12-003903TTS Lee County School Board vs. Maria Burns Status: Closed Recommended Order on Friday, April 19, 2013.

Summary: School Board did not prove constructive possession of marijuana plants or drug paraphernalia or cultivation of marijuana. Recommend Reinstatement with back pay from nolle prosequi of criminal charges.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3903TTS

)

MARIA BURNS , )

)

Respondent . )

)

RECOMMENDED ORDER

On February 28, 20 13, an administrative disputed fact

hearing was held in this case in Fort Myers, Florida, before

J. Lawrence Johnston, Administrative Law Judge, Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County

2855 Colonial Boulevard

Fort Myers, Florida 33966

For Respondent: Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

2080 McGregor Boulevard, Suite 202

Fort Myers, Florida 33902

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Lee County

School Board (School Board or Petitioner), has just cause t o

dismiss Respondent, Maria Burns, from her employment as a school

teacher for immorality and misconduct in office.

PRELIMINARY STATEMENT

On May 30, 2012, the School Board suspended Respondent with

pay after she was arrested and charged with possession and

cultivation of marijuana and possession of drug paraphernalia.

On October 8, 2012, she was suspended without pay, effective the

following day. When the School Board dismissed Respondent from

her employment, she requested a hearing, and the matter was

re ferred to DOAH.

At the hearing, the School Board called three witnesses:

Ranice Monroe, d irector of the Lee County School District ' s

Department of Professional Standards and Equity; Charlotte County

Sheriff ' s Detective Kevin Connolly; and Charlotte County

Sheriff ' s Crime Scene Technician Kary Mohlmaster. Petitioner ' s

Exhibits 1 through 13 were admitted in evidence, along with

Respondent ' s Exhibits 1 through 5, 10, 12 , 13, 15, and 19. A

Transcript of the hearing was filed on March 19, 2013 , and the

partie s filed proposed recommended orders that have been

considered.

FINDING S OF FACT

1. Respondent holds a Florida Educator Certificate and has

been a teacher at Pine Island Elementary School in Lee County

since August 27, 1990. Prior to that, she taught for four years

in DeSoto County. The evidence was that she has been a good and

effective teacher.

2. On May 21, 2012, Respondent resided with a female

housemate in a home Respondent owned in Charlotte County. The

two women had a disagreement or altercation, and the housemate

threatened Respondent, who left the premises to get help from the

housemate's mother. When her mother arrived, the housemate

became more violent and threatening. The Charlotte County

Sheriff's O ffice (Sheriff's Office) was called and r esponded to

the home. The housemate barricaded herself in the house, fired

shots, and stood off law enforcement for several hours.

3. When the stand - off ended, and before Respondent returned

to the house, the Sheriff's O ffice arrested the housemate and

e xecuted a warrant to search the premises. During the search,

law enforcement found 25 to 30 small suspected marijuana plants

in five flower pots in open view on chairs on the second floor

balcony of the house. The plants tested positive for cannabis.

It appeared to law enforcement that the plants were being tended

by someone and that leaves were being harvested from the plants.

A cigar - type box was found on a kitchen counter amid debris from

the stand - off, during which tear gas canisters were shot throu gh

the windows of the home. The box had a hinged lid and contained

suspected marijuana residue and seeds and a glass smok ing pipe

(drug paraphernalia).

4. Because Respondent was the owner and a resident in the

house, she was arrested and charged with mar ijuana possession,

marijuana cultivation, and possession of drug paraphernalia.

Respondent entered into a pre - trial diversion agreement, which

she completed by the time of the hearing in this case . O n

February 25, 2013, the charges against her were dropp ed by nolle

prose qui.

5. No other evidence was presented from which it could be

inferred that Respondent knew the marijuana plants were in her

house. When found, the plants were in an open and obvious

location, but there was no evidence how long they had been there

prior to their discovery by law enforcement. The cushions of the

chairs they were on were not designed to be left outside in the

elements. There was no evidence as to where the plants were kept

when not on the chairs on the balcony. Even if the plants were

seen by Respondent, there was no evidence that she knew they were

marijuana plants.

6. T here was no evidence that Respondent tended to the

plants, harvested leaves from them, or used the leaves in any

way. There also was no evidence that the drug paraphernalia

belonged to Respondent, or that she knew the drug paraphernalia

was in the house. No inferences are drawn simply from

Respondent's decisions, made on advice of counsel based on Fifth

Amendment privilege, not to appear at the final h earing and not

to address certain aspects or give her explanation of the

incident during the pre - determination hearing.

7. T he local media reported Respondent's arrest. The

reports gave Respondent's name, age, and Charlotte County

address, and included a photograph, but did not identify her as a

teacher. Pine Island is a small community, and everyone at

Respondent's school and in the community probably knows about her

arrest and prosecution. There was no other evidence as to any

adverse effect that know ledge might have on Respondent's service

to the community or effectiveness as a teacher.

8. Lee County School Board Policy 5.02 requires the School

Board to " establish high standards and expectations for its

professional faculty and staff, including: (1) Compliance with

applicable federal and State laws, rules, codes, regulations and

policies concerning professional credentials and employment;

(2) Dedication to high ethical standards; [ and ] (3) Establishment

of high standards in educational practice. " It also requires

employees to meet the standards and expectations established by

the School Board.

9. Lee County School Board Policy 5.04 requires criminal

background checks to determine suitability for employment and

provides that failure to be truthful on an employment application

about prior criminal history will be grounds for ineligibility or

dismissal from employment. Id. § (1)(a). It also provides that

the School Board will not hire a teacher: who is " on probation

or has a pending case " ; with " [o]t her offenses listed in

§§ 435.04 and 1012.315, Florida Statutes " (which includes, under

section 435.04(2)(rr) , Florida Statutes , a chapter 893 felony

drug prevention and control offense, such as cultivation of

marijuana); or with a misdemeanor drug and/or drug paraphernalia

offense less than five years old. Id . § (7)(a) - (c).

10. Lee County School Board Policy 5.29(1) provides that

" [a]ll employees are expected to exemplify conduct that is lawful

and professional . . . . "

11. Lee County School Board Polic y 5.37(2)(a) " prohibits

the use, distribution, manufacture, possession, sale,

cultivation, or attempt to sell illegal controlled substances at

any time whether on or off duty . . . . " Violation of the

prohibition subjects an employee to " disciplinary acti on up to

and including termination. " This policy is set out in the School

Board' s Employee Handbook.

12. There is a Collective Bargaining Agreement between the

School Board and the Teachers Association of Lee County. It

prohibits possession, consumption , or being under the influence

of illegal drugs on the job or in the workplace. It does not

negate Lee County School Board Policy 5.37(2)(a).

CONCLUSIONS OF LAW

13. School boards have the authority to suspend or dismiss

instructional employees under sec tions 1012.22(1)(f) and

1012.33(6)(a), Florida Statutes. Suspension or dismissal must be

for just cause. § 1012.33(1)(a) & (6)(a) , Fla. Stat. In a

proceeding under those statutes, the S chool B oard has the burden

to prove just cause by a preponderance of the evidence. McNeill

v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996);

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

14. Just cause is defined to include (among other things

not pertinent to this case) immorality and mis conduct in office,

as defined by rule of the State Board of Education, and being

convicted or found guilty of, or entering a plea of guilty to, a

crime involving moral turpitude, regardless of adjudication of

guilt. § 1012.33(1)(a) , Fla. Stat . A pre - tria l diversion

agreement is not a plea of guilty, leaving the charges of

immora lity and misconduct in office.

15. In May 2012, immorality and misconduct in office were

defined by Florida Administrative Code R ule 6B - 4.009. Immorality

was defined as:

conduct that is inconsistent with 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

comm unity.

Misconduct in office was defined as a violation of the Code of

Ethics of the Education Profession in Florida as adopted in

rule 6B - 1.001 1/ and the Principles of Professional Conduct for the

Education Profession in Florida as adopted in rule 6B - 1.006 , 2/

which is so serious as to impair the individual's effec tiveness

in the school system.

16. The School Board did not prove possession of marijuana,

cultivation of marijuana, or possession of drug paraphernalia by

Respondent. Constructive possession of illegal drugs or

contraband requires knowledge and the ability to exercise

dominion and control. Duncan v. State , 986 So. 2d 653, 655 (Fla.

4th DCA 2008). In this case, Respondent owned the home and would

have had the ability to exercise dominion and con trol, but it was

not proven that she knew the marijuana plants and drug

paraphernalia were on the premises. Contrast Brown v. State , 428

So. 2d 250, 251 (Fla. 1983)(the owner was present when the drugs

were found in plain view); see also Duncan v. State , supra ;

Harris v. State , 954 So. 2d 1260 (Fla. 5th DCA 2007); Forehand v.

Sch. Bd. of Washington Cnty. , 481 So. 2d 953 (Fla. 1st DCA

1986)(not proven that teacher either knew of the existence of the

marijuana plants or had the ability to exercise dominion o r

control). For these reasons, the School Board did not prove

either immorality or misconduct in office. Cf. Lee Cnty. Sch.

Bd. v. Williams , Case 11 - 2037 (DOAH Jul. 1, 2011; Lee Cnty. Sch.

Bd. Sept. 13, 2011)(an arrest and criminal charges do not

themsel ves prove the underlying offense).

17. As to the immorality charge, the School Board also did

not prove conduct sufficiently notorious to bring the individual

concerned or the education profession into public disgrace or

disrespect and impair the individu al's service in the community.

18. As to the misconduct in office charge, the School Board

did not prove rule 6B - 1.001 and rule 6B - 1.006 violations, or any

violations so serious as to impair the individual's effectiveness

in the school system.

19. Effect ive July 8, 2012, rule 6B - 4.009 was replaced by

Florida Administrative Code R ule 6A - 5.056, which defines

immorality and misconduct in office differently. Section (1) of

the new rule deletes the " sufficiently notorious " langu age and

defines immorality as:

conduct that is inconsistent with the

standards of public conscience and good

morals. It is conduct that brings the

individual concerned or the education

profession into public disgrace or disrespect

and impairs the individual's service in the

community.

Section (2) of the new rule defines misconduct in office as one

or more of the following:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted in

Rule 6B - 1.001, F.A.C.;

(b) A violation of the Principles of

Professio nal Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student's

learning environment; or

(e) Behavior that reduces the teacher's

abil ity or his or her colleagues' ability to

effectively perform duties.

20. Analogizing rules to statutes, the new rules should not

apply to the alleged conduct in this case. Cf. Fla. Ins. Guar.

Ass'n v. Devon Neighborhood Ass'n , 67 So. 3d 187 (Fla. 2011);

Menendez v. Progressive Express Ins . Co. , 35 So. 3d 873 (Fla.

2010); Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass'n

One , 986 So. 2d 1279 (Fla. 2008); Metro. Dade Cnty. v. Chase Fed.

Housing Corp. , 737 So. 2d 494 (Fla. 1999). These decisions m ake

clear that statutes affecting substantive rights and privileges

do not apply retroactively without express legislative intent; by

analogy, the new rules in this case should not be applied

retroactively without express intent that they do so.

21. If th e new rules applied, the School Board also would

not have proven immorality or misconduct in office since it did

not prove possession of marijuana, cultivation of marijuana, or

possession of drug paraphernalia by Respondent. If the School

Board had proven such conduct, it would have proven misconduct in

office under the new rules; it still would not have proven

immorality since it did not prove conduct that impaired

Respondent' s service in the community.

22. Respondent's arrest for marijuana cultivation

d isqualified her from employment as a teacher. § 435.04(2)(rr),

Fla. Stat. See also Lee Cnty. Sch. Bd. R. 5.04. As a result,

the School Board was required to remove her from her teaching

position until the arrest was resolved in a way that made her

eligi ble for employment. § 435.06(2)(b) , Fla. Stat . This

occurred when the criminal charges were dropped on February 25,

2013. For this reason, back pay is warranted from that date

forward. See Lee Cnty. Sch. Bd. v. Williams , supra .

RECOMMENDATION

Based upo n the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the School Board enter a final order:

finding no just cause for dismissal on charges of immorality or

misconduct in office; and reinstating Respondent with back pay

from Febru ary 26, 2013, forward.

DONE AND ENTERED this 19th day of April , 2013 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apa lachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of April , 2013 .

ENDNOTE S

1/ This rule has been renumbered 6A - 10 .080.

2/ This rule has been renumbered 6A - 10.081.

COPIES FURNISHED:

Robert J. Coleman, Esquire

Coleman and Coleman

Post Office Box 2089

2080 McGregor Boulevard, Suite 202

Fort Myers, Florida 33902

Robert Dodig, Jr., Esquire

School District of Lee Co unty

2855 Colonial Boulevard

Fort Myers, Florida 33966

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, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Joseph Burke, Ed.D., Superintendent

Lee County School Board

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

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.