13-004290 Manatee County School Board vs. Gregg Faller Status: Closed Recommended Order on Friday, August 29, 2014.

Summary: Evidence proved supervisor of parent liaisons took no action and made no reports when given credible reports of parent liason harassing female employee and improper conduct with female students. Facts supported termination for just cause.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 4290

GREGG FALLER,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Ne wton, II, of the

Division of Administrative Hearings (Division) conducted the

formal hearing in this cause on June 3 and 4, 2014, in Bradenton,

Florida.

APPEARANCES

For Petitioner: Terry Joseph Harmon, Esquire

Jeffrey Slanker, Esquire

Sniffen and Spe llman, P.A.

123 North Monroe Street

Tallahassee, Florida 32301 - 1509

For Respondent: E. Jon Weiffenbach, Esquire

Weiffenbach and Kaklis

538 12th Street West

Bradenton, Florida 34205 - 7411

STATEMENT OF THE ISSUE

Does Petitioner, Manatee County School Board (Board), have

just cause to terminate the employment of Respondent, Greg g

Faller, based upon the conduct involving Mr. Faller ' s alleged

failure to respond appropriately to information he had about the

conduct of his subordinate, Rod Frazier, toward females,

including students, as alleged in the Administrative Complaint

dated October 14, 201 3 ?

PRELIMINARY STATEMENT

On September 25, 2013, the s uperintendent of Manatee County

School s , Rick Mills , gave Mr. Faller written notice of intent to

recomm end termination of his employment to the Board. Th at same

day , Mr. Mills issued an Administrative Complaint seeking

Mr. Faller ' s termination. On October 14, 2013, the Board

suspended Mr. Faller , without pay , pending the outcome of an

administrative heari ng.

Mr. Faller requested an administrative hearing on

October 24, 2013. On November 6, 2013, the Board referred the

matter to the Division to conduct the hearing. The undersigned

set the matter for final hearing to be conducted on December 13,

2013. Th e parties filed an agreed motion to continue. The

undersigned granted the motion and rescheduled the hearing to

April 1, 2014. The parties initiated discovery on January 15,

2014. On March 5, 2014, Mr. Faller moved to continue the

hearing. The motion w as granted, and the hearing was

re - scheduled to June 3 and 4, 2014. On May 9, 2014, Mr. Faller

moved to continue the final hearing. The motion was denied. The

undersigned conducted the hearing as scheduled.

The Board presented the testimony of Stephen G ulash,

Debra Horne, Keltie O ' Dell, Detective Leonel Marines, Scott

Martin, Jacqueline Peebles, Troy J. Pumphrey, Stephen Rinder,

Don Sauer, Adinah Torre s , William Vogel, A.K., and D.K. 1/ Board

Exhibits 1; 2; 5; 6 D ( 3, 5, 6, 14, and 15 ) ; 18; 39; 44; 45; an d

54 were admitted into evidence.

Mr. Faller testified and presented the testimony of Danny

Bench.

At the hearing ' s conclusion , the parties requested and were

granted additional time for filing proposed recommended orders.

The parties timely filed propo sed recommended orders which have

been considered in the preparation of this Recommended Order.

FINDING S OF FACT

Stipulated Facts

1. The Board is a duly - constituted s chool b oard charged

with the duty to operate, control, and supervise all free public

scho ols within the School District of Manatee County (District) .

§ 1001.32, Fla. Stat (2013) .

2. The District has employed Mr. Faller since December 8,

2009.

3. Mr. Faller was an a dministrative p arent l iaison at

Lakewood Ranch High School from December 2009 to May 2009. 2/

4. He served as a ssistant p rincipal at Manatee High School

from July 2010 through July 2013. Mr. Faller served temporarily

as an a ssistant p rincipal at Palmetto High School from July 2013

until he was placed on p aid a dministrative l eave o n August 1,

2013.

5. At all times , Mr. Faller was required to abide by all

Florida Statutes that pertain to teachers and educators, the Code

of Ethics and the Principles of Conduct of the Education

Profession in Florida (Code of Ethics) , and the Policies and

Procedures Manual of the Manatee County School District .

6. On August 15, 2013, Respondent was charged with :

(1) Failure to Report Child Abuse (sections 39.201(1) and

39.205(1) , Florida Statutes (2011)(misdemeanor) ) ; (2) Felony

Failure to Report Child Abuse (section 39.201(1) and (2) and

39.205(1) , Florida Statutes (2011)(third degree felony) ) ; and

(3) False Reports to Law Enforcement Authorities (section

837.05(1) , Florida Statutes (2011) (misdemeanor) ) . The prosecutor

dismissed the charge of providi ng false information to a law

enforcement officer.

7. On September 25, 2013, the s uperintendent notified

Mr. Faller in writing of the District ' s intent to recommend his

termination from employment. The s uperintendent issued an

Administrative Complaint ag ainst Mr. Faller that same day.

8. On October 14, 2013, during a Board meeting , Mr. Faller

was suspended , without pay , pending the outcome of an

administrative hearing that he requested.

9. On October 24, 2013, Respondent served a Request for

Administrat ive Hearing and Respondent/Employee ' s Answer to

Administrative Complaint.

Additional Facts

10. Florida law imposes a duty to report upon any person

who has reasonable cause to suspect child abuse by a person

responsible for a child ' s welfare. 3 /

11. The Boa rd emphasized the importance of this obligation

in Board Policy 5.2 of the Policies and Procedures Manual of the

School District of Manatee County . That policy provides in part:

All school employees have a serious

affirmative duty to report suspected chil d

abuse and neglect and shall do so pursuant to

the guidelines developed .

* * *

(1) Mandatory Duty to Report Suspected Child

Abuse

All employees or agents of the district

school board who have reasonable cause to

suspect abuse have an affirmative duty to

report it . . . .

* * *

( 3 ) Complaints of Child Abuse Reported to an

Employee

An employee receiving a complaint or report

of child abuse shall inquire of the reporting

party as to the details of his/her concern

but shall not investigate f urther. If the

employee has reasonable cause to suspect that

child abuse has occurred based upon the

description by the reporting party, the

employee must report . . . [to the Florida

Child Abuse Registry] .

* * *

(4) Employee Responsible for Repor ting

It is the responsibility of the first

employee who has " reasonable cause " to

suspect abuse to report it to the hotline and

to do so immediately. It is unacceptable and

violation of the law to simply report

suspicions to any other individual (includ ing

law enforcement or your supervisor) and ask

or expect them to make the report to the

hotline. After making a report, the school

board employee must inform the principal,

supervisor, or other building administrator.

If the suspected abuser is a distric t

employee, the supervisor of the reporter will

notify his/her director who will notify the

Office of Professional Standards.

* * *

(6) Penalties for Failure to Report

Any employee who is required to report and

fails to do so may be found guilty o f a

misdemeanor . . . . Failure to report child

abuse as required will also subject the

employee to disciplinary action.

12. Mr. Rod Frazier , a subordinate of Mr. Faller, was a

person responsible for the welfare of female student, D.K .

13. Mr. Faller was trained in the duty to report child

abuse. He has been present with people who have called to report

child abuse. He understood that if he learned of something that

causes concern from another employee, he may be responsible for

reporting the concern to his p rincipal.

14. At Manatee High School, Mr. Faller served as a ssistant

p rincipal. His duties included supervising four parent liaisons :

Mr. Gulash, Ms. Torres, Rod Frazier, and Randy Smith. Parent

liaisons handle everyday suspension s and the disc ipline of

students. They also handle communication between parents, staff,

and students and assist in the classroom. Parent liaisons also

mentor some students.

15. Mr. Faller summarized the parent liaison duties as :

Their main job is to deal with refe rrals

written by staff members that had issues with

student behavior, deal with parents, phone

call parents and let them know what their

child was doing, basically be a mentor to

some of the students if they saw students

were struggling and had a relations hip with

them and could make an impact and try and

make them get back on the right track.

(Tr., pp. 319 - 320).

16. The parent liaison job description identifies

responsibilities that include : handl ing routine discipline

referrals; refer ring serious offens es to the a ssistant p rincipal;

supervis ing students, including bus duty, parking lot, and school

events; meet ing and deal ing effectively with staff members,

students, and parents; and model ing and maintain ing high ethical

standards.

17. During the 2011 - 20 12 school year, Mr. Faller received

several reports describing inappropriate conduct and improper

relations with female students by Mr. Frazier. He also received

a report of sexual harassment of a female parent liaison.

Harassment of Adinah Torres

18. Adi nah Torres worked at Manatee High School as a parent

liaison from November 2010 to July 2012. Mr. Faller was

Ms. Torres ' sole supervisor during that period of time .

19. During that period, Mr. Frazier trained Ms. Torres on

how to enter referrals into th e D istrict ' s data system.

20. During one training session, she sat at his desk using

his computer . Mr. Frazier sat on the desk with his feet and

crotch toward Ms. Torres. Mr. Frazier rubbed his foot up the

side of Ms. Torres ' leg during the training ses sion.

21. She pulled away and looked at him. Mr. Frazier smirked

at Ms. Torres. She left the room.

22. Mr. Frazier ' s acts were inappropriate, unwelcome, and

unwarranted. They made Ms. Torres uncomfortable. The acts were

harassment of Ms. Torres.

23. The following day , Ms. Torres told Mr. Faller about the

incident. Mr. Faller agreed that the described conduct was

inappropriate. He told Ms. Torres that he could not have these

sorts of problems in the office because she might one day need

someone to he lp her with a student disciplinary issue. " You got

this? " he asked. Ms. Torres interpreted Mr. Faller ' s statements

to mean that she should deal with the problem. 4 /

24. Mr. Faller ' s version of their conversation is that he

told Ms. Torres he would take ac tion if she wished to file a

written complaint. Nothing in the policies and procedures of the

Board requires an employee to make a written complaint of

harassment.

25. In fact, Board Policy 2.19 , which establishes

procedures for complaints about discrim ination and harassment ,

requires a diametrically opposite approach. Board Policy 2.19(4)

sets out an investigation, review, reporting, and appeal process

that begins with a written complaint.

26. However, the policy begins with a clear statement that

im poses a specific duty upon an administrator, such as Mr. F aller ,

who learns of an alleged incident of discrimination or harassment.

The policy states:

The following complaint/grievance procedures

are established to receive complaints.

However, when any a dministrator learns of an

alleged incident of discrimination/harassment,

they are required to report complaints

immediately to the Equity Coordinator and will

not conduct an investigation.

27. Nothing require d a written complaint like Mr. Faller

required of Ms. Torres. An immediate report by him is what was

required.

28. Ms. Torres spoke to Mr. Frazier and told him the

behavior was unacceptable. He denied that it occurred and

stormed away from her.

29. Mr. Faller did not note the complaint in Mr. Frazier ' s

file. He did not speak to Mr. Frazier about it or take any

disciplinary action. Mr. Faller also did not report the incident

that Ms. Torres alleged to anyone , including the school ' s e quity

c oordinator.

Ms. Peebles ' R eports of Conduct of

Mr. Frazier W ith Female Students , A.P. and D.K.

30. In the 2011 - 2012 school year, Manatee High School

teacher , Jacqueline Peebles , developed concerns about

Mr. Frazier ' s conduct with two female students. One was A.P. ,

who told Ms. Peebles about Mr. Frazier approachin g her at a tiki

bar one night and later texting her about the encounter. Another

was D.K. and Mr. Frazier ' s frequent calls to the classroom asking

Ms. Peebles to have D.K. report to his office. Ms. Peebles was

also concerned about a text message to D.K. that appeared to be

from Mr. Frazier telling D.K. to come to his office , that he had

heard she was wearing short - shorts.

31. Ms. Peebles told Mr. Faller about all these incidents

in one conversation after A.P. told her about the tiki bar

encounter. Ms. Pe ebles told Mr. Faller that she knew A.P. was a

troubled student with some discipline issues , b ut she felt A.P.

was being truthful.

32. Ms. Peebles provided the following information to

Mr. Faller. She told him that A.P. had reported that Mr. Frazier

appro ached her at night at a tiki bar, where she was drinking

illegally. Ms. Peebles told Mr. Faller that A.P. told her that a

man approached her from behind and rubbed his erection against

her buttocks. A.P. said she turned and saw that it was

Mr. Frazier. A.P. questioned him and told him he knew she was a

student. Mr. Frazier replied, according to A.P. , that she had a

" nice ass " and was fair game because she was in the bar and must ,

therefore , be legal. The record establishes that A.P. was a

student. It does not, however, establish her age. No party has

asserted she was 18 or older. It is reasonable to infer from

A.P. ' s student status , the fact that she returned to school the

following year, and the absence of dispute that she was under 18.

33. Ms. Pe ebles said that she told A.P. " that sounds odd. "

A.P. insisted it was true. Ms. Peebles also told Mr. Faller that

A.P. said that she was leaving regular school for an alternative

program because Mr. Frazier would not leave her alone. A.P. ' s

comments and her change of schools indicate that Mr. Frazier ' s

conduct was harmful to A.P. ' s mental and emotional health.

34. Ms. Peebles went on to tell Mr. Faller that A.P. then

showed Ms. Peebles text messages on her telephone that were

marked as coming from Mr. F razier. The messages referred to the

bar encounter saying , "' Oh, you have a hot ass, I really wanted

you. '"

35. After reporting the above information to Mr. Faller ,

Ms. Peebles told him that she believed A.P.

36. In order to help Mr. Faller understand w hy she thought

A.P. ' s reports were credible and significant, Ms. Peebles then

told Mr. Faller about an incident with Mr. Frazier that occurred

before Mr. Faller assumed the position supervising Mr. Frazier.

37. Ms. Peebles had walked into Mr. Frazier ' s office

looking for him. She found Mr. Frazier sitting at his desk with

a female student, D.K. , sitting in his lap feeding him cake. She

told Mr. Faller that she had reported the incident to the acting

principal, Mr. Kane, and thought it had been dealt w ith.

38. Finally , Ms. Peebles told Mr. Faller about her

experiences with Mr. Frazier frequently calling the same female

student, D.K. , from class. The frequency became so great that it

was disruptive to D.K. ' s education. Ms. Peebles began not

answering the tele phone or refusing to send D.K. to Mr. Frazier ' s

office. Later , Ms. Peebles saw D.K. texting and took D.K. ' s

telephone from her and placed it on her desk.

39. D.K. ' s phone buzzed with an incoming text message.

Ms. Peebles told Mr. Faller that t he message said something

" along the lines of ' come up to my office. I hear you ' re wearing

short - shorts again. '" D.K. was wearing short - shorts.

Ms. Peebles told Mr. Faller that the tele phone indicated that the

message was from Rod Frazier. This event p receded the

conversation with A.P. that Ms. Peebles reported to Mr. Faller.

40. Ms. Peebles told Mr. Faller that Mr. Frazier ' s texting

students frequently was a problem. With D.K. , it was especially

troublesome because she was missing so much class time.

Mr. Faller acknowledges texting is not the proper way for the

parent liaisons to contact students during school hours.

41. Mr. Faller said he would talk to Mr. Frazier about the

texting. Mr. Faller denies that Ms. Peebles told him about the

tiki bar inci dent. The undersigned finds the testimony of

Ms. Peebles credible and persuasive on this issue.

42. A day , or a day and a half , later, Mr. Faller passed

Ms. Peebles in the hall. He said , " Hey, I took care of that. "

After that , Mr. Frazier was unfriendl y to Ms. Peebles and rarely

spoke to her or handled her referrals. But Mr. Frazier ' s

personnel records contain no indications that Mr. Faller spoke to

Mr. Frazier about these incidents or took any action.

43. The credible persuasive evidence proves that M r. F aller

did not report these assertions to the child abuse registry to

the administrators or law enforcement , investigate them , or act

upon them .

Ms. O ' Dell ' s Reports of Mr. Frazier ' s

C onduct W ith Female Students , D.K. and D.W.

44. Another teacher, K eltie O ' Dell, told Mr. Faller of

similar problems with Mr. Frazier texting two female students,

D.K. and D.W. , asking them to leave her classroom. When she

would n o t release them, he called to have the students sent to

his office. Ms. O ' Dell told Mr. Fal ler that D.K. and D.W.

confirmed to her that they had texted Mr. Frazier asking him to

get them out of class.

45. Ms. O ' Dell told Mr. Faller of a time when Mr. Frazier

brought lunch to D.K. in her classroom so that Mr. Faller would

not see her out of com pliance with the dress code in the

cafeteria.

46. The conduct of Mr. Frazier that Ms. O ' Dell reported to

Mr. Faller was unprofessional, inappropriate, and improper.

Mr. Faller did not report these concerns to any other

administrators or to law enforceme nt authorities. He also did

not speak directly to Mr. Frazier about the issues.

47. Mr. Faller only spoke to all of the parent liaisons as

a group , generally , about the inappropriateness of texting

students to come from class. The file contains no info rmation or

notes indicating that Mr. Faller spoke to Mr. Frazier about the

incidents , disciplined, or counseled Mr. Frazier.

Concerns Reported by Steve Gulash

48. Steve Gulash, an a dministrative p arent l iaison in

Manatee High School ' s discipline office , br ought similar , but

much more general concerns about Mr. Frazier to Mr. Faller. He

once told Mr. Faller that he should take note of the fact that

Mr. Frazier only signed up as an a dministrator on d uty for female

games. He also told Mr. Faller that " this d amn guy ' s probably

done some stuff that could put him in jail. " Mr. Gulash did not

identify specific incidents. Mr. Faller did nothing to inquire

into Mr. Gulash ' s concerns.

Mr. Faller ' s Approach to the Multiple

Reports of Mr. Frazier ' s Improper Behav ior

49. The following excerpt, with emphasis added, from the

transcript of Detective Marines ' interview of Mr. Faller ,

articulates Mr. Faller ' s view of responsibility and his method for

avoiding responsibility for the supervision of Mr. Frazier and

caring for the female students of Manatee High School .

Q: Okay. Now is it, is it, uh, you said

you were over discipline.

A: Uh hum.

Q: Is it common for the parent liaison ' s to

text students to get them out of class

when they have an issue, they, they

A: Is i t common?

Q: Yeah.

A: No.

Q: No?

A: No.

Q: Okay. So what, what is the common uh,

like if, if Mr. Frazier wants to see you

soon, and talk to him about a referral,

I ' m assuming that ' s what you guys do,

right?

A: We call the classroom.

Q: Call the clas sroom?

A: Yeah.

Q: Talk to the teacher?

A: That would be the norm. Um,

Q: How long would he have been?

A: You know?

Q: How long had he been doing that for?

Like texting students out of class?

A: I don ' t know.

Q: You don ' t know? Okay. Uh, did you ever

talk to him about it?

A: Didn ' t know about it, except for through

a teacher.

Q: Through Ms. O ' Dell?

A: Never witnessed it myself, never had a

kid come to me. Yeah, other than that

one incident, um, that supposedly took

place in her class , you know , she saw

the kid using the phone, and then all of

the sudden, you get up and say I have to

go to Frazier. So she ' s putting two and

two together, so I can ' t, I mean I can ' t

say, you know, that it definitely

happened .

Q: Uh hum.

A: Um, that ' s a, that ' s a teacher, um,

believing that it may have occurred.

Um, and I ' m not in the business of, of,

figuring those things out. You know?

Q: No, I

A: I mean the bottom line is

Q: know. I completely. [sic]

A: Um,

Q: Did you ever talk to him about it or no?

H e just didn ' t bother.

A: There ' s nothing to address. If I don ' t

know for sure that he ' s doing it, then

I ' m not gonna address it. I mean, uh,

Q: Okay.

A: You know? But, I mean if it was

happening, um, I had no direct

knowledge. Nobody ' s ever told me

directly that they know for a fact that

this is going on. . . . (emphasis

added).

(P. Ex. 18, 2/11/13, pp. 7 & 8) . Mr. Faller chose to ignore the

information.

50. Eventually , through the efforts of people other than

Mr. Faller, the reports of Mr. Frazie r ' s activities with female

students reached responsible authorities triggering an

administrative and criminal investigation of Mr. Frazier. Those

investigations subsequently expanded to examine the actions and

inactions of Mr. Faller, Principal Gagnon, fo rmer Assistant

Principal Matt Kane, and a ssistant s uperintendent for District

Support , Scott Martin , when they received complaints about

Mr. Frazier.

51. Ultimately , Mr. Frazier resigned from Manatee High

School .

CONCLUSIONS OF LAW

Jurisdiction, Burden, and Standard of Proof

52. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties pursuant to sections 1012.33, 120.569 and 120.57(1),

Florida Statutes (2013). As permitted by section 120.65, the

Board has contracted with the Division to conduct these hearings.

53. The parties agree that the Board bears the burden of

proving the allegations against Mr. Faller by a preponderance of

the evidence. See McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d

476 (Fla. 2d DCA 1979); Sublett v. Sumter Cnty . Sch. Bd. , 664

So. 2d 1178 (Fla. 5th DCA 1995).

54. " Preponderance of evidence is defined as evidence

' which as a whole shows that the fact sought to be proved is more

probable than not. ' State v. Edwards , 536 So. 2d 288, 292 n.3

(Fla. 1st DCA 1988). " Dufour v. State , 69 So. 3d 235, 252 (Fla.

2011); see also Gross v. Lyons , 763 So. 2d 276, 280 (Fla. 200 ? );

Escambia Cnty. Elec. Light & Power Co. v. Sutherland , 61 Fla.

167, 193; 55 So. 83, 92 (1911).

55. The result in this matter does not turn on whether the

Board proved that Mr. Frazier did or did not commit the acts

reported. The critical facts are what information Mr. Faller was

provided and his actions or inactions in reaction to receiving

that informati on.

Overview of Charges

56. Board Policy 6.11 provides:

Any employee of the School Board may be

temporarily suspended, with or without pay,

or permanently terminated from employment for

just cause including, but not limited to

immorality, misconduct in of fice,

incompetence, gross insubordination, willful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude,

violation of the Policies and Procedures

Manual of the School District of Manatee

County, violation of any applicable Flo rida

statute, violation of the Code of Ethics and

the Principles of Professional Conduct of the

Education Profession in Florida.

57. Exercising that authority , the Board charged Mr. Faller

with violation of the following Florida S tatutes, Department of

Ed ucation rules, and Board policies: S ection 1012.795(1)(b) 5 / ;

Florida Administrative Code R ule s 6A - 10. 0 80(2), 6 A - 10.080(3),

6A - 1 0 .081(3)(a), 6A - 1 0 .081(5)(a) and 6A - 10.081(5)(n) ; and Board

Policy 6.9.

58. The Findings of Fact establish the proven facts that

may be relied upon to determine if the Board proved the

violations charged by a preponderance of the evidence.

Section 1012.795 -- Failure to Report

Actual or Suspected Child Abuse

59. The Board maintains that Mr. Faller violated s ection

1012.795(1)(b) b y failing to report actual or suspected child

abuse and for failing to report misconduct. That section allows

the Education Practices Commission to act against the educator

certificate of an assistant principal for knowingly failing " to

report actual or s uspected child abuse as required in s. 1006.061

or report alleged misconduct by instructional personnel or school

administrators which affects the health, safety, or welfare of a

student as required in s. 1012.796. "

60. Section 1006.061 imposes upon distri ct school boards an

obligation to post notices of the affirmative duty to report

actual or suspected cases of child abuse and the policies and

procedures for reporting misconduct. It does not impose any

duties upon individual employees.

61. Section 1012 .796 creates a procedure for investigation

by the Department of Education of complaints against teachers and

administrators and establishes penalties. The Board argues that

it requires Mr. Faller to report " misconduct. " I t does not.

62. However, sectio n 39.201(1) requires any person who

knows or has reasonable cause to suspect that a child is abused

by a person responsible for the child ' s welfare to report the

knowledge or suspicion to the Department of Children and

Families. 6 / Section 39.01(12) define s child as an unmarried

person under the age of 18 years. Section 39.01(2) defines

abuse, among other things, as " any willful act or threatened act

that results in . . . sexual abuse, injury, or harm, that causes

or is likely to cause the child ' s physical , mental, or emotional

health to be significantly impaired. " Mr. Frazier rubbing his

erection against a female student amounts to " abuse " that

Mr. Faller was bound to report and did not .

Rule 6A - 10.080(2) -- Lack of Concern for

Students and Professional Ju dgment and Integrity

63. Florida ' s Code of Ethics and Principles of Professional

Conduct for the Education Profession in Florida, r ule

6A - 1 0 .080(2), provides:

The educator ' s primary professional concern

will always be for the student and for the

developme nt of the student ' s potential. The

educator will therefore strive for

professional growth and will seek to exercise

the best professional judgment and integrity.

64. Mr. Faller ' s inaction after receiving the reports from

Ms s . Peebles and O ' Dell demonstra te a failure of professional

judgment and lack of professional concern for the female students

who had contact with Mr. Frazier. Mr. Faller ' s avowed approach

of ignoring , instead of investigating , reporting, or acting upon

reports of Mr. Frazier ' s miscond uct with female students , is not

accepted as an excuse for fulfilling employment or legal

responsibilities. See Smith v. Dixie Packers , 384 So. 2d 709

(Fla. 1 st DCA 1980), rev. den. , Dixie Packers, Inc. v. Smith ,

392 So. 2d 1373 (Fla. 1980) ( e mployer cann ot ignore employee ' s

complaints of a worsening condition and then claim it did not know

the employee needed additional medical attention) .

65. The First District Court of Appeal concluded that the

employer in Smith had erected a " wall of willful ignorance " for

months. This was because the employer had ignored the claimant ' s

request for increased benefits for months before accepting the

claimed, ignored complaints of a worsening condition, failed to

provide medical attention and would never have had the cla imant

re - examined, or increased the disability rating without the

assistance of the claimant ' s counsel. The court ' s opinion did not

allow the employer to escape liability for attorney ' s fees after

ignoring and refusing to investigate or address the inform ation

that would have informed it about the claimant ' s disability.

66. The analysis applies here. Mr. Faller chose to ignore

information about Mr. Frazier ' s misconduct . The reports of

Ms s . Torres, O ' Dell, and Peebles provided more than enough

informati on for a reasonable supervisor or educational employee

to investigate or report Mr. Frazier ' s activities with female

students to management or law enforcement authorities . See also

James W. Windham Builders, Inc. v. Van Overloop , 951 So. 2d 40,

43 (Fla. 1 st DCA 2007) (carrier could not avoid responsibility to

pay for attendant care because of " willful ignorance " due to its

failure to investigate the claimant ' s needs after severe ankle

injury); Gonzalez v. Sec ' y of Dep ' t of Homeland Sec. , 678 F.3d

254, 264 (3 rd Cir. 2012) ( u pholding summary judgment finding that

Gonzalez gave false testimony relying upon a theory of " willful

ignorance. " Evidence of relationship with child ' s mother and

child " indicates that if Gonzalez was ignorant of his paternal

relationsh ip it was a willful ignorance. " ) .

67. Mr. Faller chose to turn a blind eye to reports of

Mr. Frazier ' s misconduct by taking the positions that they had

not been irrefutably proven, that he had not personally witnessed

the incidents, or, most oddly, tha t they were only reports from

teachers. This was a lack of integrity and unacceptable

professional judgment. Mr. Faller also repeatedly demonstrated a

lack of concern for the well - being of Manatee High School ' s

female students. The Board proved a violatio n of r ule 6A -

10.080(2 ) by the preponderance of the evidence.

Rule 6A - 10 .0 80(3) -- Failure to Make

Reasonable Efforts to Protect Students

68. Rule 6A - 10.080(3) states:

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.

69. Mr. Faller ' s deliberate disregard for the reports of

Ms s . Torres, Peebles, and O ' Dell , who relied upon him in his

position of authority to protect female students from Mr. Frazier ,

was a failure of ethics that undermined the respect and confidence

of his colleagues. The Board proved a violation of r ule

6A - 10. 0 80 (3) by the preponderance of the credible evid ence.

Rule 6A - 10.081(3)(a) -- Protect Students

From Harmful Conditions

70. Rule 6 A - 10.081(3)(a) states that an educator ' s

obligations to students require that the educator " [s]hall 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. " Despite the consistent and corroborating

information provided to Mr. Faller about Mr. Frazier ' s conduct

toward female staff and student s at Manatee High School ,

Mr. Faller made no effort to protect the students from conditions

which were plainly harmful to the student 's mental health, to

learning, and to safety. He , instead , chose to turn a blind eye

to Mr. Frazier ' s conduct. Cf. Lawson v. State , 941 So. 2d 485,

490 (Fla. 5 th DCA 2006), aff ' d , Lawson v. State , 969 So. 2d 222

(Fla. 2007) ( p robationer cannot turn a " blind eye " to condition of

his probation requiring a drug treatment plan and then escape

responsibility by claiming the requirements were not specific

enough because they did not say when and where he was to begin the

program) .

Rule 6A - 10.081(5)(a) -- Honesty in

A ll Professional Dealings

71. Rule 6A - 10.081(5)(a) requires that an educator " [s]hall

maintain honesty in all professional dealings. " The Board did not

prove violation of this requirement by a preponderance of the

evidence.

Rule 6A - 10.081(5)(n) -- Report Known

Allegations of Violations

72. Rule 6A - 10.081(5)(n) states that an educator " [s] hall

report to appropriate authorities any known allegation of a

violation of the Florida School Code or State Board of Education

Rules as defined in Section 1012.795(1), F.S. " The Board proved

violation of this rule by a preponderance of the persuasive,

credible evidence. This is a clear example of " willful ignorance "

at work . The rule requires reporting " any known allegation. "

Mr. Faller chose to take the approach that he had a responsibility

only if he had conclusive proof of a violation. This approach

deprived female students, and for that matter Mr. Frazier, of the

bene fit of a timely examination of the allegations to establish if

they were true or not.

Board Policy 6.9 -- Ethics

73. Board Policy 6.9, the Code of Ethics policy , holds all

employees " to a high moral and ethical standard of conduct, both

in their everyday emp loyment and in their roles within the

community. " It binds all employees to comply with the Code of

Ethics, rule 6A - 10.080. The policy emphasizes the importance of

reporting obligations to maintain ing ethical standards. It

states:

The School Board of Ma natee County s upports

strong internal control in its procedures and

practices. All incidents of suspected

improprieties should be reported to the

Superintendent or filed with the designated

official using the Board adopted employee

grievance procedures.

74. The violation of this requirement is the essence of the

charges against Mr. Faller. There is no evidence that he had

direct knowledge of inappropriate or unlawful activity by

Mr. Frazier. But the reports of Ms s . Peebles, Torres, and O ' Dell,

along wit h Mr. Gulash ' s admittedly vague expressions of concerns,

undeniably gave Mr. Faller knowledge of suspected improprieties

that he should have reported. Instead , he chose to remain

willfully ignorant. His inactions violated Board Policy 6.9.

Conclusion

75. Board Policy 6.11 allows the termination of any employee

for " just cause including, but not limited to . . . , misconduct

in office . . . , willful neglect of duty . . . , violation of the

Policies and Procedures Manual of the School District of Manatee

C ounty, violation of any applicable Florida statute, violation of

the Code of Ethics and the Principles of Professional Conduct of

the Education Profession in Florida. " The violations of statute s ,

rule s , and District polic ies, described above , provide " jus t

cause " to terminate Mr. Faller.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Manatee County School

Board , e nter a f inal o rder terminating the employment of

Respondent, Gregg Faller.

DON E AND ENTERED this 29th day of August , 2014 , in

Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, 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 29th day of August , 2014 .

ENDNOTE S

1/ Many of the witnesses were listed as witnesses for both

par ties. Demonstrating the professionalism urged by the Florida

Supreme Court , counsel cooperated to conduct direct and

cross - examination of each witness in one appearance , thus ,

minimizing the disruption of testifying for the witnesses and

expediting conduc t of the hearing. See In re Code for Resolving

Professionalism Complaints , 116 So. 3d 280 (Fla. 2013).

2/ This time period is reflected as stipulated.

3 / § 39.201, Fla. Stat.

4 / T he F indings of F act about the Torres incident and most others

in this R ecommended O rder required determinations of credibility

when Mr. Faller ' s version of events differed materially from

those of o ther witnesses. In those cases, after consideration of

corroborating hearsay, consistency with documents, fundamental

consisten cy of the witnesses ' testimony , prior interviews,

demeanor, and the absence of any evidence indicating any motive

for the witnesses to be dishonest , t he undersigned found those

witnesses more credible and persuasive than Mr. Faller.

5 / All references t o the Florida Statutes are to the 2012

compilation , unless otherwise noted.

6 / Although the Board did not cite all of the applicable

statutes, it has been clear throughout this proceeding that

Mr . Faller is charged with failing to report actual or suspec ted

child abuse. This is the specific charge in Administrative

Complaint , paragraph 20(a). And Petitioner ' s Statement of

Position in the Pre - Hearing Stipulation repeats the charge.

COPIES FURNISHED:

E. Jon Weiffenbach, Esquire

Weiffenbach and Kaklis

538 12th Street West

Bradenton, Florida 34205 - 7411

(eServed)

Terry Joseph Harmon, Esquire

Jeffrey Slanker, Esquire

Sniffen and Spellman, P.A.

123 North Monroe Street

Tallahassee, Florida 32301 - 1509

(eServed)

Pam Stewart

Commissioner of Education

Dep artment of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Lois S. Tepper, Interim General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Flori da 32399 - 0400

(eServed)

Rick W. Mills, Superintendent

Manatee County School Board

215 Manatee Avenue West

Bradenton, Florida 34205 - 9069

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from t he 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.