12-001601TTS
Broward County School Board vs.
Richard Allen
Status: Closed
Recommended Order on Wednesday, October 31, 2012.
Recommended Order on Wednesday, October 31, 2012.
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.
- Date
- Proceedings
- 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 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: 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: 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.
- Date: 06/26/2012
- Proceedings: Petitioner's (Proposed) Exhibits (exhibits not available for viewing) filed.
- PDF:
- Date: 06/25/2012
- Proceedings: Respondent's Notice of Filing (Proposed) Exhibit List (exhibits not available for viewing) 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: 06/12/2012
- 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: 05/18/2012
- Proceedings: Motion for Enlargement of Time to Respond to Respondent's Motion for Summary Recommendation filed.
- PDF:
- Date: 05/16/2012
- Proceedings: Notice of Hearing (hearing set for June 27 and 28, 2012; 9:00 a.m.; Fort Lauderdale, FL).
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
-
Mark A. Emanuele, Esquire
Address of Record -
Jeffrey S. Sirmons, Esquire
Address of Record