14-001278TTS Palm Beach County School Board vs. Mary Maloney Status: Closed Recommended Order on Monday, March 30, 2015.

Summary: Petitioner established by clear and convincing evidence that just cause existed to terminate Respondent's employment for misconduct in office and immorality. Recommend termination of employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 14 - 1278TTS

MARY MALONEY,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Todd P.

Resavage for final hearing on December 2 and 3 , 2014, in West

Palm Beach, Florida.

APPEARANCES

For Petitioner: Jean Marie Middleton, Esquire

School District of Palm Beach County

Office of General Counsel

Suite C - 323 (33406)

3300 Forest Hill Boulevard

Post Office Box 19239

West Palm Beach, Florida 33416 - 9239

For Respondent: Nicholas Caggia, Esquire

Law O ffice of Thomas L. Johnson

510 Vonderburg Drive, Suite 309

Bra ndon, Florida 33511

STATEMENT OF THE ISSUE

Whether just cause exists to terminate Respondent ' s

employment as a teacher with the Palm Beach County School

District for the reasons alleged in the Petition ( " Complaint " ) .

PRELIMINARY STATEMENT

On December 6, 2013, E. Wayne Gent, Superintendent for the

School District of Palm Beach County ( " District " ), Florida,

notified Respondent that he would recommend a 15 - day suspension

without pay and termination of Respondent ' s employment with the

District at the sched uled January 8, 2014, School Board Special

Meeting. On January 8, 2014, the School Board accepted the

recommendation of termination from employment following a 15 - day

suspension without pay.

Respondent timely requested a formal administrative hearing .

O n March 18, 2014, Petitioner issued the Complaint, and on the

same date, referred the matter to the Division of Administrative

Hearings ("DOAH") , where it was assigned to the undersigned.

Petitioner ' s Complaint alleges that just cause exists to

terminate Respondent ' s employment based upon Respondent ' s arrest

and subsequent adjudication of guilt concerning several criminal

charges. Petitioner contends that the same violates Florida

Admini strative Code Rules 6A - 5.506(1) and (2), 6A - 10.080(3); and

School Board Policies 1.013(1), 3.10(6), 3.27 , 3.96(4)(b) and

(2)(v), 3.02(4)(b) and (5)(h)(iv) .

The final hearing initially was set for June 9, 2014.

Thereafter, the final hearing was continued, upon motion, several

times, and ultimately conducted on December 2 and 3, 2014. Both

parties were represented by counsel. The final hearing

Transcript was filed on December 19, 2014. The identity of the

witnesses and exhibits and the rulings regarding each are as set

forth in the Transcript.

On January 6, 2015, the p arties filed a Joint Agreed Motion

for Extension of Time to File Proposed Recommended Orders. The

motion was granted and the parties were ordered to file proposed

recommended orders on or before February 6, 2015. Thereafter,

Respondent filed an Unopposed Motion for Extension of Time to

File Proposed Recommended Order. The motion was granted and the

parties were ordered to file proposed recommended orders on or

before February 16, 2015. The parties timely filed proposed

recommended orders, which were con sidered in preparing this

Recommended Order. Unless otherwise indicated, all rule and

statutory references are to the versions in effect at the time of

the alleged violation.

FINDING S OF FACT

1. Petitioner is the entity charged with the duty to

operate, control, and supervise the public schools within Palm

Beach County, Florida.

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

employed as a math teacher at Palm Springs Middle School, a

public school in Palm Beach County, Florida.

Stipulated Facts

3. The Collective Bargaining Agreem ent between the School

District of P alm Beach County, Florida, and t he Palm Beach County

Classroom Teachers Association was in effect at all times

pertinent to this proceeding.

4 . Pursuant to the parties ' Joint Pr e - Hearing Stipulation,

the facts contained in paragraphs 5 through 10 below are admitted

and required no proof at final hearing.

5 . On January 13, 201 3 , Respondent was arrested for the

following criminal charges: (1) hit and run Ï leaving the scene of

a crash involving damage to property; (2) resisting an officer

without violence; (3) DUI - unlawful blood alcohol Ï refusal to

submit to DUI test; (4) knowingly driving with a suspended

license; and (5) bribery of a public servant (two counts).

6 . On July 22, 2013, Respondent was adjudicated guilty of

the following charges: (1) driving under the influence causing

injury to person or property in violation of section 316.193,

Florida Statutes; (2) leaving the scene of a crash involving

damage in violation of sec tion 316.061, Florida Statutes; and

(3) resisting an officer without violence in violation of section

843.02, Florida Statutes.

7 . Respondent ' s arrest resulted in media attention, with

headlines including: (1) " Mary Maloney: Palm Springs teacher

offe rs police sexual favor after DUI arrest, police say " ;

(2) " Police: Teacher offers sexual favors to officer to avoid

DUI arrest. Mary Maloney accused of leaving scene of hit - and - run

crash " ; (3) " Mary Maloney, Fla. Teacher, offers sexual favor to

cop after DUI arrest, police say " ; and (4) " Mary Maloney,

Teacher, Allegedly Offers Oral Sex to Police Officer After Hit -

and - Run Charge. "

8 . Respondent was reassigned from her position teaching

students on February 25, 2013, and remained on this assignment

out of the classroom until January 8, 2014, when the School Board

voted to terminate her employment.

9 . On December 15, 2006, Respondent signed a Drug Free

Workplace Policy acknowledgement stating that she had reviewed

the policy and that compliance was m andatory.

10 . Respondent ' s discipline history revealed a prior

violation of the Drug Free Workplace policy. She received a

written reprimand on October 12, 2009, for violating School Board

Policy 3.96 Drug and Alcohol Free W orkplace when she was under

th e influence of a prohibited substance while off duty w hich

resulted in a conviction under se ction 316.193, Florida Statutes -

- d riving u nder the i nfluence.

Non - Stipulated Facts

11 . As a result of her adjudication of guilt on July 22,

2013, Respondent was sentenced to 12 months of probation, 30 days

in the Palm Beach County Jail, 60 days house arrest (during which

she was required to wear a Scram monitor), 150 hours of community

se rvice, court costs and fines. Respondent testified that she

was permitted to wo rk while she was serving her 60 - day period of

house arrest.

12 . Anthony D ' Orsi, a police officer for the City of

Greenacres, provided unrefuted testimony that while he was

transporting Respondent from the scene of the DUI arrest to the

police station, Respondent advised him that she was a school

teacher and implied that she wanted to perform oral sex on

Officer D ' Orsi and allow him to " play with her breasts " in

exchange for her release.

13 . On January 13, 2014, Matthew Stockwell was employed as

a police officer with the City of Greenacres. Officer Stockwell

provided unrefuted testimony that, after he placed Respo ndent in

his patrol car, she mad e numerous statements regardi ng that she

was sorry for what had occurred and inquired as to how much it

would cost for Officer Stockwell to release her.

14 . Respondent ' s arrest was reported on the Channel 5 News

program under the headline of " Middle School Teacher Arrested O n

DUI, Hit A nd Run Ï Greenacres Police Say She Tried To Bribe Them

With Sex. " The coverage included her photograph, and among other

statements, her name, age, and position at Palm Springs Middle

School .

1 5 . Prior to the subject incident, Respondent received

sat isfactory evaluations as a teacher. Respondent was rated as

either effective or highly effective for the 2011 - 2012 school

year.

CONCLUSIONS OF LAW

1 6 . DOAH has personal and subject matter jurisdiction in

this proceedi ng pursuant to sections 120.569 and 120.57(1),

Florida Statutes. Pursuant to section 120.65( 9 ), Petitioner has

contracted with DOAH to conduct these hearings.

1 7 . Petitioner seeks to terminate Respondent ' s employment.

In order to do so, Petitioner typically must prove by a

preponder ance of the evidence that Respondent committed the

violations alleged in the Petition. McNeill v. Pinellas Cnty.

Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of

Dade Cnty. , 571 So. 2d 568, 569 (Fla. 3d DCA 1990). Where, as

here, through the collective bargaining process, the school board

has agreed to bear a more demanding standard, it must honor, and

act in accordance with, its agreement. Hillsborough County

Government Employees Association v. Hillsborough County Aviation

Authority , 522 So. 2d 358, 363 (Fla. 1988). I n the instant case,

t he Collective Bargaining Agreement ( " CBA " ) between t he School

District of Palm Beach County, Florida, and t he Palm Beach County

Classroom Teachers Association provides that Petitioner has the

burden of proving by clear and convincing evidence just cause for

disciplining Respondent.

18 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court

developed a " workable definition of clear and convincing

evidence " and found that of necessity such a definition would

need to contain " both qualitative and quantitative standards. "

The Court held that

[C]lear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which t he witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking confusion as to the facts at

issue. The evidence must be of such weight

that it produces in the mind of the trier of

fact a fi rm belief or conviction, without

hesitancy, as to the truth of the allegations

sought to be established.

Id .

19 . The Florida Supreme Court later adopted the Slomowitz

court ' s description of clear and convincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District Court

of Appeal also has followed the Slomowitz test, adding the

interpretive comment that " [a]lthough this standard of proof may

be met where the evidence is in conflict . . . it seems to

preclude evidence tha t is ambiguous. " Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev. denied , 599 So. 2d 1279 (Fla. 1992)(citations omitted).

20 . Any member of the instructional staff in a district

school system may be suspended or dismissed at any time during

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

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

21 . The ter m " just cause " :

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

following instances, as defined by rule of

the State Board of Education: immorality,

misconduct in office, incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s . 1012.34 ,

two annual performance evaluation ratings of

unsatisfactory within a 3 - year period under

s. 1012.34 , three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement and unsatisfactory under

s. 1012.34 , gross insubordination, willful

neglect of duty, or being convicted or foun d

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

§ 1012.33(1)(a) , Fla. Stat .

22 . In its Petition, Petitioner avers two grounds for

terminating Respondent: " immorality " and " misconduct in office. "

Whether Respondent is guilty of these charges, which are

discussed separately below, is a question of ultimate fact to be

decided in the context of each alleged violation. McKinney v.

Castor , 667 So. 2d 387, 389 (Fla. 1st DCA 1995) ; Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1996).

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

Board of Education authority to adopt rules pursuant to sections

120.536(1) and 120.54 to implement provisions of law conferring

duties upon it.

Misconduct in Office

24 . As noted above, Petitioner contends that Respondent has

committed " misconduct in office. " Florida Administrative Code

Rule 6A - 5.506(2) provides as follows:

" Misconduct in Office " means one or more of

the followi ng:

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

Education Profession in Florida as adopted in

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

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6B -

1.006, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the student ' s

learning environment; or

(e) Behavior that reduces the teacher ' s

ability or his or her colleagues ' ability to

effectively perform duties.

25 . In its C omplaint, Petitioner fails to specifically

plead which subsection of the rule Respondent has violated.

Reviewing the Complaint as a whole , the undersigned construes the

Complaint as alleging violations of subsections (a) and ( c ).

26 . Florida Admin istrative Code Rule 6B - 1.001, renumbered

as rule 6A - 10.080, is entitled " Code of Ethics of the Education

Profession in Florida, " and provides as follows:

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to t each and the guarantee of equal

opportunity for all.

(2) The educator ' s primary professional

concern will always be for the student and

for the development of the student ' s

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best professional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of one ' s

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

2 7 . The undersigned concludes that Petitioner failed to

establish by clear and convincing evidence that Respondent

violated the aspir ational goals set forth in rule 6A - 10.080.

2 8 . Petitioner alleges that Respondent violated several

School Board Rules addressed separately below. Petitioner

charges Respondent with a violation of Policy 3.96, entitled

" Drug - and Alcohol - Free Workplace. " Section 3.96(4)(b) provides

as follows:

Prohibited Conduct. Ï The following types of

conduct are expressly prohibited for all

employees , applicants, and volunteers and

shall result in disciplinary action up to and

including termination of emplo yment (or

termination of volunteer services),

consistent with the applicable collective -

bargaining agreement, if any.

* * *

b. Off - the Job. Ï Off - the - job use or

involvement with illegal drugs, alcohol, or

other controlled substances may subject an

employe e to disciplinary action under

applicable Board Policies such as 3.12 and

3.13; applicable State Board of Education

Rules such as 6B - 4.009(2), (5); and the

applicable collective bargaining agreement,

if any.

2 9 . Section 3.94(2)(v), entitled " Second Offense, " provides

that, " [a]ny violation of this drug - free workplace Policy

(whether by alcohol or other drugs) following the initial

violation, whether either violation involves alcohol or other

drugs, constitutes the second offense. "

30 . Respondent h as stipulated that she was adjudicated

guilty of the following charges: (1) driving under the influence

and causing injury to person or property in violation of section

316.193, Florida Statutes; (2) leaving the scene of a crash

involving damage in violat ion of section 316.061, Florida

Statutes; and (3) resisting an officer without violence in

violation of section 843.02, Florida Statutes. Respondent

further stipulated that she was previously convicted of driving

under the influence, in violation of secti on 316.193, Florida

Statutes. Accordingly, Petitioner has established by clear and

convincing evidence (and Respondent concedes in her P roposed

R ecommended O rder) that Respondent violated School Board Policy

3.96(4)( b) and 3.96(2)(v), and, therefore, is guilty of

misconduct in office.

31 . Petitioner further charges Respo ndent with a violation

of Policies 3.02(4)(b) and 3.02(5)(h)(iv). Section 3.02(4)(b)

provides as follows:

4. Accountability and Compliance

Each employee agrees and pledges:

* * *

b. To obey local, state and national laws,

codes and regulations.

32 . Section 3.02(5)(h)(iv) provides as follows:

h. Criminal Acts - We are committed to

reporting criminal conduct, and other conduct

that damages the integrity or reputation of

the School district. Employees should abide

by federal, state and local laws. Unethical

conduct includes but is not limited to:

* * *

iv. Committing or being convicted of

criminal acts as provided in School Boar d

Policy 3.13 (Self Reporting of Arrests and

Convictions by School District Employees).

33 . As discussed above, Respondent was adjudicated guilty

of several criminal acts. The undersigned concludes, and

Respondent concedes in her P roposed R ecommen ded O rder, that the

same constitutes a violation of School Board Policy 3.02, and,

therefore, Respondent is guilty of misconduct of office.

34 . Petitioner further avers that Respondent violated

School Board Policies 1.103(1) and 3.10(6), which provi de as

follows:

Policy 1.103 Responsibilities of School

District Personnel and Staff

1. It shall be the responsibility of the

personnel employed by the district school

board to carry out their assigned duties in

accordance with federal laws, rules, state

statutes, state board of education rules,

school board policy, superintendent ' s

administrative directives and local school

and area rules.

Policy 3.10 Conditions of Employment With the

District

* * *

6. The District requires its employees to

carry out their responsibilities in

accordance to School Board Policy 1.013 (As

may be amended), their job descriptions and

reasonable directives from their supervisors

that do not pose an immediate serious hazard

to health and safety or clearly violate

established law or policy.

35 . Th e undersigned concurs with Respondent that the above -

cited School Board rules apply to the performance of assigned

duties while at work. It is undisputed that the conduct at issue

in the instant proceedings occurred off - duty, and, therefore,

Petitioner has not established a violation of Scho ol Board

Policies 1.103(1) and 3.10(6).

Immorality

36 . As noted above, Petitioner contends that Respondent has

committed " immorality. " Florida Administrative Code Rule 6A -

5.506(1) defines " immorality " as " conduct that is inconsistent

with the st andards of public conscience and good morals. It is

conduct that brings the individual concerned or the education

profession into public disgrace or disrespect and impairs the

individual ' s service in the community. "

37 . Petitioner did not offer any persuasive evidence

establishing the applicable " standards of public conscious and

good morals . " In the instant case, however, the undersigned

concludes that it is axiomatic that, by virtue of their

leadership position, teachers are traditionally held to a high

moral standard in the community. See Adams v. Prof ' l Practices

Council , 406 S o. 2d 1170, 1172 (Fla. 1st DCA 1981). Respondent

acted contrary to the high moral standards for teachers when she

chose to drive under the influence and assert unbecoming remarks

to law enforcement during her arrest.

38 . This does not end the inquiry, howeve r, as Petitioner

must establish that Respondent ' s conduct brought her or the

education profession into public disgrace or disrespect and

impair ed her service in the community . Here, Petitioner

presented sufficient evidence to establish the public nature o f

her arrest which resulted in media attention. The undersigned

concludes that her conduct at issue brought her into public

disgrace or disrespect.

3 9 . Petitioner presented sufficient evidence to establish

that her arrest and subsequent conviction impaired her service in

the community. Indeed, following her conviction, Respondent was

sentenced to one year of probation, 30 days in jail, and was

placed on house arrest for 60 days. Accordingly, Petitioner has

established by clear and convincing evid ence that Respondent ' s

conduct constituted immorality as defined in rule 6A - 5.056.

40 . Respondent contends application of the progressive

disciplinary policy of the operative CBA mandates a sanction less

severe than termination. The undersigned is unaware of and has

not been cited to any authority for the proposition that DOAH is

authorized to adjudicate alleged violation s , misinterpretation s ,

or misapplication s of the CBA. Any claim that Petitioner

violated the progressive discipline requirements of the CBA

should have been addressed utilizing the grievance procedure

contained in the CBA, rather than in this proceeding. 1 /

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Palm Beach County School Board

enter a final order finding Mary Maloney guilty of misconduct in

office and immoralit y, and terminating her employment.

DONE AND ENTERED this 30th day of March , 2015 , in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

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.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of March , 2015 .

ENDNOTE

1/ Accordingly , the undersigned has not included in the Findings

of Fact section of this Recommended Order any facts concerning

progressive discipline. Notwithstanding, the School Board's

recommendation of termination is not inconsistent with the

exception contained in the CBA that allows for skipping

professional discipline steps where the actions or inactions of

the employee constitute clearly flagrant and purposeful

violations of reasonable school board rules and regulations.

COPIES FURNISHED:

Nicholas Anthony Caggia, Esquire

Law Office of Thomas L. Johnson

510 Vonderburg Drive , Suite 309

Brandon, Florida 33511

(eServed)

Jean Marie Middleton, Esquire

School District of Palm Beach County

Office of General Counsel

Suite C - 323 (33406)

3300 Forest Hill Bou levard

Post Office Box 19239

West Palm Beach, Florida 33416 - 9239

(eServed)

E. Wayne Gent, Superintendent

Palm Beach County School Board

3300 Forest Hill Boulevard, C - 316

West Palm Beach, Florida 33406 - 5869

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.