14-003251TTS Lake County School Board vs. John Anselmo Status: Closed Recommended Order on Thursday, March 26, 2015.

Summary: Petitioner is precluded from terminating Respondent based upon misconduct for which he was previously reprimanded. Recommend dismissal of charges and reinstatement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY SCHOOL BOARD ,

Petitioner,

vs . Case No. 14 - 3251 TTS

JOHN ANSELMO ,

Respondent.

__ _______________________________/

RECOMMENDED ORDER

Pur suant to notice, a final hearing was conducted in

Leesburg, Florida, on Ja nuary 5 and 6, 2015, before

Administrative Law Judge Edward T. Bauer of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Stephanie J. McCulloch , Esquire

Stephen W. Johnson, Esquire

McLin & Burnsed, P.A.

1000 West Main Street

Leesburg, Florida 34749

F or Respondent: Jamison Jessup, Qualified Representative

557 Noremac Avenue

Deltona, Florida 32738

STATEMENT OF THE ISSUE

Whether just cause exists to termina te Respondent 's

employment with the Lake County School Board.

PRELIMINARY STATEMENT

By correspondence dated July 9 , 2014, Petitioner Lake

County School Board ("Petitioner" or "School Board") notified

Respondent that it was initiating proceedings to term inate his

employment.

Respondent timely requested a formal administrative hearing

to con test the School Board's intended action and , on July 18,

2014, the matter was referred to the Division of Administrative

Hearings ("DOAH") for further proceedings. T he School Board's

notice of specific charges alleges that , on three separate

occasions during March and April of 2014, Respondent engaged in

harassing or threatening conduct and, thus, committed misconduct

in office , in violation of Florida Administrative Code Rule 6A -

5.056(2). The Scho ol Board further contends, based on the

results of a June 24, 2014, psychological evaluation, that

Respondent is guilty of incompetency.

T he fi nal hearing was held on January 5 and 6, 2015, during

which the School Board p resented the testimony of 11 witnesses

(Dominick Pedata, Laurie Marshall, Brandy Herron, Brian Herron,

Kelly Richter, Jack Miller, Eddie Villafranca, Ozzie

Villafranca, Diane Culpepper, Yvonne Pruett, and Stephanie

Burnett ) and introduc ed 18 exhibits, numb ered 3 through 10 , 14,

16, 17, 18, and 25 through 30. Respondent testified on his own

behalf, called four other witnesses (Dejah Anselmo, Ian Anselmo,

Sue - Ellen Anselmo, and Dr. Hector DeLeon), and introduced four

exhibits, numbered 11, 19, 20, and 23.

The final hearing t r anscript was filed on January 30, 2015 .

By order dated February 13, 2015, the undersigned granted the

School Board's request to extend the deadline for the submission

of proposed recommended orders to February 26, 2015. Both

parties t imely filed proposed recommended orders, which the

undersigned has considered in the preparation of this

Recommended Order.

Unless otherwise indicated, all rule and statutory

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

alleged misconduct.

FINDINGS OF FACT

I. The Parties

1. Petitioner is the entity charged with the duty to

operate, control, and supervise the public schools within Lake

County , Florida.

2. At a ll times relevant hereto , Respond ent was employed

as a teach er in the School Bo ard's online learning program.

II. Events of March 26, April 11, and April 14, 2014

3. The first incident giving rise to this proceeding

occurred on March 26, 2014, in Mount Dora, Florida. On that

occasion, Brandy Herron, a former School Board employ ee, was

shopping with a n acquaintance (Kelly Richter) at an Office Depot

store. Respondent , accompanied by his 15 - year - old daug hter, was

also present in the establishment .

4. The record reflects that M r s. Herron and Re spondent

were no strangers, h aving worked together ÏÏ acrimoniously ÏÏ at the

same elementary school from 2007 to 2008. As such, it is not

surprising that, upon seeing Respondent in the store,

M r s. Herron noted his presence to Ms. Richter.

5. Regrettably for all involved , Respondent misinterpreted

M r s. Herron 's innocent remark to Ms. Richter as a personal

affront. Eschewing self - restraint, Respondent approached

M r s. Herron and demanded to know if she was talking about him .

Moments later, while gazing at M r s. Herron's breasts, Resp ondent

uttered , "fakey, fakey, fakey . "

6. Predictably, M r s. Herron asked Respondent to back away .

Respondent eventually did so, but not before he told M r s. Herron

that, because he was unwilling to fight a woman, he would

instead "beat [her] husband's a ss." For good measure, and to

the dismay of M r s. Herron, Respondent repeated his "fakey ,

fakey, fakey " refrain.

7. On the heels of his encounter with M r s. Herron,

Respondent drove (with his daughter in tow) to Mr. Herron's

place of business. Upon his arrival, however, Respondent was

informed by a member of Mr. Herron's staff that Mr. Herron was

out of the office. 1 /

8. The second encounter at issue occurred on the evening

of April 11, 2014, on the campus of Lake Tech College ("Lake

Tech"), a vocatio nal charter school located in Lake County. At

approximately 9:00 p.m., Respondent accompanied two of his minor

children to Lake Tech, where Re spondent's father - in - law, Jack

Miller, is employed as the school's assistant director. It is

undisputed that the presence of Respondent and his children at

Lake Tech was at the invitation of Mr. Miller, who had arranged

for his secretary to notarize certain test registration

documents. (Respondent's children were scheduled to take the

ACT examination early the next morning.)

9. Per Mr. Miller's instructions, Respondent accompanied

his children to an office adjacent to Lake Tech's welding

classroom, where a school secretary proceeded to notarize the

documents. At that time, a welding class was wrapping up, one

o f whose students , 21 - year - old Ozzie Villafranca, nodded a

greeting to Respondent. From this innocent nod, Respondent

erroneously concluded that Mr. Villafranca had ogled his

15 - year - old daughter.

10. By all accounts, Respondent overlooked this perceiv ed

slight (temporarily at least) , completed the business at hand,

and accompanied his two children to the parking lot. A t that

point, and without provocation, Respondent returned to the

entrance to the welding classroom, where Mr. Villafranca was

getting some fresh air. Respondent approached Mr. Villafranca

and demanded to know if he had a "problem." Taken aback by

Respondent's peculiar conduct, Mr. Villafranca replied that

there was no problem.

11. Moments later , Mr. Villafranca's cousin, Eddie

Vill afranca (also an adult vocational student), joined the

encounter, at which time Respondent asked if he, too, had a

problem . When Eddie did not respond, Respondent inquired of the

cousins, "do you little boys want to get your asses beat?"

12. Fortunately , much of the foregoing incident was

witnessed by Mr. Miller, who repeatedly implored Respondent to

go home. After three explicit warnings, Respondent returned to

the parking lot and drove away.

13. The next incident, which occurred on April 14, 2014 ,

was comparatively less serious. On that occasion, Stephanie

Burnett, a School Board employee, was shopping in a Target store

when she was approached by Respondent's wife, Sue - Ellen Anselmo.

14. During the brief conversation that ensued,

Mrs. Anselmo identified herself to M s. Burnett, accused

M s. Burnett o f trying to destroy her family ( by supposedly

providing , some years earlier, misinformation to the School

Board during an investigation of Respondent ), and calle d

M s. Burnett a "bitch." Mrs. Anselm o then proceeded to walk

away, at which point M s. Burnett, who was rattled by the

exchange , began to wheel her shopping cart elsewhere. Moments

later, M s. Burnett encountered Respondent, who, upon seeing her,

exclaimed, "I read your statement and you're a liar."

15 . Needless to say, the foregoing incidents were reported

to and investigated by the School Board. Although one or more

of the episodes ÏÏ particularly the first two ÏÏ likely would have

warranted R espondent's termination, the School Boa rd in stead

issued a "Level II Written Reprimand." The reprimand, whose

relevant content is quoted below, was issued on June 3, 2014, by

Domini c k Pedata, the School Board's supervisor of employee

relations:

This Level II reprimand is to put you on

notice of you r three separate incidents

involving your behavior outside of the

office. An investigation proceeded

regarding these allegations. On March 26,

2014, it was documented by a police report

that you harassed one former employee and

her husband regarding a pr ior Lake County

Schools investigation that you were involved

in. On April 11, 2014, it was reported that

you threatened two students at Lake Tech

Education Center in the parking lot with

physical harm and were asked to leave on

several occasions or the po lice would be

called to escort you off the campus. On

April 14, 2014, it was documented by a

police report that you and your wife

threatened a Lake County Schools employee

regarding a prior Lake County Schools

investigation.

These are clear violations [o f] Florida

Administrative Code [Rule] 6A - 10.081

Principles of Professional conduct for the

Education Profession in Florida . . . .

Moving forward you are not to approach any

employee regarding a prior investigation,

and/ or enter a Lake county School campu s and

act in an aggressive or harassing manner

toward a student. Any similar issues will

lead to further disciplinary action up to

and including termination. Please let me

know if you have any questions.

(emphasis added).

16 . The foregoing language makes plain that the School

Board had completed its investigation regarding the incidents of

March 26, April 11, and April 14, 2014, and that Respondent's

"Level II Reprimand" constituted formal discipli nary action in

connection with those events . 2 / Thus, as discussed later in this

Order, the School Board is now precluded from terminating

Respondent for the same misconduct.

III. Psychological Evaluation

17 . As noted previously, the School Board advances an

al ternative basis for termination, namely, th at Respondent is

guilty of "incompetency."

18. On this issue, the record reflects that on June 3,

2014, Mr. Pedata directed Respondent to report for a " Medical

Fit for Duty Examination " with Dr. Wally Austin , a licensed

psychologist. At or around that ti me, Mr. Pedata furnished

Dr. Austin with police reports and other investigative documents

relating to the incidents of March 26, April 11, and April 14,

2014.

19 . Consistent with Mr. Pedata's directive, Respondent

thereafter reported to Dr. Austin's o ffice and submitted to a

psychological eval uation . The evaluation, which Dr. Austin

conducted on June 24, 2014, comprised three elements: a one -

hour interview; the Minnesota Multiphasic Per sonality Inventory -

2 ("MMPI - 2") ; and a follow - up interview of app roximately 5 to 10

minutes.

20 . Dr. Austin concedes that, during the interview,

Respondent's speech was "clear, logical, and coherent," and that

there was "no evidence of a thought disorder, perceptual

disturbance, or psychosis." Nevertheless, Dr. Austi n was

troubled by the fact that, when pressed about the episodes of

March 26, April 11, and April 14, Respondent provided

descriptions of the events that varied significantly from the

accounts of the other involved parties (as documented in the

police repo rts and other materials provided to Dr. Austin by the

School Board). F or example, Respondent insisted that he was not

present at the Target store on April 14, 2014, and, thus, did

not interact with Ms. Burnett on that date.

21 . Operating under the pre mise that Respondent had

engaged in "grossly inappropriate behavior" during the episodes

of March 26, April 11, and April 14, 3 / Dr. Austin thought it

prudent to "get objective information." To that end, Dr. Austin

administered the MMPI - 2, a widely - used, standardized test of

adult personality.

22 . Unfortunately, Respondent's answers to the MMPI - 2

resulted in a high "lie" (or "L") scale ( one of the test's three

"validity" scales) that rendered the entire evaluation invalid.

As Dr. Austin explained , a hi gh L scale typically occurs when

test taker s attempt to depict themselves as unrealistically

virtuous.

23 . Notably, however, Dr. Austin equivocated whether the

high "L scale " resulted from conscious behavior on Respondent's

part . At one point, for examp le, Dr. Austin testified that

Respondent "had the ability to answer [] in a more forthright

manner . " 4 / Later, though, Dr. Austin credibly opined that

Respondent believed in the truthfulness of his test responses :

Well, that's the part we didn't get into.

He faked it Î when I say "faked it good,"

there is [sic] other scales that indicate

that John believes what he is saying . So

for him, he is not faking it.

* * *

[B]ecause by [the L scale] being so high, it

invalidates the report because it lowered

all of the other scores. And the

psychopathology would come up, but you don't

know what it is because he denies

everything. But it is not a conscious

denial, he believes what he believes .

Pet'r Ex. 10, p. 68:5 - 9; 68:23 - 69:3 (emphasis added).

24 . Upon t he completion o f the MMPI - 2, Dr. Austin

conducted a brief follow - up interview with Respondent , at which

point the evaluation concluded. The following day, on June 25,

2014, Dr. Austin notified the School Board that , in his view,

Re spondent was "not fit to return to work in the school system."

25 . A charging document soon followed, wherein the School

Board alleged that Respondent is guilty of incompetency:

Based on the results of the medical fit for

duty you are also charged with

"Incompetency." Under F. A.C. 6A - 5.056(3),

Incompetency is the "inability, failure or

lack of fitness to discharge the required

duty as a result of inefficiency or

incapacity." Inefficiency under 6A -

5.056(3)(a)2 is "Failure to communicate

appropriately with and relate to

students [,]" and 6A - 5.056(3)(a) is "Failure

to communicate appropriately with and relate

to colleagues, administrators, subordinates,

or parents." Incapacity under 6A -

5.056(3)(b)1 is "Lack of emotional

stability." Your actions clearly reflect

incompetency in thi s regard.

Pet'r Ex. 17.

26. In its Proposed Recommended Order, the School Board

reiterates i ts position that Dr. Austin's findings and/or the

inc idents of March 26, April 11, and April 14, 2014, demonstrate

Respondent's incompetency. For the reason s explicated below,

the undersigned is not so persuaded.

27. First, the School Board is precluded from basing the

incompetency charge upon the episodes for which Respondent was

previously reprimanded.

28. The psychological evaluation likewise canno t support

the incompetency charge, as it is evident that Dr. Austin's

opinion was in formed almost exclusively by Respondent's

previously - punished misconduct . Consider the following

exchanges between Dr. Austin and School Board counsel:

Q. Okay. And what are those duties, just

in your own words, that you would expect for

a teacher who is, in fact, fit for duty to

perform?

A. I think the question is very broad.

Because I wo uld like to answer it by ruling

out what I don't expect.

Q. Okay.

A. I don't expect there to be threats of

violence to hit other students Î to hit

students where the teachers now are starting

to get violent with the kids, or young men,

students of the county.

Or I don't expect teachers or adults to

conduct themselves inappropriate ly in the

school setting or in public to the point

that you were going down the street to fair

it out with someone's husband. You know,

those kinds of things, I don't think that is

becoming of a school teacher.

* * *

A. All right. I am not assessing h is

ability to teach. I am assessing: Is he

fit to be in the room.

Q. Correct.

A. I am looking at an individual who has

had five episodes of grossly inappropriate

behavior: The Triangle School thing one,

the Home [sic] Depot lady, the flirting, the

t echnical school, the Target. He has had

inappropriate behavior in multiple settings;

in the school setting, in the public with

the school teachers; he is going over to

people's work environments.

His inappropriate behavior has involved

teachers, it has i nvolved students, it has

involved administrators. He has been called

on the carpet and had consequences of police

reports filed on him, changes in school,

three - days [sic] suspension. And it keeps

going on and on . . . . If a person has

done something t wice, three times, four

times they are very likely to do that

behavior again. What faith do I have that

[Respondent] is not going to threaten

violence to teachers or to students when he

leaves my office . . . ?

Pet'r Ex. 10, p. 35:7 - 22; p. 36:3 - 8.

29 . The only reasonable interpretation of the foregoing

testimony is that Respondent's ear lier m isdeeds were a necessary

component of Dr. Austin's opinion . At bottom, then, the S chool

Board is attempting to accomplish indirectly (i.e., terminate

Respondent by channeling his previously - punished misconduct

through a n expert, who opines that the misconduct demonstrates

unfitness ) what it cannot do directly (i.e., terminate

Respondent for the previously - punished misconduct ). As noted

shortly, basic due process precludes such an outcome.

30. Moreover, and i n any event, Dr. Austin's evaluation,

which comprised a single office visit, was insufficiently

comprehensive to evaluate properly Respondent's fitness to carry

out his required duties . On this point, t he undersigned credits

the testimony of Respondent's expert witness, Dr. DeLeon, who

opined that an appropriate evaluation would necessarily include

multiple office visits over a period of time . 5 /

CONCLUSIONS OF LAW

I . Jurisdiction

31 . The Division of Administrative Hearings has

jurisdiction over the subject matter and parties to this case

pursuant to sections 120.569 and 120.57(1), Florida Statutes.

II . The Burden and Standard of Proof

32 . A district school board employee against whom a

disciplinar y proceeding has been initiated must be given written

notice of the specific charges prior to the hearing. Although

the notice "need not be set forth with the technical nicety or

formal exactness required of pleadings in court," it should

"specify the [st atute,] rule, [regulation, policy, or collective

bargaining provision] the [school board] alleges has been

violated and the conduct which occasioned [said] violation."

Jacker v. Sch. Bd. of Dade C nty. , 426 So. 2d 1149, 1151 (Fla. 3d

DCA 1983)(Jorgenson, J . , concurring).

33 . Once the school board, in its notice of specific

charges, has delineated the offenses alleged to justify

termination, those are the only grounds upon which dismissal may

be predicated. See Cottrill v. Dep't of Ins . , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996); Klein v. Dep't of Bus. & Prof'l Reg. ,

625 So. 2d 1 237, 1238 - 39 (Fla. 2d DCA 1993).

34 . In an administrative proceeding to suspend or dismiss

a member of the instructional staff, the school board, as the

charging party, bears the burden of proving, by a preponderance

of the evidence, each e lement of the charged offense. McNeill

v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA

1996) . The preponderance of the evidence standard requires

proof by "the greater weight of th e evidence" or evidence that

"more likely than not" tends t o prove a certain proposition.

Gross v. Lyons , 763 S o. 2d 276, 280 n.1 (Fla. 2000) .

35 . The instructional staff member's guilt or innocence is

a question of ultimate fact to be decided in the c ontext of each

alleged violation. McKinney v. Castor , 667 So. 2 d 387, 389

(Fla. 1st DCA 1995).

III. The Charges Against Respondent

A. Misconduct in Office

36 . In its notice of specific charges, the School Board

first alleges that Respondent is guilty of misconduct in

office ÏÏ an offense that, if proven, would provide just cause to

terminate Respondent's employment. See § 101 2.33(1)(a), Fla.

Stat.

37 . Florida Administrative Code Rule 6A - 5.056(2) defines

the charge of misconduct in office to includ e, among other

things:

(a) A violation of the Code of Ethics of

the Education Profession in Florida as

adopted in [ r ule 6A - 1 0.080] , F.A.C.;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in [ r ule

6A - 1 0.081] , F.A.C.

38 . In turn, the Code of Ethics of the Education

Profession (adopted in Florida Administrative Code Rule 6A -

10.080) and the Principles of Professional Conduct for the

Education Profession in Florida (adopted in Florida

Administra tive Code Rule 6A - 10.081) provide , in pertinent part ,

as follows:

6A - 10.080 Code of Ethics for the Education

Profession in Florida

(1) The educator values the worth and

dignity of every person, the pursuit of

truth, devotion to excellence, acquisition

o f knowledge, and the nurture of democratic

citizenship. Essential to the achievement

of these standards are the freedom to learn

and to teach 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.

* * *

6A - 10.081 Principles of Professional Conduct

for the Education P rofession in Florida.

(1) The following disciplinary rule shall

constitute the Principles of Professional

Conduct for the Education Profession in

Florida.

(2) Violation of any of these principles

shall subject the individual to revocation

or suspension of the individual educatorÓs

certificate, or the other penalties as

provided by law.

(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's mental

and/or physical health and/or safety.

* * *

(5) Obligation to the profession of

education requires that the individual:

* * *

(c) Shall not interfere with a colleague' s

exercise of political or civil rights and

responsibilities.

(d) Shall not engage in harassment or

discriminatory conduct which unreasonabl y

interferes with an individual' s performance

of professional or work responsibilities or

with the orderly processes of education or

which creates a hostile, intimidating,

abusive, offensive, or oppressive

environment; and, further, shall make

reasonable effort to assure that each

individual is protected from such harassment

or discrimination.

39 . Although Respondent's behavior during the incidents of

March and April 2014 arguably violated one or more of the

foregoing proscriptions , the School Board is nevertheless

precluded from terminating his employment due to its earlier

issuance of a written reprimand in c onnection with the same

misconduct . See Dep't of Envtl. Prot. v . Barker , 654 So. 2d 594

(Fla. 1st DCA 1995).

40 . In Barker , an employee of the Florida Department of

Environmental Protection (DEP) was issued a written reprimand

for misconduct related to his professional duties. Id. at 595.

Two months later, DEP notified the employee that he was being

demoted "based upon the same conduct for which he had received

the written reprimand." Id. The employee thereaf ter appealed

to the Public Employee Relations Commission (PERC), arguing that

the demotion was improper because it constituted successive

punishment for the same misconduct. In affirming PERC's order

re scinding the demotion, the First District Court of Appeal

held :

An agency may not reach a decision as to

disciplinary action on one occasion, and

then at a later da te increase the

disciplinary action so that the agency

disciplines the employee twice for the same

offense . . . . As PERC properly found, by

issuing a written reprimand on September 20

and, two months later issuing another

written notice informing Barker of his

demotion and transfer, the agency

disciplined him twice for the same offense.

Id. (internal citations and quotation marks omitted) ; Dep't of

Transp. v. Career Serv. Comm'n , 366 So. 2d 473, 474 (Fla. 1st

DCA 1979)("D.O.T. not only lacked authority to discipline

Woodard twice for the same offense but its action was

fundamentally unfair. . . . [D]isciplinary action may not be

increased at a later date nor may an agency discipline an

employe e twice for the same offense . "); see also Sch. Bd. of

Highla nds Cnty. v. Locke , 1991 Fla. Div. Adm. Hear. LEXIS 6127,

*19 - 20 (Fla. DOAH July 31, 1991)("The Petitioner having elected

to discipline the Respondent for such conduct by the issuance of

a letter of official reprimand cannot now use the same conduct

as the basis for suspension without pay."). 6 /

41 . As the foregoing authority demonstrates , the School

Board is not permitted to discipline Respondent ÏÏ by terminating

his employment or taking any other action ÏÏ for the same conduct

that was the subject of t he June 3, 2014, written reprimand.

Accordingly, the charge of misconduct in office must be

dismissed.

B. Incompetency

42 . The School Board further alleges , based upon

Respondent's conduct and/or Dr. Austin's evaluation, that

Respondent is guilty of i ncompetency, an offense defined in

relevant part as :

[T] he inability, failure or lack of fitness

to discharge the required duty as a result

of inefficiency or incapacity.

(a) "Inefficiency" means one or more of the

following:

* * *

2. Failure to communicate appropriately

with and relate to students;

3. Failure to communicate appropriately

with and relate to colleagues,

administrators, subordinates, or parents;

* * *

(b) "Incapacity" means one or more of the

following:

1. Lack of emotional stabi lity.

Fla. Admin. Code R. 6A - 5.056(3).

43 . This charge likewise fails. First, the authority

cited above precludes the School Board from basing the

incompetency charge upon Respondent's previously - punished

misconduct.

44 . As for the testimony of Dr. Austin, the record

demonstrates that his opinion concerning Respondent's fitness is

grounded almost exclusively on the very same misconduct for

which Respondent was reprimanded. 7 / That being so , to sustain

the incompetency charge upon Dr. Austin's tes timony ( which ,

distilled to its essence, simply recapitulates Respondent's

behavior as described in the School Board's investigative

materials ) would violate the axiom that a party cannot do

indirectly what it cannot do directly. See, e.g. , Cnty. of

Volus ia v. State , 417 So. 2d 968, 972 (Fla. 1982)("That which

may not be done directly may not be done indirect ly."). In any

event, Dr. Austin's evaluation was insufficiently comprehensive

and, therefore, unpersuasive.

RECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions of

Law, it is

RECOMMENDED that the Lake County School Board enter a final

order : dismissing the charges brought against Respondent in

this proceeding ; and awarding Respondent any lost pay and

benefits.

DONE AND ENTERED t his 26 th day of March, 2015 , in

Ta llahassee, Leon County, Florida.

S

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 3239 9 - 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 26 th day of March, 2015 .

ENDNOTE S

1 / As for what occurred next, the only non - hearsay evidence

comes from Responde nt himself, who testified, incredibly, as

follows:

And I said, okay, I just wanted to come by

and let him know I had an argument with his

wife, to let him know that I'm not being a

jerk. And that was pretty much it. [The

secretary] had said okay. And I said, well,

have a nice day, and then I left.

Hr'g Tr. 343:20 - 24.

2 / During cross - examination, Mr. Pedata acknowledged what is

readily apparent from the face of the reprimand, namely, that

the reprimand constituted disciplinary action in connection w ith

the three incidents:

Q. Let's go to the June 3rd letter, which

is Petitioner['s] Exhibit 27, the Level 2

written reprimand.

A. Okay.

Q. That was to reprimand him for the three

incidents; correct?

A. That's correct.

* * *

Q. But you did discip line him for the three

incidences [sic]; correct?

A. That was part of the letter.

Hr'g Tr. 108:17 - 22; 111:13 - 15 .

3 / Pet'r Ex. 10, p. 35:10 - 23.

4 / Pet'r Ex. 10, p. 53:1 - 19. The undersigned rejects this

testimony in favor of Dr. Austin's later t estimony that

Respondent subjectively believed in the truthfulness of his test

responses. Pet'r Ex. 10, pp. 68:5 - 9; 68:23 - 69:3 .

5 / Dr. DeLeon testified as follows concerning the inadequacy of

Dr. Austin's evaluation:

A. I would say definitely m ore than one

visit. On average when I have done this

before it takes me at the very least Î and

that is to do a poor one Î at least three

hours in different encounters like different

sessions, different moments in time.

Q. And why is that?

A. Because just one encounter of an hour or

two or three to do a one - time only, it's

just like taking a snapshot with a camera of

a small moment in time. And it's only going

to reflect what is happening within that

frame of time. The more I get to see of

everything , the more clear the big picture

is going to be. So it's really -- I would

say to the point of malpractice to do just

an opinion like that on just one

encounter . . . .

Hr'g Tr. 418:12 - 25.

6 / As an exception to this principle, an agency may temporaril y

suspend an employee pending an investigation and, upon its

completion of the investigation, pursue harsher disciplinary

action. Dep't of Corr. v . Duncan , 382 So. 2d 135, 136 - 37 (Fla.

1st DCA 1980). This exception is inapplicable where, as here,

the age ncy's issuance of a reprimand constituted "a disciplinary

measure in itself." Id. at 137; Dep't of Transp. v. Career

Serv. Comm'n , 366 So. 2d 473, 474 (Fla. 1st DCA 1979) ("[H]aving

concluded its investigation and reached its decision as to the

disciplinar y action it will administer to an employee, the

disciplinary action administered may not be increased at a later

date nor may an agency discipline an employee twice for the same

offense.").

7 / To be sure, Dr. Austin's efforts to gather objective

i nformation were thwarted by Respondent's unrealistically

virtuous responses during the MMPI - 2. The undersigned is

persuaded, however, that Respondent's test answers were not the

product of a conscious attempt to mislead the examiner. Pet'r

Ex. 10, pp. 68 :5 - 9; 68:23 - 69:3 .

COPIES FURNISHED:

John Robert Anselmo

2208 Jennah Circle

Eustis, Florida 32726

(eServed)

Jamison Jessup

557 Noremac Avenue

Deltona, Florida 32738

(eServed)

Stephanie J. McCulloch, Esquire

McLin and Burnsed, P.A.

1000 West Main St reet

Leesburg, Florida 34749

(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 Educati on

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Dr. Susan Moxley, Superintendent

Lake County School Board

201 West Burleigh B oulevard

Tavares, Florida 32778 - 2496

(eServed)

NOTICE OF RIGHT TO SUBMIT E XCEPTIONS

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.