statements were obtained during the investigation. Ultimately,

728Allen contested the proposed discipline, a five-day suspension,

736for his actions in DOAH Case No. 10-9262, and the charges were

748dismissed with an award of back salary.

7556. By certified letter dated May 13, 2010, Petitioner

764notified Respondent of Disciplinary Action and provided a

772General Release Agreement. The letter also stated:

779This is your notice pursuant to Florida

786Statute 1012.31 that the material contained

792in the investigative file is now a part of

801your personnel file and is a public record

809and it will become available for inspection

816by the public ten (10) days from receipt of

825this letter. Any request made by the public

833for the documentation referred to above will

840be provided in accordance with the laws of

848the State of Florida.

8527. The Disciplinary Action & General Release Agreement

860attached to the letter also read in section 3:

869This Agreement and the action taken herein

876will become a part of the employee's

883employment history with the Broward County

889School Board. This document and the

895investigative file on which it is predicated

902will become public record within ten (10)

909days from the execution of this Agreement,

916in accordance with Florida law and

922Administrative Code.

9248. By letter dated August 10, 2010, Petitioner sent

933Respondent a letter notifying him that a hearing would take

943place regarding the magazine incident. The letter also stated:

952This is your notice pursuant to Florida

959Statute 1012.31 that the material contained

965in your investigative file, is a public

972record and it will become available for

979inspection by the public ten days from

986receipt of this letter. Any request made by

994the public for the documentation referred to

1001above will be provided in accordance with

1008the laws of the State of Florida.

10159. By letter sent certified mail dated August 16, 2010,

1025Petitioner notified Respondent that he was going to be suspended

1035without pay for the magazine incident. The letter also stated:

1045This is your notice pursuant to Florida

1052Statute 1012.31 that the material contained

1058in the investigative file is now a part of

1067your personnel file and is a public record

1075and it will become available for inspection

1082by the public ten (10) days from receipt of

1091this letter. Any request made by the public

1099for the documentation referred to above will

1106be provided in accordance with the laws of

1114the State of Florida.

111810. In the middle of August 2010, Allen also received the

1129investigative file from DOE containing all the student

1137statements from the magazine incident. In the beginning of

1146September 2010, Allen opened the read only investigative file

1155and reviewed it.

115811. In September 2010, Respondent also read two articles

1167in the paper claiming that he had stolen money from the students

1179for the magazine incident.

118312. In order to defend his honor, on October 5, 2010,

1194Respondent disseminated an email through CAB, the school's

1202intranet e-mail system, to all of the school's approximately 232

1212staff members, including teachers, custodial personnel,

1218cafeteria personnel, technicians, and clerical staff, requesting

1225support as teacher for the year. The email stated:

1234Dear Piper Family:

1237We hope that you all will come out and

1246vote for me for Teacher of the Year in the

1256election to be held shortly.

1261Attached are two documents of some very

1268important information which outline my

1273Campaign Platform. These documents

1277summarize the kinds of things that need to

1285be changed here at Piper.

1290Cordially Submitted,

1292Richard S. Allen

129513. Attached to the email was Respondent's platform and

1304six handwritten student statements. The student statements

1311spoke positively about Allen as a teacher and contained

1320students' names, their parents' names, students' home addresses,

1328students' phone numbers, students' dates of birth and students'

1337description of events, which occurred within Respondent's class

1345that had been the subject of School Board of Broward County and

1357DOE magazine incident investigations.

136114. Allen obtained the students' statements he attached to

1370the email from the DOE investigatory file from the magazine

1380incident sent to Allen in September 2010. Allen believed the

1390documents were public since they had been released to him.

140015. Both PHS instructional and non-instructional personnel

1407received the email and attachments. 2 / Approximately 103 members

1417of PHS faculty and staff opened the email including a custodian

1428and the cafeteria manager.

143216. When Principal Valdez found out the email was on the

1443PHS email system, she contacted the special investigative unit

1452("SIU") to see how to proceed because she believed the six

1465student statements that had been distributed were confidential.

1473During the magazine incident investigation, Valdez had promised

1481the students and parents that their statements provided for the

1491investigation would remain confidential. SIU instructed Valdez

1498to file a Personnel Investigation Request regarding the email.

150717. On or about October 11, 2010, Valdez requested an

1517investigation from the SIU and provided the information about

1526Allen's October 5, 2010, email to all the PHS staff with the

1538campaign platform and student statements attached.

1544Subsequently, District Investigator JoAnn Carter was assigned to

1552investigate the allegations against Respondent.

155718. After Carter completed the investigation, she sent the

1566report to the Professional Standards Committee ("PSC"). PSC

1576reviewed the investigation and determined what policies,

1583procedures, and statutes Respondent's actions may have violated.

1591It was determined that Respondent's actions were egregious and

1600PSC recommended discipline to the superintendent.

160619. Prior to the October 5, 2010 email, Respondent's only

1616prior discipline had been two written reprimands. One written

1625reprimand was for failure to properly prepare lesson plans and

1635the other one was for inappropriate conduct at a student-parent

1645conference.

164620. By letter dated June 28, 2011, Allen was notified that

1657Superintendent James F. Notter would recommend to the School

1666Board that Respondent should be terminated from his employment

1675for the October 5, 2010, email he disseminated that the School

1686Board determined disclosed confidential student information.

1692CONCLUSIONS OF LAW

169521. DOAH has jurisdiction over the subject matter of this

1705proceeding and the parties thereto pursuant to sections 120.569

1714and 120.57(1).

171622. In this proceeding, the Collective Bargaining

1723Agreement ("CBA") sets the parameters for Respondent's

1732employment.

173323. Section 1021.33(6)(a), Florida Statutes, provides that

1740the teacher "may be suspended or dismissed at any time during

1751the term of the contract," but only "for just cause as provided

1763in paragraph (1)(a)" of the statute.

176924. The burden of proof in this proceeding is on the

1780School Board to prove by the preponderance of the evidence that

1791just cause exists to terminate the employment of Allen. McNeill

1801v Pinellas Cnty. Sch. Bd. 678 So. 2d 476, 477 (Fla. 2d DCA

18141996)("The School Board bears the burden of proving by a

1825preponderance of the evidence, each element of the charged

1834offense which may warrant dismissal.") Allen v. School Board of

1845Dade County , 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo v. School

1858Board of Dade County , 569 So. 2d 883 (Fla. 3d DCA 1990).

1870Preponderance of the evidence that more likely than not tends to

1881prove the proposition set forth by the proponent. Gross v.

1891Lyons , 763 So. 2d 276 (Fla. 2000). 25. Petitioner contends in the Amended Administrative

1905Complaint that Respondent should be terminated for violating the

1914following School Board policies, procedures, regulations, and

1921statutes either collectively or individually: sections 1002.20,

19281002.22, and 1012.33; Broward County School Board policies

19365100.1 and 5306; 20 U.S.C.A. section 1232(g); and rules 6(B)-

19461.0955, 6(B)-4.009(1),(2),(3).

195026. This is a de

1955novo proceeding for the purpose of

1961formulating agency action, and not to determine whether the

1970School Board's decision was correct at the time that it made the

1982decision. The findings of fact "shall be based exclusively on

1992the evidence of record and on matters officially recognized."

2001§ 120.57(1)(j) and (k), Fla. Stat.

200727. Section 1012.33 provides:

2011(1)(a) Each person employed as a member of

2019the instructional staff in any district

2025school system shall be properly certified

2031pursuant to s. 1012.56 or s. 1012.57 or

2039employed pursuant to s. 1012.39 and shall be

2047entitled to and shall receive a written

2054contract as specified in this section. All

2061such contracts, except continuing contracts

2066as specified in subsection (4), shall

2072contain provisions for dismissal during the

2078term of the contract only for just cause.

2086Just cause includes, but is not limited to,

2094the following instances, as defined by rule

2101of the State Board of Education:

2107immorality, misconduct in office,

2111incompetency, gross insubordination, willful

2115neglect of duty, or being convicted or found

2123guilty of, or entering a plea of guilty to,

2132regardless of adjudication of guilt, any

2138crime involving moral turpitude.

2142* * *

2145(4)(c) Any member of the district

2151administrative or supervisory staff and any

2157member of the instructional staff, including

2163any school principal, who is under

2169continuing contract may be suspended or

2175dismissed at any time during the school

2182year; however, the charges against him or

2189her must be based on immorality, misconduct

2196in office, incompetency, gross

2200insubordination, willful neglect of duty,

2205drunkenness, or being convicted or found

2211guilty of, or entering a plea of guilty to,

2220regardless of adjudication of guilt, any

2226crime involving moral turpitude, as these

2232terms are defined by rule of the State Board

2241of Education. Whenever such charges are

2247made against an employee of the district

2254school board, the district school board may

2261suspend such person without pay; but, if the

2269charges are not sustained, he or she shall

2277be immediately reinstated, and his or her

2284back salary shall be paid. In cases of

2292suspension by the district school board or

2299by the district school superintendent, the

2305district school board shall determine upon

2311the evidence submitted whether the charges

2317have been sustained and, if the charges are

2325sustained, shall determine either to dismiss

2331the employee or fix the terms under which he

2340or she may be reinstated. If such charges

2348are sustained by a majority vote of the full

2357membership of the district school board and

2364the employee is discharged, his or her

2371contract of employment shall be canceled.

2377Any decision adverse to the employee may be

2385appealed by the employee pursuant to s.

2392120.68 , provided the appeal is filed within

239930 days after the decision of the district

2407school board.

240928. School Board of Broward County policy 5100.1 states in

2419pertinent part:

2421STUDENT RECORDS ARE OFFICIAL AND

2426CONFIDENTIAL DOCUMENTS PROTECTED BY FLORIDA

2431STATUTE 1002.22 AND THE FEDERAL FAMILY

2437EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA).

2443FERPA, ALSO KNOWN AS THE BUCKLEY AMENDMENT,

2450DEFINES EDUCATIONAL RECORDS AS ALL RECORDS

2456THAT SCHOOLS OR EDUCATION AGENCIES MAINTAIN

2462ABOUT STUDENTS.

246429. The definition of "educational records" and personally

2472identifiable information" are in policy 5100.1I, which provides

2480in pertinent part:

2483A. Educational Records are records

2488maintained by a school district or by an

2496individual acting for the school district

2502that contain information directly related to

2508a student. Educational records include

2513school health records, a student's social

2519security number; academic work completed;

2524level of achievement records including

2529grades and standardized achievement test

2534scores; interim reports; transcripts;

2538academic improvement plans; intervention

2542records; attendance data; evaluation reports

2547that include standardized intelligence,

2551aptitude and psychological test scores;

2556interest inventory results; psychological

2560files; ESE files; disciplinary records,

2565including suspension and expulsion records;

2570family background information;

2573parent/teacher conference reports; special

2577program eligibility; teacher or counselor

2582ratings and observations; verified reports

2587of serious or recurrent behavior patterns;

2593and any other evidence, knowledge, or

2599counselor information recorded in any

2604medium, including media, video or audio

2610tape, microfilm and microfiche.

2614* * *

2617D. Personally identifiable information

2621includes, but is not limited to, a student's

2629name, parents' names, street address or

2635email address of the student or student's

2642family, personal identifier such as a social

2649security number or student number,

2654photographs, and a list of personal

2660characteristics or other information that

2665would make the student's identity easily

2671traceable.

267230. Rule 6A-1.0955 also defines "educational records" and

2680states in pertinent part:

2684(1) Purposes. This rule applies to

2690education records maintained to facilitate

2695the instruction, guidance, and educational

2700progress of pupils and adult students in

2707programs operated under the authority and

2713direction of a district school board or

2720other agency or institution as defined in

2727Section 1002.22(1), F.S. This rule is

2733intended to further the intent of Section

27401002.22(2), F.S., that the rights of

2746students and their parents with respect to

2753education records created, maintained, or

2758used by public educational institutions and

2764agencies shall be protected in accordance

2770with the Family Educational Rights and

2776Privacy Act (FERPA), 20 U.S.C. s. 1232g, the

2784implementing regulations issued pursuant

2788thereto, and Sections 1002.22 and 1002.221,

2794F.S. For the purpose of this rule, the term

"2803education records" refers to those records

2809that are included in the definition of

"2816education records" found in 34 CFR § 99.3.

282431. Policy 5306 6(b)1 governs use of the School Board's

2834electronic intranet system and provides in pertinent part:

2842a. Use of computer network and online

2849telecommunications is a privilege and must

2855support teaching, learning, and research.

2860* * *

2863f. Any use of telecommunication services or

2870networks for illegal, inappropriate,

2874obscene, or pornographic purposes shall be

2880prohibited, illegal activities shall be

2885defined as a violation of local state,

2892and/or federal laws. Inappropriate use

2897shall be defined as a violation of the

2905intended use of the district's mission,

2911goals, policies or procedures. Obscenity

2916and/or pornography shall be defined as a

2923violation of generally accepted social

2928standards for use of a publicly owned and

2936operated communication vehicle, and as

2941defined by School Board policy.

2946g. All use of telecommunication services or

2953networks for the promotion of an

2959individual's personal or political agenda or

2965commercial initiatives shall be prohibited.

297032. The Faculty Handbook under Confidentiality of Records

2978states in pertinent part:

2982Teachers must maintain confidentiality of

2987student or any records. At no time should a

2996student, parent, or guardian see the grades

3003of other students. Teachers are not to post

3011or orally repeat to the class any grade(s)

3019earned by students. Only the grades and

3026attendance records of the specific student

3032with whom a conference is being conducted

3039may be displayed for viewing.

304433. Student confidentiality and privacy rights are

3051delineated section 1002.22, which reads in pertinent part:

3059(2) RIGHTS OF STUDENTS AND PARENTS.—The

3065rights of students and their parents with

3072respect to education records created,

3077maintained, or used by public educational

3083institutions and agencies shall be protected

3089in accordance with the Family Educational

3095Rights and Privacy Act (FERPA), 20 U.S.C.

3102s. 1232g, the implementing regulations

3107issued pursuant thereto, and this section.

3113In order to maintain the eligibility of

3120public educational institutions and agencies

3125to receive federal funds and participate in

3132federal programs, the State Board of

3138Education shall comply with the FERPA after

3145the board has evaluated and determined that

3152the FERPA is consistent with the following

3159principles:

3160(a) Students and their parents shall have

3167the right to access their education records,

3174including the right to inspect and review

3181those records.

3183(b) Students and their parents shall have

3190the right to waive their access to their

3198education records in certain circumstances.

3203(c) Students and their parents shall have

3210the right to challenge the content of

3217education records in order to ensure that

3224the records are not inaccurate, misleading,

3230or otherwise a violation of privacy or other

3238rights.

3239(d) Students and their parents shall have

3246the right of privacy with respect to such

3254records and reports.

3257(e) Students and their parents shall receive

3264notice of their rights with respect to

3271education.

327234. The Family Education and Privacy Rights Act ("FERPA"),

328320 U.S.C.A. section 1232g states in pertinent part:

3291(4) (A) For the purposes of this section,

3299the term "education records" means, except

3305as may be provided otherwise in subparagraph

3312(B), those records, files, documents, and

3318other materials which--

3321(i) contain information directly

3325related to a student; and

3330(ii) are maintained by an

3335educational agency or institution or by a

3342person acting for such agency or

3348institution.

3349(B) The term "education records" does

3355not include--

3357(i) records of instructional,

3361supervisory, and administrative personnel

3365and educational personnel ancillary thereto

3370which are in the sole possession of the

3378maker thereof and which are not accessible

3385or revealed to any other person except a

3393substitute;

3394(ii) records maintained by a law

3400enforcement unit of the educational agency

3406or institution that were created by that law

3414enforcement unit for the purpose of law

3421enforcement;

3422(iii) in the case of persons who

3429are employed by an educational agency or

3436institution but who are not in attendance at

3444such agency or institution, records made and

3451maintained in the normal course of business

3458which relate exclusively to such person in

3465that person's capacity as an employee and

3472are not available for use for any other

3480purpose; or

3482(iv) records on a student who is

3489eighteen years of age or older, or is

3497attending an institution of postsecondary

3502education, which are made or maintained by a

3510physician, psychiatrist, psychologist, or

3514other recognized professional or

3518paraprofessional acting in his professional

3523or paraprofessional capacity, or assisting

3528in that capacity, and which are made,

3535maintained, or used only in connection with

3542the provision of treatment to the student,

3549and are not available to anyone other than

3557persons providing such treatment, except

3562that such records can be personally reviewed

3569by a physician or other appropriate

3575professional of the student's choice.

3580(5) (A) For the purposes of this section

3588the term "directory information" relating to

3594a student includes the following: the

3600student's name, address, telephone listing,

3605date and place of birth, major field of

3613study, participation in officially

3617recognized activities and sports, weight and

3623height of members of athletic teams, dates

3630of attendance, degrees and awards received,

3636and the most recent previous educational

3642agency or institution attended by the

3648student.

3649(B) Any educational agency or

3654institution making public directory

3658information shall give public notice of the

3665categories of information which it has

3671designated as such information with respect

3677to each student attending the institution or

3684agency and shall allow a reasonable period

3691of time after such notice has been given for

3700a parent to inform the institution or agency

3708that any or all of the information

3715designated should not be released without

3721the parent's prior consent.

372535. The Code of Ethics Principles of Professional Conduct

3734for the Education Profession, SBR-6B-1/1006 provides that the

"3742obligation to the student requires that the individual . . .

3753shall not intentionally violate or deny a student's legal

3762rights."

376336. Florida Administrative Code Rule 6B-1.001 is entitled,

"3771Code of Ethics of the Education Profession in Florida," and it

3782provides in relevant part:

3786* * *

3789(2) The educator's primary professional

3794concern will always be for the student and

3802for the development of the student's

3808potential. The educator will therefore

3813strive for professional growth and will seek

3820to exercise the best professional judgment

3826and integrity.

3828(3) Awareness of the importance of

3834maintaining the respect and confidence of

3840one's colleagues, of students, of parents,

3846and of other members of the community, the

3854educator strives to achieve and sustain the

3861highest degree of ethical conduct.

386637. Florida Administrative Code Rule 6B-1.006 contains the

3874Principles of Professional Conduct for the Education Profession

3882in Florida and provides in pertinent part:

3889* * *

3892(3) Obligation to the student requires that

3899the individual:

3901* * *

3904(f) Shall not intentionally violate or deny

3911a student's legal rights.

3915* * *

3918(h) Shall not exploit a relationship with a

3926student for personal gain or advantage

3932(i) Shall keep in confidence personally

3938identifiable information obtained in the

3943course of professional service, unless

3948disclosure serves professional purposes or

3953is required by law.

3957(4) Obligation to the public requires that

3964the individual:

3966* * *

3969(b) Shall not intentionally distort or

3975misrepresent facts concerning an educational

3980matter in direct or indirect public

3986expression.

3987(c) Shall not use institutional privileges

3993for personal gain or advantage

3998* * *

4001(5) Obligation to the profession of

4007education requires that the individual:

4012(a) Shall maintain honesty in all

4018professional dealings.

402038. School Board Policy 5306 Web Page Procedural

4028Guidelines provides "web page documents may not include a

4037student's phone number, address, or complete names of any family

4047members and/or friends. Web pages may not include any

4056information, which indicate the physical location of a student

4065at a given time, other than attendance at a particular school or

4077participation in activities."

408039. Code of Ethics for Computer Network and Online

4089Telecommunications Users section 6(b) states in pertinent part:

40971. All users are expected to read and

4105understand the following privileges, rights,

4110and responsibilities when using property or

4116facilities (WAN, LAN, networks, Internet,

4121Intranet, etc.)

4123* * *

4126f. Any use of telecommunication services or

4133networks for illegal, inappropriate,

4137obscene, or pornographic purposes shall be

4143prohibited, illegal activities shall be

4148defined as a violation of local state,

4155and/or federal laws. Inappropriate use

4160shall be defined as a violation of the

4168intended use of district's mission, goals,

4174policies or procedures. Obscenity and/or

4179pornography shall be defined as a violation

4186of generally accepted social standards for

4192use of a publicly owned and operated

4199communication vehicle, and as defined by

4205School Board policy.

4208g. All use of telecommunication services or

4215networks for the promotion of the

4221individual's personal or political agenda or

4227commercial initiatives shall be prohibited.

4232h. Use of or engaging in offensive or

4240inflammatory speech, profanity, or obscene

4245language is not permitted at any time.

4252i. Hate mail, harassment, discriminatory

4257remarks, and other antisocial behaviors

4262shall be prohibited.

426540. In the instant case, the School Board, alleged that it

4276had "just cause" to terminate Respondent because he sent an

4286email that had six handwritten student statements attached,

4294which violated the students' rights with respect to privacy and

4304confidentiality in Florida and federal statutes, and such

4312actions also constitute a violation of the Principles of

4321Professional Conduct. Additionally, Petitioner alleges that

4327Respondent used the school's technology information system for

4335personal gain.

433741. It is undisputed that Respondent sent the email with

4347the six student statements attached through the PHS email system

4357to both PHS instructional and non-instructional staff. However,

4365the record lacks sufficient credible evidence to demonstrate

4373Allen disseminated confidential information or violated any

4380student's rights with respect to privacy.

438642. The student statements sent in this matter by email

4396are not educational records just because they contained

"4404personally identifiable" information as defined in 5100.1ID and

"4412directory information" as defined in 20 U.S.C.A. section 1232g.

4421Petitioner's assertion that such information is an educational

4429record and confidential according to policy 5100.1IA, 20

4437U.S.C.A. 1232g, and rule 6A-1.0955 is not persuasive.

444543. In Rhea v. District Board of Trustees of Santa Fe

4456College , 37 Fla. L. Weekly D 1722 (Fla. 1st DCA 2012), the

4468court held that if the fundamental character of the email

4478relates to the teacher and is only tangentially related to a

4489student then the email is a teacher record, which can be

4500disclosed, not an educational student record under FERPA. "The

4509fact that [the email] was authored by a student did not convert

4521it into an 'education record.'" Applying Rhea to the case at

4532hand, the email subject matter was a request to support Allen's

4543nomination for teacher of the year and the attached platform and

4554student statements were to bolster his candidacy as letters of

4564support. The statements were only incidentally related to the

4573student authors who wrote them and therefore are not educational

4583records. Accordingly, Respondent did not violate policy

45905100.1IA, 20 U.S.C.A. 1232g, and rule 6A-1.0955.

459744. The undersigned is also not persuaded by Petitioner's

4606other claim that the student statements were confidential

4614because DOE informed Allen that they were confidential. The

4623record lacks sufficient credible evidence to demonstrate DOE

4631sent the investigative file to Allen prohibiting him from

4640distributing it as alleged by Petitioner.

464645. Petitioner also contends that Allen violated the

4654policy "Teachers must maintain confidentiality of student or any

4663records" contained in the Confidentiality of Records policy of

4672the Faculty Handbook. Petitioner alleges the violation in its

4681Proposed Recommended Order on page 12 as a charge in and of

4693itself. The undersigned is not persuaded Allen violated the

4702section because when the policy is read completely in context,

4712the paragraph provides for specific prohibitions for teachers

4720posting grades or attendance records of students, which

4728Respondent did not do. Accordingly, it is not applicable in this

4739matter.

474046. It should also be noted that at hearing, Petitioner

4750did not present a scintilla of evidence that even one child was

4762upset, harassed, or humiliated by the email distribution, nor

4771was a relationship proven between Respondent and any of the

4781students. Further, the record lacks evidence that the email was

4791disseminated to the public or media. Moreover, Valdez testified

4800that she did not contact the children or parents after the email

4812was disseminated. Additionally, the record is void of evidence

4821to demonstrate that any individual complained about the student

4830statements being sent out, or that any parents had problems with

4841the disseminated email. Further, no findings were made that any

4851federal funds were lost for Allen, PHS, or Broward County for

4862allegedly violating FERPA relating to the email incident.

4870Therefore, Petitioner has failed to present sufficient credible

4878evidence to sustain the following charges against Respondent:

4886that he violated or denied a student's legal rights pursuant to

4897rule 6B-1.006(3)(f); that he exploited a relationship pursuant

4905to rule 6B-1.006(3)(h); that he received the DOE investigative

4914file in the course of his professional service of teaching

4924pursuant to rule 6B-1.006(3)(i); and that he intentionally

4932distorted or misrepresented facts concerning an educational

4939matter pursuant to rule 6B-1.006(4)(b). Finally, Petitioner

4946failed to show Respondent to be dishonest regarding the email

4956and therefore Respondent did not violate 6B-1.006(5)(a).

496347. Petitioner also contends that Respondent violated

4970policy 5306. The record is clear that this matter stems from an

4982email Respondent sent on October 5, 2010, not a web page.

4993Accordingly, Allen did not violate policy 5306 because it only

5003pertains to web page documents, which is not the issue at hand.

501548. Petitioner has met its burden and demonstrated that

5024Respondent did use his PHS institutional privileges of having

5033access to the PHS email system to campaign, which is not the

5045intended use of the system. The intended use of the system is

5057for educational purposes, learning, or research. The record

5065demonstrates Allen's campaign email was not a legitimate

5073educational purpose and that the email even went to cafeteria

5083workers and custodians. Therefore, Respondent's intended use

5090was inappropriate and for a personal gain in violation of rule

51016B-1.006(4)(c) and the School and District Technology Usage

5109policy 5306 sections 6(b)1(f) and (g). However, Petitioner's

5117evidentiary presentation fell short in demonstrating Allen's

5124actions violate policy 5306 sections 6(b)1(h) and (i).

513249. To establish the existence of "just cause" for

5141termination as alleged in the Amended Administrative Complaint,

5149the School Board must prove not only that Respondent violated

5159school policy, but by doing so, he engaged in "misconduct in

5170office" and/or "immorality" as those terms are used in section

51801012.33(1)(a) and defined in rule 6B-4.009. 3 /

518850. The State Board of Education has defined the term

"5198immorality" by rule [6B-4.009(2)], which provides in pertinent

5206part:

5207(2) Immorality is defined as conduct that

5214is inconsistent with the standards of public

5221conscience and good morals. It is conduct

5228sufficiently notorious to bring the

5233individual concerned or the education

5238profession into public disgrace or

5243disrespect and impair the individual's

5248service in the community.

525251. The State Board of Education has defined the term

"5262Misconduct in office," rule [6B-4.009(3)], provides in

5269pertinent part:

5271(3) Misconduct in office is defined as a

5279violation of the Code of Ethics of the

5287Education Profession as adopted in

5292Rule 6B-1.001, F.A.C., and the Principles of

5299Professional Conduct for the Education

5304Profession in Florida as adopted in

5310Rule 6B-1.006, F.A.C., which is so serious

5317as to impair the individual's effectiveness

5323in the school system.

532752. In this matter, the School Board has failed to make

5338the required showings. Petitioner did not prove Respondent's

5346conduct was ever brought to the public or community's knowledge

5356so there was neither any notoriety nor public disgrace brought

5366to the teaching profession that could impair Respondent's

5374service to the community. Further, Allen's actions fail to be

"5384so serious as to impair his effectiveness in the school

5394system." No finding, therefore, can be made that Allen's

5403violation of school policy committed by Respondent amounted

5411either to "misconduct in office" or "immorality." Hence, no

5420grounds have been established for Respondent to be disciplined

5429as a suspension or dismissal pursuant to rule [6B-4.009], under

5439the Criteria for Suspension and Dismissal.

544553. Therefore, the question remaining for the undersigned

5453is the discipline Respondent should receive for his violating

5462rule 6B-1.006(4)(c) and the School and District Technology Usage

5471policy 5306 section 6(b)1(f),(g). The CBA outlines the system

5481for discipline. The CBA provides that teachers should receive

5490progressive discipline.

549254. Article Eighteen Section B1 of the CBA provides:

5501a. Progressive Discipline: Any discipline

5506of an employee shall be for just cause. The

5515parties agree that the concept of just cause

5523embodies the principles of progressive

5528discipline appropriate under the

5532circumstances. Disciplinary procedures may

5536include but are not limited to:

5542verbal/written reprimand, suspension,

5545demotion and termination. The decision of

5551the district not to renew an annual contract

5559employee shall not be subject to this

5566section. In addition the parties agree that

5573the principles of progressive discipline do

5579not apply to employees who are placed in the

558890-day process described in Florida Statutes

55941012.34.

559555. In view of the foregoing, the School Board has only

5606sustained three violations, rule 6B-1.006(4)(c), and policy 5306

5614sections 6(b)1(f) and (g), of the 18 violations it charged

5624against Respondent. Petitioner concedes that prior to the

5632October 5, 2010, incident, Respondent had not been reprimanded

5641for any email related activities or any actions related to

5651student records. Further, all three violations Petitioner

5658proved against Respondent fail to relate to either of

5667Respondent's previous two written reprimands alleging policy

5674violations. Since Petitioner failed to prove the essential

5682allegations of "misconduct in office" or "immorality" by the

5691preponderance of the evidence, Respondent's violations fall

5698outside of the parameters for either termination or suspension

5707and the only proper discipline for Allen is a written reprimand.

5718Consequently, all other charges should be dismissed and

5726Respondent should be reinstated with back pay.

5733RECOMMENDATION

5734Upon consideration of the Findings of Fact and the

5743Conclusions of Law reached, it is

5749RECOMMENDED that Petitioner enter a final order that:

57571. Sustains Respondent's charges of violating rule 6B-

57651.006(4)(c) and the School and District Technology Usage policy

57745306 sections 6(b)1(f)and(g);

57772. Provides Respondent a written reprimand for the three

5786violations;

57873. Dismiss Respondent's charges sections 1002.20, 1002.22,

5794and 1012.33, Broward County School Board policy 5100.1, 20

5803U.S.C.A. section 1232(g), and rules 6(B)-1.001, 6(B)-

58101.006(3)(f),(h),(i), 4(b), 5(a), and 6(A)-1.0955, 6(B)-

58184.009(1)(2) and (3);

58214. Immediately reinstates Respondent Richard Allen; and

58285. Issues Respondent back salary.

5833DONE AND ENTERED this 31st day of October, 2012, in

5843Tallahassee, Leon County, Florida.

5847S

5848JUNE C. McKINNEY

5851Administrative Law Judge

5854Division of Administrative Hearings

5858The DeSoto Building

58611230 Apalachee Parkway

5864Tallahassee, Florida 32399-3060

5867(850) 488-9675

5869Fax Filing (850) 921-6847

5873www.doah.state.fl.us

5874Filed with the Clerk of the

5880Division of Administrative Hearings

5884this 31st day October, 2012.

5889ENDNOTES

58901/ Unless specifically stated otherwise herein, all references

5898to the Florida Statutes are to the 2010 codification.

59072/ Petitioner's Exhibit 8.

59113/ Effective April 5, 1983, Florida Administrative Code Rule

59206B-4.009 was transferred to Florida Administrative Code Rule

59286A-5.056. The Administrative Complaint correctly references the

5935substance of the rule and corresponding numbered paragraphs, but

5944incorrectly references the chapter number for the rule.

5952Consequently, rule 6A-5.056 will be substituted herein and

5960designated by the utilization of brackets ([]).

5967COPIES FURNISHED

5969Mark A. Emanuele, Esquire

5973Lydecker Diaz P.A., LLC

59773rd Floor

59791221 Brickell Avenue

5982Miami, Florida 33131

5985Jeffrey S. Sirmons, Esquire

5989Johnson and Sirmons, P.A.

5993Suite 309

5995510 Vonderburg Drive

5998Brandon, Florida 33511

6001Pam Stewart, Interim Commissioner

6005Department of Education

6008Turlington Building, Suite 1514

6012325 West Gaines Street

6016Tallahassee, Florida 32399-0400

6019Lois Tepper, Interim General Counsel

6024Department of Education

6027Turlington Building, Suite 1244

6031325 West Gaines Street

6035Tallahassee, Florida 32399-0400

6038Robert Runcie, Superintendent

6041Broward County School Board

6045600 Southeast Third Avenue

6049Fort Lauderdale, Florida 33301-3125

6053NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6059All parties have the right to submit written exceptions within

606915 days from the date of this Recommended Order. Any exceptions

6080to this Recommended Order should be filed with the agency that

6091will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/22/2013
Proceedings: Agency Final Order
PDF:
Date: 02/22/2013
Proceedings: Agency Final Order filed.
PDF:
Date: 11/14/2012
Proceedings: Petitioner's Motion for Enlargement of Time filed.
PDF:
Date: 11/01/2012
Proceedings: Transmittal letter from Claudia Llado forwarding Respondent's Exhibit numbered 2, which was not entered into evidence, to the Respondent.
PDF:
Date: 10/31/2012
Proceedings: Recommended Order
PDF:
Date: 10/31/2012
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/31/2012
Proceedings: Recommended Order (hearing held June 27 and 28, 2012). CASE CLOSED.
PDF:
Date: 09/24/2012
Proceedings: Respondent's Proposed Recommended Order filed.
PDF:
Date: 09/24/2012
Proceedings: Proposed Findings of Fact, Conclusion of Law and Recommended Order of Petitioner, School Board of Broward County (SBBC) filed.
Date: 08/24/2012
Proceedings: Transcript Volume I-II (not available for viewing) filed.
PDF:
Date: 08/20/2012
Proceedings: Broward County School Board's Notice of Filing Final Hearing Transcript of June 27-28, 2012 filed.
PDF:
Date: 07/30/2012
Proceedings: Return of Service filed.
PDF:
Date: 07/16/2012
Proceedings: Return of Service filed.
PDF:
Date: 06/28/2012
Proceedings: Deposition of Richard Allen (Deposition not available for viewing) filed.
Date: 06/28/2012
Proceedings: Petitioner's Proposed Exhibit number 13 (exhibits not available for viewing) filed.
Date: 06/27/2012
Proceedings: CASE STATUS: Hearing Held.
Date: 06/27/2012
Proceedings: Petitioner's Proposed Exhibits (second part of Exhibit 3 not available for viewing) filed.
PDF:
Date: 06/26/2012
Proceedings: Petitioner's Request for Judicial Notice filed.
Date: 06/26/2012
Proceedings: Petitioner's (Proposed) Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 06/25/2012
Proceedings: Notice of Filing (Proposed) Exhibit #26 filed.
PDF:
Date: 06/25/2012
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 06/25/2012
Proceedings: Order Granting Extension of Time.
PDF:
Date: 06/25/2012
Proceedings: Respondent's Notice of Filing (Proposed) Exhibit List (exhibits not available for viewing) filed.
PDF:
Date: 06/22/2012
Proceedings: Joint Motion for Enlargement of Time filed.
PDF:
Date: 06/22/2012
Proceedings: Respondent's Notice of Filing (Proposed) Exhibit List filed.
PDF:
Date: 06/19/2012
Proceedings: Respondent's Brief in Opposition to Petitioner's Motion to Consolidate DOAH Case No. 12-1601 with DOAH Case No. 12-0149 filed.
PDF:
Date: 06/18/2012
Proceedings: Motion to Consolidate DOAH Case No. 12-1601 with DOAH Case No. 12-0149 filed.
PDF:
Date: 06/14/2012
Proceedings: Notice of Taking Deposition of Richard S. Allen filed.
PDF:
Date: 06/12/2012
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for June 27 and 28, 2012; 9:00 a.m.; Lauderdale Lakes and Tallahassee, FL; amended as to Video Hearing and Locations of Hearing).
PDF:
Date: 06/04/2012
Proceedings: Order on Motion for Final Summary Recommendation in Favor of Respondent with Memorandum .
PDF:
Date: 05/25/2012
Proceedings: Petitioner's Response in Opposition to Respondent's Motion for Summary Recommended Order filed.
PDF:
Date: 05/21/2012
Proceedings: Order Granting Extension of Time.
PDF:
Date: 05/18/2012
Proceedings: Motion for Enlargement of Time to Respond to Respondent's Motion for Summary Recommendation filed.
PDF:
Date: 05/16/2012
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 05/16/2012
Proceedings: Notice of Hearing (hearing set for June 27 and 28, 2012; 9:00 a.m.; Fort Lauderdale, FL).
PDF:
Date: 05/15/2012
Proceedings: Petitioner's Response to Initial Order filed.
PDF:
Date: 05/11/2012
Proceedings: Motion for Final Summary Recommendation in Favor of Respondent with Memorandum filed.
PDF:
Date: 05/04/2012
Proceedings: Initial Order.
PDF:
Date: 05/03/2012
Proceedings: Amended Administrative Complaint filed.
PDF:
Date: 05/03/2012
Proceedings: Agency action letter filed.
PDF:
Date: 05/03/2012
Proceedings: Amended Petition for Formal Proceedings filed.
PDF:
Date: 05/03/2012
Proceedings: Referral Letter filed.
PDF:
Date: 05/03/2012
Proceedings: Request for Administrative Hearing filed.

Case Information

Judge:
JUNE C. MCKINNEY
Date Filed:
05/03/2012
Date Assignment:
05/04/2012
Last Docket Entry:
02/22/2013
Location:
Laurel, Florida
District:
Middle
Agency:
ADOPTED IN TOTO
Suffix:
TTS
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (14):

Related Florida Rule(s) (5):