12-003901TTS Brevard County School Board vs. James B. Wilkins Status: Closed Recommended Order on Friday, November 1, 2013.

Summary: The school district failed to prove that Respondent committed misconduct in office either through his teaching of students or handling of school and band funds.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BREVARD COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 12 - 3901TTS

JAMES B. WILKINS ,

Respondent .

/

RECOMMENDED ORDER

A duly - noticed hearing was cond ucted on June 11 through 13,

2013, in Viera, Florida, before Administrative Law Judge

Robert S. Cohen of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Wayne L. Helsby, Esquire

Shannon L. Kelly, Esquire

Allen, Norton and Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

For Respondent: Mark S. Levine, Esquire

Levine and Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

School Board Policies 3210 (and, when referenced, corresponding

Florida Administrative Code rules), 66 10 , and/or 6152, and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

In a letter dated November 6, 2012 , Dr. Brian Binggeli,

superintendent of s chools for Brevard County, Florida, notified

James B . Wilkins of his recommendation to Petitioner that

Petitioner terminate Mr. Wilkins for violation of School Board

Policy 3210, relating to the s tandards of e thical c onduct, for

failure to protect students from conditions harmful to learning

and/or to the students ' mental and/or physical health and/or

safety. Further, the superintendent alleged that Mr. Wilkins

violated School Board Policy 3210 by intentionally exposing one

or more students to unnecessary embarrassment or disparagement.

The s uperintendent also alleged that Mr. Wilkins violated two

Sch ool Board p olicies relating to the handling of money: 6610,

relating to i nternal a ccounts; and 6152, relating to s tudent

f ines, f ees , and c harges; and school rules. Finally, the

s uperintendent alleged that each of these violations constituted

misconduct in office and/or conduct unbecoming an instructional

employee.

Petitioner terminated Mr. Wilkins at its meeting on

November 20, 2012. Mr. Wilkins timely filed a request for formal

hearing. This matter was then referred to the Division of

Administrative H earings.

In a letter dated May 3, 2013 , the s uperintendent informed

Mr. Wilkins that he had become aware of additional grounds for

termination (Additional Charge or May 3, 2013 Additional Charge) .

They were stated as follows:

It has recently been discover ed that on more

than one occasion, you rubbed your body up

against a female member of the band, told her

that you loved her, stroked her hair and told

her that you loved her long blond hair. This

is in violation of School Board Policy 3210,

Standards of E thical Conduct.

According to the letter, the Additional Charge was intended to

"supplement [the superintendent's] previous correspondence dated

November 6, 2012" and the actions alleged "provide additional

just cause to terminate [Mr. Wilkins'] employment as a teacher

and cancel [his] Professional Service Contract under

Section 1012.33(4)(c)."

On May 13, 2013 , Mr. Wilkins ' counsel filed a Motion to

Strike Additional Charge seeking to strike the May 3, 2013

Additional Charge . On May 15, Petitioner ' s counse l filed Notice

of Filing Supplementary Agency Action Letter - Î the

s uperintendent ' s letter of May 3 , 2013 . On May 20, Petitioner

filed a Response to Respondent ' s Motion to Strike Additional

Charge.

On May 13, 2013 , Respondent filed a Motion in Limine or in

the Alternative a Motion to Strike concerning several of the

charges in the original notice of termination , dated November 6,

2012. The m otion asserted that by including charges against

Mr. Wilkins in this proceeding for which he had already been

discipli ned or was otherwise counseled by a district

administrator, Petitioner was subjecting Mr. Wilkins to double

jeopardy and unfair labor practices. On May 20, Petitioner filed

a response to the Motion in Limine. Following a May 29, 2013,

motion hearing, an order was entered denying Respondent ' s Motion

to Strike Additional Charge. The order granted in part, and

denied in part, Respondent ' s Motion in Limine which effectively

precluded Petitioner from reopening matters at the final hearing

alleged in Petitione r ' s notice of November 6, 2012, for which

Respondent was previously disciplined or counseled.

Allegations Not at Issue in This Proceeding

As a result of the ruling on the Motion in Limine, most

allegations addressed in the November 6, 2012 , dismissal lette r

are not at issue in this proceeding. As such, those allegations

may not form the basis of discipline in this matter, except in

the sense that progressive discipline may apply. Those issues,

as presented in the termination letter, are:

Section A - Inapp ropriate Comments to Students

Paragraph 2, relating to sports bras. This issue was

specifically addressed in the Letter of Reprimand and the

Professional Development Assistance Plan (PDAP) .

Paragraph 3, relating to B.O. ' s initial allegations. This

issue was specifically addressed in the Letter of Reprimand.

Section B - Mistreatment of Students

Paragraph 1, relating to exercises, except , Petitioner

contends, the issue of adult supervision remains. However, this

issue, too, was among the parent complaint s addressed at the

conference on October 1, 2012. Summary of Conference, October 3,

2012, dealing with complaint from three parents.

Section C - Parent Volunteer

This issue was specifically addressed in the conference on

September 24, 2012, and documente d in the Summary of Conference ,

dated October 1, 2012.

Section D - Nicknames

This issue, including ethnic nicknames, was among the parent

complaints , and Mr. Wilkins response was addressed at the

conference on October 1, 2012. Summary of Conference, Octo ber 3,

2012, dealing with complaint from three parents.

Section E - Inflicting Physical Injury

Although addres sed the prior year, this issue concerning

A.S., led to a n investigation by the Palm Bay Police Department

and Department of Children and Families in October 2012.

Mr. Wilkins was placed on leave on October 4, 2012 , pending an

investigation by these agencies. No action was taken against

Mr. Wilkins by these agencies, nor was any action taken by the

school district.

Section F - Humiliating a Stud ent

This issue was dealt with in the Summary of Conference

memorandum , dated October 1, 2012.

Allegations Remaining at Issue

The allegations in the s uperintendent ' s letter of

November 6, 2012 , remaining at issue in this proceeding are:

Section A - Comment s

Paragraph 1, relating to a comment about " oral sex. "

Section B - Mistreatment of Students

Paragraph 1, only as it relates to the contention that the

issue of adult supervision of exercises was performed by students

for rule infractions was not previously known about by district

administrators.

Paragraph 2, only as it relates to the bus/bathroom

incident.

Section G - Mishandling of Funds

May 3, 2013 Additional Charge

The Additional Charge concern B.O. , a female student.

At the hearing, Petitioner offered 38 exhibits and

Respondent offered 17 exhibits that were entered into evidence.

Petitioner called ten witnesses. Respondent called five

witnesses. The proceedings were recorded , and a three - volume

T ranscript was filed with the Division of Administrative

Hearings . The p arties timely submitted their proposed

recommended orders, which have been carefully considered in the

preparation of this Recommended Order.

References to statutes are to Florida Statutes (20 12 ) unless

otherwise noted.

FINDING S OF FACT

Th e Parties

1. Petitioner, Brevard County School Board ( " School Board "

or " Petitioner " ), is the constitutional entity authorized to

operate, control, and supervise the public schools in Brevard

County, Florida.

2. Beginning in 2009, Respondent, James B. Wi lkins

( " Wilkins " or " Respondent " ), was employed by Petitioner as the

band director at Heritage High School. In 2012, Wilkins held a

Professional Services Contract.

3. Wilkins has over 30 years ' experience working with bands

in Florida and North Carolina. He previously taught in Duval and

Orange c ounties , and his personnel files were reviewed and

references checked when he was considered for the position at

Heritage High School.

4. Petitioner and Brevard Federation of Teachers, Local

2098, are parties to a collective bargaining agreement ( " CBA " ).

Among its terms, the CBA requires just cause for dismissal.

5. Wilkins previously worked for the Orange County School

Board, and during his employment, received letters of reprimand

in November 2000 (inappropri ate physical force and corporal

punishment with students and failure to adequately supervise

students under his control), April 2004 (shouting match with a

student and use of profanity), April 2004 (grabbing a student by

the arm and use of profanity), Nove mber 2007 , and February 2008.

During the hearing, Wilkins testified he could not recall the

incidents at Orange County Public Schools where he was accused of

the use of profanity with students and inappropriate physical

force.

6. Wilkins was also previou sly employed by the Duval County

School Board, where he received a letter of reprimand in

November 1994 for his use of profanity. Wilkins also received an

unsatisfactory rating on his 1995 evaluation for his use of

profanity on several occasions despite w arnings, and for failure

to follow policies or financial procedures.

7. As the b and d irector at Heritage High School, Wilkins

taught classes and was also responsible for the extracurricular

activities of the band, including marching band and orchestra.

Wilkins was also responsible for following the School Board ' s

rules regarding the finances of the band program , as well as the

supervising and disciplining of students.

F all 2012

8. John Tuttle was principal of Heritage High School from

it s open ing in 200 9 until October 2012 . Tuttle hired Wilkins for

the position of band director because he was the best applicant.

He knew at the time he hired Wilkins that Wilkins was a strict

disciplinarian. Wilkins ' organization of the band taught the

students responsi bility and discipline.

9. Tuttle wanted a band that would showcase the band and

its community until the athletic programs could develop. By

2012, the band had been very successful and received many

accolades. Tuttle ' s evaluations of Wilkins each year r ated

Wilkins " Effective " in each category, the highest rating

possible. Wilkins built a strong booster organization for the

band that assisted with student financial obligations. Further,

Tuttle recognized that Wilkins had established the Heritage Band

" as our showcase program. " He also noted that Wilkins wrote the

" drill music and dance routines " for the band.

10. When Wilkins interviewed for the position, Tuttle asked

him what he would like, if he got the job. Wilkins told Tuttle

that he would like s omeone to have the responsibility for money.

11. Tuttle worked previously with Ms. Teressa Torsiello, a

parent, when he was principal at Bayside. When Torsiello asked

permission for her daughter to attend Heritage, Tuttle gave her

the impression that he would approve the transfer only if she

would organize the football program and help set up other fund -

raising activities at Heritage, including the band. Torsiello

knew district financial rules, and Tuttle trusted her.

12. Torsiello soon became the presi dent of the Band Parents

Association at Heritage. There was no assistance in how to

organize the various parent programs from school district

personnel. Torsiello assisted several organizations at Heritage

in setting up their programs, including the foot ball program and

the band.

13. The Band Parents Association had a constitution and

by - laws. Torsiello implemented an accounting program called

Charms , which allowed the Band Parents Association to keep track

of individual student financial accounts and other matters (such

as medical needs and contact information), it could generate

receipts, keep track of inventory and produce various reports

(such as monthly and year - end financial reports). Parents could

access their student ' s information on - line by us ing a password.

The Band Parents Association met to approve expenditures (with

proper receipts) , and it used its monthly reports to check the

school ' s internal account balance.

14. The Band Parents Association maintained several

accounts. These included : the school ' s internal account; an

account at the Brevard Foundation; a bank account; and a petty

cash fund. Every organization at every school Torsiello has ever

been involved with has had its own petty cash fund, including the

football program at Heri tage. Tuttle recognized that he cannot

control what the Band Parents Association does with its money Î

whether they donate to the school (through the internal account

or the Foundation) or how they handle it. He can only control

the money that comes throug h the band director and the

bookkeeper. The Band Parents Association had to vote to donate

money that it raised in order to place it in the school ' s

internal account.

15. Wilkins never handled money until Ms. Martin, the b and

p arent t reasurer resigned. He had emphatically stated that he

did not want to handle money; he did not even have a password to

the Charms accounting program. Although he might have to

authorize purchases from the school ' s internal account or the

Foundation account, he was not allo wed to be the lone signer.

16. Tuttle dealt with various complaints against Wilkins in

the f all of 2012 , which are outlined in the s uperintendent ' s

letter of November 6, 2012 , and discussed in the Preliminary

Statement , above. Tuttle " felt like a group o f parents were out

to get him (Wilkins) and they were going to continue drumming up,

pulling up things that happened in the past that may have already

been dealt with until they did. " Following the Palm Bay Police

Department and Department of Children and Families investigation,

in which the agencies found no violation to pursue, the media

scrutiny started.

17. After the media attention, " investigations " were taken

away from Tuttle and handled by Ms. Debra Pace and Dr. Mark

Mullins. Neither testified as to any complaints they were

investigating. They went to Heritage to see what they could dig

up. Due to the nature of some of the allegations in this

proceeding, it is apparent that they were seeking one or more

reasons to terminate Wilkins.

A llegations

1 8. In a letter dated November 6, 2012 , the s uperintendent,

Dr. Brian Binggeli, notified Wilkins of his intent to recommend

his termination of employment to the School Board. Although the

letter contained a number of allegations, most of those are not

the subject of this proceeding following the ruling on the

Respondent ' s Motion in Limine. The remaining issues are set

forth below, under the appropriate section letter and title.

A. Inappropriate Comments of a Sexual Nature to Students

19. At paragraph 1, the s uperintendent alleges that Wilkins

engaged in the following conduct: " You said to two students that

a female member of the band played her woodwind instrument in a

manner that looked like an act of oral sex (the exact language

you used is too graphi c to repeat in this public record). "

B. Mistreatment of Students

20. Paragraph 1 of this section concerns exercise s

performed by students and alleges that Wilkins engaged in the

following conduct:

You directed the student who is the " Sergeant

at Arms " of the band to discipline students

who you or your appointed student leaders in

the band determined committed an infraction

by taking the students to a separate room

with no adult supervision to perform

exercises utilized as punishment including

push ups, si t ups, panther spreads, rocking

chair, 6 inch killer, duck walks and the

" Heritage Special " . You admitted this

practice and acknowledged that some students

became upset (crying) because of the

strenuous nature of the " punishment " . You

recently added the names of two female

students to the discipline list because you

stated they were not wearing sports bras.

You readily admitted that you did not monitor

the discipline list for fairness or

consistency, and you kept no permanent record

of who was discipline d or the level of

intensity of the discipline sessions.

21. Paragraph 2 of this section concerns bathroom use and

water breaks and alleges that Wilkins engaged in the following

conduct:

You also denied students access to bathrooms

and water during variou s band practices and

events. On one occasion during the Extreme

Makeover event in Titusville last school year

a female student who was not allowed to use

the bathroom at a McDonalds [ sic ] wet herself

and was humiliated in front of her peers.

Students int erviewed indicated that the water

breaks were regularly permitted after 45 - 50

minutes of strenuous physical activity at

practices and performances. If someone was

about to " pass out, " you would allow them a

drink of water. The restrictions you placed

on student ' s [ sic ] access to water and

bathrooms subjected them to the potential of

physical harm. . . .

G. Mishandling of Funds

22. The s uperintendent alleges that Wilkins engaged in the

following conduct relating to the handling of funds:

You have viola ted School Board Policy 6610

and School Board Policy 6152 by maintaining

two separate accounts for school based funds.

One account was utilized for deposit of

checks and was properly operated as a school

based internal account. You improperly

maintained a separate, unauthorized cash box

in which cash collections from band students

for band fees and other charges were kept

with a separate receipt book. The cash

collections were maintained by a single

parent, and there was no governance by a Band

Booster B oard or official parent officer

group over expenditures of the funds, other

than your direction. When question ed about

this separate account on October 16, 2012,

you first denied knowledge of its existence.

You then denied handling any money. You said

t hat you had forgotten about the money box

and the funds contained therein until earlier

that morning, when you turned the money box

over to the school bookkeeper. You then

denied having any knowledge of how much money

was in the cash box when you turned i t in to

the bookkeeper. You also denied several

times any knowledge of a second receipt book,

separate from the official district - issued

receipt book used for the band ' s internal

account. You later admitted the use of two

separate receipt books, one for the internal

account and a separate one for cash receipts.

You also later admitted that you

independently authorized the use of $50.00

for a cash prize at the September parent

meeting. Then you were shown the cash

register receipt which you said the form er

Band Treasurer signed when she turned the

cash box over to you, but you were unable to

explain the negative difference between the

amount turned over to you by the former B and

T reasurer, $800.35, and the amount you turned

in to the bookkeeper earlier th at day,

$680.00. You were both evasive and dishonest

about the lack of proper receipts for

deposits and expenditures, and the shortage

of cash versus receipts when the monies were

turned in. You finally admitted that the

cash was regularly spent in any m anner you

deemed necessary with no accountability. At

the end of the October 16 interview your

briefcase was examined and a clear plastic

document holder with additional receipts and

cash, $21.00, was found. When questioned [,]

you claimed that was some m oney and receipts

you also intended to turn in. District

leadership later learned that you previously

paid yourself a salary above and beyond the

salary and supplement you have regularly

received as the Band Director at Heritage

High, out of the cash box, for summer band

camp: $2,250 in 2011 and $3,000 in 2012. A

review of cash fund collected, according to

the receipt book, indicates that $4,551.00

was collected between July 16, 2012, and

September 7, 2012. Receipts turn ed in show

expenditures at B.J. ' s , Sam ' s, Winn Dixie,

etc, total $ 3225.27, leaving a difference of

$1,325.73. With $680 submitted to the

Heritage bookkeeper on 10/16, and an addition

$21.00 recovered from your briefcase, at

least $621.73 [sic] is unaccounted for.

Additional Charge

23. By letter dated May 3, 2013 , the s uperintendent

notified Wilkins of the additional grounds that involved B.O., a

female student, for his termination. The Additional Charge was

never presented to P etitioner for its consideration.

Basis f or Termination

24. At page 4 of the November 6, 2012 , termination letter ,

the s uperintendent sets forth the legal basis for terminating

Wilkins ' employment. That basis is set forth, below:

Your actions as described in paragraphs A, B,

C, D, E, and F above violate the Brev ard

Public School Code of Ethics, Policy 3210,

and The Code of Ethics And The Principles of

Professional Conduct of the Education

Profession in Florida by failing to protect

the students from conditions harmful to

learning. You have jeopardized the studen ts '

mental and physical health and safety, by

intentionally exposing students to

unnecessary embarrassment or disparagement.

These actions constitute misconduct in office

and conduct unbecoming an instructional

employee. ( e mphasis added ) .

Your actions a s described in paragraph G . a re

a violation of School Board Policy and rules

of Heritage High School regarding the

collection and expenditure of funds and

further constitute misconduct in office.

( emphasis added ) .

These actions as described above provide just

cause to terminate your employment as a

teacher and cancel your Professional Service

Contract under Section 1012.36(6)(a), Fla.

Stat .

Pursuant to the Collective Bargaining

Agreement between the Brevard County School

Board and the Brevard Federation of Teachers,

you have a right to request a meeting with me

to discuss my recommendation to terminate

your employment. To request a meeting you

must advise me in writing within five (5)

days after receipt of this letter. If you

wish to contest these char ges you have the

right to request a hearing. To request a

hearing you must submit a written request to

my office within fifteen (15) days after

receipt of this letter.

25. The Additional Charge fails to cite to corresponding

provisions of the Florida Adm inistrative Code or state the

misconduct in office charge.

Inappropriate Comments o f a Sexual Nature t o Students

26. At section A, paragraph 1 of the termination letter,

the s uperintendent alleged that Wilkins made graphic reference to

" oral sex " to two s tudents concerning the way a female student

was playing her woodwind instrument. Petitioner neither alleged,

nor offered proof at hearing, that the student about whom the

alleged comment was made heard the comment.

27. The Letter of Reprimand issued to W ilkins in

September 2012 by Tuttle dealt with comments of a sexual nature .

Petitioner contends that the alleged comment concerning " oral

sex " was not known by district personnel until October 15, 2012 ,

when Pace and Mullins began interviewing students. A s such, it

is an enhanced allegation that may be considered in this

proceeding for disciplinary purposes.

28. Those present at the time Wilkins is alleged to have

made the offending comment in August or September 2012 were

Wilkins ; T.S., a male student ; a nd H.J., a female student.

29. T.S. first testified that Wilkins said, " It looks like

she is doing something inappropriate. " H.J. agreed and stated

that Wilkins made no reference to " oral sex. " H.J. merely took

Wilkins ' comment to mean that the student was playing the

instrument wrong in that the mouthpiece was inserted too deeply

into her mouth which could lead to injury if the band member fell

while marching. Further, H.J. was not offended by Wilkins '

comment that the student was playing the instrume nt

inappropriately. However, H.J. did feel that her words were

being twisted by Pace and Mullins.

30. Upon further probing by Petitioner's counsel, T.S.

testified that he had written in his statement that Wilkins said

that it looked like the student was " sucking dick, " because of

the way the student held the mouthpiece in her mouth. T.S.

admitted that he was frustrated by Pace and Mullins, because they

badgered him about making a statement. When asked by

Respondent ' s counsel whether the words " sucking dick " were his,

T.S. stated, " that ' s what they (Pace and Mullins) told me. "

Whatever Wilkins said, T.S. was not offended by the comment.

31. Wilkins denies making any statement to T.S. or H.J.

about oral sex. He testified that he wanted T.S. and H.J . t o

" fix her playing position because it looks inappropriate. " One

of Wilkins ' concerns was that if the student tripped with the

mouthpiece in that position, she could injure herself.

32. Based on the testimony of the witnesses, the evidence

does not supp ort the assertion that Wilkins made a sexual

reference concerning the woodwind player.

Mistreatment o f Students

Exercises

33. At section B, paragraph 1 of the termination letter,

the s uperintendent made several allegations against Wilkins

concerning the u se of exercises as a consequence for rule

infractions, including when students fail to dress properly

(sports bra). Other bands in the district such as Palm Bay High,

Melbourne High, and Cocoa High, and other organizations at

Heritage, such as cheerleader s, use exercises for this purpose

and place officers in a position of responsibility over their

members. As noted in the Preliminary Statement above, Tuttle

previously dealt with issues concerning these exercises when he

dealt with earlier complaints.

34. Petitioner, however, contends that the issue of adult

supervision of these exercises was not raised until J.V . Z . , the

sergeant - at - arms, was interviewed by Pace and Mullins in mid -

October 2012 and thus the allegation may now be a matter for

further discip line.

35. There is no allegation that any student was ever

injured performing these exercises.

36. The issue of adult supervision of these exercises was

in fact raised by D.S., a band parent, in her complaint to

Tuttle. Tuttle dealt with D.S. ' s complain t with Wilkins on

October 1 and a Summary of Conference was issued on October 3,

2012.

37. Various students and Wilkins testified as to the

process and practice of using exercises as a consequence for rule

infractions. Petitioner charged Wilkins with fai lure to

supervise these exercises, because the exercises were conducted

in a separate room. However, all the rooms in the band area have

windows from ceiling to " door knob. " Wilkins maintains that he

always had a direct line of sight as to what was going on in the

area where the exercises were conducted. The students who

testified on this issue agreed that Wilkins always had a line of

sight view of the officers supervising and the students

performing the exercises. These students include J.V . Z., T.S.,

T .T., and S.O.

38. Based on the testimony of the witnesses, the more

credible evidence supports that there was adult supervision of

this activity, as Wilkins always had a line of sight as to those

performing the exercises and those supervising them.

Bathro oms and Water

39. The allegation at section B, paragraph 2 concerns

student access to bathrooms and water. The general issue of

student access to bathrooms and water was reviewed previously by

Tuttle. There was no evidence that Wilkins denied any studen t

access to a bathroom or water.

40. However, with this allegation, Petitioner specifically

charged Wilkins with denying a female student access to a

bathroom causing her to wet herself on the bus ride home from the

Extreme Makeover Event in 2010.

41. P ace now acknowledges that S.O. is the student at

issue. Petitioner made this allegation without confirming the

name of the student, S.O., who was allegedly the one who wet

herself. Even when S.O. provided district officials, including

Pace, with a writte n statement contradicting the allegation prior

to Petitioner ' s vote on the s uperintendent ' s recommendation to

terminate Wilkins, the s uperintendent went forward with this

unsubstantiated charge.

42. S.O. testified that no one from the school district

eve r talked to her about the allegation. S.O. stated that she

did not realize she had to use the restroom until after the bus

was underway. However, she did not wet herself on the bus.

43. Wilkins was not on the same bus as S.O. and never knew

about S.O. ' s need to use the restroom until he received the

termination letter. Petitioner offered no testimony to

contradict S.O. ' s testimony at hearing.

44. Based on the evidence presented, this allegation is

unsupported in its entirety. Further, the allegation was based

merely on rumor , and the District failed to follow - up when S.O.

came forward. It is unclear why this allegation was even pursued

in light of S.O. ' s statements made prior to and the testimony of

other witnesses at the hearing. Wilkins did not de ny S.O. access

to a bathroom causing her to wet herself.

Mishandling o f Funds

45. A major focus of this hearing concerned Petitioner ' s

allegations at section G of the November 6, 2012 , termination

letter. At this section, Petitioner alleges Wilkins misha ndled

funds in violation of School Board Policy 6610, relating to

internal funds , and 6152, relating to student fees, fines , and

charg es. However, in order to understand how these rules apply

in the instant matter, it is necessary to review several sectio ns

of the Internal Funds Procedure Manual referenced at School Board

Policy 6610A, as well as School Board p olicies related to student

and outside organizations.

Internal v. External Funds

Internal Accounts Procedure Manual

46. In general, the Internal Fu nds Procedure Manual

(referred to herein as the " Manual " ) outlines how " internal

funds " are to be handled at the school level. Additionally, the

Manual distinguishes between the handling of " internal funds " as

opposed to " external funds. "

Internal Funds D efined

47. Internal funds are defined in the Manual as follows :

Internal Funds are defined as all monies

collected and disbursed by school personnel

within a school, for the benefit of the

school, or a school sponsored activity.

Funds relating to all sch ool - sponsored

functions or activities are to be accounted

for within Internal Funds. (emphasis added ) .

Internal Funds . . . are considered

unbudgeted public funds under the control and

supervision of the District School Board.

All funds handled by Distr ict employees shall

be included in and become part of Internal

Funds, unless accounted for in the District

level accounting system. . . .

School Internal Funds shall be expanded [ sic ]

for the purpose for which they were collected

and in accordance with th e provisions of this

[M]anual. Florida Statutes, State Board

Administrative Rules and the School Board of

Brevard County Bylaws, Rules & Policies are

the governing requirements and must be

complied with by all and, in case of

conflict, will take precedenc e over this

[M]anual . (emphasis added ) .

External Funds Defined

48. No School Board p olicy mentions " external funds " ;

therefore , there is no conflict with any School Board p olicy as

to how those funds are addressed in the Manual.

49. External funds are defined in the Manual as follows:

The monies arising from activities or

projects conducted or sponsored by outside

organizations, or for which such

organizations are exclusively responsible,

are monies of the organization and are not

school monies, even t hough the activities may

be held on school premises. These monies are

not subject to deposit or accountability as

school monies; such funds are not internal

funds , unless they are donated to the school

for specific or general purposes. (emphasis

added ) .

50. External funds may be raised by organizations under

several different names, examples include " outside organization, "

" PTA, " " parent or civic groups, " or " booster parents. " There is

no differentiation in the School Board p olicy or the Manual as to

h ow, or if, these groups differ in anything but name or whether

they may be treated differently by the District or a school . For

instance , there is no distinction between a " booster "

organization and one that calls itself a " parent " organization.

In parti cular, there is no requirement that an organization be a

501(c)(3) organization under the Internal Revenue Code. Often

these groups are referred to in the Manual and in School Board

p olicy as merely " outside, " " parent, " or " cooperative "

organizations.

Coo perative Organizations

51. Cooperative organizations, under whatever name, are

required to file annual reports with the school. " All

organizations operating in the name of the school, which obtain

monies from the public, shall be accountable to the Distr ict for

receipt and expenditure of those funds, in the manner prescribed

by the District. "

52. Section H(1) of the Manual states that " the District

prefers that the cooperative (or support) organizations be

accounted for in the benefitting school ' s inter nal funds. " The

Manual also recognizes, " if the cooperative organization chooses

not to be accounted for in the school ' s internal funds, the

organization is required to provide (annual) information to the

District as outline below . " (emphasis added ) .

53. If an organization chooses not to account for all its

funds in a school ' s internal account, there is no restriction in

any School Board p olicy, t he Florida Manual (discussed below), or

the Internal Funds Procedure Manual on how that organization

" holds " its funds, as opposed to accounting for them. For

example, the cooperative organization may have its own bank

accounts - Î checking, savings, money market, etc. It may hold some

funds in cash to use as a change or a petty cash fund. Or, it

may place the fu nds with the Brevard Schools Foundation or in the

school ' s internal fund.

54. Section H of the Manual provides examples of types of

cooperative organizations and requires an annual report from each

that must be provided to the school (principal) by August 31 each

year. A sample form is provided at A20 of the Manual.

Information required includes financial information on all

accounts, total funds raised, itemized expenditures , and total

expenditures.

55. Section H(4) of the Manual states that the " Distri ct

recognizes and appreciates the service and assistance provided by

the organizations. Cooperation between schools, the District,

and cooperative organizations is encouraged. "

56. Further, s ection H(5) of the Manual provides that " it

is not the intent of the District to regulate these

organizations . However, completing the Cooperative Organization

Annual Report complies with the requirement that these

organizations are accountable to the District for receipts and

expenditures since they operate in the name of the school. "

(emphasis supplied) These organizations must operate according

to School Board Policies 9210 and 9211, relating to " Parent

Organizations " and " Parent Organizations, Booster Clubs, and

Other Fund - Raising Activities, " respectively. Co operative

organizations are required to keep an itemized account of monies

collected and expended verified by two signatures. This section

also provides that an organization may not have cash withdrawals

unless approved by the principal; however, reading s ection H as a

whole, this would only apply to funds held in the internal

account of the school over which the principal has

responsibility, as it is not the intent of the District to

regulate these organizations, if they choose not to be accounted

for in the school ' s internal fund . In other words, the District

recognizes that neither it, nor its employees, regulate

cooperative organizations and that these organizations may have

external funds.

57. Section H(13) of the Manual specifically provides that

co operative organizations do not have to use the internal

account, that the District does not intend to regulate these

organizations, and that the principal would not have control over

outside accounts, such as those at the Foundation, in a bank , or

held in cash. The cooperative organization must retain backup

documentation for each bank transaction. Again, it is

contemplated that these organizations may have outside accounts ,

and there is no restriction on what type of account they may have

or how they oth erwise choose to hold their funds.

58. Principals are required to have on file, for each

cooperative organization, its bylaws, corporate charter, the

Cooperative Organization Annual Report form, and Internal Revenue

Tax Exemption Status Determination, if any, as there is no

requirement for an organization to get a determination letter

from the IRS. Section H(2) of the Manual merely indicates that

these organizations " may " be recognized as exempt from income

taxes by the IRS.

Participation by Employees

5 9. Neither School Board p olicy nor the Manual prohibits

employees from handling funds. However, if a S chool B oard

employee , in his or her capacity as an employee, is involved in

the collection of monies or merchandise for resale , the funds are

defined as internal funds. For example, a teacher collecting

money from students for a school - sponsored field trip would be

required to deposit the funds into the internal account.

60. Activities in which outside or cooperative

organizations may engage do not prec lude participation of a

District employee, if the employee is not an agent or is not in

pursuit of his or her responsibilities for the District. For

instance, a teacher may work a concession stand at a football

game as a member of the Parent Drama Organiz ation, and the funds

would remain those of the organization until the organization

decided to donate them to the school ' s internal fund for the

Drama Club, because the School Board employee is not working at

the concession stand in his or her capacity as a School Board

employee. The employee is working the concession stand as a

member of the Parent Drama Organization -- membership in which is

encouraged by School Board p olicy.

Financial and Program Cost Accounting and Reporting for Florida

Schools Manual ( " The Florida Schools Manual " )

61. The Florida Schools Manual provided by the Florida

Department of Education addresses cooperative activities. These

activities are defined as those " in which the school participates

with outside groups such as the P.T.A. or booster clubs. " These

activities, which may be held on or off campus, will usually take

the form of fund - raising events , such as carnivals and food

sales. The Florida Schools Manual requires that the activities

be approved by the principal and be bene ficial to the students.

Further, the manual requires that D istrict procedures be followed

to provide for appropriate accounting for funds and compliance

with District policies and those provided in the Florida Schools

Manual.

62. Other than this paragra ph, the Florida Schools Manual

does not address " external funds " at all.

School Board Policies

Policy 6610 - Internal Accounts

63. School Board Policy 6610 provides for the collection,

receipt, safekeeping , and disbursement of funds to and from a

school i nternal account. It specifically provides that wages or

supplements may not be paid to any employee from internal funds,

except as provided by the School Board. Fundraising by student

organizations is addressed at s ection E of the policy. Funds

received by a parent - teacher group or other cooperative

organization are external funds, unless donated to the school.

Therefore, this rule recognizes that when receiving funds fro m

students at school, a parent - teacher group must provide a parent

member, rather t han a student or School Board employee, to

receive the funds. Otherwise, if a parent - teacher group (outside

or cooperative organization) uses a student or employee for the

collection of funds at school, the funds must be deposited into

the school ' s intern al account.

64. Depending on whether funds below $200 can be adequately

safeguarded, bank deposits are required to be made within three

to five business days of receipt by a school ' s internal fund.

Policy 6152 - Students Fees, Fines , and Charges

65. Dep ending on whether funds below $100 can be adequately

safeguarded, this policy provides that student fees, fines , and

charges collected by members of the staff are to be turned into

the bookkeeper (for deposit into the internal account) within one

to three business days of receipt. These charges include the

cost of loss or repair to damaged equipment. The only other fees

associated with the band program and authorized by the School

Board are for uniform and instrument rental.

Policy 5830 - Student Fund - Rai sing

66. School Board Policy 5830 defines " student fund - raising "

as student solicitation and collection of money in exchange for

tickets, papers, or goods or services. This policy applies only

to student organizations granted permission to solicit funds.

Specifically not included in this definition is when a parent or

other member of an outside organization collects the funds, even

if students are doing something in exchange, such as a car wash.

Further, this rule does not reference parent or other coop erative

organizations supporting school or student activities; although

it does reference the support schools can provide other community

organizations, through activities such as a canned food drive.

Policy 9 210 - Parent Organizations

67. School Board P olicy 9210 states in pertinent part, that

" The Board supports all organizations of parents whose objects

are to promote the educational experiences of District student s . "

(emphasis added ) .

68. This policy requires that the principal approve any new

paren t organization prior to organizing. The policy also

requires District employees to treat members of these

organizations as interested friends and supporters of public

education. The policy encourages staff members to join these

organizations. Finally, S chool Board Policy 9210 provides that

the School Board may withdraw its recognition of the

organization.

Policy 9211 - Parent Organizations, Booster Clubs ,

and Other Fund - Raising Activities

69. Through this policy the School Board expresses its

appreci ation to these organizations , whose efforts enhance the

educational experience of District students and which are not

provided for by the School Board. School Board Policy 9211

outlines the expectations of the School Board for parent

organizations, booste r clubs , and other fund - raising activities.

The expectations include: open membership to District staff and

community members; cooperate with the principal and abide by

School Board policies. These organizations are required to

provide their by - laws to the principal. These organization s may

not donate to another organization from their funds, unless the

money was raised for that purpose (for instance, sponsoring a

team in the Relay for Life Walk).

70. School Board Policy 9211 requires that these

organ izations complete a facility use agreement annually. They

are required to provide goals annually to the principal (part of

the Cooperative Organization Annual Report). The principal (or a

designee) is required to approve fund - raising activities.

However , employees of the District are not permitted to sign on

any group ' s checking account. And, these organizations may not

use the District ' s sales tax exemption number.

Policy 9 23 0 - Gifts, Grants , and Bequests

71. School Board Policy 9230 recognizes the Brevard Schools

Foundation (the " Foundation " ) as the District ' s sole non - profit

organization established to receive and disburse contributions to

the schools. The policy states that all donations over $250

should be funneled through the Foundation, so th at charitable tax

documentation can be supplied to the donor. The policy

recognizes that equipment may be purchased by a parent

organization for use in a school or at an event. Although this

policy does not address a school ' s internal account, it does no t

prohibit donations directly to the internal account from an

outside organization.

Summary

72. Internal funds are those collected by students or

District staff in the performance of the duties for the School

Board.

73. External funds are those funds rai sed or collected by

the members of a cooperative organization. The funds are neither

handled by students nor by District staff in the performance of

their duties. While some of these funds may have to be remitted

to the internal account for specific purp oses, such as instrument

or uniform rental in the case of a band, the cooperative

organization can hold the remainder of the funds in any manner it

deems appropriate. These funds may not be deposited into the

internal account until the cooperative organiz ation approves the

donation.

Section G Allegations

74. The allegations at Section G may be broken down into

several categories: collection, receipt, holding , and

disbursement of funds; door prizes; payment for writing music and

preparation of marching dr ills; and missing money.

The Collection, Receipt, Holding , and Disbursement of Funds

75. Petitioner alleges that Wilkins maintained two separate

accounts for school - based funds. One Petitioner alleged was

properly maintained as a school - based account, an d the other was

a separate unauthorized cash - based account with a separate

receipt book. Therefore, Petitioner alleges Wilkins violated

School Policies 6610 and 6152. As outlined below, Petitioner is

mistaken.

76. Pace was the primary witness for Petiti oner on issues

concerning the handling of funds. Pace based many of her

conclusions about whether the Band Parents Association could

maintain outside accounts on what Tuttle told her and her

understanding of " booster " organizations. Tuttle testified that

the Band Parents Association was no longer a " booster "

organization; however, he recognized that he cannot control what

the Band Parents Association does with its money - Î whether the

Association donates the funds to the school ' s internal fund or

keeps it i n external accounts. He can only control the money

that " comes through my director and my bookkeeper. " There is no

distinction in School Board p olicy or in the Manual that a

cooperative organization that has the word " booster " in its name

is any differen t from a cooperative organization that does not.

Therefore, Pace ' s conclusion that the Band Parents Association

could not maintain outside accounts, including a petty cash fund,

is incorrect.

77. Even before organizational changes, the Band Parents

Assoc iation at Heritage never used the word " booster " in its

name. It complied with all the requirements in the Manual

relating to cooperative organizations, as well as School Board

policies relating to parent organizations. It obtained

recognition from Tuttl e and provided him with its by - laws. It

obtained permission for all fund - raising activities. It

maintained various accounts with the Foundation and at one time

had its own bank account as well as a change and petty cash fund.

Members of the Band Parents Association raised funds from fund -

raising events, as well as handled money from students. The Band

Parents Association issued monthly financial statements and filed

the required Cooperative Organization Annual Report.

78. Although Tuttle acknowledged t hat he cannot control

what the Band Parents Association or other cooperative

organization does with their money , Pace u nderstand s the

interplay among the various adopted School Board p olicies and the

Manual . S he does not , however, understand the differenc e between

" internal funds " and " external funds. " As such, Pace does not

have an appreciation for the District ' s policy articulated in the

Manual that the District, including its personnel, cannot tell

cooperative organizations, such as the Band Parents As sociation,

how to handle their money.

79. While it is true that School Board p olicy requires a

cooperative organization to obtain a principal ' s permission to

organize, once that permission is gra n ted the principal may not

" regulate " the organization beyon d the authority set forth in

School Board p olicy and the Manual, such as obtaining permission

prior to holding a fund - raiser. There is no authority for a

principal to require a cooperative organization to place all its

funds in a school ' s internal account . To the contrary, the

Manual recognizes that cooperative organizations, by whatever

name they choose to use, may maintain outside accounts as long as

the Cooperative Organization Annual Report is filed. Further,

there is no requirement in School Board p olicy or the Manual that

in order to maintain outside accounts a n organization must

receive a determination letter from the IRS.

80. For these reasons, two receipts books are not only

permitted, but required under School Board p olicy and the Manual.

For audit purposes, the official receipt book may only be used

for monies deposited into the internal account. Because of the

other various accounts maintained by the Band Parents Association

(Foundation, bank, and cash) and because of the requirement that

an y cooperative organization that does not use the internal

account for all its funds must maintain proper records, a second

receipt book was necessary.

81. The various Band Parent Association accounts and the

band ' s school internal account were always mana ged by the Band

Parents Association, not by Wilkins. Until Ms. Martin resigned

as treasurer of the Band Parents Association, Wilkins never

handled money. The money he collected from students after

Ms. Martin resigned, Wilkins properly receipted by using the

official receipt book for the school ' s internal account.

82. Based on the testimony and the exhibits entered into

evidence, neither Wilkins nor the Band Parents Association did

anything improper concerning the collection, receipt, holding ,

and disbur sement of funds. Petitioner has failed to prove the

allegations relating to these issues.

Cash Box

83. Petitioner alleges that Wilkins, rather than the Band

Parents Association, maintained an unauthorized cash account

maintained by a band parent for use at his sole discretion

without any oversight by a booster or other parent group.

Petitioner is mistaken.

84. Tuttle received an anonymous letter in September

concerning a cash box maintained somewhere with the " band. " Even

though he believed that the b and and the Band Parents Association

could not maintain outside accounts, he decided to wait until

things calm down with other allegations against Wilkins before

dealing with this issue.

85. The Band Parents Association maintained its records

online for u se by students and parents. Further, the Band

Parents Association provided monthly reports of expenditures and

all its accounts, including the cash account, to parents and made

those reports available to Tuttle, Ms. Lucas and Mr. McGrew

(Mr. McGrew, Athle tic Director, was the principal ' s designee for

the Band Parents Association and other cooperative

organizations). None of these District employees was interested

in receiving these monthly reports. The monthly reports were

kept in the band room at McGrew ' s request. Further, the

Cooperative Organization Annual Report that the Band Parents

Association filed with the school specified the funds in each

account (internal fund, bank account, Foundation account , and

cash).

86. The Band Parents Association ' s ab ility to maintain a

petty cash fund pursuant to School Board p olicy and the Manual is

addressed above. Petitioner provided no evidence that this fund

was used at Wilkins " sole discretion. " Torsiello, Martin , and

Wilkins testified as to the use of these m onies by Wilkins and

others. Wilkins, who had no physical possession of the funds

until Ms. Martin resigned, always had to make a request for the

use of these funds and other Band Parent Association funds (such

as monies in the Foundation account). Wilki ns ' request for funds

was not always granted; however, if it was, he was required to

provide proper documentation in the form of an invoice or receipt

just like everyone else.

87. There was no question raised in this proceeding that

the money in the cash fund was raised by the Band Parents

Association for the benefit of the band. When Wilkins received

the money from Ms. Martin, he locked it up. Although it is not

clear when he got it, he eventually turned it in to the

bookkeeper, Ms. Lucas. Whether he s hould have turned the money

over to her or not, is still in question, because there was no

vote by the Band Parents Association to donate that money to the

internal fund, merely a direction by Ms. Martin to Wilkins.

88. Moreover, it appears that the $680 he turned over to

Ms. Lucas has not been available for use by the band since

Wilkins turned it in. Ms. Lucas testified that almost eight

months after Wilkins turned in the money, the $680 was still in

the school ' s safe . She was still waiting for instruct ions on

what to do with it. Ms. Lucas' actions are contrary to the

requirement that all funds over $200 be deposited within three

days in a financial institution. As of the date of her

testimony , the band still did not ha ve use of these funds for any

pur pose.

89. Based on the testimony and the evidence in this

proceeding, Petitioner proved that Wilkins did not turn in the

money within the time prescribed by School Board p olicy; however,

Petitioner failed to establish that that provision applies as

Wilkin s did not collect this money from students and, further,

the money was not " donated " by the Band Parents Association as

required by the Manual. Petitioner also failed to establish that

the money in the cash box was for use by Wilkins at his " sole "

discret ion and without oversight from the Band Parents

Association. Therefore, Petitioner has failed to prove that

Wilkins did anything in violation of School Board Policy 6610 and

6152 concerning the cash box.

Door Prizes

90. Petitioner alleges that Wilkins in dependently

authorized a $50 door prize from the Band Parents Association

cash box. Petitioner is mistaken.

91. The Band Parents Association, not Wilkins, authorized

door prizes for every b and p arent meeting in order to increase

participation. After the first year, parent attendance and

participation at these meetings (where fundraisers for the band

were organized) fell off. Even though the students were in

attendance, their parents would sit in the car in the parking lot

during the meetings. After the door prizes were authorized,

parent participation increased from a dozen or so to over 100 at

each meeting, as did parent participation at other events,

including fund - raising activities and chaperoning trips.

92. Based on the testimony of the witnesses, Petitioner has

not proven that Wilkins, rather than the Band Parents

Association , independently authorized any door prize.

Payment for Writing Music and Preparation of Marching Drills

93. Petitioner alleges that Wilkins paid himself " a salary

above and beyond the salary and supplement you have regularly

received as the Band Director at Heritage High School, out of the

cash box, for summer band camp: $2,250 in 2011 and $3,000 in

2012. "

94. Torsiello and Wilkins testified that the payments were

not for h olding a band camp, but for writing music and preparing

marching drills for the band to perform during football season.

Although the payment was based on student attendance during band

camp, it was not later increased when more students signed up for

band following band camp and, consequently, adjustments had to be

made to the music and drills.

95. Tuttle testified that band directors are not paid for

writing music or preparing marching drills. He acknowledged that

other bands pay substantial fees for th is service. He believed

that Wilkins should have performed this service gratis since he

possessed the special skills necessary to write and choreograph

the band ' s music. He also testified, however, that he had no

problem with Wilkins performing this serv ice and being paid to do

it by the Band Parents Association, so long as the school did not

have to cover the fees.

96. Although Tuttle stated that he did not know of the

arrangement between the Band Parents Association and Wilkins,

Torsiello testified tha t she discussed and exchanged email on

this issue with Tuttle prior to the Band Parents Association

entering into the agreement with Wilkins for the school ' s second

year. Wilkins thought Tuttle was aware that the Band Parents

Association paid him for this service, in part due to Tuttle ' s

acknowledgment in his evaluation that he knew Wilkins was writing

the shows, something that is not part of the duties for his

position with the School Board, thus saving the school or the

Band Parents Association money.

97 . Torsiello testified that she solicited bids and

researched providers on the internet, but that Wilkins had the

best price. The Band Parents Association approved payment to

Wilkins to write the music and prepare the drill plans each year.

98. Pace test ified that she thought this practice was

unethical, because of Wilkins position. However, Petitioner did

not allege an ethics violation (i.e. self dealing) as it relates

to Section G of the termination letter.

99. Based on the testimony and the evidence presented,

Petitioner has failed to prove that writing music and preparing

marching drills was part of Wilkins official duties. As such,

Petitioner failed to prove that the Band Parents Association

paying Wilkins for this service violated School Board Pol icies

6610 and 6152, the only policies cited by Petitioner relating to

these allegations.

Missing Money

100. Petitioner alleged that Wilkins was unable to explain

the $120.35 shortage of funds from the cash box turned over to

him by Ms. Martin, and the am ount Wilkins turned in to Ms. Lucas,

the school bookkeeper. Further, Petitioner alleged that after a

review of the records, " at least $621.73 (of other funds) is

unaccounted for. "

101. At hearing, Pace acknowledged that Wilkins did not

steal any money. While Petitioner never attempted to present any

evidence about the $621.73 that was " unaccounted for, " there was

testimony concerning the $120.35. Of that amount: $50 went to

the door prize discussed above; $20 was used by the Band Parents

Association fo r change for a car wash fund - raiser; $50 was used

by the Band Parents Association for change for a rummage sale

fund - raiser; and $.35 was found on Wilkins ' desk.

102. Based on the testimony of witnesses, Petitioner has

failed to prove any Band Parents Ass ociation money or any other

(internal account) money was stolen by Wilkins or otherwise

unaccounted for.

Wilkins ' Demeanor

103. Although Petitioner did not charge Wilkins with

failure to maintain honesty in professional dealings under School

Board Policy 3210, Petitioner accuses Wilkins of making

contradictory statements and being evasive and less than truthful

concerning money issues throughout section G. Based on his

testimony at hearing and that of other witnesses, in particular

Torsiello, Wilkins simp ly did not know how the funding system was

put in place by the Band Parents Association, because he never

handled money.

104. The Band Parents Association did not even give him a

password to access the computerized records, because it would

have required giving him access as a site administrator and his

knowledge of computers is limited. Further, Wilkins had a

limited understanding of the various accounts and how they were

used by the Band Parents Association. He, as well as Pace,

Tuttle , and Lucas also had a limited understanding of the

interplay between the various School Board p olicies relating to

the various types of accounts and the Manual. In short, Wilkins

did not know enough about the financial records to hold a

meaningful conversation about mone y issues, and this lack of

ability was confused by Petitioner with evasiveness .

The May 3, 2013 Additional Charge

105. B.O. stated that the events alleged in the Additional

Charge occurred more than once and that they occurred prior to

her initial complai nt. Wilkins denied the allegations.

106. In September 2012, B.O. told Tuttle and Mullins that

Wilkins did not touch her. B.O. also told the Palm Bay Police

Department that Wilkins did not touch her. On September 21,

2012, B.O. sent Ms. Andahar, a Depar tment of Children and

Families investigator, an e - mail in which B.O. stated that

Wilkins did not touch or hug her.

107. In an e - mail to Ms. Andahar from Ms. O., B.O. ' s

mother, dated October 9, 2012, Ms. O. informed Ms. Andahar that

B.O. had told her " late ly " that Wilkins has hugged her.

Ms. Andahar forwarded the e - mail to Ms. Alford, head of security

for the School District. However, testifying at hearing, B.O.

does not remember telling her mother this. The School District

never investigated the allegat ion.

108. In an e - mail dated December 29, 2012, B.O. complained

that no one would do anything about Wilkins, because he did not

touch her.

109. Based on the testimony of credible witnesses that

" Mr. Wilkins is not a hugger, " as well as B.O. ' s admitted go al of

facilitating Wilkins ' termination, the evidence supports that

Wilkins did not subject B.O. to the conduct alleged in the

Additional Charge .

Summary

110. Following the initial complaint(s) in September 2012

and his response, Wilkins was placed on a P rofessional

Development Assistance Plan (PDAP). Tuttle continued to receive

complaints concerning matters that predated the PDAP after it was

approved. He and Wilkins worked through those complaints which

are documented in the two Summaries of Conference . Tuttle noted

that Wilkins was implementing the changes contemplated by the

PDAP and that he had received positive remarks from parents.

However, " a group of parents were out to get him and they were

going to continue drumming up, pulling things up . . . until they

did. " When the media " circus " started in October 2012, the

" investigations " were taken away from Tuttle and assumed by Pace

and Mullins. No complaints were produced on which these

" investigations " were premised. From that point forward, the

" investigations " were neither fair to Wilkins, nor were they

based on fact.

CONCLUSIONS OF LAW

111. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1), Florida

Statutes.

Authority t o Terminate

112. The Brevard County School Board is the duly

constituted governing body of the School District of Brevard

County. Sec. 4, Art. IX, Fla. Const.; §§ 1001.30 and 1001.33,

Fla. Stat. A district school board has the statutory authority

to adopt rules governing personnel matters pursuant to sections

1001.42(5), 1012.22(1), and 1012.23 , Fl orida Stat utes.

113. In Florida, the district superintendent has the

authority to make recommendations for dismissal o f school board

employees, and the school board has the authority to suspend

without pay school board instructional staff with professional

service contracts for " just cause. " §§ 1001.42(5) ,

1012.22(1)(f) , and 1012.33(6)(a), Fla. Stat. A superintendent

al so has the authority to suspend instructional staff and other

employees with pay " during emergencies for a period extending to

and including the day of the next regular or special meeting of

the district school board and notify the district school board

im mediately of such suspension. " § 1012.27(5) , Fla. Stat .

114. Only the school board has the authority to suspend

employees without pay or terminate them. Once the school board

has acted in approving charges, the superintendent is not free to

amend charge s at will without board approval. § 1012.22(1)(f).

Burden o f Proof

115. Petitioner bears the burden to prove the charges

against Respondent by a preponderance of the evidence. Allen v.

Sch. Bd. of Dade Cnty . , 571 So. 2d 568 (Fla. 3d DCA 1990); Dileo

v. Sch. Bd. of Dade Cnty . , 569 So. 2d 883 (Fla. 3d DCA 1990); §

120.57(1)(j).

116. The preponderance of the evidence standard requires

proof by " the greater weight of the evidence " or evidence that

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

Gross v. Lyons , 763 So. 2d 276, 280 n. 1 (Fla. 2000); see also

Williams v. Eau Claire Pub. Sch. , 397 F.3d 441, 446 (6th Cir.

2005) (holding trial court properly defined the preponderance of

the evidence standard as " such evidence as, when considered and

compared with that opposed to it, has more convincing force and

produces . . . [a] belief that what is sought to be proved is

more likely true than not true " ).

Basis f or Discipline

117. Just cause is defined to include misconduct in office.

See § 101 2.33(1)(a).

118. Florida Administrative Code Rule 6A - 5.056 concerns

suspension or dismissal of instructional personnel. The r ule

provides in pertinent part:

(2) ÐMisconduct in OfficeÑ means one or more

of the following:

(a) A violation of the Code of E thics of the

Education Profession in Florida as adopted in

Rule 6B - 1.001, F.A.C. [this rule has been

transferred to rule 6A - 10.080] ;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1. 006, F.A.C. [this rule has been transferred

to 6A - 10.081] ;

(c) A violation of the adopted school board

rules . . . .

119. " As shown by careful reading of Rule 6B - 4.009 [this

rule has been transferred to r ule 6A - 5.056], the offense of

misconduct in office consists of three elements: (1) A serious

violation of a specific rule that (2) causes (3) an impairment of

the employee ' s effectiveness in the school system. " Miami - Dade

Cnty . Sch. Bd. v. Regueira , Case No. 06 - 4752 (Fla. DOAH Apr. 11,

2007). For ease of reference, the second and third elements can

be stated as one: " resulting [in] ineffectiveness. " Id.

Charge Required

120. Respondent may only be disciplined for matters alleged

in the charging document provided to him. Trevisani v. Dep ' t of

Health , 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Dep ' t of

Ins. , 685 So. 2d 1371 (Fla. 1st DCA 1996) (reference to the

statute without supporting factual allegations not sufficient to

place respondent on notice of the charges against him); Jacker v.

Sch. Bd . of Dade Cnty . , 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)

(Jorgenson, J., concurring). Thus in this case, the only conduct

that is at issue is the conduct identified in the November 6,

2012, letter to Wilkins. The Additional Charge was not properly

broug ht.

C harges

Paragraphs A - F

121. Several of Petitioner ' s factual allegations against

Wilkins are based on the same violations of School Board

Policy 3210. The letter of November 6, 2012, states, in

pertinent part, the following:

Your actions as described in paragraphs A, B,

C, D, E, and F above violate the Brevard

Public School Code of Ethics, Policy 3210,

and The Code of Ethics And Principles of

Professional Conduct of The Education

Profession In Florida by failing to protect

the students from conditions harmful to

learning. You have jeopardized the students '

mental and physical health and safety, by

intentionally exposing students to

unnecessary embarrassment or disparagement.

These actions constitute misconduct in office

and conduct unbecoming an instru ctional

employee.

122. The Brevard School Board Policy 3210A is in substance

identical to t he Principles of Professional Conduct for the

Education Profession in Florida found at r ule 6A - 10.081

(formerly, r ule 6B - 1.006).

123. Petitioner failed to identif y the sections of either

School Board Policy 3210A or r ule 6A - 10.081 that Respondent

allegedly violated by the appropriate designation. Instead,

Petitioner chose to identify the alleged violations by the

content of the p olicy or r ule. Those designations correspond to

the following sections:

School Board Policy 3210, Standards of

Ethical Conduct

A. An instructional staff member shall:

1. make reasonable effort to protect the

student from conditions harmful to learning

and/or to the student ' s mental and /or

physical health and/or safety.

* * *

5. not intentionally expose a student to

unnecessary embarrassment or disparagement.

Rule 6A - 10.081, Principles of Professional

Conduct for the Education Profession in

Florida

( 3 ) Obligation to the studen t requires that

the individual:

( a ) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student ' s mental

and/or physical health and/or safety.

* * *

( e ) Shall not intentionally expose a student

to unnecessary embarrassment or

disparagement.

Section G

124. The factual allegations of this section allege

violation of School Board Policies 6610 and 6152 , outlined below.

Section G also alleges violation of school rules (but none was

produced), as well as the general allegation of misconduct in

office. There was no alleged violation of School Board

Policy 3210, the Standards of Ethics, concerning personal gain,

self - dealing, or maintaining honesty in professional dealings

based on the allegations in Se ction G.

125. School Board Policy 6610, Internal Accounts, provides

in pertinent part, the following:

Internal funds are those used by a

school/department which are not under the

direct supervision of the District through

regular county school budget sour ces. They

are administered by each individual

school/department in accordance with policies

of the Board, Administrative Rules, Florida

s tatutes, and procedures adopted by the

Board.

(The definition for Internal Accounts does not reference

Parent/Booster Accounts. Parent/Booster Accounts are not

administered by the school/department, but by the Parent/Booster

organization.)

A. Uniform Records and Accounts

Department heads and the principal of each

school shall be responsible for the safe and

proper hand ling of all monies collected and

disbursed within the school and shall keep

all accounts in accordance with regulations

of the Board and State Board of Education and

the Internal Accounts Procedures Manual. A

complete and accurate record of each and

every transaction and a suitable

classification (chart of accounts) of all

receipts and expenditures shall be kept on

approved forms.

B. Receipts of Monies Collected

All funds collected within the school or

department for any purpose shall be deposited

with the principal, department head, or

designee, together with such substantiating

records as may be required.

* * *

D. Expenditures

[This refers to assets in the possession of

the school (bookkeeper).]

4. Expenditures Prohibited from Internal

Fund s

* * *

d . Wages or supplements to any persons

engaged in regular part - time or temporary

employment, except as provided by the Board.

* * *

E. Fund Raising

All f und - raising projects and activities

promoted by the school or any group withi n or

connected with or in the names of the school ,

are to contribute to the education al

experience of the students and shall not be

in conflict with Board polic ies or the

overall instructional program. Each fund -

raising project using students to solicit

m ust have the approv al of the p rincipal.

1. Solicitation by Students

Personal or house - to - house solicitation by

students is forbidden in all cases except as

defined below:

* * *

f. Students may only be requested to bring

money to school for parent - teacher groups

which will provide one of its parent members

to receive membership dues.

2. Fund Benefit

Funds collected for the benefit of a specific

student organization shall be expended for

the benefit of said organization unless

otherwise design ated in minutes of the

organization. . . .

126. School Board Policy 6152, Student Fees, Fines, and

Charges provides, in pertinent part, the following:

Any fees, fines, and/or other charges

collected by members of the staff that total

more than $100 or t hat cannot be safeguarded

shall be turned in to the bookkeeper within

one (1) business day after collection. Any

fees, fines, and/or charges collected by

members of the staff that total less than

$100 and that can be safeguarded shall be

turned in to the bookkeeper within three (3)

business days after collection. A place such

as the building safe or a locked file cabinet

shall be used for securing these monies until

they are deposited with the bookkeeper. At

no time shall any staff member place public

mo nies in his/her own banking accounts or

commingle public monies with their own.

Except in cases of extenuating circumstances,

i.e., the inability to access the secure

place in the building, public monies should

not be taken to a personÓs place of

residenc e. (emphasis added ) .

The Amended Charge

127. Petitioner based the factual allegations against

Wilkins in its a mended c harge on v iolation of School Board

Policy 3210 , alone. There was no reference to which part of

School Board Policy 3210 was at issue i n the a mended c harge and

no reference was made to r ule 6A - 10.081, or to misconduct in

office or conduct unbecoming a member of an instructional

employee.

Allegations

A. Inappropriate Comments o f a Sexual Nature t o Students

128. Based on the Findings of F act contained herein,

Petitioner failed to prove Wilkins made the alleged comment about

oral sex. Petitioner failed to establish that Wilkins violated

School Board Policy 3210 or r ule 6A - 10.081, or that his actions

constituted misconduct in office and con duct unbecoming an

instructional employee with respect to this allegation.

B. Mistreatment o f Students

Exercises

129. Based on the Findings of Fact contained herein,

Petitioner failed to prove Wilkins failed to properly supervise

students performing exer cises as a consequence for violating a

rule. Petitioner failed to establish that Wilkins violated

School Board Policy 3210 or r ule 6A - 10.081, or that his actions

constituted misconduct in office and conduct unbecoming an

instructional employee concerning this allegation.

Bus/Bathroom

130. Based on the Findings of Fact contained herein,

Petitioner failed to prove Wilkins failed to allow S.O. to use

the restroom causing her to wet herself on the bus. Therefore,

Petitioner failed to establish that Wilkins v iolated School Board

Policy 3210 and r ule 6A - 10.081, or that his actions constituted

misconduct in office and conduct unbecoming an instructional

employee with respect to this allegation.

G. Mishandling o f Funds

131. Based on the Findings of Fact contain ed herein:

a. Petitioner failed to prove Wilkins improperly collected,

receipted, held or disbursed funds for/from the school ' s internal

account for the band or the external accounts of the Band Parents

Association. It can be argued that because Wilkins did not

accept the responsibility of personally collecting, receipting,

holding, or disbursing funds, that he would be personally

responsible for any discrepancies in the amount of funds

collected, held and disbursed for whatever purposes they were

intende d. However, the School B oard did not prove that Wilkins

misused any funds or appropriated them to his personal use or for

the use of others who were not entitled to them. Accordingly,

any technical violations of the District ' s policy concerning the

handl ing of school funds are de minimus at most.

b. Petitioner failed to prove the money in the cash box had

been properly donated by the Band Parents Association requiring

it to be deposited into the internal fund. The cash fund was an

external account of th e Band Parents Association. The money used

from the cash fund while in his possession was used by the Band

Parents Association for approved activities (door prizes and

fundraisers), but otherwise it was kept in a locked cabinet.

Even if Wilkins were requ ired by School Board Policy 6610 to

deposit these funds in the school ' s internal account, any delay

was excusable due to events during this period (various

complaints and suspensions) and the fact that he had not dealt

with school - related funds while at He ritage High School .

c. Petitioner failed to prove that Wilkins in his sole

discretion awarded door prizes at the Band Parents Association

meetings, as the door prizes were authorized by the Band Parents

Association from its funds to increase parent partic ipation.

d. Petitioner failed to prove Wilkins engaged in any

misconduct by receiving payments from the Band Parents

Association for writing music and preparing marching drills , in

part because these are not duties for which he is employed by the

S chool B oard and also because the Band Parents Association

approved the payments to him for providing this service. The

testimony supported the fact that the Band Parents Association

would have considered paying for the choreography and music

writing skills of an outsider, but chose to compensate Wilkins ,

who was skilled in this area at a far reduced rate than the open

market would demand.

e. Finally, Petitioner failed to prove that Wilkins stole

any money from the cash box or that any other money was missing

or otherwise unaccounted for in the various Band Parents

Association accounts.

For these reasons, Petitioner failed to prove that Wilkins

violated School Board Policies 6610, relating to Internal

Accounts ; and 6152, relating to Student Fees, Fines and Charges ;

or that Wilkins ' actions concerning the allegations in section G

constituted misconduct in office and conduct unbecoming an

instructional employee.

Additional Charge

132. Had it been proper to consider the allegations in the

May 3, 2013 Additional Charg e, b ased on the Findings of Fact

contained herein, Petitioner failed to prove Wilkins engaged in

the conduct with B.O. , as alleged. Therefore, Petitioner failed

to establish that Wilkins violated School Board Policy 3210

concerning this allegation.

133. Finally, the recitation by Petitioner of prior

disciplinary actions concerning Respondent, especially those from

other school districts remote in time from the current

allegations, was not proven to be relevant to the charges brought

here. No evidence wa s produced by Petitioner, other than the

fact of the prior disciplinary actions, that they were close

enough in time to the charges herein or that they demonstrated a

pattern of misbehavior by Respondent that should have any bearing

on the outcome of this matter. Accordingly, they carry no weight

with respect to the allegations giving rise to this matter and

sh ould not form the basis for any discipline herein.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDE D that Petitioner, Brevard County School

Board, dismiss all charges against Respondent, James B. Wilkins.

Further, it is RECOMMENDED that Petitioner, Brevard County School

Board, reinstate Respondent, James B. Wilkins, with full back pay

and benefits.

DON E AND ENTERED this 1st day of November , 2013 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of November , 2013 .

COPIES FURNISHED:

Wayne L. Helsby, Esquire

Shannon L. Kelly, Esquire

Allen, Norton and Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

Mark S. Levine, Esquire

Levine and Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

Harold T. Bistline, Esquire

Stromire, Bistline and Miniclier

1037 Pathfinder Way , Suite 150

Rockledge, Florida 32955

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 400 0

Pam Stewart , Commissioner of Education

Department of Education

Turlington Building , Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 4000

Dr. Brian T. Binggeli, Superintendent

Brevard County School District

2700 Judge Fran Jamieson Way

Viera, Florida 32940

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.