13-004291 Manatee County School Board vs. Robert Gagnon Status: Closed Recommended Order on Monday, June 30, 2014.

Summary: Petitioner failed to prove by a preponderance of the evidence that Respondent committed the acts as alleged in the Administrative Complaint. The Administrative Complaint should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MANATEE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 13 - 4291

ROBERT GAGNON,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing w as held in this case on

April 21 through 23, 2014, in Bradenton, Florida. The parties

appeared before Administrative Law Judge Lynne Quimby - Pennock of

the Division of Administrative Hearings (Division).

APPEARANCES

For Petitioner: Terry Joseph Harmon, Es quire

Sniffen and Spellman, P.A.

123 North Monroe Street

Tallahassee, Florida 32301

For Respondent: Richard C. Reinhart, Esquire

310 13th Street West

Bradenton, Florida 34205

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner has just cause

to terminate Respondent from his employment contract.

PRELIMINARY STATEMENT

By letter dated October 4, 2013, Rick W. Mills, the

superinten dent of the School District of Manatee County (School

District) notified Respondent, Robert Gagnon (Mr. Gagnon or

Respondent) , that he was recommending the termination of

Mr. Gagnon Ó s employment with Petitioner, Manatee County School

Board (School Board o r Petitioner). This October 2013 letter

asserted that the School Board had just cause to discipline

Mr. Gagnon based on the alleged violations contained in the

Administrative Complaint. 1/

Mr. Gagnon timely requested an administrative hearing to

contest t he allegations. On November 6, 2013, the case was

forwarded to the Division for the assignment of an Administrative

Law Judge to conduct the hearing.

Pursuant to section 1012.33(6)(a)2., Florida Statutes

(2013), 2/ the parties were entitled to proceed to f inal hearing

within 60 days after Mr. Gagnon Ó s request for an administrative

h earing was received. The hearing was original ly scheduled to be

heard on January 13, 2014, however , on December 6, 2013, an

unopposed motion for continuance was filed. The hear ing was

rescheduled and heard on April 21 through 23, 2014 .

At the final hearing, the School Board presented the

testimony of Mr. Gagnon, the former principal of Manatee High

School (MHS); D.K., a former MHS student ; A.K., D.K. Ó s mother;

Steven Rinder, the coordinator of the student assistance program

for the School District; Donna Coates, a math teacher at MHS;

Patricia Lynn Aragon, an E nglish teacher at MHS; Keltie O Ó Dell, a

reading and learning strategies teacher at MHS; Steven Gulash, a

parent liaison a nd coach of several sports at MHS; Jaqueline

Peebles, an algebra and remedia l algebra teacher at MHS; Donald

Sauer, the current principal at MHS; Debra Horne, the former

specialist in the School DistrictÓs Office of Professional

Standards (OPS); Lionel Mar ines, a detective with the Bradenton

Police Department (BPD); Scott Martin, the former a ssistant

s uperintendent for the School District and its former attorney;

Christine Ruggiero, a School District employee; William Vogel, a

former interim superintendent of the School District; and Troy J.

Pumphrey, the current School District OPS specialist.

Petitioner Ó s Exhibits 1 (excluding pages 168 through 181) ; 3 ;

7(d) ( 3, 4, 5, 6 , 14 ) ; 24 ; 31 ; 32 ; 35 ; and 43 were admitted into

evidence. Petitioner Ó s Exhibits 47, 48, 61 , and 62 were

officially recognized . Mr. Gagnon testified on his own behalf

and presented the testimony of Danny Bench, a BPD s chool r esource

o fficer (SRO); Michelle McCarthy, the E nglish d epartment c hair at

MHS; Sheryl Lowe, a former orchestra dire ctor at MHS; Fredy

Ordonez, a BPD detective; and Linda Boone, the f oreign l anguage

d epartment c hair at MHS. Respondent did not offer any exhibits.

At the conclusion of the hearing, Petitioner requested to

file its proposed recommended order (PRO) within 1 4 days of the

filing of the transcript. The request was granted. The three -

volume Transcript of the hearing was filed on May 12, 2014. Both

parties timely filed their PROs , and each PRO has been duly

considered in the preparation of this Recommended Ord er.

On June 25, 2014, Respondent filed a Notice of Submission of

Supplemental Evidence and a Request for the Recommended Order to

be issued based on a judgment of not guilty . The standard of

proof in an administrative hearing is different from that of a

criminal case. The recommendation set forth below is based on

the testimony and evidence presented during the hearing that was

conducted on April 21 through 23, 2014.

FINDING S OF FACT

1. The School Board is duly constituted and charged with

the responsib ility and authority to operate, control and

supervise the public schools within Manatee County, Florida.

Art. IX, Fla. Const.; ch. 1012, Fla. Stat. The School Board has

the authority to discipline employees. § 1012.22 (1)(f), Fla.

Stat.

2. At all times relevant to this proceeding , Respondent was

employed by the School District. Mr. Gagnon has been in the

education field for approximately 23 years, and has been with the

School District since 2002. Mr. Gagnon served as an assistant

principal at Lakewood Ranch High School and as principal at

Palmetto High School, both of which are in Manatee County.

Mr. Gagnon was the principal at MHS beginning with the 2007 - 2008

school year. Mr. Gagnon served as the MHS principal until he

transitioned to the position o f a ssistant s uperintendent for

Curriculum and Instruction for the School District in

January 2012. Mr. Gagnon served as the i nterim s uperintendent

for approximately one month in September/October 2012 and then

returned to the a ssistant s uperintendent pos ition when another

person was appointed i nterim s uperintendent.

3. In 2005 the School District posted a position for a

specialist in the OPS to investigate alleged School District

employee misconduct. The then s uperintendent wanted to establish

a standa rdized method of investigating employee misconduct.

Ms. Horne interviewed for the position, and was appointed as the

first OPS specialist. As there were no School District policies

or rules in place when she started, Ms. Horne assisted in writing

the Sc hool District Ó s OPS policies. Sections 39.201 and 39.202,

Fl orida Stat u tes, are incorporated into the School District Ó s

policies and procedures as Policy 5.2(1), Policies and Procedures

Manual, School Board of Manatee County (2013), which provides:

(1) M andatory 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. Employees or agents so reporting

have immunity from liability if they re port

such cases in good faith. This includes

suspected child abuse of a student by an

employee.

Ms. Horne provided the training on this policy and other policies

to School District employees.

4. As the OPS investigator, Ms. Horne was to Ð investigate

all eged employee misconduct and other matters as assigned Ñ to her

by her supervisor. Ms. Horne never had the authority to

determine whether or not someone had engaged in misconduct or to

make any recommendations as to what may or may not have happened.

Her role was to simply gather the information, prepare a report

of her findings, and provide that report to her supervisor. In

November 2012 , Mr. Martin was the School District Ó s a ssistant

s uperintendent for District Support, and Ms. Horne Ó s direct

supervisor . During her eight - year tenure as the OPS s pecialist,

Ms. Horne investigated over 800 cases of employee misconduct.

5. The School District uses a progressive discipline model

for its employees. Should an employee exhibit behaviors that

could be consider ed inappropriate or misconduct, the School

District has a step - by - step method of taking disciplinary action,

from simply talking with the employee up to termination of

employment. If it is an egregious action, such as sexual conduct

with a student, immedi ate termination is an option. The

discipline begins on - site by the site - based managers where the

i ncident occurs. Those site - based managers could have that

simple conversation, and if need be, it could progress to a

verbal directive, a memorandum of conf erence, and/or a written

reprimand. Site - based managers include principals, assistant

principals, directors, and assistant directors. 3/ In those

instances where the disciplinary action could lead to days

without pay or termination, actions that could onl y be taken by

the School Board, OPS would open an investigation.

6. During the first two weeks of November 2012 , Mr. Rinder

was approached by several MHS teachers regarding concerns for

their students. When Mr. Rinder spoke with Mr. Sauer, MHS Ó s

principa l, about those concerns, Mr. Sauer asked Mr. Rinder to

type up the list (Rinder Ó s List) and give it to Mr. Sauer.

Mr. Sauer, in turn, forwarded Rinder Ó s List to the OPS.

Rinder Ó s List :

[1.] One staff member reported a phone call

to a female student duri ng class. The

student was upset by the call and told the

staff member that Mr. Frazier had asked her

if Ð she had gotten her period and did she

need him to go to the drug store for her. Ñ

[2.] One staff member reported that

Mr. Frazier repeatedly called for a female

student during class. When asked if it was

important, Mr. Frazier said Ð yes Ñ . [sic]

When the staff member asked the student what

the problem was, the answer was Ð My mom

wanted to take me to lunch and he helped me

do it Ñ . [sic]

[3.] Male stu dent was failing a core class.

He told the teacher that Ð Frazier told me

that he will change the grade Ñ . [sic]

[4.] A female student was observed getting

into Mr. Frazier Ó s vehicle after school hours

and was transported.

[5.] Female student told a staf f member that

she overheard students talking about several

meetings in the park late at night with

Mr. Frazier. She stated that Mr. Frazier

placed and [sic] empty water bottle between

her legs as she was walking down the

sidewalk.

[6.] Female student was observed sitting on

Mr. Frazier Ó s lap eating cake off his fork.

[7.] Female student reported to a staff

member that Mr. Frazier made a comment to a

student in the hall that he had put her on

skype [sic] and she took a picture and has it

saved on her cell phone. She is scared that

he will retaliate if she tells.

[8.] Female student told a staff member that

Mr. Frazier had made comments to her at the

Tiki Bar that she was old enough to be there

and they could talk. When she refused to

talk with him , she started having issues with

Mr. Frazier at school. She transferred to

LIFE program to get out.

[9.] Female student was reported to a staff

member by several students who stated that

she was having a relationship with

Mr. Frazier. She trans ferred schools. This

conversation was overheard by two teachers in

the hall.

[10.] The Math Department this week was

discussing Mr. Fraziers [sic] questionable

activities.

7. Upon receipt of Rinder Ó s List, Ms. Horne was directed to

open an investigati on into the allegations contained therein.

The subject of the investigation was an MHS parent liaison 4/ and

assistant football coach named Roderick Frazier. In a very

general sense, the allegations involved misconduct by a teacher.

8. Rinder Ó s List init iated the Frazier investigation .

However, Rinder Ó s List contains blatant hearsay which cannot form

the basis for a finding of fact without corroboration. There was

no testimony provided by any students mentioned in items 2, 3, 5

(first sentence), 7, 8, o r 9 above ; hence, it is impossible to

verify what occurred. Item 10 merely indicates that an entire

department at MHS discussed Ð questionable activities Ñ by an

individual, but it provides no specific activities. There was no

credible, non - hearsay evidenc e in this record to substantiate any

of these allegations (items 2, 3, 5 (first sentence), 7, 8, 9 or

10).

9. On November 14, 2012, an email with an attached letter

from then - Superintendent David Gayler, was sent to Mr. Sauer

around 8:40 p.m., advising hi m that Mr. Frazier was to be placed

on paid administrative leave (PAL) on Thursday, November 15.

Mr. Sauer notified Mr. Frazier appropriately. The School Board Ó s

policy regarding placing an employee on PAL is dependent upon

whether there is a potential for harm to any student and/or the

employee could incur a suspension or termination from employment.

10. Due to an on - going investigation at a different school ,

Ms. Horne did not arrive at MHS to begin the investigation until

the afternoon of Thursday, November 15. Ms. Horne first

interviewed Mr. Rinder, as Rinder Ó s List did not contain any

names of teachers or students who were allegedly involved. Upon

obtaining the names of the teachers who had expressed concerns,

Ms. Horne interviewed most of the te achers on November 15. By

the time Ms. Horne completed her teacher interviews, the students

had been dismissed from school and were no longer available.

11. At some time, Mr. Rinder observed a female student

getting into Mr. Frazier Ó s car after school ( Rinder Ó s List, Item

4). Mr. Rinder was not alarmed by this sight, but merely thought

it was Mr. Fazier Ó s son Ó s girlfriend getting a ride. There was

no testimony that Mr. Rinder ever brought this information to

Mr. Gagnon Ó s attention.

12. Ms. Aragon bro ught two concerns about Mr . Frazier to

Respondent Ó s attention: 1) she thought that girls were sitting

to o close to Mr. Frazier in golf carts at MHS; and 2) Mr. Frazier

had called her classroom telephone to talk with a female student.

Neither Ms. Aragon n or Mr. Gagnon were absolutely certain as to

when these concerns were brought to Mr. Gagnon Ó s attention:

Ms. Aragon thought they were brought to his attention during one

conversation , and Mr. Gagnon thought there were two separate

conversations approximate ly a year apart, based on the actions

that he took to address them. Mr. Gagnon Ó s testimony is more

credible.

13. Upon being told of the golf cart issue , Respondent

immediately went to the MHS courtyard and observed Mr. Frazier

with a female student sitti ng in his golf cart. At the same

time , Respondent observed two other assistant principals with

students of the opposite sex sitting in their golf carts.

Respondent addressed Mr. Frazier first, and then issued a

directive to his discipline staff that no o ne was to allow a

student to just sit in a golf cart. Respondent directed that if

there was a legitimate reason to transport a student, that was

fine, but students were no longer to just sit in the golf cart.

14. With respect to the telephone incident (Rinder Ó s List

Item 1), Mr. Frazier called Ms. Aragon Ó s classroom and bullied

his way to speak with the female student. After the student hung

up the phone with Mr. Frazier, she appeared to be upset.

Ms. Aragon immediately questioned the student , and Ms . Aragon

understood that Mr. Frazier had inquired about the student Ó s

menstrual cycle. Ms. Aragon thought it was Ð inappropriate Ñ for

Mr. Frazier to be speaking with a female student about her

menstrual cycle, but Ms. Aragon testified that she did not know

if the conversation impacted the student Ó s day. Ms. Aragon was

not privy to the actual conversation between the student and

Mr. Frazier, and the student with whom the conversation was held

did not testify. The actual telephone conversation is hearsay.

15. Ms. Aragon sought guidance from the teacher Ó s union

president as to what to do. When Ms. Aragon spoke with

Mr. Gagnon about Mr. Frazier Ó s telephone call, Mr. Gagnon

immediately turned the issue over to an assistant principal for

investigation. Bas ed on the report from the assistant principal,

Mr. Gagnon was not concerned that anything inappropriate or

sexual was happening. 5/

16. At some point in time , Ms. Coates overheard two female

students comment about Mr. Frazier. Although Ms. Coates asked

th e students to tell her directly the basis for their comment,

the students declined. (Neither student testified at hearing.)

Shortly thereafter, Ms. Coates told Respondent the students Ó

comment. Ms. Coates heard Mr. Gagnon respond that something was

goin g around on Facebook. Mr. Gagnon did not remember Ms. Coates

telling him of the students Ó comment. However, Mr. Gagnon

routinely reviewed the disciplinary records for the three parent

liaisons and was satisfied that Mr. Frazier was not showing

favoritism in his discipline to one group of students over

another. It is not uncommon for students to perceive that a

teacher is showing favoritism towards a student or group of

students.

17. At the conclusion of the teacher interviews on

November 15 , Ms. Horne understood that the allegations had

occurred a year or two before they were reported in Rinder Ó s

List. This thought process was reinforced when Ms. Horne met

with some of the MHS administrators in Mr. Sauer Ó s office where

they had a telephone conference w ith Mr. Martin. Following the

telephone conference, Ms. Horne returned to the School District Ó s

main office and again conferred with Mr. Martin for directions.

18. On November 15 or 16, 2012, Ms. Horne had a brief

conversation with Mr. Gagnon at the Sc hool Board building .

Mr. Gagnon asked about the Frazier investigation. Ms. Horne

responded that the only issues she was hearing had previously

been addressed, and that Ms. Horne would be returning for other

interviews. Additionally, Mr. Martin had a brie f conversation

with Mr. Gagnon about the Rinder List allegations. Mr. Gagnon

maintained that the allegations were old and had been dealt with

appropriately.

19. Ms. Horne shared with Mr. Martin that the Rinder List

allegations were old and had been dealt with previously. Based

on this information , Mr. Martin, in his sole discretion,

determined to remove Mr. Frazier from PAL on November 16, 2012,

and return him to work. Ms. Horne was surprised by this , as her

investigation was incomplete. Ms. Horne inte rviewed Mr. Frazier

as well as one other teacher , on November 16, 2012 . Although

Ms. Horne had the name of an alleged victim, Mr. Martin directed

her not to interview that student at that time.

20. In January 2013 , a former MHS female student, D.K. ,

wro te a letter to MHS alleging that Mr. Frazier did various

inappropriate acts towards her while she was a student at MHS

during the 2010 - 2011 and 2011 - 2012 school years. In her letter,

D.K. stated that she became close to Mr. Frazier during her two

years at MHS. D.K. met Mr. Frazier at a park near her home, but

during her second year at MHS (2011 - 2012), Mr. Frazier Ð started

being weird with [her] and saying inappropriate things to Ñ her.

D.K. admitted that she frequently rode in Mr. Frazier Ó s golf cart

arou nd the school, and that Mr. Frazier put a water bottle

(Rinder Ó s List Item 5, second sentence) in between her legs

(between her knees and crotch) as they were sitting in the

bleachers at the softball field and while sitting in a golf cart.

D.K. came forwa rd with the letter because she had heard of the

Frazier investigation and that it was being closed.

21. Several days after D.K. Ó s letter was received in OPS ,

Ms. Horne interviewed D.K., who was accompanied by her mother.

Ms. Horne was unable to confirm D .K. Ó s credibility completely

because Ms. Horne left OPS prior to the conclusion of the Frazier

investigation.

22. The most disturbing part of D.K. Ó s testimony cam e when

D.K. admitted, and Ms. Peebles confirmed, that during the 2010 -

2011 school year, Ms. P eebles walked into Mr. Frazier Ó s office

unannounced and observed D.K. sitting on Mr. Frazier Ó s lap

holding a piece of cake (Rinder Ó s List Item 6). Ms. Peebles

immediately instructed D.K. to get off Mr. Frazier Ó s lap and to

sit in a chair on the other sid e of his desk. Mr. Frazier

appeared to be unfazed by Ms. Peebles entering his office

unannounced and witnessing this scene. Mr. Frazier proceeded to

handle the disciplinary matter that Ms. Peebles had brought to

him. Ms. Peebles reported the observation to an assistant

principal, Matthew Kane, but not to Respondent. Ms. Peebles did

not believe there was abuse on - going, but thought it was Ð not

appropriate Ñ for Mr. Frazier to have a student sitting on his

lap.

23. D.K. testified that Ð after he [Mr. Frazi er ] got in

trouble he started getting me [D.K.] in trouble for things that I

had been getting away with the whole time I was there [at MHS]. Ñ

D.K. did not provide a time - frame or what Ð trouble Ñ Mr. Frazier

had gotten her into while D.K. was at MHS , and no evidence was

provided otherwise. Further, D.K. never told Mr. Gagnon of any

issues involving Mr. Frazier. D.K. was enrolled at a different

local high school when Mr. Frazier was placed on PAL.

24. Ms. Peebles relayed another issue regarding

Mr. Frazie r ; however , it involved hearsay and was not

corroborated by the student who initially reported the issue to

Ms. Peebles. The absence of direct, non - hearsay testimony

precludes a finding of fact as to that issue.

25. In late January 2013 , Ms. Horne transf erred to an

assistant principal position at a s chool d istrict elementary

school. Both Ms. Horne and Mr. Martin confirmed that the Frazier

investigation had not been completed when Ms. Horne left OPS.

Ms. Horne had not submitted a written report to her sup ervisor

which would have signaled the completion of the Frazier

investigation.

26. The specialist position in OPS remained vacant until

July 2013 when Mr. Pumphrey assumed the position. Mr. Pumphrey

confirmed that there Ð had been an ongoing investigation both at

the School District level and law enforcement surrounding Rod

Frazier. Ñ In an effort to gain speed in his investigation,

Mr. Pumphrey reviewed the Frazier investigation file and became

aware that the School District Ð had stalled their investigat ion

pending the outcome of the criminal investigation. Ñ Mr. Pumphrey

reviewed Mr. Frazier Ó s personnel file and determined there was

Ð no documentation of any discipline to Mr. Frazier. Ñ

Additionally, Mr. Pumphrey pulled all the published information

inclu ding media accounts and police reports, and reviewed them.

As Mr. Martin had been instrumental in hiring Mr. Pumphrey, the

two spoke several times Ð because this thing [the Frazier

investigation] was all over the place. Ñ

27. Several days after re - starting the Frazier

investigation , Mr. Pumphrey expressed to the superintendent his

concern about the close proximity of Mr. Pumphrey Ó s office to

that of Mr. Gagnon and requested that Mr. Gagnon 6/ be placed on

PAL. The superintendent did so.

28. During the cour se of the Frazier investigation ,

Mr. Pumphrey considered that Mr. Gagnon Ó s actions or inactions

during the course of the Frazier investigation constituted

Ð administrative negligence and/or intentional misconduct. Ñ

Mr. Pumphrey broadened the Frazier inve stigation to determine

whether d istrict administrators Ð had prior knowledge of

complaints by female students and faculty regarding inappropriate

conduct involving Frazier and, if so, why the complaints were not

timely addressed. Ñ

29. There is no credible, non - hearsay evidence in the

record to substantiate that Mr. Gagnon failed to investigate or

report inappropriate conduct by a faculty member. When apprised

of questionable or suspect conduct, Mr. Gagnon took the steps

necessary to inquire. The absence o f direct, non - hearsay

testimony precludes a finding that Mr. Gagnon acted in the

fashion alleged in the administrative complaint .

CONCLUSIONS OF LAW

30. The Division has jurisdiction over the parties to and

the subject matter of this proceeding, pursuant to a contract

with the Board. The proceedings are governed by sections 120.57

and 120.569, Florida Statutes.

31. The School Board is charged with the duty to operate,

control and supervise all free public schools within the School

District of Manatee Cou nty. § 1012.22, Fla. Stat.

32. The Superintendent of the Sc hool Board has the

authority to recommend to the School Board that an employee be

suspended or dismissed from employment. § 1012.27, Fla. Stat.

33. The School Board has the burden of proving the

allegations in its Administrative Complaint by a preponderance of

the evidence. Cropsey v. Sch. Bd. of Manatee Cnty. , 19 So. 3d

351, 355, (Fla. 2d DCA 2009) , rev . denied , 20 So. 3d 1118 (Fla.

2010); Cisneros v. Sch. Bd. of Miami - Dad e Cnty. , 990 So. 2d 11 79

(Fla. 3d DCA 2008).

34. The preponderance of the evidence standard Ð is defined

as Ò the greater weight of the evidence, Ó Black Ó s Law Dictionary

1201 (7 th ed. 1999), or evidence that Ò more likely than not Ó

tends to prove a certain proposition. Ñ Gross v. Lyons , 763 So.

2d 276, 289 n.1 (Fla. 2000). See also Haines v. Dep Ó t of Child.

& Fams. , 983 So. 2d 602, 606 (Fla. 5 th DCA 2008).

35. The allegations set forth in the Administrative

Complaint dated October 4, 2013, are the facts upon which this

proceedin g is predicated. Trevisani v. Dep Ó t of Health , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005).

36. Section 1012.795(1) provides in pertinent part:

(1) The Education Practices Commission may

suspend the educator certificate of any

person as defined in s. 1012 .01(2) or (3) for

up to 5 years, thereby denying that person

the right to teach or otherwise be employed

by a district school board or public school

in any capacity requiring direct contact with

students for that period of time, after which

the holder may return to teaching as provided

in subsection (4); may revoke the educator

certificate of any person, thereby denying

that person the right to teach or otherwise

be employed by a district school board or

public school in any capacity requiring

direct contac t with students for up to 10

years, with reinstatement subject to the

provisions of subsection (4); may revoke

permanently the educator certificate of any

person thereby denying that person the right

to teach or otherwise be employed by a

district school b oard or public school in any

capacity requiring direct contact with

students; may suspend the educator

certificate, upon an order of the court or

notice by the Department of Revenue relating

to the payment of child support; or may

impose any other penalty provided by law, if

the person:

* * *

(b) Knowingly failed to report 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 wel fare of a student as required

in s. 1012.796.

37. Administrative Code Rule 6A - 10.080 provides in

pertinent part:

6A - 10.080 Code of Ethics of the Education

Profession in Florida.

* * *

(2) The educator Ó s primary professional

concern will always be f or the student and

for the development of the student Ó s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one Ó 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.

38. Florida Administrative Code Rule 6A - 10.081 provides in

pertinent pa rt:

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the student Ó s mental

and/or physical health and/or safety.

* * *

(5) Obligation to the profession of

education requires that the individual:

(a) Shall maintain honesty in all

professional dealings.

* * *

(n) Shall report to appropriate authorities

any known allegation of a violation of the

Florida School Code or State Board o f

Education Rules as defined in Section

1012.795(1), F.S.

39. Manatee County School Board Policy 6.9 (Ethics)

provides in pertinent part the following:

POLICY

All school board employees, because of their

responsibility as role models to the children

of the Manatee County community, shall be

held to a high moral and ethical standard of

conduct, both in their everyday employment

and in their roles within the community.

All employees, including administrative and

instructional staff members, shall receive

and familiarize themselves with the Ð Code of

Ethics of the Education Profession in

Florida, Ñ located in the State Board of

Education Rules. All employees shall abide

by the code at all times, and shall be held

to the standards of the code in all matters

related to their employment with the Manatee

County School Board.

The School Board of Manatee County supports

strong internal control in its procedures and

practices. All incidents of suspected

improprieties should be reported to the

Superintendent or fi led with the designated

official using the Board adopted employee

grievance procedures.

If the provisions of this policy are found to

be inconsistent with the clear language of an

employee collective bargaining agreement, the

terms of the collective barga ining agreement

shall prevail.

PROCEDURES

(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 for dismissal.

(a) All employees are expected to notify

their supervisor or other appropriate

administrator, subject to established

procedures, of any violations of law, School

Board rule, instances of discrimination,

suspected child abuse, or inappropriate use

of district facilities, properties or funds.

(b) Anyone know to be violating a local,

state, and /or federal law on School Board

property or at a school function will be

subject to referral for prosecution to the

appropriate law enforcement agency. Such

violations when known should be referred to

the Superintendent Ó s office.

(2) All employees shall self - report to their

immediate supervisor and to the

Superintendent Ó s office within forty - eight

(48) hours if they are directly involved in

any of the following:

(a) Any arrest/charges against themselves

involving the abuse of a child . . . .

40. Manatee County School Board Policy 6.11 (Procedures

Governing Employment: District Rules of Work) provides in

pertinent part:

POLICY

The Superintendent shall recommend to the

School Board procedures governing the conduct

of employees including conflict of interest,

nepotism, alcohol and drug abuse, transfers,

resignation, retirement and involuntary

terminations. This shall include the

establishment of procedures to address

employee grievances. To the extent that

these procedures conflict with the clear

language of a collective bargaining

agreement, that agreement shall prevail.

PROCEDURES

(1) Suspension or Termination of Employees:

Any employee of the School Board may be

temporarily suspended, with or with out pay,

or permanently 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 turpi tude,

violation of the Policies and Procedures

Manual of the School District of Manatee

County, violation of any applicable Florida

statute [sic], violation of the Code of

Ethics and the Principles of Professional

Conduct of the Education Profession in

Flo rida.

* * *

(12) Termination:

Termination from employment may occur as

follows:

* * *

(c) Involuntary Termination:

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 a ny

applicable Florida statute [sic], violation

of the Code of Ethics and the Principles of

Professional Conduct of the Education

Profession in Florida.

41. As set forth in the findings of fact, Petitioner failed

to prove by a preponderance of the evidenc e that Respondent

violated any of the specifi ed statutes, rules, or School Board

policies. There was no direct, non - hearsay evidence that

Respondent knowingly failed to perform his duties as principal or

assistant superintendent in the appropriate manner. To the

extent there is a statute, rule, School Board policy, or

employment contract that authorizes such relief, Mr. Gagnon

should be reinstated and awarded full back pay and benefits. See

Sch. Bd. o f Seminole Cnty. v. Morgan 582 So . 2d 787, 788 (Fla.

5 th DCA 1991); Brooks v . Sch. Bd. Of Broward Cnty. , 419 So. 2d

639, 661 (Fla. 5 th DCA 1982).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Manatee County School

Board, enter a final or der dismissing the Administrative

Complaint in its entirety.

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

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrativ e Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of June , 2014 .

ENDNOTE S

1/ The Administrative Complaint contains a reference that an

Ð Exhibit A Ñ was attached to it; it was not.

2/ All statutory references are to Florida Statutes (2013),

unless otherwise indicated.

3/ Directors and assistant directors include managers and

assistant managers of non - instructional services personnel such

as transportation personnel, custodians, electricians, etc.

4/ A parent liaison is a school disciplinarian. In this case,

during the applicable time, MHS had three parent liaisons.

5/ The simple fact that a female teenage student choose s to speak

with a male teacher about her menstrual issue may be unsettling

to some, but that, in and of itself, does not constitute abuse.

6/ The request also included that Mr. Martin be placed on PAL and

that a legal assistant be relocated away from the School Board

offices.

COPIES FURNISHED:

Richard C. Reinhart, Esquire

310 13th Street West

Bradenton, Florida 34205

Terry Joseph Harmon, Esquire

Sniffen and Spellman, P.A.

123 North Monroe Street

Tallah assee, Florida 32301

Robert J. Sniffen, Esquire

Sniffen and Spellman, P.A.

211 East Call Street

Tallahassee, Florida 32301

Rick W. Mills, Superintendent

Manatee County School Board

215 Manatee Avenue West

Bradenton, Florida 34205 - 9069

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

Tallahassee, Florida 32399 - 0400

Matthew Carson, General Counsel

Department of Education

Turlington Building, Suite 1244

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCE PTIONS

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.