13-000719TTS Orange County School Board vs. Scott Ginchereau Status: Closed Recommended Order on Thursday, October 31, 2013.

Summary: School Board established just cause to discipline teacher where facts show teacher inappropriately accessed Facebook during school, and had an inappropriate discussion with the class.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 0719TTS

SCOTT GINCHEREAU,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held on

August 27 and 28, 2013, in Orlando, Florida, before Thomas P.

Crapps, a n designated Administrative Law Judge of the Division

of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: John C. Palmerini, Esquire

Orange C ounty School Board

445 West Amelia Street

Orlando, Florida 32802

For Respondent: Joseph Egan, Jr., Esquire

Maria D. Beckman, Esquire

Egan, Lev and Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

STATEMENT OF THE ISSUE

Whether Petitioner, Orange County School Board (School

Board) , established "just cause" to terminate Respondent's

employment as a teacher.

PRELIMINARY STATEMENT

On February 11, 2013, the School Board issued an

Administrative Complaint seeking to terminate its employment of

Re spondent, Scott Ginchereau ( Ginchereau). The School Board

alleged that on December 13, 2012, Ginchereau inappropriately

accessed his Facebook account d uring work hours to carry on a

conversation with a former female student, who is a minor.

Furthermore, the School Board alleged that Ginchereau displayed

the Facebook page on the class smartboard, exposing his students

to inappropriate pictures and discus sion. Finally, the School

Board also alleged that Ginchereau made disparaging comments to

his class about the minor that he was having the Facebook

conversation within the class. As a resul t, the School Board

charged Ginchereau with violating the School Board's policy on

use of school technology, failing to adequately supervise his

students, and neglecting to perform his assigned duties.

Specificall y, the School Board charged Ginchereau with violating

the following:

1. Orange County School District Mana gement

Directive A - 9 titled "Employee Use of

Technology;"

2. Sections 1 through 3 of the Code of

Ethics of the Education Profession in

Florida, Florida Administrative Code Rule

6A - 10.080, because he "failed [to] value the

worth and dignity of students di splayed on

the whiteboard, because Respondent failed to

exercise appropriate professional judgment,

and because Respondent did not sustain the

highest degree of professional conduct.

3. The Principles of Professional Conduct

for the Education Profession in Florida,

including but not limited to Florida

Administrative Code Rules 6A - 10.081(3)(a)

and 6A - 10.081(5)(d). 1/ By displaying the

former student on the whiteboard, it exposed

the student to unnecessary embarrassment and

disparagement and he failed in hi s duty to

protect students from conditions harmful to

the mental health of the students.

4. Committed misconduct in office and

willful neglect of duty as those terms are

defined in section 1012.33(1)(a), Florida

Statutes, and Florida Administrative Code

R ule s 6A - 5.056(2) and 6A - 5.056(5).

Respondent also committed conduct unbecoming

a public employee, and a breach of

Respondent's employment agreement with the

School Board.

On February 22, 2013, Ginchereau elected to proceed with an

administrative hearing . The School Board transmitted the

request to DOAH, and the hearing was initially scheduled for

April 15, 2013. F ollowing continuances requested by the

parties , the final hearing was rescheduled for August 27

through 29, 2013.

At the final hearing, the School Board presented the

testimony of students Nat a lie B., and Nichole B., and presented

the deposition testimony of the following students : Hannah R.,

James K., Alexis K., Brian H., Harrison D., and McKinley C. The

School Board also presented the dep osition of Ronald Maxwell,

former principal for Maitland Middle School, and presented the

testimony of Yolanda Notyce, the School Board's senior manager

of employee relations. The School Board introduced into

evidence PetitionerÓs Exhibits 1, 2, 6 through 8, 12, and 15

through 25 , and Proffered Exhibits 1 and 2. Ginchereau

testified on his own behalf and presented the testimony of

students Raven J. and Spencer B. Further, Ginchereau introduced

into evidence RespondentÓs Exhibits 1, 3, 8 and 9. The parti es

filed a Joint Pre - hearing Stipulation that the undersigned

partly incorporated into this Recommended Order. A two - volume

Trial Transcript was electronically filed with DOAH , and the

parties filed their proposed recommended orders .

FINDINGS OF FACT

1. The School Board is responsible for the operation,

control and supervision of free public schools in Orange County,

Florida. The School Board's responsibilities include the hiring

and termination of school personnel.

2. In December 2012, Ginchereau was t eaching mathematics

at Maitland Middle School. He has been a teacher in the Orange

County Public School District for approximately 14 years, and

holds a professional services contract with the School Board.

3. Ginchereau 's employment is governed by the C ollective

Bargaining Agreement between the School Board and the local

teacher's union, the Orange County Education Association, Inc.

Pursuant to Article XII section (A)(2), the Collective

Bargaining Agreement, a teacher may only be discharged for "just

cause."

4. The School Board has a specific policy concerning the

private use of internet and social networking, Management

Directive A - 9, Employee Use of Technology. 2/ Management

Directive A - 9 informs School Board employees that they should

not engage in social media with Orange County Public School

students, unless the student is their child or the social media

contact is related to Ðclass, athletic or extracurricular

activity , Ñ and that employees are to access the School

District Ó s technology resource s and databases Ðfor assigned

responsibilities.Ñ Orange Cnty. Pub. Sch. Dist. Mgmt. Directive

A - 9, §§ 2(e)(i), (ii) and 3 .

5. On the morning of December 13, 2012, Ginchereau opened

his Facebook page, and read a general post from Elaina J., a

former stude nt that Ginchereau had taught at Avalon Middle

School during the 2010 - 2011 school year. 3/ Based on the general

age of middle school students in eighth grade as 13 or 14 years

old, it is reasonable to conclude that at the time of this

incident , Elaina J. w as either 15 or 16 year s old in

December 2012.

6. GinchereauÓs unrebutted testimony is that he accepted a

friend request from Eliana J., at a time when he knew she was no

longer a student in the Orange County Public School system. The

School Board fai led to introduce competent evidence showing that

on December 13, 2012, that Eliana J. was an Orange County Public

School District student. 4/

7 . The Facebook exchange between by Elaina J. and

Ginchereau is the following:

E.J.: Good morning, woke up i n a good mood.

Who's going to be the first to ruin it?

G.: Not me!

E.J.: Never you!!! You always made my

mornings

G: Awww! Thank you! Mrs. Melodie Robelo

still talk about you often. Hope you are

doing well.

E.J.: Awh I miss you two so much, ill come

visit soon ƣ hope you both are doing well

also

G: Cool ....but you should know we aren't

at Avalon anymore. We both moved to Maitland

Middle.

E.J.: Is that far from Avalon?

G.: Not too bad . . . you can google it .

. . 1901 Choctaw Trail Maitland 32 751

E.J.: Okay I promise ill come see you soon!

8 . The only evidence showing when these postings occurred

is from Ginchereau . Ginchereau testified that he initially

responded to Eliana J.'s post in the morning before school

started, and later between his first and second period classes.

9 . Beside the text exchange between Ginchereau and

Eliana J. are the "thumbnail" p hotographs from Elaina J.'s and

Ginchereau 's Facebook pages. These small photographs are

present to the left of the message in order to show who is

writing the message. Ginchereau 's thumbnail photograph shows a

photograph of him with an eigh th grade football team that he

coaches. Eliana J's thumbnail photograph shows a picture of her

and a friend in bikinis.

10 . Ginchereau 's first tw o classes on December 13, 2012,

were Algebra I Honor classes. At the conclusion of the first

class, the bell rang and the students had approximately four

minutes to go to their next class. Between the first and second

class periods, Ginchereau opened his Facebook page in order to

post a message to Elaina J., for the purpose of providing her

the address of Maitland Middle School.

11 . Ginchereau 's explanation that he went on his Facebook

page in order to provide Elaina J. with information so that she

could "volunteer" in his classroom is not credible. The text

exchange between Ginchereau and Eliana J. does not mention any

student "volunteer" activity. Rather, Ginchereau was providing

Eliana J. his and another teacherÓs work location in order to

facilitate a visit.

12 . Unknown to Ginchereau , when he opened his Facebook

page, the screen from the computer was projected onto the

classroom's smartboard, and visible to the students inside the

classroom, including the thumbnail photographs.

13 . Some of the stud ents entering the classroom remar ked

that they did not know that Ginchereau had a Facebook page. In

response, Ginchereau quickly closed the Facebook page and placed

school work on the smartboard. Ginchereau , thinking the

incident was behind him, moved to the classroom door to monitor

the hallway.

1 4 . While standing in the hallway, Ginchereau heard one of

the students state that Ginchereau had a Facebook page with the

picture of a "nude girl." Realizing that such a claim would be

toxic, Ginchereau quickl y disputed the statement. Further, he

decided to show exactly what was displayed on the smartboard in

order to dispel any ill - founded rumor before it left the

classroom.

15 . Ginchereau signed onto his Facebook account and went

to Eliana J.'s Facebook pag e. However, instead of showing the

Facebook messaging with the thumbnail photographs, Ginchereau

went to Eliana J.'s Facebook page and scrolled on the

photographs to find the correct photograph. Some of the

photographs showed Eliana J. wearing short "sho rts," clothing

exposing her midriff, and lying on a bed. As he scrolled

through approximately four to six photographs, one of the

13 - year - old boys, in a manner consistent with an immature

adolescent boy, hooted and went to the smartboard pretending to

to uch the girl in the photograph. As he attempted to find the

correct photograph, Ginchereau told the boy to sit down, and

then remarked, while at his desk, "if [the boy] liked this

photograph, then he will love the next one." Finally,

Ginchereau identifie d the correct photograph with two young

girls in bikinis projected onto the smartboard, but unlike a

thumbnail, the photograph now filled the smartboard.

16 . While the photograph dispelled the notion that the

girl was nude, Ginchereau heard one of the stu dents state that

"if she dressed like the girl, her mother would call her a

slut." As these events escalated, Ginchereau made the decision

to have a "teachable moment."

17 . According to Ginchereau , he stated:

Look, you donÓt know this girl and I just

he ard, you know, comments like ÐslutÑ and

ÐwhoreÑ coming out of your mouths. You guys

donÓt know the history of this girl, you

donÓt know about her taking care of her

brother when her mom had surgery.

18 . Ginchereau then informed the students that it was

important to be careful about the photographs that one posts on

social media sites. He cautioned the students that employers or

college admission people could make incorrect judgments about

them based on the photographs.

19. Further, Ginchereau talked a bout dress code and why it

was important, even though students sometimes disagreed with it.

In order to demonstrate his upholding of the dress code,

Ginchereau referenced that the girl in the photograph had once

attempted to volunteer as an assistant in h is class, but had

shown up in the class wearing a white shirt that was clinging to

her body, after being caught in a rain storm. Ginchereau sent

the former student home because her clothing did not meet the

middle school dress code.

20 . Finally, during h is "teachable moment," Ginchereau

stated that the student pictured on the board had been a poor

student in his class, but still considered him a favorite

teacher.

21 . This regrettable turn of events occurred approximately

for the first three to five minut es of the a lgebra class.

Because Ginchereau 's discussion occurred while students were

transitioning into the class, some of the students did not hear

the full discussion. After closing the Facebook page,

Ginchereau taught the class without further incid ent.

22 . After the class, Ginchereau decided to inform the

principal of the school, Mr. Ronald Maxwell (Principal Maxwell) ,

about the Facebook incident. Ginchereau called Principal

Maxwell's office, but was told that he was not available. Later

in the d ay, Ginchereau attempted to call or see Principal

Maxwell again, but was again told that he was not available.

23 . The next day, on December 14, 201 2 , Ginchereau sent

Principal Maxwell an e - mail that outlined what had occurred in

the class the day before. Ginchereau sent the e - mail before he

learned about any parent complaint concerning the Facebook

incident.

24 . That same day, Principal Maxwell received a parent

complaint concerning the Facebook incident, and he directed

Dr. Paul Wilhite (Dr. Wilhite) , the a ssistant p rincipal, to take

students' statements about what had occurred on December 13,

2012, in Ginchereau 's class.

25 . Dr. Wilhite collected 19 student statements concerning

what occurred in the classroom. The statements ranged from

students who did not see anything to students describing how

Ginchereau stated that if his daughter dressed like the one in

the photograph Ðhe would kill her.Ñ Some of the students

indicated that they found the photographs displayed in the

classroom "inappropriate" a nd they felt "uncomfortable" about

the pictures and discussion while others did not care.

26 . Ginchereau met with Principal Maxwell and Dr. Wilhite

and provided an explanation that was consistent with his earlier

e - mail. Further, Ginchereau provided Prin cipal Maxwell with a

copy of the Facebook exchange and showed him the photographs

shown in the classroom. At all times, Ginchereau was

cooperative and accepting responsibility for his error.

27. GinchereauÓs social media messaging with Eliana J.

violated Management Directive A - 9 by using the schoolÓs internet

for personal use, rather than his assigned responsibilities.

28 . Ginchereau 's showing of the photographs from Eliana

J.'s Facebook page was inappropriate within the context of a

middle school clas sr oom and showed poor judgment.

29 . Ginchereau 's "teachable moment" showed poor judgment

and exacerbated his mistake of accessing Facebook between the

class changes.

30 . Ginchereau has been a teacher with the Orange County

Public School District since 1999. He holds certificates in

teaching mathematics, language arts, and special education

students. Further, it is undisputed that Ginchereau has no

prior disciplinary history in his teaching career.

CONCLUSIONS OF LAW

31 . DOAH has jurisdiction over the parti es and subject

matter of this proceeding. § § 120.57(1) and 120.569, Fla. Stat.

(2012). 5/

32 . The School Board has the burden of proving by a

preponderance of the evidence that "just cause" exists to

terminate Ginchereau 's employment. McNeill v. Pinellas Cnty.

Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996). 6 /

33 . The School Board is responsible for the operation,

control and supervision of the free public schools in Orange

County, Florida. Art. IX, § 4(b), Fla. Const.; and

§ 1001.32(2), Fla. Stat. The School Board's authority extends

to personnel matters including the power to suspend or dismiss

an employee. §§ 1001.42(5) and 1012.22(1)(f), Fla. Stat.

Further, the law permits the School Board to adopt policies

establishing standards of ethical con duct for instructional

personnel and school administrators. § 1001.42(6), Fla. Stat.

This authority extends to the enactment of "policies and

procedures necessary for the management of all personnel of the

school system."

34 . The law requires that an in structional employee, such

as a teacher, be provided with a written contract that contains

"provisions for dismissal during the term of the contract only

for just cause." £ 1012.33(1)(a), Fla. Stat. ÐJust causeÑ

includes instances of Ðmisconduct in offic e , Ñ as defined by the

State Board of EducationÓs rules. 7 /

35 . The School Board seeks to terminate its professional

services contract with Ginchereau based on the allegation of

misconduct in office and willful neglect of duty. 8/, 9 /

36 . Educators are cha rged with the highest ethical duties

to value Ðthe worth and dignity of every person,Ñ and that the

educatorÓs primary professional concern is Ðfor the student and

for the development of the studentÓs potent i al , Ñ which requires

the educator to Ðexercise th e best professional judgment and

integrity.Ñ 10 /

37 . The State Board of EducationÓs Princip les of

Professiona l Conduct for Educators require that teachers Ðmake

reasonable effort to protect the student from conditions harmful

to learning , Ñ and shall not en gage in conduct which creates an

abusive, offensive or oppr essive environment, and shall make

reasonable effort to protect students from harassment or

discrimination. 11 /

38 . Applying the rules of law to the facts here, the

undersigned finds the School Boa rd has established Ð just cause Ñ

to discipline Ginchereau 's employment.

39 . The School Board proved by a preponderance of the

evidence that Ginchereau violated Management Directive A - 9 . As

shown in the factual findings, Ginchereau access ed his Facebook

pa ge during the school hours for a personal purpose , rather than

his assigned responsibilities in violation of subsection 3(f) of

the Management Directive A - 9.

40. The finding that Ginchereau violated Management

Directive A - 9 necessarily shows that he viol ated a school board

rule and is guilty of Ðmisconduct in office.Ñ See Fla. Admin.

Code R. 6A - 5.056(2)(c). Moreover, the accessing of the Facebook

page during school hours for personal use shows an intentional

act of violating the School BoardÓs directive , thus showing a

Ðwillful neglect of duty.Ñ

41 . Next, the School Board showed by preponderance of

evidence that Ginchereau violated the Code of Ethics of the

Education Profession in Florida rule 6A - 10.080 , and the

Principles of Professional Conduct for the Education Profession

in Florida rule 6A - 10.081. Ginchereau Ós poor handling of the

Facebook incident demonstrates that: 1) he did not value the

worth and dignity of every person; 2) did not exercise the best

professional judgment and integrity; 3) did not Ðmake reasonable

effort to protect students from conditions harmful to learning

and / or the studentÓs mental . . . healthÑ ; and 4) did not meet

the obligation of making a reasonable effort to protect students

in his classroom from an offensive environm ent.

42 . At the heart of these conclusions is the fact that

Ginchereau used a former student and her posted Facebook

pictures as an object lesson for his current students. In sum,

Ginchereau told his current students that the young female

dressed and act ed inappropriately , and that she was a poor

student. Anyone listening to this presentation could not escape

the uncomfortable and embarrassing thought that Ginchereau did

not value the worth and dignity of his former student by holding

her up as an object lesson. These actions do not show

professional judgment, and created an environment of unnecessary

embarrassment in the classroom where several of his current,

young female students found his presentation and the photographs

ÐuncomfortableÑ and Ðinapprop riate,Ñ and, at least, one young

male student acted in an immature manner.

43 . Although GinchereauÓs conduct was wrong, t he

undersigned finds that his actions, under the totality of the

circumstances, d o not warrant termination. Ginchereau made a

mista ke, but he showed integrity in owning the mistake and

accepting responsibility. Furthermore, he has been a good

teacher for the past 14 years earning certifications in the

subjects that he teaches . Finally, other than this Facebook

incident, Ginchereau h as no disciplinary history.

44 . Two prior cases from the Orange County Public School

System concerning teachers violating Management Directive A - 9

lead the undersigned to the conclusion that Ginchereau should be

disciplined rather than terminated from h is job.

45 . In Orange C ounty Sch ool B oard v. Yazbeck , Case No. 05 -

1329 ( Fla. DOAH Aug. 22, 2005), the Administrative Law J udge

found Ðjust causeÑ to terminate a guidance counselorÓs

employment where the facts showed that the counselor had used

the inter net to transmit racist e - mail criticizing her co -

workers. In Yazbeck , Ðjust causeÑ existed because, in part, the

counselor had engaged in harassment or discriminatory conduct

that interfered with her ability to perform her duties.

46 . In the second cas e, Orange C ounty School Board v.

DeShay , Case No. 08 - 1596 ( Fla. DOAH Dec. 19, 2008), the

Administrative Law J udge found that Ðjust causeÑ existed to

discipline the teacher where the facts showed that the teacherÓs

work computer contained an inappropriate m aterial. The facts in

DeShay show that a teacherÓs computer contained a non -

educational story about a voyeuristic encounter between

neighbors, and that the teacher had saved digital pictures of

scantily clad women, had visit ed to retail shopping websites,

had view ed online business opportunities, and had view ed

websites containing funny videos and social media sites. The

Administrative Law J udge noted the fact that no students saw the

inappropriate material in the teacherÓs computer did not

minimize the s eriousness of the misconduct. However, the

Administrative Law Judge found that the School Board had failed

to show the full extent of how the teacherÓs misconduct impacted

the teacherÓs effectiveness; thus, dismissal was not warranted.

Although the teach er avoided dismissal, the Administrative Law

J udge determined that the misconduct warranted sanctions and

remedial education. Consequently, the Administrative Law J udge

recommended that the teacherÓs suspension be upheld, and require

the teacher to comple te remedial training concerning

professionalism and the use of school property.

47 . Turning to the instant case, the undersigned

recognizes that the definition of Ðmisconduct in officeÑ has

been revised since the recommendations in Yazbeck and DeShay .

I n the instant case, unlike Yazbeck and DeShay , the School

District in did not have to prove that GinchereauÓs violation of

Management Directive A - 9 impaired his effectiveness as a teacher

in order to establish Ðmisconduct in office.Ñ The School Board

met its burden of proof when it showed that Ginchereau violated

the school board policy. Setting aside that legal distinction

between the cases, the undersigned finds that the facts in the

instant case fall between the outcomes in DeShay and Yazbeck .

Gincher eau Ós conduct is not as egregious as the conduct in

Yazbeck that resulted in a hostile and discriminatory

environment. Rather than acting in malice, the facts here show

that Ginchereau made a wrong decision by exchanging messaging

with Eliana J., and then tried to correct the problem. His poor

judgment and handling of the situation in this lone instance

does not support a termination.

48. Ginchereau Ós actions, however, are more egregious than

the conduct in DeShay . Unlike the facts in DeShay , the facts

here show that Ginchereau exposed the students to the

inappropriate pictures and discussion as a result of his

violating Management Directive A - 9. However, in mitigation, the

facts here show only this lone instance of Ginchereau violating

Management Direc tive A - 9, as opposed to the facts in DeShay

which show multiple violations. In consideration of

GinchereauÓs otherwise good teaching career , and the fact that

he readily accepted responsibility for his error, the

undersigned finds a suspension is warrante d as discipline and a

remedial education.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Orange County School Board

established Ð just cause Ñ to discipline Mr. Ginchereau Ós

employment as a teacher . The u ndersigned recommends that

Ginchereau Ós suspension without pay be upheld to date; and that

he be returned to his professional services contract , and given

remedial education on the proper use of the School DistrictÓs

technology.

DONE AND ENTERE D this 31st day of October , 2013 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 31st day of October , 2013 .

ENDNOTES

1/ The day before the final hearing the School Board filed a

Motion to Amend Administrative Complaint to Correct ScrivenerÓs

Error. The School Board sought to change one of the charges

against Ginchereau from Rule 6A - 10.081(3)(d) to Rule 6A -

10.081(5)(d) . Florida Administrative Code Rule 6A - 10.081(3)(d),

provides that a teacher Ð[ s]hall not intentionally suppress or

distort subject matter relevant to a studentÓs academic

performance.Ñ Rule 6A - 10.081(5)(d) provides that a teacher:

Shall not engage in harassment or discriminatory conduct

which unreasonably interferes with an indivi dualÓs

performance of professional or work responsibilities or

with the orderly processes of education or which creates a

hostile, intimidating, abusive, offensive, or oppressive

environment; and further, shall make reasonable effort to

assure that each in dividual is protected from such

harassment or discrimination.

At the beginning of the hearing, the undersigned considered the

motion. The School Board argued that it was merely correcting a

scrivenorÓs error, and that it was always the School BoardÓs

int ention to show that Ginchereau had caused unnecessary

embarrassment and disparagement to the students. Respondent

objected to the amendment because he claimed that it prejudice

his defense by expanding the charges against him to include

unnecessary embarr assment and disparagement of the person shown

on the whiteboard, as opposed to embarrassment and disparagement

of the stu dents viewing the photograph. Respondent argued that

the depositions that the parties were agreeing to introduce into

evidence , and th e defense had not addressed any embarrassment or

disparagement that might be incurred by the person shown on the

whiteboard.

Reading the facts alleged in the Administrative Complaint and

considering the arguments, the undersigned allow ed the late

amend ment , but that the charge of Florida Administrative Code

Rule 6A - 10.081(5)(d), would be restricted to a finding of

whether or not Ginchereau made reasonable efforts to assure that

students in the classroom were protected from harassment or

discrimination, and would not include a finding concerning the

studentÓs whose Facebook page was open.

2/ In pertinent part, the School Board Management Directive A - 9

provides that:

* * *

2. Employee Responsibilities

* * *

b. All [Orange County P ublic School]

employees are reminded that private use of

the internet and social networking is not

private. Employees should remain

professional in using those forms of

communication at all times so as not to

interfere with their ability to perform

their OCPS duties. Any receipt of social

networking content from a student unrelated

to a school assignment or school

extracurricular activities shall be

immediately reported to the employee's

supervisor.

* * *

d. Employees shall not provide their

pe rsonal e - mail or other social networking

account to a student.

e. No employee of the Orange County Public

Schools should engage in any texting or

other social media with any [Orange County

Public School Student] with the following

two (2) exceptions:

i. The student is their child.

ii. An employee may group text or post

information that is related to a class,

athletic or extracurricular activity.

3. Employee Access to Network

* * *

f. The District authorizes employees to use

District compu ter technology resources and

databases for assigned responsibilities.

These resources shall be used by employees

to enhance job productivity as it relates to

District business. These resources shall be

used for District - related purposes and not

for person al use or gain or for the benefit

of private, "for profit" or "not for profit"

organizations.

3/ Avalon Middle School is part of the Orange County Public

School System.

4/ The School Board failed to introduce competent evidence

showing that Eliana J. was an Orange County Public School

District student on December 13, 2012. The School Board offered

the testimony of Ms. Valentin, a paralegal for the School Board,

to introduce into evidence a document purporting to show that

Eliana J. was a student in t he Orange County Public School

District at the time that Ginchereau sent the Face b ook message

to her on December 13, 2012.

The School Board argued that the document offered through

Ms. Valentin was an admissible business record. ÐTo be

admissible unde r the business record exception, the proponent of

the record must demonstrate that the record was made at or near

the time of the event recorded, was made by or from information

transmitted by a person with knowledge, was kept in the ordinary

course of a r egularly conducted business activity, and that it

was the regular practice of the business keeping the record to

make such a record.Ñ Erhardt, Florida Evidence £ 803.6.

Further, s ection 90.803(6), Florida Statutes, provides that

computer print - out i s an admissible business record, if the

record custodian or other qualified witness is available to

testify to the manner of the preparation as well as the

reliability and trustworthiness of the offered record.

Professor Charles Erhardt states:

As with other business records, the witness

laying the foundation need not have personal

knowledge of the facts in the record but

must have knowledge of the record - keeping

system. Erhardt, Evidence § 803.6b .

In the instant case, Ms. Valentin was able to testify that s he

routinely accessed student enrollment records and used the

information. Further, she testified that registrarÓs entered

the information. However, she did not lay a proper foundation

of how the information was compiled or kept, or any knowledge of

how the registrarÓs gathered the information for the r ecord . As

such, Ms. Valentin did not establish a sufficient foundation to

support a factual finding that Eliana J. was a student in the

Orange County Public School District on Dece mber 13, 2012, the

date s he and Ginchereau exchanged FaceBook messages .

5/ All references to Florida Statutes shall be the 2012 version,

unless otherwise stated.

6 / The preponderance of the evidence 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).

7 / Section 1012.33(1)(a) provides that:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education:

immorality, misconduct in office,

incompetency, two consecutive annual

performance evaluation ratings of

unsatisfactory under s. 1012.34, two annual

performance evaluation ratings of

unsatisfactory within a 3 - year period under

s. 1012. 34, three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under

s. 1012.34, gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

8 / "Misconduct in office" means:

(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 vi olation of the Principles of

Professional 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) Be havior that reduces the teacher's

ability or his or her colleagues' ability to

effectively perform duties.

Fla. Admin. Code R . 6A - 5.056(2.

9 / "Willful neglect of duty" is defined as an "intentional or

reckless failure to carry out required duties." Fla . Admin.

Code R . 6A - 5.056(5).

10 / The Code of Ethics of the Education Profession in Florida

r ule 6A - 10.080 provides:

1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

of knowledge, a nd the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach and the guarantee of equal

opportunity for all.

2) The educator's primary professional

concern will always be for the student and

for the development of the student's

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

3) Aware of the importance of maintaining

the respect and confidence of one's

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

11 / The Principles of Professional Conduct for the Education

Profession in Florida Rul e 6A - 10.081 provides , in part, that:

3) Obligation to the student 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 safe ty.

* * *

5) Obligation to the profession of

education requires that the individual:

* * *

d) Shall not engage in harassment or discriminatory conduct

which unreasonably interferes with an individual's performance

of professional or work responsibilities or with the orderly

processes of education or which creates a hostile, intimidating,

abusive, offensive, or oppressive environment; and, further,

shall make reasonable effort to assure that each individual is

protected from such haras sment or discrimination.

COPIES FURNISHED:

John C. Palmerini, Esquire

Orange County School Board

445 West Amelia Street

Orlando, Florida 32801

Maria D. Beckman, Esquire

Egan Lev and Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

Dr. Barbara Jenkins, Superintendent

Orange County School Board

445 West Amelia Street

Orlando, Florida 32801 - 0271

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Matthew Carso n, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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 thi s case.