12-003278TTS Broward County School Board vs. Amy Finnk Status: Closed Recommended Order on Tuesday, June 18, 2013.

Summary: Petitioner failed to establish by a preponderance of the evidence that just cause existed to suspend Respondent's employment for five days for misconduct in office or immorality. Recommend dismissal of Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 12 - 3278TTS

AMY FINNK,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge Todd P.

Resavage for final hearing by video teleconference on March 26,

2013, at sites in Tallahassee and Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Mark A. Emanuele, Esquire

Lydecker Diaz

3rd Floor

1221 Brickell Avenue

Miami, Florida 33132

For Respondent: Robert F. McKee, Esquire

Kelly and McKee, P.A.

Post Office Box 75638

Tampa, Florida 33675

STATEMENT OF THE ISSUE

Whether just cause exists to suspend Respondent ' s

empl oyment with the Broward County School Board , for five days

for misconduct in office and i mmorality, as alleged in the

Administrative Complaint .

PRELIMINARY STATEMENT

On September 23, 2012, the Broward County Superintendent of

Schools issued an Administra tive Complaint recommending that the

Broward County School Board ( " Board " ) suspend Respondent, Amy

Finnk, for five days .

Respondent timely requested a formal administrative hearing

to contest the allegations, and, on October 9, 2012, Petitioner

referred t he matter to the Div ision of Administrative Hearings

( " DOAH " ), where it was assigned to Administrative Law Judge John

G. Van Laningham. Petitioner filed its Administrative Complaint

wherein it alleged that just cause exists to suspend

Respo ndent ' s employm ent based upon Respondent 's publishing,

disclosing, and/or filing confidential student information

and/or student records of a minor student in violation of 20

U.S.C. § 1232g; sections 1002.20, 1002.22, 1012.33 and 1012.33,

Florida Statutes; Florida Admini strative Code R ules 6B - 1.001,

6B - 1.006, 6B - 4.009, and 6A - 1.0955 ; and Board Policy 5100.1.

The final hearing initially was set for January 17, 2013 .

On January 4, 2013, this case was transferred to the undersigned

for all further proceedings. On Januar y 9, 2013, Petitioner

filed an Emergency Motion to Reset Hearing. Petitioner ' s motion

was granted and the cause was re - scheduled for final hearing on

March 26, 2013.

The final hearing was held on March 26, 2013. Both parties

were represented by counse l. Petitioner presented the testimony

of David Golt, Donal d Cottrell, and Cassandra Sirmons , and

Petitioner ' s Exhibits 1, 3, 4, 8, 13 - 14, and 1 6 were admitted.

Respondent testified on her own behalf.

The final hearing Transcript was filed on May 3, 201 3. The

parties timely filed proposed recommended orders, which were

considered in preparing this Recommended Order.

Unless otherwise indicated, all rule and statutory

references are to the versions in effect at the time of the

alleged violation.

FINDIN GS OF FACT

1. Petitioner is the entity charged with the duty to

operate, control, and supervise the public schools within

Broward County, Florida.

2. At all times pertinent to this case, Respondent was

employed as a behavioral specialist teacher at th e Sunset School

( " Sunset " ) , a public school in Broward County.

3. Sunset is an educational center servicing emotionally

and behaviorally disabled students ranging in ages from 5 to 22,

kindergarten through twelfth grades. The program at Sunset is

uniqu e in its behavior management system and mental health

component which include academic, vocational, therapeutic , and

behavioral interventions.

4. On December 5, 2011, Respondent notified Principal

Cottrell that she intended to seek a restraining order against

Sunset student , A.W. In the dialogue that followed, Principal

Cottrell requested that, when completed, Respondent provide him

a copy of the court documents. 1 /

5. On that same date, Respondent presented to the Clerk of

the Court for the Circuit Court of Broward County, Florida, with

the intention of filing a Petition for Injunction for Protection

Against Repeat Vi olence ( " Petition " ) against A.W.

6 . Respondent, who was not represented by counsel,

obtained the blank P etition from a clerk, and filled in the

required information by hand. Upon completion, Respondent

presented the Petition back to the clerk. The clerk then

inquired as to whether Respondent had any additional

documentation that she wished to attach to the Petition.

7. It is und isputed that Respondent then attached four

documents to the Petition. Specifically, Respondent attached 1)

a Sunset School Code Report dated December 5, 2011, detailing a

behavioral issue concerning A.W.; 2) a Sunset School Incident

report dated December 5, 2011, again detailing a behavioral

issue concerning A.W.; 3) a Sunset School Incident report dated

November 1, 2011, documenting a behavioral issue concerning

A.W.; and 4) a Student Accident/Illness Form dated November 1,

2011, documenting a physical co nfrontation by and between A.W.

and Respondent.

8. The Circuit Court issued a temporary injunction against

A.W. precluding A.W. from knowingly coming within 100 feet of

Respondent ' s vehicle and ordering the parties to refrain from

contact while at Sunse t. The parties were notified to appear

and testify at a hearing regarding the matter on December 14,

2011.

9. Respondent, as requested, provided Principal Cottrell

with a copy of the Petition; however, the attachments were not

included in the copied m aterial .

10 . After being served with the temporary injunction,

A.W. ' s mother notified Principal Cottrell and complained, inter

alia, that A.W. ' s records had been attached to the same .

11. In response to the parent complaint , on or about

December 8, 20 11, Principal Cottrell submitted a personnel

investigation request to the School Board of Broward County

Office of Professional Standards and Special Investigative Unit

( " SIU " ) . The investigation request alleged that Respondent had

committed Family Educat ional Rights and Privacy Act ( " FERPA " )

and C ode of Ethics violations.

1 2. On or about December 14, 2011, the Board filed a

Notice of Special Appearance and Motion to Seal Confidential

Records in the underlying case . The judge granted the unopposed

mot ion, concluding the records were confidential pursuant to

section 1002.221(2)(a), Florida Statutes and " FERPA

regulations , " and ordered the records sealed.

1 3. The previously requested SIU investigation was

initiated on or about January 9, 2012. Upon completion, the

matter was referred to the Professional Standards Committee

( " PSC " ). The PSC found probable cause that Respondent had

committed misconduct in violating Board Policy 5100.1, and

recommended she serve a suspension.

1 4. Thereafter, the Su perintendent of Schools reviewed the

recommendation of the PSC , concurred, and recommended a five - day

suspension. Finally, the Broward County School Board approved

the recommended suspension.

15. The documents Respondent attached to the Petition wer e

A.W. ' s educational records . Said records included personally

identifiable information of A.W. obtained in the course of

professional service.

16. The parties stipulate that Respondent did not have the

authorization or consent of A.W., A.W. ' s parents, or Sunset to

attach A.W. ' s educational records to the Petition.

17. Prior to the 2011 - 2012 school year, Respondent

attended a preplanning conference wherein the teaching staff was

advised of current information related to the Health Insurance

Portabilit y and Accountability Act ( HIPPA ), FERPA , federal and

state law, and Board policies . Respondent also acknowledged

receipt of the 2011 - 2012 Staff Handbook and the Code of Ethics.

Moreover, Respondent signed an Employee Confidentiali ty

Agreement regarding H IPPA. Additionally, the Board policy

concerning student record confidentiality is published,

maintained, and available to the teaching staff.

18. Respondent conceded, as she must, that she was aware

of the obligations as a behavioral specialist at Sun set to

maintain the confidentiality of student educational and health

records . Notwithstan ding, Respondent credibly testified that,

at the time, she believed the confidentiality requirements of

said records would be m aintained in the court proceeding.

19. Principal Cot trell opined that Respondent ' s conduct

impaired her effectiveness. His testimony on this point is set

forth in full, as follows:

Q. Does the fact that these re cords were

disclosed by Ms. Finn k impair her

effectiveness to you Î her eff ectiveness as

a teacher to you within the system?

A. Within her capacity at Sunset School or

in any capacity at Sunset School when I am

the administrator responsible, absolutely.

I need to know that each and every team

member at Sunset, each and every employee is

responsible and knowledgeable on

confidentiality and follows it without

question.

20. The undersigned finds that the above - quoted testimony

is insufficient to support a finding that Respondent ' s conduct

impaired her effectiveness in the sch ool system.

CONCLUSIONS OF LAW

21. The Division has jurisdiction over the parties and

subject matter of this proceeding, pursuant to sections 120.569

and 120.57(1).

22. Petitioner seeks to uphold Respondent ' s suspension

from employment for five days . In order to do so, Petitioner

must prove by a preponderance of the evidence that Respondent

committed the violations as alleged in the Administrative

Complaint. McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476

(Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty. , 571 So. 2d

568, 569 (Fla. 3d DCA 1990).

23. The preponderance of the evidence standard requires

pr o of by " the greater weight of the evidence " or evidence that

" more likely than not " tends to prove a certain proposition.

See Gross v. Lyons , 7 63 So. 2d 276, 280 n.1 (Fla. 2000).

24. Any member of the instructional staff in a district

school system may be suspended or dismissed at any time during

the term of his or her employment contract for just cause, as

provided in section 1012.33(1)(a). § 1012.33(6)(a), Fla. Stat.

25. The term " just cause " :

[I]ncludes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: immorality,

misconduct in office, incompetency, gross

insubordination, willful negl ect of duty, or

being convicted or found guilty of, or

entering a plea to, regardless of

adjudication of guilty, any crime involving

moral turpitude.

§ 1012.33(1)(a), Fla. Stat.

26. In its Administrative Complaint, Petitioner avers

alternative grounds for suspending Respondent: " misconduct in

office " (Count A) and " immorality " (Count B). Whether

Respondent is guilty of these charges, both of which are

discussed separately below, is a question of ultimate fact to be

decided in the context of each alle ged violation. McKinney v.

Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995).

27. As noted above, Petitioner contends that Respondent

has committed " misconduct in office, " which is defined by the

State Board of Education as a:

[V]iolation of the Code of Ethics of the

Education Profession as adopted in Rule 6B -

1.001, F.A.C., and the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C., w hich is so serious as to

impair the individual ' s effectiveness in the

school system.

Fla. Admin. Code R. 6B - 4.009(3). 2 /

28. " As shown by a careful reading of rule 6B - 4.009, the

offense of misconduct in office c onsists of three elements:

(1) A seriou s violation of a specific rule that (2) causes (3)

an impairment of the employee ' s effectiveness in the school

system. " Miami - D a de Cnty. Sch. Bd. v . Regueira , Case No. 06 -

4752, 2007 Fla. Div. Adm. Hear. LEXIS 208 (Fla. DOAH Apr. 11,

2007). As further exp lanation, rule 6B - 4.009:

[P]lainly requires that a violation of both

the Ethics Code and the Principles of

Professional Education be shown, not merely

a violation of one or the other. The

precepts set forth in the Ethics Code,

however, are so general and so obviously

aspirational as to be of little practical

use in defining normative behavior. It is

one thing to say, for example, that teachers

must " strive for professional growth. " See

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

quite another to define the b ehavior which

constitutes such striving in a way that puts

teachers on notice concerning what conduct

is forbidden. The Principles of

Professional Conduct accomplish the latter

goal, enumerating specific " dos " and

" don ' ts. " Thus, it is concluded that tha t

while any violation of one of the Principles

would also be a violation of the Code of

Ethics , the converse is not true. Put

another way, in order to punish a teac h er

for misconduct in office, it is necessary

but not sufficient that a violation of a

broa d ideal articulated in the Ethics Code

be proved, whereas it is both necessary and

sufficient that a violation of a specific

rule in the Principles of Professional

Conduct be proved.

Id .

29. Petitioner contends that Respondent ' s " distribution of

the student information without the knowledge, authorization or

consent of either the student, the student ' s parents or

administrators " resulted in the following violations of the

Principles of Professional Conduct:

6B - 1.006 Principles of Professional Conduc t

for the Education Profession in Florida.

* * *

(3) Obligation to the student requires that

the individual:

* * *

(e) Shall not intentionally expose a

student to unnecessary embarrassment or

disparagement.

(f) Shall not intentionally violate or deny

a student ' s legal rights.

* * *

(i) Shall keep in confidence personally

identifiable information contained in the

course of professional service, unless

disclosure serves professional purposes or

is required by law.

(4) Obligation to the publi c requires that

the individual:

* * *

(c) Shall not use institutional privileges

for personal gain or privilege.

30. Of the four rule violations alleged in the

Administrative Complaint, only one has merit. 3 / Petitioner

correctly contends and has met its burden of proof that

Respondent violated rule 6B - 1.006(3)(i) .

31. Section 1002.20 sets forth certain parental rights

concerning their children ' s educational records, as follows:

(13) STUDENT RECORDS

(a) Parent ' s rights. Ï Parents have rights

r egarding the student records of their

children, including right of access, right

of waiver of access, right to challenge and

hearing, and right of privacy, in accordance

with the provisions of s. 1002.22.

§ 1002.20(13)(a).

32. Section 1002.22, in turn provides, in pertinent part:

(2) RIGHTS OF STUDENTS AND PARENTS. Ï The

rights of students and their parents with

respect to education records created,

maintained, or used by public educational

institutions and agencies shall be protected

in accordance wit h the Family Educational

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

1232g, the implementing regulations issued

pursuant thereto, and this section. In

order to maintain the eligibility of public

educational institutions and agencies to

receive federal fu nds and participate in

federal programs, the State Board of

Education shall comply with the FERPA after

the board has evaluated and determined that

the FERPA is consistent with the following

principles:

* * *

(d) Students and their parents shall have

th e right to privacy with respect to such

records and reports.

§ 1002.22(2)(d).

33. Under FERPA , schools and educational agencies

receiving federal financial assistance must comply with certain

conditions. 20 U.S.C. § 1232g(a)(3) . One condition specified

in FERPA is that sensitive information about students may not be

released without parental consent. FERPA states that federal

funds are to be withheld from school districts that have " a

policy or practice of permitting the release of education

records (or personally identifiable information contained

therein . . . ) of students without the written consent of their

parents. " § 1232g(b)(1) .

34. The term " personally identifiable information " is

defined by 34 C . F . R . § 99.3 as follows:

The term includes, but is not limited to Ï

(a) The student ' s name;

(b) The na me of the student ' s parent or

other family members;

(c) The address of the student or student ' s

family;

(d) A personal identifier, such as the

student ' s social security number, student

number, or biometric record;

(e) Other indirect identifiers, s uch as the

student ' s date of birth, place of birth, and

mother ' s maiden name;

(f) Other information that, alone or in

combination, is linked or linkable to a

specific student that would allow a

reasonable person in the school community,

who does not hav e personal knowledge of the

relevant circumstances, to identify the

student with reasonable certainty; or

(g) Information requested by a person who

the educational agency or institution

reasonably believes knows the identity of

the student to whom the e ducation record

relates.

35. Board policy 5100.1 similarly provides , in relevant

part:

STUDENT RECORDS: CONFIDENTIALITY AND FAMILY

EDUCATIONAL RIGHTS

STUDENT RE CORDS ARE OFFICIAL AND

CONFIDENTIAL DOCUMENTS PROTECTED BY FLORIDA

STATUTE 1002.22 AND THE FEDERAL FAMILY

RIGHTS AND PRIVACY ACT (FERPA). FERPA, ALSO

KNOWN AS THE BUCKLEY AMENDMENT, DEFINES

EDUCATIONAL RECORDS AS ALL RECORDS THAT

SCHOOLS OR EDUCATIONAL AGENCIES MAINTAIN

ABOUT STUDENTS.

* * *

RULES:

I. DEFINITIONS:

* * *

D. Personally identifiable information

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

name, parents ' names, street address or

email address of the student or student ' s

family, personal identifier such as a social

security number or student number,

photographs, and a list of personal

characteristics or other information that

would make the student ' s identity easily

traceable.

36. Respondent , without parental consent, attached

educational records of A.W. to the Petition that unequivocally

include personally identifiable information, as that term is

defined above, and, therefore, violated rule 6B - 1.006(3)(i).

37. Next, it must be determined whether Respondent ' s

violation of the foregoing Principle of Professional Conduct was

so serious as to impair her effectiveness in the school system.

The School Board failed to make such a showing. Aside from

Principle Cottrell ' s laudable and aspirational expectation that,

" each and every employee is responsible and knowledgeable on

confidentiality and follows it without question, " Petitioner

failed to provide any evidence demonstrating a loss of

effec tiveness in the school system. 4 / Accordingly, Petitioner

did not establish, by a preponderance of the evidence , that

Respondent ' s conduct amounted to " misconduct in office. "

38. P etitioner further alleges in Count B, that just cause

also exists to terminate Respondent ' s employment based upon her

commission of an act of " immorality, " which is defined as:

[C]onduct that is inconsistent with the

standards of public conscience and good

morals. It is conduct sufficiently

notorious to bring the individual concerned

or the education profession into public

disgrace or disrespect and impair the

individual ' s service in the community.

Fla. Admin. Code R. 6B - 4.009(2).

39. Pursuant to the ab ove - definition, it was incumbent

upon Petitioner to demonstrate that Respondent engaged in

behavior " inconsistent with the standards of public consc ience

and good morals, and (b) that the conduct was sufficiently

notorious so as to [1] disgrace the teachin g profession and [2]

impair [Respondent ' s] service in the community. " McNeill v.

Pinellas Cnty . Sch. Bd. , 678 S o. 2d 476, 477 (Fla. 2d DCA

1996)(italics in original).

40. In the instant case, Petitioner did not offer any

persuasive evidence establishi ng the applicable " standards of

public conscience and good morals. " Fla. Admin. Code R. 6B -

4.009(2); McNeill , 678 S o. 2d at 477. As a result, the

undersigned cannot determine whether Respondent violated such

public standards, and, therefore, must conclud e that Petitioner

has failed to meet its burden of proof with respect to this

charge. See Miami - Dade Cnty. Sch. Bd. v. Eskridge , Case No. 10 -

9326, 2011 Fla. Div. Adm. Hear. LEXIS 62, *28 - 29 (Fla. DOAH Apr.

6, 2011)(finding school security monitor not guil ty of

immorality where school board presented no evidence establishing

the applicable standards of public conscience and good morals);

Broward Cnty. Sch. Bd. v. Deering , Case No. 05 - 2842, 2006 Fla.

Div. Adm. Hear. LEXIS 367, *12 (Fla. DOAH July 31, 2006)(f inding

educator not guilty of immorality where school board " did not

offer any persuasive evidence establishing the applicable

" standards of public conscience and good morals. " ).

41. Even if Respondent ' s conduct were inconsistent with

the prevailing st andards of public conscience and good morals,

however, the evidence is insufficient to persuade the

undersigned that her conduct was sufficiently notorious both to

cause her (or her profession ' s) public disgrace or disrespect

and to impair her service in t he community.

42. As commonly used, the term " notorious " means

" generally known and talked of " or " widely and unfavorably

known. " See Merriam - Webster Online Dictionary , < http://www.m="">

w.c om/dictionary/notorious >. The School Board presented no

persuasive evidence that Respondent ' s conduct had become widely

and unfavorably known . Even if Respondent ' s conduct were shown

to have been notorious, however, there is no persuasive evidence

that she (or the teaching profession) was publicly disgraced or

disrespected in consequence of such notoriety.

43. Finally, there is no evidence that Respondent ' s

ability to serve in the community has been impaired. Indeed,

the incident did not preclude he r from continued employment in

the community, wherein she continued to be of service, as a

school social worker, at the time of the hearing.

44. In sum, Petitioner failed to establish, by a

preponderance of the evidence, that Respondent ' s conduct

amount ed to immorality.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is hereby

RECOMMENDED that the Broward County School Board enter a

final order dismissing the Administrative Complaint.

DONE AND ENTERED this 18th day of June , 2013 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 96 75

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of June , 2013 .

ENDNOTES

1 / At the outset, it is worth noting that the proprie ty of

Respondent seeking injunctive relief against the minor student

is not at issue.

2 / Effective April 5, 1983, Florida Administrative Code Rule 6B -

4.009 was transferred to Florida Administrative Code Rule 6A -

5.056. For the sake of consistency with th e allegations of the

Administrative Complaint, rule 6A - 5.056 will be referenced

herein as 6B - 4.009.

3 / The undersigned concludes that while Respondent ' s conduct

violated or denied A.W. ' s legal rights as set forth below, the

evidence presented fails to establish that Respondent did so

intentionally, a required element for the establishment of a

violation of rule 6B - 1.006(e). See Forehand v. Sch. Bd. of Gulf

Cnty. , 600 So. 2d 1187 (1st DCA 1992)(noting the word " intent "

denotes that the actor desires to cause consequences of his act,

or that he believes that the consequences are substantially

certain to result from it). Similarly, assuming, arguendo , that

Respondent ' s conduct exposed A.W. to unnecessary embarrassment

or disparagement, the evidence presen ted fails to establish

Respondent intended to do so, and, therefore, Respondent has not

violated rule 6B - 1.006(f). Finally, Respondent ' s attachment of

A.W. ' s records to the Petition did not result in any gain or

advantage to Respondent.

4 / " Misconduct in office " may be established, even in the

absence of " specific " or " independent " evidence of impairment,

where the conduct engaged in by the teacher is of such a nature

that it " speaks for itself " in terms of its seriousness and its

adverse impact on the teacher ' s effectiveness. In such cases,

proof that the teacher engaged in the conduct is also proof of

impaired effectiveness. See Purvis v. Marion Cnty . Sch . Bd . ,

766 So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands

Cnty . Sch . Bd . , 752 So. 2d 127, 128 - 29 (Fla. 2d DCA 2000 ).

Respondent ' s conduct, however, is not sufficiently egregious by

its very nature to demonstrate her ineffectiveness in the school

system.

COPIES FURNISHED :

Mark A. Emanuele, Esquire

Lydecker Diaz

3rd Floor

1221 Brickell Avenue

Miami, Florida 33131

Robert F. McKee, Esquire

Kelly and McKee

Post Office Box 75638

Tamp a, Florida 33675

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Dr. Tony Bennett , Commissioner of Education

Department of Education

Turlington Building, Sui te 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Robert Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301 - 3125

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.