13-004292 Manatee County School Board vs. Matthew Kane Status: Closed Recommended Order on Tuesday, September 30, 2014.

Summary: School Board has just cause to terminate assistant principal's annual contract during the contract term, for his failure to make reasonable effort to protect students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 4292

MATTHEW KANE,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing was held in this cas e, commencing in

Bradenton, Florida, on April 29 and 30, 2014, and continuing by

video teleconference with sites in Sarasota and Tallahassee,

Florida, on June 24 and 25, 2014, before Elizabeth W. McArthur,

Administrative Law Judge, Division of Administrati ve Hearings.

APPEARANCES

For Petitioner: Terry J. Harmon, Esquire

Jeffrey Slanker, Esquire

Sniffen & Spellman, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

For Respondent: B rett D. McIntosh, Esquire

766 Hudson Avenue, Suite B

Sarasota, Florida 34236

STATEMENT OF THE ISSUE

The issue in this case is whether the Manatee County School

Board (Petitioner or Board) has just cause to terminate the

employment contract of Matthew Kane (Respondent or Mr. Kane).

PRELIMINARY STATEMENT

By letters dated September 25 and October 4, 2013, Rick W.

Mills, superintendent of the Manatee County School District

(District), gave Mr. Kane written notice of the super intendentÓs

intent to recommend to the Board that Mr. KaneÓs employment

contract be terminated. In the name of the Board, the

superintendent issued an administrative complaint (Complaint) on

October 4, 2013, setting forth the allegations and charges on

wh ich the proposed action was based and informing Respondent of

his right to an administrative hearing to contest the charges.

Respondent timely requested an administrative hearing, and on

November 6, 2013, Petitioner sent the case to the Division of

Admini strative Hearings for assignment of an administrative law

judge to conduct the hearing requested by Respondent.

After the parties did not respond to an Initial Order

seeking input to schedule the final hearing, a Notice of Hearing

was issued, scheduling the final hearing for January 14, 2014.

Petitioner filed an unopposed motion for continuance, which was

granted, and the hearing was rescheduled for March 18, 2014.

Petitioner initiated discovery, which did not go smoothly,

resulting in an emergency moti on to compel discovery shortly

before the discovery completion deadline established by Order of

Pre - Hearing Instructions. Based on the asserted need for time to

complete discovery, including discovery compelled from Respondent

and a non - party deposition s till being coordinated, the final

hearing was again continued and reset for April 29 and 30, 2014.

The parties completed discovery by mid - April, then timely

filed their joint pre - hearing stipulation on April 18, 2014,

setting forth stipulations as to a number of background facts

that would not require evidence at hearing. The stipulated facts

are generally reflected in Findings of Fact ¶¶ 1 - 11 below. 1/

On April 23, 2014, Petitioner filed an emergency motion to

quash a subpoena served on Board member Julie Aranibar to compel

her testimony at the final hearing. The next day, Respondent

filed a motion to again continue the final hearing. A telephonic

hearing on the two motions was held on April 25, 2014. Orders

were entered quashing the subpoena 2/ and denying the continuance.

At hearing, Petitioner presented the testimony of Steven

Rinder, Don Sauer, A.K., 3/ Debra Horne, R.S., Scott Martin,

Patricia Aragon, L.S., Bill Vogel, Leonel Marines, Stephen

Gulash, Jacqueline Peebles, Robert Gagnon, D.K., Resp ondent, and

Troy Pumphrey. PetitionerÓs Exhibits 1, 2, 5, 6.D.1, 6.D.2, page

one of 6.D.3, 6.D.4 through 6.D.6, 6.D.12, 6.D.14, 6.D.15, 19,

35, 44, 45, and 54 were admitted in evidence.

Respondent testified on his own behalf and also presented

the testimo ny of Aida Coleman, Chad Coate, C.H., A.P., Robert

Gagnon, Randy Smith, Danny Bench, and Freddy Ordonez. Respondent

did not offer any exhibits. 4/

The five - volume hearing Transcript was filed July 15, 2014.

The deadline for filing proposed recommended ord ers (PROs) was

set at 21 days after the transcript filing date, at RespondentÓs

request. A joint motion to extend that filing deadline was

granted. Both parties timely filed PROs by the extended

deadline, and they have been carefully considered.

FINDING S OF FACT

1. Petitioner is a duly - constituted school board, charged

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

schools within the District.

2. Respondent has been employed by the District since

September 25, 1997.

3. Respondent was a teacher at the DistrictÓs Lakewood

Ranch High School from fall 2003 through spring 2007.

4. Respondent became an assistant principal at Manatee High

School (MHS) for the 2007 - 2008 school year, and served in that

position through January 1, 2012. On January 2, 2012, Respondent

became the MHS interim principal for the rest of the school year.

5. Respondent returned to his prior position of assistant

principal at MHS on July 1, 2012, when Don Sauer was hired as the

new MHS principal. Respondent was an MHS assistant principal for

most of the 2012 - 2013 school year; six weeks before the school -

year end, he was transferred to an assistant principal position

at the DistrictÓs Southeast High School. At the time of hearing,

Respondent held an annual co ntract for an assistant principal

position for the 2013 - 2014 school year.

6. As a teacher, assistant principal, and interim

principal, Respondent was at all times required to abide by all

Florida laws pertaining to teachers, the Code of Ethics and the

Principles of Conduct of the Education Profession in Florida

(adopted as State Board of Education rules), and the BoardÓs

policies and procedures that have been promulgated as rules

(hereafter Board policies). 5/

7. On August 1, 2013, Respondent was place d on paid

administrative leave during the pendency of an investigation that

ultimately led to this proceeding.

8. On August 14, 2013, Respondent was charged with felony

failure to report known or suspected child abuse, and with

providing false informat ion to a law enforcement officer. The

latter charge was subsequently dismissed.

9. By letters dated September 25, 2013, and October 4,

2013, hand - delivered to Respondent, the superintendent provided

written notice of his intent to recommend termination of

RespondentÓs employment. The Complaint, with allegations and

charges against Respondent on which the recommendation was based,

was delivered with the October 4, 2013, letter. Respondent was

also informed that the superintendent would recommend to the

Board that Mr. Kane be suspended without pay pending final

resolution of the Complaint.

10. On October 14, 2013, during a Board meeting at which

Respondent was represented, the Board adopted the

superintendentÓs recommendation to suspend Respondent witho ut pay

pending the outcome of any administrative hearing requested by

Respondent.

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

Administrative Hearing and Respondent/EmployeeÓs Answer to

Administrative Complaint.

12. At issue in this proceed ing is whether Mr. Kane was

informed of alleged improprieties with female students by an MHS

paraprofessional, Rod Frazier, who was an administrative parent

liaison handling student discipline and a football coach. If so,

the issue then becomes whether Mr . Kane violated obligations

imposed by Florida law and Board policies related to protecting

students, including the obligations to report suspected child

abuse and to report allegations of misconduct by instructional

personnel affecting the health, safety, or welfare of students.

The core allegations in the Complaint are that Mr. Kane was

apprised of prior alleged inappropriate incidents involving

Mr. Frazier and female students, yet he did nothing to intervene,

which allowed Mr. Frazier to remain at MH S, placing the safety

and well - being of students at risk.

13. Following Mr. KaneÓs stint as MHS interim principal, a

new principal arrived for the 2012 - 2013 school year, Don Sauer.

Others -- not Mr. Kane -- were instrumental in bringing some of the

allegati ons of Mr. FrazierÓs improprieties to the attention of

the new MHS principal in November 2012. The person who

coordinated the effort to bring these matters to Mr. SauerÓs

attention was Steven Rinder. Mr. Rinder is the coordinator of

the student assistanc e program, which offers advice and

assistance to students and families regarding non - academic issues

that can affect studentsÓ academic performance.

14. Mr. Rinder credibly testified that over the few weeks

preceding his communication with Mr. Sauer, he was approached

independently by several MHS teachers and other instructional

staff, including Mike Strzempka (teacher), Lynn Aragon (teacher),

Stephen Gulash (administrative parent liaison), Keltie OÓDell

(teacher), and Jackie Peebles (teacher), regarding their concerns

about Mr. FrazierÓs inappropriate interactions with students.

Mr. Rinder found these independent reports unusual, indicative of

a problem needing attention, and significant enough that he went

to Mr. Sauer about the concerns. Mr. Sauer tol d Mr. Rinder to

make a list of the allegations, without names, and Mr. Sauer

would do what ought to be done with a Ðhot potatoÑ: pass it on.

15. Mr. Rinder put together a list of the allegations that

had been conveyed to him. In addition, he obtained a list from

Mr. Gulash of the incidents he had observed or had been informed

of, and Mr. Rinder added those items to his list. Mr. Rinder

then gave the document to Mr. Sauer, who passed the Ðhot potatoÑ

on to the DistrictÓs Office of Professional Standards (OPS).

16. As witnesses uniformly agreed, there was no question

that the list, taken as a whole, raised serious concerns about

Rod FrazierÓs conduct with female students that would amount to,

at the least, employee misconduct. Several allegations, stan ding

alone, raised serious concern of inappropriate touching of female

students, such as Mr. Frazier behind closed doors with a female

student sitting on his lap feeding him cake, and Mr. Frazier

shoving a water bottle between a female studentÓs legs.

17. Upon receipt of the Rinder list on November 14, 2012,

OPS initiated an investigation of Mr. Frazier. A letter from the

superintendent notified Mr. Frazier as follows: ÐEffective

Thursday, November 15, 2012, you are being placed on paid

administrative l eave pending the outcome of our investigation of

possible misconduct on your part.Ñ

18. On Thursday afternoon, November 15, 2012, OPS

specialist Debra Horne went to MHS and interviewed four of the

persons contributing to the list of allegations. Ms. Hor ne spoke

with Mr. Rinder and Mr. Gulash and got some information regarding

the names of the sources for each allegation, and the names of

the students involved in the alleged incidents. Ms. Horne also

interviewed Mike Strzempka and Lynn Aragon, sources fo r several

allegations. Ms. Horne did not interview Jackie Peebles that

day, but learned that Ms. Peebles was the teacher who walked in

on Mr. Frazier in his office and found a female student sitting

on his lap feeding him cake. Ms. Horne also learned tha t the

female student on Mr. FrazierÓs lap was D.K., a senior, no longer

at MHS, but at the DistrictÓs Palmetto High School. Ms. Horne

did not interview Keltie OÓDell that day, nor Rod Frazier, nor

D.K. or any of the other students whose names she had.

19 . After those four interviews, Ms. Horne met with MHS

principal Sauer and assistant principals Kane and Greg Faller, in

Mr. SauerÓs office. She called her boss, Scott Martin, a

District assistant superintendent, and he participated by speaker

phone. The purpose of the meeting was to bring everyone up to

speed as to where Ms. Horne was in the investigation. Although

the testimony was conflicting, the credible evidence established

that during this meeting, Ms. Horne and Mr. Martin discussed the

contents o f the Rinder list, if not line by line, then item by

item, and Ms. Horne reported that each allegation was either

unverified or old. As to the old allegations, Ms. Horne reported

that the concerns had been brought to the attention of either

former princip al Robert Gagnon or one of the assistant

principals, and those administrators had already addressed the

concerns with Mr. Frazier. When Ms. Horne made that statement,

the two assistant principals present and listening -- Mr. Kane and

Mr. Faller -- expressed a greement by nodding their heads. At that

point, Mr. Martin told Ms. Horne to wrap it up and return to

their office.

20. Strangely, despite Ms. Horne having learned that ÐoldÑ

allegations had been reported to and addressed by administrators,

Ms. Horne ap parently did not interview the administrators about

their knowledge of the allegations or what had been done to

address those allegations with Mr. Frazier, either on that day or

at any other time before she left OPS in late January 2013.

There was no docu mentation in Mr. FrazierÓs file of any kind of

discipline for inappropriate interactions with female students --

no documentation of any conferences with administrators,

directives, warnings, reprimands, or suspensions.

21. Mr. Kane acknowledged that at t he meeting with

Ms. Horne, the Rinder list itself was there; he skimmed the

document, he did not read it item by item. It is difficult to

imagine that as an assistant principal, Mr. Kane would not have

been more interested in the specific allegation s made against an

instructional staff member, particularly when Mr. Kane nodded in

agreement with Ms. HorneÓs report that the allegations were old

and had been reported to and addressed by administration.

22. Mr. Kane did not offer any information to Ms. Horne

about the allegations he had skimmed. At hearing, he explained

that he thought he was required to stay out of the OPS

investigation. Inconsistently, he volunteered information about

three staff members contributing to the list of allegations,

stat ing at the meeting that Mr. Gulash, Ms. Aragon, and

Mr. Strzempka all had grudges against Mr. Frazier.

23. Ms. Horne left MHS and returned to the District office

to meet with Mr. Martin. Mr. Martin testified that he pressed

Ms. Horne regarding w hether she had gone down every rabbit trail,

with the implication that he was satisfied that Ms. Horne had

exhausted her investigative options by conducting only four

interviews in the span of a few hours. Ms. Horne testified that

she asked to interview D .K. and the other students whose names

she had obtained, and also suggested conducting random interviews

of students at MHS. Mr. Martin cut her off from this notion,

stating that since no student ÐvictimÑ had come forward, there

was no reason to interview any students.

24. Prior to meeting with Ms. Horne, Mr. Martin discussed

the investigation with Mr. Gagnon. Mr. Gagnon was MHS principal

until January 2, 2012, when he was promoted to an assistant

superintendent position in the District office and Respo ndent

became MHS interim principal. Mr. GagnonÓs message to Mr. Martin

was that Mr. Frazier had been the subject of rumors before that

had allegedly ruined his marriage, and that it would be bad if

Mr. Frazier was still suspended by the next evening (Frid ay,

November 16, 2012), because there was an important football game,

and rumors would fly if Mr. Frazier was not coaching at the big

game on Friday night. Mr. Gagnon also told Mr. Martin that the

investigation should proceed and that if Mr. Frazier did w hat he

was alleged to have done, then the District should Ðbury him

under the school.Ñ Mr. Gagnon characterized this latter message

as the primary message. Nonetheless, at best he was sending a

mixed message by suggesting that the District should thoroug hly

investigate, as long as it did so in one day so the coach could

return to work in time for the big game Friday night.

25. Apparently keying on the game - night part of the mixed

message, Mr. Martin made the decision after meeting with

Ms. Horne t hat the investigation was going nowhere. He directed

that Mr. Frazier be removed from paid administrative leave and

returned to work the next day, Friday, November 16, 2012.

26. Meanwhile, Ms. Horne went back to MHS on Friday to

complete at least a few of the obviously missing steps in the

investigation, by interviewing Jackie Peebles, Keltie OÓDell, and

Mr. Frazier. Ms. Peebles credibly testified that in her

interview, Ms. Horne made it clear that she only wanted to hear

about recent incidents, not old matters that had been reported in

the past. Ms. Peebles found Ms. Horne more interested in

allegations of grudges against Mr. Frazier than in allegations of

inappropriate interactions with female students.

27. Ms. Horne testified that she was surprised to learn

that Mr. Frazier had been taken off paid administrative leave and

returned to work Friday morning, because she believed the

investigation was still ongoing. However, since Mr. Frazier was

placed on leave pending the investigationÓs Ðoutcome,Ñ by taking

Mr. Frazier off leave and returning him to work on Friday,

November 16, 2012, the implication was that the investigation had

reached its ÐoutcomeÑ and was concluded. Consistent with that

implication, if the investigation was not formally closed it at

least went dormant after November 16, 2012.

28. The investigation got a second life in early January

2013, when a letter written by D.K. was delivered to Mr. Sauer,

detailing some of Mr. FrazierÓs inappropriate interactions with

D.K. while she was at MHS in 2010 - 2011 and 2011 - 2012. D.K.Ós

letter corroborated some aspects of the Rinder - list allegations,

and described additional incidents, such as more closed - door

meetings in Mr. FrazierÓs office, when Mr. Frazier would hug her,

rub her upper leg, and grab her thigh and buttocks. Mr. Sauer

immediately sent the letter to OPS. With an alleged student

victim now having come forward, OPS was compelled to resume the

dormant investigation, and finally interview D.K.

29. Shortly after D.K. was interviewed, Mr. Frazier was put

back on paid administrative leave. This time, the allegations

were shared with the Bradenton Police Department, which initiated

its own investigation, culminating in criminal charges against

Mr. Frazier for battery and interfering wit h school attendance.

The Board issued an administrative complaint seeking to terminate

Mr. FrazierÓs employment, but Mr. Frazier resigned in lieu of

termination proceedings.

30. As an outgrowth of both the BoardÓs investigation into

Mr. FrazierÓs allege d misconduct and the Bradenton Police

DepartmentÓs investigation of Mr. Frazier, both the Board and the

Bradenton Police Department initiated investigations into the

actions and inactions of Respondent and others.

What Did Respondent Know And When Did He K now It?

31. As the prelude above suggests, the underlying matters

involving Mr. Frazier must be described in order to address the

core allegations against Respondent. However, the focus of this

proceeding is not on whether there is proof of the allegati ons

against Mr. Frazier, nor is the focus on how the investigations

were handled; neither Mr. Frazier nor OPS personnel are on trial.

Instead, as charged in the Complaint, the focus here is on

whether allegations of Mr. FrazierÓs inappropriate interaction s

with students were brought to RespondentÓs attention; if so,

when; and if so, what he did or did not do in response.

2009 - 2010: Patting Behinds; Closed Door Meetings; Lingerie Party

32. At MHS, assistant principals have a variety of duties;

they may b e assigned primarily to certain areas, with assignments

changing from time to time. For the 2009 - 2010 school year, one

of Mr. KaneÓs primary duties was to serve as head of the MHS

discipline office. The discipline office is staffed by

administrative pare nt liaisons (liaisons). The liaisons are the

schoolÓs disciplinarians -- they handle student disciplinary

referrals, communicate with parents about student discipline, and

teach/supervise students serving in - school suspensions and Ðtime -

outs.Ñ The liaisons also monitor areas such as the courtyard,

cafeteria, and parking lot. As discipline office head in 2009 -

2010, Mr. Kane supervised the liaisons, including Mr. Frazier.

33. L.S. has been a school bus driver for the District for

ten years. In the 2009 - 20 10 school year, L.S.Ós daughter, R.S.,

was a senior at MHS and L.S. had an MHS bus route.

34. On several occasions during the 2009 - 2010 school year,

while waiting at MHS in her bus, L.S. observed Mr. Frazier

patting female students on their behinds. Als o during that year,

L.S. occasionally went to Mr. FrazierÓs office with student

discipline referrals, and she would find Mr. Frazier in his

office behind closed doors with female students. She found this

conduct inappropriate, and reported it to Mr. Kane.

35. L.S.Ós daughter, R.S., frequently got in trouble, and

was often in time - out. According to R.S., one day in February

2010, near ValentineÓs Day, when she was in the time - out room

supervised by Mr. Frazier, a female student, C.H., came in to ask

Mr. Frazier if he would be attending her Ðlingerie party,Ñ and

Mr. Frazier responded that he would be there. The lingerie party

discussion made R.S. uncomfortable, and she asked to go to the

principalÓs office. When Mr. Frazier refused, R.S. walked out

and h eaded toward the principalÓs office. R.S. testified that

she was intercepted by Mr. Kane and Student Resource Officer

Freddy Ordonez. R.S. said that she told them about the Ðlingerie

partyÑ dialog with Mr. Frazier, and Officer Ordonez told R.S.

that she would be arrested if she kept making false accusations.

36. R.S.Ós testimony about her Ðlingerie partyÑ report to

Mr. Kane was inconsistent with a prior statement she gave during

an investigation of Rod Frazier. In that prior statement, R.S.

told the i nvestigator that it was Robert Gagnon, then - principal

of MHS, who was with Officer Ordonez when R.S. reported the

Ðlingerie partyÑ incident.

37. Regardless of whom R.S. may have reported to that day,

R.S.Ós mother testified credibly that R.S. told her ab out the

Ðlingerie partyÑ incident when R.S. came home from school upset

that day. L.S. then went to MHS to talk to Mr. Kane in his

office to express her concerns about Mr. Frazier. In addition to

relaying what R.S. had told her about the Ðlingerie party, Ñ L.S.

also told Mr. Kane about Mr. FrazierÓs inappropriate conduct that

she had personally observed on several occasions: L.S. told

Mr. Kane that she had seen Mr. Frazier patting girls on their

behinds, and that when she went to see Mr. Frazier in his office,

she found him with female students and the door closed. Mr. Kane

told L.S. that he would check into the allegations.

38. At hearing, Mr. Kane testified that he has no

recollection of the meeting L.S. described; he did not deny it

occurred, sayi ng only that he does not remember it and does not

recall L.S.Ós report about Mr. Frazier. Nonetheless, L.S.Ós

testimony was credible and is credited. 6/ Mr. KaneÓs testimony

that he has no memory of L.S.Ós allegations reported to him

during the 2009 - 2010 school year means that, despite telling L.S.

that he would look into her report about Mr. Frazier, Mr. Kane

did nothing to document, investigate, or report the allegations.

2010 - 2011: Calling Girls Out Of Class; Cake Incident; Golf Carts

39. Jackie P eebles has been a teacher at MHS for eight

years. In the 2010 - 2011 school year, she taught remedial math.

40. Ms. Peebles described how she noticed that Mr. Frazier

tended to call female students out of class when they were

dressed inappropriately. The students would leave for a while,

and return wearing appropriate clothes. Ms. Peebles credited

Mr. Frazier with doing his job to correct dress code violations.

41. However, the calls increased in frequency, for one

student in particular , D.K., in her remedial math class.

Mr. Frazier would frequently call to ask Ms. Peebles to send D.K.

to his office. At first, D.K. would leave class wearing short -

shorts and return in sweat pants from lost and found, or she

would leave wearing a tank top and return wea ring Mr. FrazierÓs

football jacket. Again, Ms. Peebles thought Mr. Frazier was just

doing his job, but she became concerned because D.K. had an

attendance problem and needed to be in class.

42. The problem got worse, with D.K. leaving when called to

Mr. FrazierÓs office and not coming back. Ms. Peebles confronted

Mr. Frazier, telling him that she was going to keep D.K. in her

classroom whether she was dressed right or not, because D.K. was

falling further and further behind.

43. Mr. Frazier stopped ca lling Ms. Peebles to release D.K.

Instead, Ms. Peebles would hear D.K.Ós telephone buzz, watch D.K.

look at the phone, and then D.K. would announce that she forgot

to tell Ms. Peebles that she has to go to Mr. FrazierÓs office.

44. Ms. Peebles reasonab ly surmised that Mr. Frazier was

sending text messages to D.K. After this happened a few times,

one day Ms. Peebles took D.K.Ós phone, put it in her drawer, and

kept teaching. The phone kept buzzing and buzzing. Ms. Peebles

opened her drawer to turn off the phone, and saw a message on the

screen asking why D.K. hadnÓt come to his office yet, and that he

heard she was wearing her short - shorts again. Ms. Peebles

reasonably inferred that this message was from Mr. Frazier.

45. Ms. Peebles testified that h er concerns about

Mr. Frazier calling girls (especially D.K.) out of class and

texting were heightened by the rather alarming Ðcake incident,Ñ

which occurred shortly after the short - shorts text message.

46. Ms. Peebles testified that one afternoon , she had

broken up a fight between two students and escorted the students

to the discipline office for referral to a liaison. Ms. Peebles

found the discipline officeÓs secretary/receptionist, Aida

Coleman, at her desk in the large outer area. Ms. Peeble s looked

around and found that the doors to the liaisonsÓ interior offices

were all open and the offices empty, except that Mr. FrazierÓs

office door was closed. Ms. Peebles looked at Ms. Coleman with

frustration because no one seemed available to help he r with her

disciplinary problem, but Ms. Coleman volunteered that it was all

right, Mr. Frazier was in his office with a student. Ms. Peebles

took this to mean that she could go in, so she left the two

students in separated chairs, one by Ms. ColemanÓs de sk.

47. Ms. Peebles walked the short distance (estimated at

around twenty feet) to Mr. FrazierÓs office door. She knocked

and opened the door simultaneously, and stepped a few feet

inside. She was shocked to find Mr. Frazier seated behind his

desk with D.K. sitting sideways across his lap, feeding him cake.

48. Ms. Peebles said that she yelled something like: ÐWhat

the hell is going on in here?Ñ Although she described it as a

Ðyell,Ñ when asked to gauge how loud she was by comparison to

others spe aking at the hearing, Ms. Peebles did not attribute a

great deal of volume to her ÐyellÑ -- it was more a matter of what

she said than how loudly she said it.

49. Ms. Peebles was troubled by the fact that Mr. Frazier

and D.K. did not move, and both acted l ike nothing was wrong with

their seating arrangement and activity. Ms. Peebles then told

D.K. to Ðget offÑ Mr. FrazierÓs lap. D.K. did so, but she only

moved as far as Mr. FrazierÓs desk, where she perched facing him.

Ms. Peebles then told D.K.: ÐNo, co me around here and sit in a

chair like a lady.Ñ D.K. did as she was told.

50. Ms. Peebles then told Mr. Frazier that she had a

referral requiring his attention, with two students waiting

outside. Mr. Frazier got up and went out with Ms. Peebles to

addr ess the awaiting disciplinary matter.

51. Ms. Peebles reported this incident to Respondent the

next day. Ms. Peebles had a clear recollection of her

conversation with Respondent in which she described the cake

incident, and Respondent assured her he wou ld take care of it.

Ms. Peebles was relieved, because she assumed she could count on

Respondent to address the matter with Mr. Frazier.

52. Ms. Peebles also told another liaison, Stephen Gulash,

about the cake incident at some point shortly after it occ urred --

her best recollection was that she told Mr. Gulash the next

morning. Mr. Gulash corroborated that Ms. Peebles told him about

the cake incident -- he thought it may have been right after it

occurred, because she seemed upset. Ms. Peebles does not rec all

being upset when she told Mr. Gulash about the incident. While

Respondent suggests this is an inconsistency that undermines the

credibility of both Ms. Peebles and Mr. Gulash, this minor

difference in perception and recollection is immaterial and

unde rstandable. The incident itself was not a happy thing to

observe or describe. Even a number of years later, Ms. Peebles

seemed upset when describing the upsetting incident at hearing.

53. When Ms. Peebles told Mr. Gulash about the cake

incident, Mr. Gu lash asked Ms. Peebles if she had reported the

incident to Mr. Kane. Ms. Peebles told him either that she had

just done so or that she was about to.

54. The material details provided by Ms. Peebles -- that the

cake incident occurred as she described it, t hat she reported the

incident to Respondent the next day, and that Respondent assured

her he would take care of it -- were credible and are credited.

55. The most alarming aspect of the cake incident is that

D.K. was sitting on Mr. FrazierÓs lap feeding him cake in the

privacy of his office, a clearly inappropriate and suggestive

intimacy between this MHS staff disciplinarian and the female

student he frequently called out of class to come visit him

behind closed doors. D.K. provided credible corroborati ng

testimony of this most troubling aspect of the cake incident,

acknowledging that she was sitting on Mr. FrazierÓs lap feeding

him cake when Ms. Peebles walked in and was shocked.

56. Respondent contends that Ms. PeeblesÓ testimony was

undermined by D.K.Ós testimony that she could not recall what, if

anything, Ms. Peebles said when she opened the door and by

Ms. ColemanÓs testimony that she did not recall an encounter when

Ms. Peebles was yelling at Mr. Frazier. Ms. PeeblesÓ verbal

reaction to t he shocking scene pales in significance to the scene

itself. Moreover, the inability of D.K. and Ms. Coleman to

recall did not effectively undermine Ms. PeeblesÓ clear, credible

testimony. It is by no means clear that Ms. PeeblesÓ words to

Mr. Frazier an d D.K. (which D.K. might well want to forget or

minimize), delivered while Ms. Peebles was standing a few feet

inside the office with her back to the door, would have been

heard by Ms. Coleman at her desk twenty feet away from the door,

particularly since Ms. Peebles had deposited one of the fighting

students in a chair next to Ms. ColemanÓs desk.

57. Respondent testified that he does not recall

Ms. Peebles reporting the cake incident to him. He added that if

she had reported the incident as she described it at hearing, he

believes there is no way he would not have acted, by documenting

the report in writing or having Ms. Peebles do so, bringing it to

the principalÓs attention, and confronting Mr. Frazier with what

was plainly inappropriate, impro per, unprofessional conduct.

58. Ms. Peebles, however, was steadfast and credible in

maintaining that she reported the cake incident to Mr. Kane the

day after it occurred (corroborated by Mr. Gulash). Ms. Peebles

also reported the cake incident to Mr. F aller a year later, after

reporting another inappropriate Frazier incident to Mr. Faller

(discussed below in school year 2011 - 2012). 7/

59. Respondent attempted to undermine Ms. PeeblesÓ

credibility by dwelling on the lack of clarity on insig nificant

points, including when the cake incident occurred, what

Mr. KaneÓs duties were at the time, and where Ms. Peebles and

Mr. Kane were when she told him about the incident. RespondentÓs

attempt was not effective.

60. For the purposes of this proceeding, it is enough to

know that the cake incident took place either in the 2010 - 2011

school year or the 2011 - 2012 school year -- the only two years that

D.K. was a student at MHS. The incident most likely occurred in

the 2010 - 2011 school year, wh en D.K. was in Ms. PeeblesÓ math

class. Ms. Peebles could not recall exactly when the incident

occurred; she volunteered early on in her testimony, and repeated

often, that she has never been good at remembering dates. 8/

61. Likewise, regardless of Mr . KaneÓs duties at the time

of the cake incident report, Ms. Peebles explained why he was an

appropriate administrator for her to report to. Ms. Peebles

testified initially that she thought Mr. Kane was head of

discipline when she reported the cake incide nt to him. That was

shown to be not true. Mr. Faller took over the assignment as

discipline office head in the 2010 - 2011 and 2011 - 2012 school

years. However, Ms. Peebles added that after Mr. Faller assumed

that role, Mr. Kane became Ms. PeeblesÓ direct supervisor (not

disputed by Respondent), and that she may have reported the cake

incident to him for that reason. Later still, Mr. Kane was MHS

interim principal, and if the cake incident occurred then, she

might have reported it to him for that reason. Ms. Peebles

credibly summed it up this way: ÐMr. Kane never left the realm

of being someone I thought that I would go to.Ñ (Tr. 568).

62. As to the setting where Ms. Peebles reported the cake

incident to Mr. Kane, Ms. Peebles offered her recollection t hat

they were in the discipline office, in the corner interior office

assigned to the assistant principal serving as head of the

discipline office. But whether Ms. Peebles reported the cake

incident to Mr. Kane in the office assigned to the head of

discip line, as she recalled, or in an office in the adjacent

building when he became Ms. PeeblesÓ direct supervisor, the

setting is insignificant and the lack of clarity does not

undermine the credible testimony regarding the material details.

63. Ms. Peebles was genuinely troubled to be offering

testimony adverse to Mr. Kane. Ms. Peebles likes and respects

Mr. Kane as an educator and administrator, and spoke highly of

his performance as an assistant principal and as her supervisor.

Her general regard for hi m is why she was relieved to report the

cake incident to him -- she trusted him to follow through when he

assured her that he would take care of it. Mr. Kane was equally

complimentary of Ms. Peebles, describing her as one of the good

teachers, and as someon e who would not set out to hurt him.

64. RespondentÓs testimony expressing no recollection of

Ms. PeeblesÓ cake incident report to him and offering hindsight

assurance that he would have acted on such a report was not as

credible as Ms. PeeblesÓ test imony and is not credited. Instead,

Ms. PeeblesÓ report was the second time Respondent was informed

of Mr. FrazierÓs inappropriate closed - door sessions with female

students -- this time, with the added observation that Mr. Frazier

was engaged in inappropria te physical contact with the female

student in that particular closed - door session. As Respondent

himself acknowledged, such a report should have spurred him to

immediate action, but it did not. Moreover, because Respondent

took no action in response to L.S.Ós prior report, there was no

record that this was the second report to Respondent of

Mr. FrazierÓs improprieties. As with L.S.Ós report, this second

report was also received and ignored, instead of being

documented, investigated, and addressed with Mr. Frazier.

65. Lynn Aragon is a teacher employed by the District. She

taught at MHS for over ten years, until the end of the 2012 - 2013

school year, and is currently on a medical leave of absence.

During the time period relevant to this proceedi ng, she served as

the representative for the teacherÓs union at MHS, and because of

that role, teachers at MHS often would come to her with concerns.

66. Ms. Aragon testified that during the 2010 - 2011 school

year, a number of teachers came to her to expr ess concerns about

Mr. Frazier having female students in his office behind closed

doors, calling female students to his office in the middle of

class, texting female students in class, and going around in the

courtyard on a golf cart with female students h ugging him.

Ms. Aragon testified that she reported these concerns to then -

principal Bob Gagnon, but not to Mr. Kane. 9/

67. Mr. Gagnon acknowledged that while he was still the MHS

principal, he became aware of an issue with students on golf

carts, alt hough he did not say that Ms. Aragon was the source of

his awareness or that Mr. Frazier was the subject of the Ðissue,Ñ

or complaint. Mr. Gagnon testified that he went out and told all

of the staff using golf carts -- not just Mr. Frazier -- to stop

allowing students on their golf carts.

68. Several witnesses spoke generally about the legitimate

use of golf carts by liaisons to monitor the parking lot and

courtyard, and to transport a student when necessary. Often

students congregate in the courtyard for l unch breaks, and it was

not unusual, at least before Mr. GagnonÓs directive, for a

student to sit on a golf cart with a liaison.

69. However, as Ms. Peebles credibly explained, the

student - on - golf - cart issue was decidedly different where

Mr. Frazie r was concerned. Whereas other liaisons and

administrators might have a couple of students on a golf cart to

sit and talk or to drive them someplace, Ms. Peebles described

what she saw on Mr. FrazierÓs golf cart: Ð[T]he students hanging

around on Mr. Fra zierÓs golf cart mostly tended to be female

students . . . more female students than could fit on the seats.

There would be so many stacked on there that you literally

couldnÓt drive the golf cart anyplace.Ñ

2011 - 2012: Groping At A Bar; More Golf Cart Is sues; Horseplay

70. Ms. Peebles testified that the year after the cake

incident, another incident involving alleged inappropriate

physical contact by Mr. Frazier was reported to her by MHS female

student, A.P. Ms. Peebles told Mr. Faller about the al legations.

When Mr. Faller seemed not interested, she told him about the

prior cake incident, and she also told him that she had reported

the cake incident to Mr. Kane. Ms. PeeblesÓ testimony was

credible. Mr. Faller did not testify.

71. Ms. Peebles d id not say that she reported the A.P.

incident to Mr. Kane. Nonetheless, Respondent offered A.P.Ós

testimony, apparently in an attempt to undermine the credibility

of Ms. PeeblesÓ overall testimony. Instead, just as was the case

with D.K., A.P.Ós testimo ny corroborated the material facts, as

reported by Ms. Peebles to Mr. Faller, regarding another

troubling incident with Mr. Frazier. As A.P. testified, she

snuck into a bar using fake identification, when she was still

underage. She had a few drinks and was tipsy. Mr. Frazier

approached her and grabbed her in Ðtoo friendlyÑ a hug, putting

his arms around the lower region of her back, or further down.

Mr. Frazier had Ðhis hands down there;Ñ he was groping her and

hanging all over her.

72. Respondent at tempted to elicit testimony from A.P. that

she never told Ms. Peebles about being groped in a bar by

Mr. Frazier. Instead, A.P. testified that although she could not

say with certainty that she went to Ms. Peebles about this

incident, it would make sense that she would have gone to

Ms. Peebles: ÐI could see myself going to her[.]Ñ

73. A.P.Ós testimony varied in some of the details from

Ms. PeeblesÓ description of what A.P. told her. Ms. Peebles

testified that she does not recall the word A .P. used in lieu of

Ðerection,Ñ she understood A.P. to be saying that Mr. Frazier had

an erection and was rubbing himself against her buttocks. A.P.

testified that she did not tell Ms. Peebles that Mr. Frazier had

an erection; Ms. Peebles agreed that that was not the word A.P.

used. Ms. Peebles also recalled A.P. showing her inappropriate

text messages from Mr. Frazier regarding A.P.Ós private body

parts that Mr. Frazier inappropriately groped at the bar; A.P.

denied receiving text messages from Mr. Frazi er. Their testimony

was in sync regarding Mr. FrazierÓs inappropriate groping of

A.P., who, at the time, was a minor and a student at MHS.

Several years after the fact, the testimony by Ms. Peebles and

A.P. is considered substantially and materially cons istent. The

variances do not undermine Ms. PeeblesÓ credible testimony.

74. Not only was Ms. PeeblesÓ testimony regarding the bar -

groping incident and her reports to Mr. Faller credible, but it

highlights the problem of serial undocumented Ðisolated

i ncidents.Ñ An incident is reported to one administrator who

ignores the report and takes no action; then when the next

Ðisolated incidentÑ is reported, the administrator receives that

report as if nothing has ever been brought to his attention

before, and again, takes no action; then when the next Ðisolated

incidentÑ is reported to a different administrator, there is

nothing documenting that similar incidents had ever occurred

before. Despite this pattern, Mr. Kane and Mr. Faller were the

two administrato rs in the room nodding their heads in agreement

when Ms. Horne reported to Mr. Martin that the allegations in the

Rinder list were old news that had been reported to and handled

by administrators. Two of the incidents on the Rinder list were

the cake inci dent and the bar encounter. If brushing the

allegations under the rug can be called handling them, they were,

indeed, handled.

75. While Mr. Kane was interim principal in 2012, two

separate matters regarding Mr. Frazier were reported to him. In

Februa ry 2012, Ms. Horne from OPS called Mr. Kane to inform him

of an anonymous complaint received by the superintendentÓs office

regarding female students riding with Mr. Frazier on his golf

cart and that it ÐdidnÓt look right.Ñ

76. At the direction of Ms. E ssig, who was Mr. KaneÓs

immediate supervisor, Ms. Horne relayed the complaint to

Mr. Kane, and asked him to look into it and speak to Mr. Frazier

about it. Ms. Horne did not hear back from Mr. Kane within a

reasonable time, so she called him back. Mr. Kane told Ms. Horne

that he issued a verbal directive to Mr. Frazier to be

professional in his dealings with students at all times.

77. As Mr. Kane described it, he told Mr. Frazier to stop

riding around with girls on his golf cart because others mi ght

perceive it to be inappropriate. Mr. Kane did not document his

verbal directive to Mr. Frazier. The only evidence that there

was a verbal directive comes from the hard - to - decipher scribbled

note Ms. Horne made of her phone call to Mr. Kane to find ou t if

he had responded to her request that he look into the complaint.

There was no credible evidence that Respondent looked into the

2012 complaint at all, in the sense of trying to find out whether

Mr. Frazier had conducted himself, with females on his g olf cart,

in a way that Ðdid not look rightÑ (such as by allowing so many

female students to pile onto the golf cart with him that he and

the females necessarily would be sitting on top of each other, as

Ms. Peebles described). Instead, Mr. Kane apparent ly did not ask

Mr. Frazier what he was doing with girls on his golf cart.

Mr. Kane explained that because the complaint lacked details

(such as names, dates, times, locations, or what exactly did not

look right), he could not ask Mr. Frazier about the det ails

because Mr. Kane did not have them. That explanation is

unreasonable; a reasonable interim principal performing the duty

of looking into a complaint asks questions to find out details.

78. An absence of documentation about prior golf cart

issue s with Mr. Frazier resulted in yet another Ðisolated

incident.Ñ The absence of documentation of Mr. GagnonÓs student -

on - golf - cart issue that caused him to tell all staff operating

golf carts to stop letting students on the golf carts meant that

the 2012 c omplaint about Mr. Frazier on his golf cart with female

students and that it did not look right was never investigated as

insubordination, for not following Mr. GagnonÓs prior directive.

79. Also while Mr. Kane was interim principal, Mr. Gulash

reporte d to Mr. Kane that Mr. Frazier shoved a water bottle

between D.K.Ós legs at the softball field. Mr. Kane had no

recollection of Mr. Gulash reporting this incident to him.

Mr. Gulash acknowledged that he mentioned the incident to

Mr. Kane while t hey were walking together into the cafeteria;

that he described the incident to Mr. Frazier as Ðhorseplay Ñ ; and

that he did not make a big deal of it. Nonetheless, one would

expect that a description of ÐhorseplayÑ involving a male

liaison/coach placing a nything between the legs of a female

student would not only get the interim principalÓs attention but

also trigger immediate action.

80. D.K. corroborated the occurrence of bottle - between - the

legs ÐhorseplayÑ by Mr. Frazier. She testified that Mr. Frazi er

had shoved water bottles or Gatorade bottles between her legs on

more than one occasion, both at the softball field and while D.K.

was hanging out with Mr. Frazier on his golf cart. While there

were discrepancies in the details offered by Mr. Gulash an d D.K.,

once again, their testimony was in harmony with regard to the

troubling aspect of the incident they described -- that Mr. Frazier

engaged in a form of ÐhorseplayÑ with a minor female student that

involved him putting a plastic bottle between the stud entÓs legs.

81. Respondent claimed that Mr. Gulash was biased and not

credible for several different reasons; Mr. Gulash responded with

explanations. On balance, the undersigned accepts Mr. GulashÓs

testimony, notwithstanding the attacks on his credibil ity. But

even if Mr. Gulash did not tell Mr. Kane about the bottle -

between - the - legs incident, those incidents should have, and would

have, come to light much sooner than they did if Mr. Kane had

responded appropriately to the reports of Mr. FrazierÓs

impr oprieties when they were made to him. D.K.Ós credible

testimony that one of these bottle - between - the - legs incidents

occurred when she was on a golf cart with Mr. Frazier underscores

the significance of the patterned failure to document or act on

reports o f Mr. FrazierÓs inappropriate conduct with female

students on golf carts. Likewise, D.K.Ós description of

Mr. FrazierÓs inappropriate physical contact during closed - door

sessions in his office underscores the significance of the

patterned failure to document or act on reports of Mr. FrazierÓs

inappropriate closed - door meetings with female students.

CONCLUSIONS OF LAW

82. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.56 9, 120.57(1), 120.65, Fla. Stat. (2013). 10/

83. Petitioner seeks to exercise its disciplinary authority

to terminate Respondent's annual employment contract during the

contract term. As the parties stipulated, Petitioner has the

authority to do so if th ere is Ðjust cause.Ñ ££ 1012.22(1)(f),

1012.33, Fla. Stat.; Fla. Admin. Code R. 6A - 5.056; and Board

Policy 6.11.

84. Petitioner bears the burden of proving by a

preponderance of the evidence that just cause exists to terminate

RespondentÓs employment fo r the reasons charged in the Complaint.

Cropsey v. Sch. Bd. of Manatee Cnty. , 19 So. 3d 351, 355 (Fla. 2d

DCA 2009); McNeill v. Pin. Cnty. Sch. Bd. , 678 So. 2d 476, 477

(Fla. 2d DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d

883, 884 (Fla. 3d DCA 1 990).

85. The parties agree that the parameters for Ðjust causeÑ

are set forth in Board Policy 6.11. Paragraph (12)(c) of that

rule specifically addresses Ðjust causeÑ for involuntary

termination of employment, providing as follows:

Any employee of the School Board may be

terminated from employment, for just cause

including, but not limited to, immorality,

misconduct in office, 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 Florida statute, [or] violation of

the Code of Ethics and the Principles of

Professional Conduct of the Education

Profession in Florida.

86. Whether Respondent committed the charged offenses is a

question of ultimate fact to be decided by the trier of fact in

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

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

S o. 2d 489, 491 (Fla. 1st DCA 1995).

87. The Complaint charges Respondent with immorality,

misconduct in office, incompetence and willful neglect of duty.

Those terms are defined in rule 6A - 5.056.

88. As a corollary to the Ðmisconduct in officeÑ charge ,

Respondent is also charged with violating : Florida Administrative

Code Rules 6A - 10.080(2) and (3), 6A - 10.081(3)(a), (5)(a), and

(5)(n); Board Policy 6.9; and section 1012.795(1), Florida

Statutes, incorporated by reference in rule 6A - 10.081(5)(n).

89. Petitioner proved that Respondent violated rule 6A -

10.081(3)(a), and thereby, committed misconduct in office. Rule

6A - 10.081(3)(a), one of the Principles of Professional Conduct

for the Education Profession in Florida, requires the following:

(3) Obligat ion 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 studentÓs mental

and/or physical health and/or safety.

As found above, each time Respondent failed to act on reports by

L.S., Ms. Peebles, and Mr. Gulash of Mr. FrazierÓs inappropriate

interactions with female students, Respondent did not make

reasonable efforts to protect students from harmful conditions as

this rule of conduct requires. Likewise, whe n Respondent failed

to conduct an actual investigation, when asked by OPS to look

into a complaint about something not looking right regarding

female students on golf carts with Mr. Frazier, Respondent failed

to make reasonable efforts to protect students from harmful

conditions. RespondentÓs violations of this rule constitute

misconduct in office. Fla. Admin. Code R. 6A - 5.056(2)(b).

90. Petitioner did not prove that Respondent violated rule

6A - 10.081(5)(a), which requires that Respondent Ðmaintain hone sty

in all professional dealings.Ñ The factual predicate for this

charge was the allegation that Respondent intentionally provided

false and/or misleading information during the course of the

investigations. There was insufficient evidence that Responde nt

intentionally provided false or misleading information.

Respondent was rather consistent in reporting his lack of

recollection about virtually every critical subject. While one

possible inference is that he was not being truthful, the other

possibilit y is that he actually did not remember reports of

Mr. FrazierÓs inappropriate interactions because of his patterned

failure to document the reports and follow up with investigations

and action. In light of the burden of proof, RespondentÓs memory

laps es prevent a conclusion that he intentionally provided false

or misleading information in the investigation. It is noted that

the Complaint did not charge Respondent with being dishonest with

Ms. Peebles and L.S. when he told them he would take care of or

look into the matters they reported to him.

91. Petitioner proved that Respondent violated rule 6A -

10.081(5)(n), requiring the following of an educator:

Shall report to appropriate authorities any

known allegation of a violation of the

Florida School Co de or State Board of

Education Rules as defined in Section

1012.795(1), F.S.

92. Section 1012.795(1)(b), incorporated into the foregoing

rule, defines the following act committed by an educator as a

violation warranting discipline:

Knowingly failed to r eport actual or

suspected 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.

93. Section 1006.061, Florida Statutes, speaks to the

requirement to report actual or suspected child abuse, although

not as directly as chapter 39, Florida Statutes. Regardless, the

parties understood the Complaint to charge Respondent with

knowingly failing to report suspec ted child abuse. However,

Petitioner did not prove that Respondent violated his obligation

to report suspected child abuse.

94. Neither party offered an analysis of what constitutes

Ðchild abuseÑ that would trigger a reporting requirement. A

review of the definitions of ÐabuseÑ and its incorporated term,

Ðharm,Ñ in section 39.01(2) and (32), Florida Statutes, 11/ leads

to the conclusion that Respondent did not receive reports of

suspected child abuse. The incidents found above to have been

reported to M r. Kane clearly involved inappropriate conduct by

Mr. Frazier, including inappropriate touching of female students.

However, while the sort of physical contact reported to Mr. Kane

might constitute battery, the definition of ÐharmÑ constituting

child abu se does not incorporate the offense of battery, while it

specifically incorporates Ðsexual battery, as defined in chapter

794, or lewd or lascivious acts, as defined in chapter 800[.]Ñ

See § 39.01(32)(b) , Fla. Stat. ; compare § 784.03, Fla. Stat.

(defining battery as an intentional touching of another against

the otherÓs will) with § 794.011, Fla. Stat.(sexual battery) and

ch. 800, Fla. Stat. (lewd and lascivious acts). 12/ Conduct rising

to the latter level is what appears to be required under the

cited de finitions of ÐabuseÑ and its incorporated term Ðharm.Ñ

95. Petitioner did, however, prove that Respondent

committed misconduct in office by violating the second part of

section 1012.795(1)(b), incorporated by reference in rule 6A -

10.081(5)(n). Petitio ner proved that Respondent knowingly failed

to report to appropriate authorities known allegations of

misconduct by instructional personnel which affected the health,

safety, or welfare of students, as required by section 1012.796,

Florida Statutes.

96. Section 1012.796 addresses the requirement to report

alleged misconduct affecting the health, safety, or welfare of

students, in paragraphs (1)(d) and (5), as follows:

must include . . . standards of ethical

c onduct for instructional personnel and school

administrators; the duties of instructional

personnel and school administrators for

upholding the standards; detailed procedures

for reporting alleged misconduct by

instructional personnel and school

administra tors which affects the health,

safety, or welfare of a student; requirements

for the reassignment of instructional

personnel or school administrators pending the

outcome of a misconduct investigation; and

penalties for failing to comply with

s. 1001.51 or s. 1012.795.

* * *

(5) When an allegation of misconduct by

instructional personnel or school

administrators, as defined in s. 1012.01, is

received, if the alleged misconduct affects

the health, safety, or welfare of a student,

the district school s uperintendent in

consultation with the school principal, or

upon the request of the Commissioner of

Education, must immediately suspend the

instructional personnel or school

administrators from regularly assigned duties,

with pay, and reassign the suspende d personnel

or administrators to positions that do not

require direct contact with students in the

district school system. Such suspension shall

continue until the completion of the

proceedings and the determination of

sanctions, if any, pursuant to this section

and s. 1012.795.

97. The Complaint charges Respondent with violating Board

Policy 6.9, which sets forth the BoardÓs ethics policy and

procedures for reporting suspected improprieties, comporting with

section 1012.796(1)(d). The Board policy adop ts the Code of

Ethics of the Education Profession in Florida (State Code of

Ethics), promulgated as rule 6A - 10.080, and makes it binding on

all District employees, including administrative and

instructional staff members. The Board policy further provides :

The [Board] supports 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 Board

adopted employee grievance procedures.

As to the procedures, Board Policy 6.9 provides in pertinent part:

(1) Employees found to be in violation of the

School Board Policy on Ethics may be subject to

disciplinary procedures up to and including a

recommendation of dismissal.

(a) All employees a re expected to notify their

supervisor or other appropriate administrator,

subject to established procedures, of any

violations of law, School Board rule, . . .

[or] suspected child abuse[.]

98. Pursuant to these interwoven statutes and rules,

Ms . Peebles, L.S., and Mr. Gulash notified Respondent, who

qualified as their supervisor or an appropriate administrator, of

observed improprieties by Mr. Frazier. There is no question that

the conduct observed and reported to Respondent -- patting the

behind s of female students, conducting closed - door meetings with

female students, being caught in one such closed - door meeting

with a female student sitting across his lap, and engaging in so -

called horseplay by putting a plastic bottle between a female

studentÓ s legs -- were serious allegations of misconduct that

affects the health, safety, or welfare of students. The welfare

of MHS female students was plainly compromised by a staff

disciplinarian left free to touch their buttocks and play around

with their thigh s for years after complaints of this conduct was

first reported to Respondent.

99. Described as a Ðteacher aide,Ñ also known as education

paraprofessional, Mr. Frazier fell within the classification of

Ðinstructional personnel.Ñ See § 1012.01(2)(e) , Fl a. Stat.

100. Based on the Findings of Fact above, Respondent

knowingly failed to report alleged misconduct by instructional

personnel which affected the health, safety, or welfare of

students. The allegations were appropriately reported to him by

sever al different sources over the span of three school years.

Pursuant to the above - quoted statutes, state rule, and Board

policy, Respondent was required to convey those allegations to

the superintendentÓs office for further action. Such serious

allegations of misconduct require investigation, with suspension

with pay and reassignment to a position without direct contact

with students until the completion of the investigation.

§ 1012.796(5), Fla. Stat.

101. The above conclusions are augmented by the char ged

violations of rule 6A - 10.080(2) and (3), part of the State Code

of Ethics, providing:

(2) The educatorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

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 oneÓs

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.

102. Violations of these standards fall under the umbrella

of Ðmisconduct of office.Ñ The Findings of Fact above support a

conclusion that Respondent demonstrated by his ac tions, or more

aptly, his inactions, that his primary concern was not always for

students. It has already been concluded that Respondent has

committed misconduct in office; these standards simply underscore

RespondentÓs violation.

103. The facts foun d above do not support the charges of

immorality, as defined in rule 6A - 5.056(1). No record evidence

was specifically directed to the elements of this offense.

104. As to the charge of Ðincompetence,Ñ the conclusions

for the misconduct in office charge a lso support a conclusion

that Respondent failed to perform duties prescribed by law, which

constitutes Ðinefficiency,Ñ and , thus, Ðincompetence.Ñ Fla.

Admin. Code R. 6A - 5.056(3)(a)1. However , this charge is based

on the same conduct; compound charges ar e unnecessary.

105. The same can be said for the final charge of willful

neglect of duties, defined as Ðintentional or reckless failure to

carry out required duties.Ñ Fla. Admin. Code R. 6A - 5.056(5).

This charge is based on the same conduct and is supp orted by the

same analysis, as the misconduct in office charge, and is

considered a compound charge that is unnecessary.

106. RespondentÓs violations found above, based on the

allegations and charges in the Complaint, provide just cause to

terminate hi s employment during the annual contract term.

107. As a final matter, Respondent raised an Ðobjection to

procedureÑ with regard to the BoardÓs action suspending him

without pay pending the outcome of this hearing. When charges

are filed to terminate an employee such as Respondent, the Board

is authorized to suspend the employee without pay pending the

outcome of any administrative hearing requested by the employee.

See § 120.33(6)(b) , Fla. Stat. (providing that when charges are

filed to terminate admin istrative staff including any principal,

the Board may suspend the employee without pay, subject to

reinstatement with back pay if the charges are not sustained).

108. Respondent does not mention the BoardÓs statutory

authority. Instead, Respondent argu es that the Board violated

Policy 2.21(2)(b), by acting on the recommendation to suspend

Respondent without pay less than 21 days after serving Respondent

with the Complaint. As a result, Respondent contends that Ðeven

if the charges are sustained, Respon dent must be awarded back pay

from the date of his suspension to the date of the Final Order.Ñ

109. RespondentÓs reliance on Board Policy 2.21(2)(b) is

misplaced. That rule applies when Ða recommendation is made to

the School Board that an employee is to be suspended without pay

as a disciplinary action[.]Ñ In such a case, the complaint must

be served, for a non - instructional employee like Respondent, at

least 21 days prior to the Board meeting, coinciding with the

time within which the employee may requ est a hearing. If there

is a timely request for hearing, Ðthe agenda item will be removed

and the Board will take no action on the recommendation.Ñ That

is because when the proposed disciplinary action is suspension

without pay, the employee is entitled to challenge that proposed

action before it takes effect.

110. In contrast, where, as here, the proposed disciplinary

action is termination, a different procedure applies, prescribed

by Board Policy 2.21(2) ( c ) . The rule provides that the complaint

need o nly be served seven days before the Board meeting, and that

once the employee has been served with a complaint, Ðthe

Superintendent will recommend that the employee be suspended

without pay pending the outcome of the hearingÑ and the employee

and his repre sentative may argue to the Board why suspension

without pay pending the outcome of the hearing should not be

imposed. Unlike when suspension without pay is the proposed

disciplinary action, it is not necessary to delay Board action

until after the time to request a hearing has run, as long as the

Board does not act on the proposed disciplinary action, which is

termination of employment. Instead, as soon as charges a re

filed, the Board may exercise its statutory authority under

section 1012.33 to order sus pension without pay as an interim

measure, as an adjunct to proposed termination as the

disciplinary action.

111. The Board here acted properly, in accordance with

Board Policy 2.21(2)(c) and its statutory authority in section

1012.33. The Complaint was served ten days before the Board

meeting, and once the Complaint was served, the superintendent

proposed suspension without pay pending the outcome of any

hearing requested. Until the time had run for a hearing request,

the Board was precluded from taking action on the proposed

disciplinary action -- termination of employment -- but was

permitted, not only by its rule, but more importantly, by

statute, to act when it did to suspend Respondent without pay,

pending final resolution of the Complaint.

112. It is worth noting that RespondentÓs procedural

argument is based on a time provision in Board rule, which is not

in the statute authorizing the BoardÓs action. Had Respondent

been able to demonstrate that a time provision in an applicable

Board rule had not be en met, Respondent would not have been

entitled to the relief of invalidating the BoardÓs action,

because Respondent failed to allege or prove that he was

prejudiced by the alleged violation. Even for a time requirement

imposed by statute, absent correspo nding sanctions for

noncompliance, the requirement is interpreted to be procedural

only, violation of which must be shown to be prejudicial. See,

e.g. , Carter v. DepÓt of Prof. Reg. , 633 So. 2d 3 (Fla. 1994).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Manatee County School

Board, enter a final order terminating the employment of

Respondent, Matthew Kane.

DONE AND ENTERED this 30th day of September , 2014 , in

Tallahassee, Leon County, Flo rida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.stat e.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of September , 2014 .

ENDNOTE S

1/ The partiesÓ stipulated facts contained a few errors, which

have been corrected based on the evidence. For example,

stipulated fact 5 was: ÐOn January 2, 2012 , Respondent was

transferred from Assistant Principal at [Manatee High School] to

Interim Principal for the remainder of the 2010 - 2011 school

year.Ñ (emphasis added). The evidence establishes that the first

date is correct, but the school - year reference should have been

2011 - 2012. The erroneous year reference was carried forward in

stipulated facts 6 and 7, which have been corrected.

2/ Respondent did not file a written response to the emergency

motion to quash the subpoena h e had served on a Board member. In

the telephonic hearing, counsel for Respondent stated that a

newspaper report suggested that Ms. Aranibar may have some

relevant information, and he wanted to explore the matter. By

then, however, Respondent had had nea rly six months to engage in

discovery, to explore tidbits in newspaper stories and pursue

avenues that might lead to relevant information. RespondentÓs

argument would have been germane if the question was whether

Respondent would be allowed to timely seek discovery from

Ms. Aranibar, although without more, likely insufficient to

justify permitting discovery. RespondentÓs contention was

certainly insufficient to justify subpoenaing a member of the

agency head to testify at the final hearing. It was incum bent on

Respondent to establish that the agency head member was uniquely

able to provide relevant testimony and that Respondent had

exhausted other tools in discovery; Respondent failed to make the

necessary showing. See, e.g. , Univ. of W. Fla. v. Habegge r , 125

So. 3d 323, 325 (Fla. 1st DCA 2013) (quashing subpoena for

deposition of university president because party failed to show

that other discovery tools to obtain information were exhausted

and that president was uniquely able to provide relevant

infor mation not available from other sources); Horne v. Sch. Bd.

of Dade Cnty. , 901 So. 2d 238, 240 (Fla. 1st DCA 2005)

(confirming that Ð[d]epartment heads and similar high - ranking

officials should not ordinarily be compelled to testify unless it

has been esta blished that the testimony to be elicited is

necessary and relevant and unavailable from a lesser ranked

officerÑ [citations omitted] and extending rule to former agency

heads and similar officials).

3/ Several witnesses were Manatee High School students during the

relevant time and parents of those students. In an effort to

protect their privacy, initials are used to identify these

witnesses instead of their full names. There was no contention

that use of the full name of any such witnesses was necessa ry,

such as if their actual identity had been relevant or disputed.

4/ At the end of the last hearing day, Respondent asked for leave

post - hearing to offer all or part of a transcript of an interview

by Debra Horne of witness Jackie Peebles, as an impeac hment

exhibit. The request was granted, and Respondent was given seven

days to submit the proposed impeachment exhibit, after which

Petitioner would be allowed to file an objection to admitting the

document for impeachment purposes, and a determination wo uld be

made as to whether the transcript qualified as impeachment

evidence. Respondent did not act on the opportunity he requested

to offer such a post - hearing exhibit.

5/ The Board policies are contained in the School Board of

Manatee County Policy & Procedure Manual in evidence (P. Exh.

44). Each policy has a history note identifying the date(s) of

the policyÓs adoption and amendment, if any, by the Board.

6/ Respondent sought to undermine the credibility of R.S. and

L.S. by eliciting testimony tha t R.S. was a troublemaker who got

in a fight and was expelled from MHS before graduation. R.S. was

denied permission to walk in the graduation ceremony with her

class, or attend the senior prom, and she holds Mr. Kane at least

partly responsible. Respond ent also presented the testimony of

C.H., who denied entering the time - out room to ask Mr. Frazier if

he would be attending her lingerie party. But C.H. had her own

biases, admitting that she was friends with Mr. Frazier and that

she was not friends with R.S.; moreover, C.H. may not want to

acknowledge the statement attributed to her because it does not

reflect well on her. Ultimately, L.S. was the witness found to

have offered credible testimony. Despite RespondentÓs suggestion

that L.S. shared R.S.Ós b ias and motive to offer false testimony

against Mr. Kane to get him in trouble, L.S.Ós testimony rang

true. For example, L.S. testified that while sitting in her bus

at MHS one day, she observed Mr. Frazier massaging a female

student. However, when asked if she reported this to Mr. Kane,

L.S. said: ÐI donÓt think -- not that one.Ñ If L.S. had

fabricated her testimony to get Mr. Kane in trouble, she would

not have acknowledged omitting this incident from her report.

7/ Respondent sought to impeach Ms. Peebles by contending that

she never mentioned reporting the cake incident to Mr. Kane, and

that she only told Mr. Faller and Mr. Gulash, in her interview

with Ms. Horne on November 15, 2012. Ms. Peebles disagreed,

explaining that Ms. Horne did not want t o talk about older

incidents, and directed Ms. Peebles to talk about the more recent

incident that she reported to Mr. Faller and then tried to gain

his interest by also telling him about the prior cake incident.

However, Ms. Peebles testified that at som e point, she told

Ms. Horne that she also reported the older cake incident to

Mr. Kane. When counsel for Respondent asked Ms. Peebles to

review a transcript of the tape recorded interview, Ms. Peebles

said the tape recorder was not on the whole time . Ms. PeeblesÓ

explanation is credited. Ms. Horne had already gone on record as

brushing aside old allegations, and may not have been interested

in recording what Ms. Peebles said about having reported the

ÐoldÑ allegations. Nonetheless, at the end of t he hearing,

Respondent asked for leave to file all or part of the Horne

interview transcript as a proposed impeachment exhibit. As noted

in endnote 4, Respondent decided not to submit the transcript.

Respondent failed to effectively impeach Ms. PeeblesÓ testimony.

8/ Respondent mischaracterized the evidence in an attempt to

undermine Ms. PeeblesÓ testimony. Respondent proposed a finding

of fact suggesting that Ms. Peebles has an overall memory

problem, attributable to trauma suffered when she was held up at

gunpoint, which Ðaffected her memory, particularly with dates.Ñ

(R. PRO at 9, unnumbered footnote). To the contrary, Ms. Peebles

was simply and candidly explaining that she has always been bad

at remembering dates -- as an example, she said that she cannot

remember when she was held up at gunpoint while working at a bank

(before she began teaching eight years ago).

9/ Ms. Aragon also described an incident in the 2010 - 2011 school

year in which Mr. Frazier allegedly called a female student while

s he was in Ms. AragonÓs class and asked if she had gotten her

period yet. Ms. Aragon thought this was inappropriate and

reported it to Mr. Gagnon, who said he would look into it.

Mr. Gagnon delegated that task to Mr. Kane. Mr. Gagnon testified

that Mr . Kane talked to Mr. Frazier, after which Mr. Kane

reported that it was an innocuous situation in which Mr. Frazier

was trying to be helpful. Mr. Kane testified that he does not

recall this matter. There was no evidence to suggest this matter

was insuffi ciently investigated or handled inappropriately.

10/ References to Florida Statutes are to the (2013)

codification, the law in effect at the time of hearing. Insofar

as the statutes relied on impose disciplinary standards, it is

noted that there have no t been any material changes in the

standards during the time span of RespondentÓs actions and

inactions at issue. Presumably for that reason, both parties

rely on the 2013 codification of Florida Statutes in their PROs.

11/ As noted, statutory citation s are to the 2013 codification.

The definitions discussed above in section 39.01 were not changed

between the 2009 codification and 2013.

12/ The only alleged incident that would appear to fall within

the definition of Ðlewd and lascivious actsÑ as def ined in

chapter 800 was the bar - groping incident involving A.P. As found

above, that incident was not reported to Mr. Kane.

COPIES FURNISHED:

Brett Donald McIntosh, Esquire

766 Hudson Avenue , Suite B

Sarasota, Florida 34236

(eServed)

Terry Joseph Harm on, Esquire

Sniffen & Spellman, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

(eServed)

Rick W. Mills, Superintendent

Manatee County School Board

215 Manatee Avenue, West

Bradenton, Florida 34205 - 9069

(eServed)

Pam Stewart, Commissioner

De partment of Education

Turlington Building, Suite 1514

Tallahassee, Florida 32399 - 0400

(eServed)

Lois S. Tepper , Interim General Counsel

Department of Education

Turlington Building, Suite 1244

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RI GHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case .