13-004036TTS Indian River County School Board vs. William Howle Status: Closed Recommended Order on Monday, August 4, 2014.

Summary: Petitioner established by a preponderance of the evidence that just cause existed to terminate Respondent's employment for misconduct in office. Recommend termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INDIAN RIVER COUNTY SCHOOL

BOARD,

Petitioner,

vs. Case No. 13 - 4036TTS

WILLIAM HOWLE,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before A dministrative Law Judge Todd P.

Resavage for final hearing on May 1, 2014, in Vero Beach,

Florida.

APPEARANCES

For Petitioner: Elizabeth Coke, Esquire

Richeson & Coke, P.A.

317 South Second Street

Post O ffice Box 4048

Fort Pierce, Florida 34950

For Respondent: Nicholas Caggia, Esquire

Law Office of Thomas L. Johnson

510 Vonderburg Drive, Suite 309

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether Respondent ' s employment as a teacher by the Indian

River County School Board should be terminated for the reasons

specified in the C harging L etter dated September 20, 2013.

PRELIMINARY STATEMENT

On September 20, 2013, Dr. Frances J. Ad ams, Ed.D.,

Superintendent for the School District of Indian River County

( " District " ), Florida, notified Respondent that s he would

recommend termination of Respondent ' s employment with the

District at the scheduled October 8, 2013 , meeting. On

October 8 , 2013, Petitioner accepted the recommendation and

terminated Respondent.

Respondent timely requested a for mal administrative hearing,

and on October 15, 2013, Petitioner referred the matter to the

Division of Administrative Hearings ( " DOAH " ), where it was

assigned to the undersigned.

The final hearing i nitially was set for January 30

through 31, 2014. On January 29, 2014, Petitioner filed an

unopposed Motion to Continue the Final Hearing. The motion was

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

M ay 1 through 2, 2014.

On April 24, 2014, the parties filed a Joint Pre - hearing

Stipulation and stipulated to certain facts contained in

s ection E of the Joint Pre - hearing Stipulation. To the extent

relevant, those facts have been incorp orated in this Recommended

Order.

Both parties were represented by counsel at the hearing,

which went forward as planned. The final hearing Transcript was

filed on June 11, 2014. The identity of the witnesses and

exhibits and the rulings regarding each are as set forth in the

Transcript.

On June 17, 2014, Respondent filed an unopposed Motion for

Request for Extension of Time to F ile Proposed Recommended

Orders. The motion was granted and the parties were ordered to

file proposed recommended orders on o r before July 3, 2014. The

parties timely filed proposed recommended orders, which were

considered in preparing this Recommended Order. Unless otherwise

indicated, all rule and statutory references are to the versions

in effect at the time of the alleged violation.

FINDING S OF FACT

1. Petitioner is the entity charged with the duty to

operate, control, and supervise the public schools within Indian

River County, Florida .

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

employed as a physical edu cation teacher at the Alternative

Education Center, a public school in Indian River County,

Florida.

3. On October 16, 2012, Respondent was arrested and charged

with purchase of marijuana and possession of more than 20 grams

of cannabis, both of which ar e third degree felonies.

4. On March 6, 2013, Respondent entered a plea of no

contest to the above - noted criminal charges and entered into the

Drug Court Intervention Program.

5. Pending the outcome of Respondent ' s criminal charges, on

October 18, 201 2, Respondent was reassigned to work at the

Support Services Complex ( " Complex " ) . Respondent was directed to

report to Rick Chuma, Director of Purchasing for the District, on

October 19, 2012, at 8:00 a.m.

6. Mr. Chuma testified that individuals, such as

Respondent, who are reassigned to the Complex are typically

assigned menial tasks such as shredding paper or other minor

projects. Specific to Respondent, Mr. Chuma recalled

Respondent ' s duties as shredding paper and, on one occasion,

working for Patri ck McCarty, the Director of Food Services,

cleaning the kitchen.

7. Mr. Chuma conceded that there would be occasions where

Respondent did not have any tasks to perform at the Complex;

however, he noted that under such circumstances Respondent was

not pe rmitted to leave during his assigned hours (excepting

breaks or lunch).

8. Denise Roberts, the Executive Director of Human

Resources, testified that Respondent was assigned to work at the

Complex from approximately 7:30 a.m. to 11:30 a.m. or 12:00 p.m.

At the Complex, individuals such as Respondent kept an accounting

of their time by completing a " Personnel Time Sheet " on a daily

basis. Margaret Irene Herman, Mr. Chuma ' s assistant, ensures

personnel are signed in and o ut. The timesheets cover a two - wee k

period and are maintained in a basket on her desk.

9. Responde nt had an individual time sheet and would

document for each day when he arrived and left the Complex.

Although personnel are expected to complete the form in real

time, that is, sign in up on arrival, and sign out when departing,

some personnel would sign in and out upon arrival at work. This

was not a disciplinable offense if the employee worked during the

documented time period.

10. In February 2013, after approximately four months at

t he Complex, concerns arose regarding Respondent ' s whereabouts at

the Complex during his assigned hours. On one occasion,

Ms. Roberts received a call from Ms. Herman inquiring as to

whether Respondent had requested and been authorized leave,

because he co uld not be located. Mr. Chuma testified that, on

one occasion, he was asked to locate Respondent at the Complex,

and he could not be located. Patrick McCarty also testified

that , on one occasion, he was asked to locate Respondent, but was

unsuccessful. 1 / On the above - noted occasions, Respondent had

signed in and out on his timesheet as working a full day.

11. Although Respondent continued to have access to and

utilize his work email, and Petitioner ha d his phone number,

Petitioner never attempted to l ocate Respondent via those

channels. Instead, Petitioner contacted Kenneth Thompson, the

plant manager of the Complex, to review video surveillance of the

Complex. Ms. Roberts and Mr. McCarty recalled viewing one video

surveillance clip that purportedly showed Respondent arriving at

the Complex and then leaving the Complex several minutes later.

Ms. Herman testified that she viewed approximately three separate

video clips similarly showing Respondent arriving at work and

then leaving several minutes late r. 2 /

12. Respondent conceded that there were days when he

arrived at the Complex, signed in and out as working his

scheduled hours, a nd then left the Complex several minutes later

for the entire day. On those occasions, Respondent did not

notify any one of his absence. There is no evidence that

Respondent requested leave on those occasions. The evidence

reveals that Respondent received his full pay for the days that

he was willfully absent.

13. At some point in time, Respondent was informed that he

w as required to sign in and out in the presence of Ms. Herman. 3 /

Thereafter, Respondent complied and there is no evidence of

further incidents regarding Respondent being physically present

at the Complex.

14. On July 1, 2013, William Fritz was assigned a s the

Assistant Superintendent for Human Resources and Risk Management.

Shortly thereafter, Mr. Fritz conducted an investigation

regarding the above - noted conduct. At the conclusion of his

investigation, Mr. Fritz recommended Respondent ' s termination,

a n d the Superintendent ultimately supported that recommendation.

CONCLUSIONS OF LAW

15. DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to section s 101.33(6), 120.569, and

120.57(1), Florida Statutes. Pursuant to section 120 .65(11),

Petitioner has contracted with DOAH to conduct these hearings.

16. Petitioner seeks to terminate Respondent ' s employment.

In order to do so, Petitioner must prove by a preponderance of

the evidence that Respondent committed the violations alle ged in

the Charging Letter. McNeill v. Pinellas Cnty. Sch. Bd. , 678 So.

2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty. , 571

So. 2d 568, 569 (Fla. 3d DCA 1990).

17. The preponderance of the evidence standard requires

proof by " the greater wei ght 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).

18. Any member of the instructional staff in a district

school system may be suspended or dismiss ed at any time during

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

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

19. The term " just cause " :

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

following instances, as defined by rule of

the State Board of Education: immorality,

misconduct in office, incompetency, . . .

gross insubordination, willful neglect of

duty, or being convicted or found guilty of,

or entering a plea of guilty to, regardless

of adjudication of guilt, any crime i nvolving

moral turpitude.

20. In its Charging Letter, Petitioner avers misconduct in

office as the ground for terminating Respondent . Whether

Respondent is guilty of misconduct in office, which is discussed

below, is a question of ultimate fact to be de cided in the

context of each alleged violation. McKinney v. Castor , 667 So.

2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson , 653 So. 2d

489, 491 (Fla. 1st DCA 1995).

21. Section 1001.02(1), Florida Statutes, grants the State

Board of Education au thority to adopt rules pursuant to section s

120.536(1) and 120.54 to implement provision s of law conferring

duties upon it.

Misconduct in Office

22. Petition er contends that Respondent has committed

misconduct in office in two respects. First, Petitione r avers

that Respondent ' s criminal pleas violate a dopted School Board

Rule 3.04 (H)( 6 ) . Secondly, Petitioner contends that Respondent

violated adopted School Board Rules 3.22, 3.25, 2.07, and 2.17

(incorporating Florida Administrative Code Rule 6A - 10.081(5 )(a)

and (h) ), in the following manner:

On at least five days, you failed to attend

work, and failed to claim leave for the time

when you were absent. You knowingly signed

in for work and immediately left the premises

on each occasion. You knowingly we re

compensated for such time.

23. Florida Administrative Code Rule 6A - 5.056(2) provides ,

in pertinent part, as follows:

(2) " Misconduct in Office " means one or more

of the following:

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

Education Profe ssion in Florida as adopted in

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

(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.;

(c) A violation of the adopted school board

rules .

Criminal Pl eas

24. Petitioner ' s Rule 3.04 (H)( 6 ) provides, in relevant

part , as follows:

QUALIFICATIONS FOR INSTRUCTIONAL PERSONNEL

* * *

A person who is found to have been

adjudicated guilty of a crime or misdemeanor

specified below, or who has been convict ed of

any crime involving moral turpitude as

defined by rule of the State Board of

Education, shall not be employed, engaged to

provide services, or to serve in any position

that requires direct contact with students.

The specific categories of conviction s and

the effect of a conviction upon an

application for employment are as follows:

(a) Category One: Felony sexual related

crimes, lewd and lascivious crimes, and

felony child abuse crimes. The District will

not hire an applicant or retain in its

emp loyment any person who has been convicted

of a Category One offense under any

circumstance.

(b) Category Two: Felony crimes of violence

and felony sale of controlled substances.

The District will not hire an applicant or

retain in its employment a per son who has

been convicted of a Category Two Offense

under any circumstances.

(c) Category Three: Other felony crimes

(except those designated under Category

Five), any other misdemeanor crimes of a

sexual nature, and misdemeanor crimes related

to chi ldren. The District will not hire an

applicant or retain in its employment any

person who has been convicted of a Category

Three Offense under any circumstance.

25. Petitioner ' s Rule 3.04 (H)( 7 ) provides the following

expansive definition of " conv iction " :

The term " conviction " for the purposes of

these Administrative Policies means a

conviction by a jury or by a court; and shall

also include the forfeiture of any bail,

bond, or other security deposited to secure

appearance by a person charged wit h having

committed a felony or misdemeanor, the

payment of a fine, a plea of nolo contender e

(no contest), the imposition of a deferred or

suspended sentence by the court, adjudication

withheld, finding of guilt or the date of

entry into a pre - trial interv ention, pre -

trial diversion or similar program provided

that such pretrial intervention or pretrial

diversion program is completed by the end of

the relevant waiting period.

26. It is undisputed that, on March 6, 2013, Respondent

entered a plea of no co ntest to the charges of purchase of

marijuana and possession of more than 20 grams of cannabis, third

degree felonies, and entered into the Drug Court Intervention

Program. As defined by Rule 3.04(H)( 6 ) and ( 7 ) , Respondent has

been " convicted " of a Catego ry Three felony crime. Accordingly,

Respondent violat ed an adopted school board rule and thus

committed misconduct in office .

Absence Without Leave/Permission

27. Petitioner ' s Rule 3.22 (B) provides, in relevant part ,

as follows:

Any teacher or su pervisor who expects to be

absent from duty for any cause shall notify

the principal and the substitute center the

day before such absence, when possible; but

in no circumstance, no [sic] later than one

hour prior to the opening of school except in

an emer gency where prior notification is NOT

possible. In the event of an emergency the

principal or supervisor shall be notified as

soon as possible.

28. Petitioner ' s Rule 3.25, entitled " Absence Without

Leave, " provides that:

Any member of the instruct ional or

administrative staff who is willfully absent

from duty without leave shall interrupt

continuity of contract purposes and shall

forfeit compensation for the time of the

absence and his contract shall be subject to

cancellation.

29. Petitione r ' s Rule 2.07, entitled " Duty Hours of

Employees, " provides that:

Based on the recommendations of the

Superintendent, the School Board will

establish annually the duty hours of all

classifications of personnel, both

instructional and non - instructional. U nder

no conditions may an employee deviate from

the minimum required hours of duty without

the approval of the immediate supervisor.

30. Petitioner ' s Rule 2.17, entitled " Ethics Policy -

Employee Standards of Conduct, " provides, inter alia, that each

member of the instructional staff shall abide by the Principles

of Professional Conduct for the Education Profession in Florida.

Florida Administrative Code Rule 6B - 1.006, renumbered without

change as rule 6A - 10.081, is entitled " Principles of Profession al

Conduct for the Education Profession in Florida, " and provides in

relevant part:

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

( 2) Violation of any of these princ iples

shall subject the individual to revocation or

suspension of the individual educator ' s

certificate, or the other penalties as

provided by law.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain h onesty in all

professional dealings.

* * *

(h) Shall not submit fraudulent information

on any document in connection with

professional activities.

31. Applying the above - findings of fact to Rules 3.22,

3.25, 2.07, and 2.17, the undersigned conclu des that Petitioner

prov ed by a preponderance of the evidence that Respondent

violated Rule s 3.25 , 2.07, and 2.17 (by violating rule 6A -

10.081(5)(a) and (h)) , and, therefore, is guilty of misconduct in

office . Rule 3.22 is inapplicable to Respondent's ten ure at the

Complex, and, therefore, Respondent has not violated the same .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Indian River County School Board

enter a final order finding William Ho wle guilty of misconduct in

office, and terminating his employment.

DONE AND ENTERED th is 4th day of August , 2014 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrat ive Hearings

The DeSoto Building

1230 Apalachee 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 4th day of August , 2014 .

ENDNOTE S

1 / The undersigned cannot determine from the record the specific

dates that coincide with the unsuccessful efforts to locate

Respondent.

2 / Video surveillance footage from the Complex documents

Respondent arriving and departing from the Complex par king lot

within five minutes on the following dates:

February 7, 8, 11 through 15, and 22, 2013.

3 / The undersigned is unable to determine from the record when

the timesheet procedure change occurred.

COPIES FURNISHED:

Elizabeth Coke, Esquire

Ric heson and Coke, P.A.

317 South Second Street

Post Office Box 4048

Fort Pierce, Florida 34950

Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

Dr. Frances J. Adams, Superintendent

I ndian River County School Board

1900 25 th Street

Vero Beach, Florida 32960 - 3395

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Pam Stewart , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

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 thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.