15-000689TTS Orange County School Board vs. Terri Medus Status: Closed Recommended Order on Thursday, January 7, 2016.

Summary: Respondent committed misconduct in office by violating Petitioner's drug-free workplace policy and therfore just cause exists for terminating her professional services contract.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 15 - 0689TTS

TERRI MEDUS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing i n this cause was held

by video teleconference between sites in Orlando and Tallahassee,

Florida, on August 4 and September 16, 2015 , before Linzie F.

Bogan, Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: J ohn C. Palmerini, Esquire

Orange County Public Schools

445 West Amelia Street

Orlando, Florida 32801

For Respondent: Suzanne Tzuanos, Esquire

Egan, Lev and Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

STATEMENT OF THE ISSUE

Whether Respondent Terri Medus (Respondent) engaged in an

act of immorality, conduct that violates Orange County public

school policy, conduct t hat violates the Code of Ethics, conduct

that violates the Principles of Professional Conduct of the

Education Profession, or conduct that compromised her

effectiveness as an educator.

PRELIMINARY STATEMENT

On or about January 26, 2015, Petitioner Orange C ounty

School Board (Petitioner), through Barbara Jenkins,

Superintendent of Schools, served on Respondent Terri Medus an

Administrative Complaint recommending RespondentÓs termination

from employment. Respondent timely filed a request for

administrative h earing, and this matter was referred to the

Division of Administrative Hearings for a disputed - fact hearing.

The disputed - fact hearing was held on August 4 and September 16,

2015.

During the hearing, Petitioner offered the testimony of

Rafael Sanchez, Jr ., Karen Carmona, Michael Ganio, Leighann

Blackmore , and Dr. Donna Smith. Respondent testifie d on her own

behalf and offered testimony from Sonja McMillan and Thomas

Workman. Per stipulation of the parties, deposition testimony

was accepted for two witne sses Î Î Ima McCray and William Tovine.

Joint Exhibits 1 and 2 were admitted into evidence . Petitioner Ós

Exhibits 1 through 5, 7, 11 through 16, 18 , and 19 were admitted

into evidence . Respondent Ós Exhibits 1 , 2, 4, 6, 11, 15, 19, and

21 were admitted into evidence.

A Transcript of the disputed - fact hearing was filed with the

Division of Administrative Hearings on October 9, 2015. The

parties each submitted a p roposed r ecommended o rder (PRO) on

November 9, 2015.

FINDING S OF FACT

A. Stipulated Facts

1. During all times relevant hereto, Petitioner employed

Respondent as a classroom teacher.

2. Respondent has held a Professional Service Contract with

Petitioner since May 1986.

3. Respondent's Professional Service Contract states that

Respondent will no t be terminated "except for just cause , " as

provided by Florida Statutes.

4. Respondent pled no contest to a d riving u nder the

i nfluence (DUI) charge stemming from an arrest on March 26, 2014,

and was adjudicated guilty, in accordance with section 316.65 6,

Florida Statutes .

5. Petitioner did not discipline Respondent for the DUI

arrest or subsequent adjudication.

B. Reasonable Suspicion

6. Respondent admits that prior to December 1, 2014 , she

was aware of Petitioner Ós d rug - f ree w orkplace p olicy (Pol icy) and

that she could be disciplined for reporting to work under the

influence of alcohol.

7 . December 1, 2014, fell on a Monday. On Saturday,

November 29, 2014, Respondent flew from Detroit to Orlando after

visiting her son during the Thanksgiving h oliday. Respondent

began consuming alcoholic beverages on the plane ride to Orlando.

The following day, November 30, 2014, Respondent, by her own

admission, consumed between five to ten rum and Coke beverages,

which resulted in Respondent becoming intoxi cated.

8 . While at work on the morning of December 1, 2014,

Respondent attended a 9:00 a.m. meeting. Ms. McCray,

RespondentÓs immediate supervisor, was also present at the

meeting and sat next to Respondent. The meeting lasted

approximately 10 minutes.

9 . Immediately following the meeting, Ms. McCray wanted to

debrief with Respondent and another employee regarding what was

discussed during the meeting. During the debriefing, Ms. McCray

detected the smell of alcohol on RespondentÓs breath, observed

t hat RespondentÓs hands were shaking and that her speech was

slurred when she responded to questions asked , that RespondentÓs

body language was Ð a little wavering ,Ñ and that RespondentÓs eyes

were Ð glossy. Ñ Additionally, w hen Ms. McCray ask ed questions of

Respondent during the debriefing, Respondent's answers did not

quite match the questions being asked by Ms. McCray.

1 0 . Ms. McCray repeatedly asked Respondent if something was

wrong. At first, Respondent said she was fine. However,

Respondent then sai d to Ms. McCray that she took Benadryl the

night before the meeting because she could not sleep .

Ms. McCray memorialized her observations of Respondent in a

spiral notebook that she personally maintains.

11. Upon concluding that Respondent was likely suffering

from the effects of excessive alcohol consumption, Ms. McCray was

assisted in assessing RespondentÓs condition by Rafael Sanchez,

who works for Petitioner as a senior manager in PetitionerÓs

employee relations department. Mr. Sanchez is also a trained

reasonable suspicion manager.

12. Based on his observations, Mr. Sanchez completed a

reasonable suspicion checklist and noted thereon that Respondent

had slurred speech, an odor of alcohol on her breath or person,

an unsteady gait or lack of bala nce, glassy eyes, and a runny

nose or sores around her nostrils.

13. With respect to Respondent's gait, Mr. Sanchez observed

Respondent walk into the side of an open door. With respect to

her speech, Mr. Sanchez observed that Respondent was speaking

ver y slow ly and had difficulty articulating her words. Finally,

Mr. Sanchez testified that Respondent demonstrated marked

irritability when she was told she would have to be driven to a

facility for reasonable suspicion alcohol test ing. Petitioner

was justi fied in requesting that Respondent submit to reasonable

suspicion testing.

C. Breathalyzer Testing

14 . After concluding that there was reasonable suspicion

for testing Respondent for alcohol - related impairment,

Ms. McCray drove Respondent to ARCPoint Labs , the facility used

by Petitioner for reasonable suspicion drug and alcohol test ing.

15. Karen Carmona works for ARCPoint Labs as a specimen

collector and has been certified as such by the U.S. Department

of Transportation since 2013. Ms. Carmona was trained to operate

the machine utilized to test Respondent, the RBT IV by

Intoximeters. 1 /

16. RespondentÓs first breathalyzer test, which was time -

stamped at 11:46 on December 1, 2014, showed that RespondentÓs

breath alcohol content (BAC) was 0.198 G/210L. RespondentÓs

second test, which was time - stamped at 12:04 (18 minutes later)

on December 1, 2014, showed RespondentÓs BAC level at 0.188

G/210L.

17. The operatorÓs manual for the RBT IV provides that

Ð[i]f an accuracy check has not occurred wit hin the past 31 days,

an accuracy check should be run prior to running a subject test

to ensure the instrument has maintained proper calibration.Ñ An

accuracy check of the RBT IV device used to test Respondent was

performed on November 22, 2014, which is within the prescribed

window established by the manufacturer.

18. For the RBT IV device used to test Respondent, the

accuracy check must read plus/minus .005 of the expected target

value of .038. The accuracy check performed on November 22,

2014, showed a reading of .043, which is within the acceptable

range established by the manufacturer. The validity of the

accuracy check was confirmed by a print - out from the RBT IV

device which reads ÐCAL CHECK OK.Ñ If the RBT IV had produced a

value outside of the parameters of the accuracy check, then the

machine would have generated a printout indicating ÐOUT OF CALÑ

and it would have been necessary to perform an actual calibration

of the testing device. Unlike the general accuracy check, which

must fall within plus/minus .005 of the expected value of .038,

an accuracy check following a calibration Ðshould be no greater

than plus/minus Ð.003 of the expected value if the calibration is

to be considered successful.Ñ Because the RBT IV was operating

within the acce ptable parameters of the accuracy check, it was

not necessary to perform a calibration of the machine.

RespondentÓs argument that the machine was out of the acceptable

accuracy range is not supported by the evidence. The RBT IV used

to test Respondent on December 1, 2014, was operating within the

limits established by the manufacturer. Additionally, a

December 22, 2014, accuracy check of the RBT IV used to test

Respondent read .042, which was also within acceptable

operational limits.

D. Ice Breakers Candy

19. Respondent also challenges the accuracy of the

breathalyzer results on the grounds that the readings cannot be

trusted because prior to the administration of the test she

consumed Ice Breakers candy.

20. On cross - examination by Petitioner, Re spondentÓs

expert, Mr. Thomas Workman, testified as follows:

Q: Your opinion is that her Î - that Ms.

Medus eating Ice Breakers would so throw off

the test that it would elevate her breath

alcohol content up to .198 and .188?

A: I believe it would Î - it would have an

effect, I donÓt know the degree of the

effect, but it would Î it would not produce a

reliable result.

Q: What would be Î - what would be your

estimate of the degree of effect of how much

it would be off?

A: It could account for the entire reading

or it could account for a portion of the

reading, I Î - I canÓt say.

Tr. , p . 376.

21. Mr. WorkmanÓs also testified that one Ice Breaker

ÐcouldÑ cause a .198 G/2101 BAC reading depending on the Ðamount

of compound thatÓs in the mouth compared to the amount of alcohol

that would be coming from the breath.Ñ Tr. , p . 377

22. Dr. Smith, PetitionerÓs expert, disagrees with

Mr. WorkmanÓs opinion and testified as follows:

Even if either one of those products

contained any ethanol or methanol, which ar e

the alcohol that the device is certified to

measure, the 15 minute wait between the

initial and this confirmation test, when she

did not have anything in her mouth at all,

any residual alcohol that may have been a

product of the food or the gum would hav e

completely dissipated. So it would not be Ï

that's why we have that 15 - minute wait to

ensure that any residual mouth alcohol, not

alcohol that is in the bloodstream, would not

be meas ured on the confirmation test.

T r . , p . 283 .

23. Mr. WorkmanÓs opi nion is rejected because by his own

admission, he is unable to say with the requisite degree of

reliable scientific probability that any Ice Breaker candy

consumed by Respondent sufficiently compromised RespondentÓs

breathalyzer tests to the point of rende ring the same unreliable.

E. RespondentÓs Rate of Alcohol Absorption

24. Mr. Workman also testified that RespondentÓs rate of

absorption of alcohol ma kes it unlikely that her BAC readings

were accurate. Mr. WorkmanÓs testimony is based on numerous

ass umptions , none of which have adequate proof to invalidate the

results of the breath alcohol test.

25. First, Mr. Workman as sumed that Respondent did not have

any alcohol past midnight o n November 30, 2014. Mr. Workman

admitted that if the information re garding when Respondent

stopped consuming alcohol was erroneous, then his assumption

would be incorrect . Moreover, given the amount of alcohol

admittedly consumed during the weekend by Respondent, her

testimony that she stopped drinking at midnight is unr eliable.

As previously noted Respondent starting drinking at around noon

on Saturday and continued drinking throughout the entire day on

the following Sunday. Such a period of sustained drinking makes

it unlikely that Respondent was cognizant of the time when she

stopped drinking before retiring to bed.

26 . Second, Mr. Workman testified that his theory regarding

RespondentÓs metabolic rate of alcohol absorption would depend on

her weight and build. However, Mr. Workman testified that he has

never seen Respondent and ha s no idea of her actual build and

weight, other than what he had been generally told by

RespondentÓs counsel. Additionally, Mr. Workman testified that

he d oes not know the rate at which Respondent actually

metabolizes alcohol. Dr. Smith testified there would have to be

evidence of a person Ó s actual metabolic rate in order to perform

the extrapolation suggested by Mr. Workman . There is no evidence

i n the record which indicates how Respondent metabolizes alcohol.

As such, Mr. Workman's ex trapolation is rejected as unreliable .

CONCLUSIONS OF LAW

27 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (201 5 ). 2/

28 . Petitioner seeks to term inate Respondent's employment.

Petitioner bears the burden of proving by a preponderance of the

evidence that just cause exists for Respondent's termination.

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

DCA 1996); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883 (Fla.

3d DCA 1990).

A. Drunke n ness

29. Paragraph 15 of the Administrative Complaint alleges

that ÐRespondent . . . committed drunkenness, as provided in

Article XII, section A.2. of the collective bargaining

agreement.Ñ 3/ T he referenced provision of the collective

bargaining agreement provides as follows:

Any teacher may be suspended or dismissed at

any time during the year, provided that the

charges against him/her are based on

immorality, misconduct in office,

incompetence , gross insubordination, willful

neglect of duty, drunkenness, or conviction

of any crime involving moral turpitude, where

applicable, and in accordance with Florida

Statutes.

30. Petitioner acknowledges that Florida Administrative

Code Rule 6A - 5.056, w hich defines Ðjust causeÑ for a dismissal

action against school personnel such as Respondent, limits a

charge of ÐdrunkennessÑ to Ðpersons who hold a contract issued on

or before July 1, 1984,Ñ and that RespondentÓs contract was

issued after this date. Pe titioner argues, however, that it is

not bound by the July 1, 1984, limitation because the controlling

collective bargaining agreement expressly provides that

ÐdrunkennessÑ is a proper ground for terminating RespondentÓs

employment. PetitionerÓs argument is rejected because the

argument ignores that portion of Article XII, section A.2., of

the collective bargaining agreement which expressly provides that

any disciplinary action taken pursuant thereto must be done Ðin

accordance with Florida Statutes.Ñ Bec ause RespondentÓs contract

was issued after July 1, 1984, Petitioner cannot terminate her

employment based on a charge of Ðdrunkenness.Ñ See Manatee Cnty.

Sch. Bd. v. Wampole , Case No. 12 - 0801 (Fla. DOAH Aug. 16, 2012),

rejected in part , Case No. 12 - 002 ( Sch. Bd. Manatee Cnty. Oct. 2,

2012) ; and rule 6A - 5.056(6) . Respondent may, however, be subject

to disciplinary action based upon her violation of other

disciplinary standards related to reporting to work while under

the influence of an intoxicant.

B. D rug - Free Workplace

31. Paragraph 12 of the Administrative Complaint alleges

that Respondent violated PetitionerÓs drug - free workplace policy

by reporting to the workplace while under the influence of

alcohol.

32. On October 23, 2001, the Orange County School Board

adopted its drug - free workplace policy. The Policy, which was in

effect during all times relevant hereto, provides, in part, as

follows:

The Orange County School Board hereby affirms

its intent to maintain a workplace that is

free from drugs and other forms of substance

abuse.

No employee shall use, possess, manufacture,

distribute, or be under the influence of

controlled substances or alcohol while on

duty or on school board property, except when

he/she is using a controlled substance in

con formance with the instructions of a

physician. Possession of a controlled

substance or alcohol while on duty may result

in a recommendation to terminate the

employee. Employees on duty shall not use or

take prescription drugs above the level

recommended by the prescribing physician, and

shall not use prescribed drugs for purposes

other than that for which they were intended.

Employees shall not distribute or dispense

any drugs while on duty, except as permitted

by school board policy JLCD -

Medicines/Admini stering Medicines to

Students.

REASONABLE SUSPICION TESTING

Reasonable Suspicion testing is based upon a

belief that an employee is using or has used

alcohol or drugs in violation of the School

Board's policy. Reasonable suspicion testing

must be based on specific, contemporaneous

documented objective and articulable

observations and circumstances which are

consistent with the long and short term

effects of alcohol or substance abuse;

including, but not limited to, physical signs

and symptoms, appearance , behavior, speech

and/or odor on the person. Supervisors who

have Reasonable Suspicion that an employee

may be under the influence while on duty are

required to immediately direct the employee

to submit to testing as provided for by the

board. Reasonabl e Suspicion shall be in

accordance with training provided to

managers, and will require confirmation by

two trained managers. One of the two

managers may include the supervisor, if

trained. A refusal to submit to testing will

result in a recommendation t o terminate the

employee.

The observation checklist includes, but is

not limited to:

· Slurred speech

· Confusion/disorientation

· Odor of alcohol on breath or person

· Unsteady gait or lack of balance

· Glassy eyes

. Rapid/continuous eye movement or

i nability t o focus

· Drowsiness

· Inattentiveness

· Apparent intoxicated behavior

(without odor)

· Physical injury

· Tremors or bodily shaking

· Poor coordination

· Runny nose or sores around nostrils

· Very large or small pupils

· Slow or inappropr iate reactions

· Inability to respond to questions

· Complaints of racing or irregular

h eartbeat

· Marked Irritability

· Aggressiveness

· Inappropriate laughter or crying

· Fainting or loss of consciousness

· Improper job performance and/or

v iolation of authority

· Other criteria as specified in OTETA,

applicable

POSITIVE FINDINGS FOR CONTROLLED SUBSTANCES

OR ALCOHOL

Except in extraordinary circumstances, it

shall be the policy of the Superintendent to

consistently recommend term ination for

positive findings of controlled substances or

alcohol, except when he/she is using a

controlled substance under, and in accordance

with, the direction of a physician. A test

result for alcohol at or above .02 will be

considered a positive findi ng for the purpose

of discipline; however, a negative result for

alcohol will not be the sole determinant of

whether or not alcohol was present.

33. PetitionerÓs Policy does not expressly define what it

means for an employee to be Ðunder the influence o f alcohol.Ñ

However, in considering the Policy in its entirety, it is evident

that being Ðunder the influence of alcoholÑ means that an

employee demonstrates one or more of the indicators enumerated on

the observation checklist (for reasonable suspicion t esting) and

has Ð[a] test result for alcohol at or above .02.Ñ Petitioner

met its burden and proved that Respondent violated its Policy

when she reported to work while under the influence of alcohol on

December 1, 2014.

34. PetitionerÓs drug - free workpla ce policy provides that

only in extraordinary circumstances will the superintendent not

recommend termination of employment for a test result for alcohol

at or above .02. There are no extraordinary circumstances

present in the instant case that justify di sciplinary action less

than termination of employment.

C. Misconduct in Office /School Board Policy

3 5 . Paragraph 15 of the Administrative Complaint alleges

that Ð[b]ecause Respondent violated School Board Policies . . .

[she] committed . . . misconduc t in office [in accordance with]

§ 1012.33(1)(a), Fla. Stats., and [r]ule 6A - 5.5056(2).Ñ

3 6 . Section 1012.33(1)(a), Florida Statutes, provides as

follows:

Each person employed as a member of the

instructional staff in any district school

system shall be properly certified pursuant

to s. 1012.56 or s. 1012.57 or employed

pursuant to s. 1012.39 and shall be entitled

to and shall receive a written contract as

specified in this section. All such

contracts, except continuing contracts as

specified in subse ction (4), shall contain

provisions for dismissal during the term of

the contract only for just cause. Just cause

includes, but is not limited to, the

following instances, as defined by rule of

the State Board of Education: immorality,

misconduct in offi ce, 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 found

guilty of, or entering a plea of guilty to,

regardless of adjudication of g uilt, any

crime involving moral turpitude.

3 7 . Rule 6A - 5.056(2) defines Ðmisconduct in officeÑ to

include Ð[a] violation of the adopted school board rulesÑ and

makes it clear that a local school board, through its adopted

rules, has the authority to def ine conduct that constitutes just

cause for dismissal of an employee. As previously noted,

PetitionerÓs drug - free workplace policy provides that Ð[e]xcept

in extraordinary circumstance, it shall be the policy of the

Superintendent to consistently recommen d termination for positive

findings of controlled substances or alcohol . . . [and] [a] test

result for alcohol at or above .02 will be considered a positive

finding for the purpose of discipline.Ñ Respondent violated

PetitionerÓs adopted drug - free workpl ace policy and, under the

facts of the instant case , committed misconduct in office as

alleged in paragraph 15 of the Administrative Complaint.

D. Misconduct in Office/Code of Ethics

3 8 . Paragraph 13 of the Administrative Complaint alleges

that Respond ent violated Florida Administrative Code R ule 6A -

10.080(2) of the Code of Ethics of the Education Profession in

Florida (Code of Ethics). Petitioner, in its PRO, also argues

that RespondentÓs conduct violates rule 6A - 10.080(3) of the Code

of Ethics. Beca use Petitioner failed to allege a violation of

rule 6A - 10.080(3) in the Administrative Complaint, the

undersigned will not discuss this provision of the Code of

Ethics.

3 9 . Rule 6A - 10.080(2) of the Code of Ethics provides that

Ð[t]he educatorÓs primary p rofessional concern will always be for

the student and for the development of the studentÓs potential.

The educator will therefore strive for professional growth and

will seek to exercise the best professional judgment and

integrity.Ñ PetitionerÓs specif ic allegation is that Respondent

Ðdid not exercise the best professional judgment.Ñ

40 . It is undisputed that Respondent, when she reported to

work under the influence of alcohol, served as the Title I

coordinator for the school boardÓs Title I, Part D, programs for

alternative education. In this capacity, Respondent was

responsible for writing the Title I grant, which served students

in juvenile justice and delinquency programs, ensuring that grant

funds were disbursed properly, and ensuring that approp riate

documentation related to the grant was maintained by the school

board. In RespondentÓs position as Title I coordinator, she did

not have contact with students.

4 1 . Rule 6A - 10.080(2) focuses on the educatorÓs commitment

to students. While it is tr ue that Respondent, in performing her

job functions as Title I coordinator, carried out functions that

ultimately benefited students, any nexus between her job duties

and being concerned about Ðthe development of . . . student[]

potential,Ñ as addressed by the rule, is too tenuous to implicate

the aspirational standards set forth therein. See generally ,

Miami - Dade Cnty. Sch. Bd. v. Brenes , Case No. 06 - 1758, 2007 Fla.

Div. Adm. Hear. LEXIS 122 at *42 n.12 (Fla. DOAH Feb. 27, 2007);

Miami - Dade Cnty. Sch. Bd. Apr. 25, 2007)(ÐThe precepts set forth

in the Ethics Code . . . are so general and so obviously

aspirational as to be of little practical use in defining

normative behavior.Ñ). Furthermore, while it is also correct to

say that Respondent did not exercise the best professional

judgment when she reported to work under the influence of

alcohol, it is incorrect to conclude that RespondentÓs conduct

did not live up to her commitment to students given that at the

time of the violation she had continuously worke d for a period of

approximately five years in a position without student contact.

Petitioner failed to prove that RespondentÓs conduct, as alleged

in the Administrative Complaint, violated the Code of Ethics.

E. Misconduct in Office/Principles of Profes sional Conduct

4 2 . Paragraphs 13 and 14 of the Administrative Complaint,

collectively allege that RespondentÓs conduct violated rule 6A -

10.081(3) and (5), Principles of Professional Conduct for the

Education Profession in Florida (Principles of Professio nal

Conduct). Although the Administrative Complaint alleges a

violation of rule 6A - 10.081(3), which sets forth principles of

conduct related to a teacherÓs Ðobligation to the student,Ñ

Petitioner makes no argument in its PRO as to this issue. In

that Pet itioner has abandoned this allegation, apparently for

some of the same reasons as discussed in section D above, the

undersigned will likewise not address the same. Suffice it to

say, however, that RespondentÓs position as Title I coordinator

would likely make it improbable that Petitioner could establish a

violation of rule 6A - 10.081(3).

4 3 . Rule 6A - 10.081(5)(a) provides that an educatorÓs

obligation to the profession of education requires that the

educator Ðmaintain honesty in all professional dealings. Ñ

Paragraph 10 of the Administrative Complaint alleges as follows:

On January 5, 2015, Respondent attended the

[pre - determination meeting] during which she

was informed of the allegations against her,

reviewed the documentation being used against

her and given the opportunity to respond. At

that time Respondent could not explain the

reason for the positive EBT or explain the

observations of her physical condition and

behavior on December 1, 2014.

4 4 . Paragraph 10 of the Administrative Complaint sugge sts

an act of dishonesty that occurred on January 5, 2015. The

Administrative Complaint makes no mention of any alleged act of

dishonesty by Respondent occurring prior to this date.

4 5 . Petitioner, in support of this allegation, relies on

the following testimony of Michael Ganio, who investigates

allegations of misconduct for Petitioner.

Q: Okay. And did you ask her what she was

drinking?

A: Yes. She said rum. And, you know, to

drink for that long a period of time, and as

IÓm looking at the summary , she did say that

she did not stop until she went to bed Sunday

night, around midnight.

I thought that would be -- I donÓt know the

rate at which she was drinking, so I just --

I figured I would ask, well, what size bottle

was it, and she said it was the large 1.75.

And I asked a handle jug or a jug that has a

handle, so it would be a large bottle and she

said, yes.

Q: Okay. At any point in time, during that

-- your PMD, did she indicate that she had

taken anything other than alcohol, like

medication or anything of that sort?

A: No. No.

Q: Did she ever indicate to you that she had

taken Benadryl the night before?

A: No, not during the PMD.

4 6 . This testimony does not establish that Respondent was

dishonest in failing to disclose to Mr. Ganio that she allegedly

consumed Benadryl the night before she reported to work on

December 1, 2014. Mr. Ganio asked Respondent what she had been

drinking, and she told him. At no time did Mr. Ganio ask

Respondent to explain her behavior, which would have be en a

question that would have been more tailored towards eliciting

from Respondent a statement related to the alleged consumption of

Benadryl. The evidence relied upon by Petitioner does not

support the allegation that Respondent violated rule 6A -

10.081(5 )(a).

F. Immorality

4 7 . Paragraph 15 of the Administrative Complaint also

alleges that Respondent committed an act of immorality by

reporting to work on December 1, 2014, while under the influence

of alcohol. Petitioner argues in its PRO that ÐRespond ent

committed immorality when she appeared at work under the

influence of alcohol [and that] it is axiomatic that being under

the influence at work is not what the public expects from its

school teachers.Ñ

4 8 . Pursuant to Florida Administrative Code R ule 64 -

5.056(1), the term immorality means to Ð conduct that is

inconsistent with the standards 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 individualÓs service in the community.Ñ

4 9 . Ð[I] n order to dismiss a teacher for immoral conduct

the factfinder must conclude: a) that the teacher engaged in

conduct inconsistent with the standards of public conscience and

good morals, and b) that the conduct was sufficiently notorious

so as to disgrace the teaching profession and impair the

teacher's service in the community. Ñ McNeill v. Pinellas Cnty.

Sch. Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996).

50 . On the day in question, when Respond ent reported to

work under the influence of alcohol, there is no evidence that

Respondent had contact with any students. Additionally,

Petitioner offered no evidence establishing that RespondentÓs

conduct in any way impaired her service in the community. A

teacherÓs service in the community is measured by the teacherÓs

effectiveness in the classroom. McNeill , 678 So. 2d at 477 - 478.

Given that Respondent was working in a non - student contact role

where she advised teachers and administrators of their duti es

under federal and state grant programs, the evidence does not

support a finding that her effectiveness was impaired as a

consequence of reporting to work under the influence of alcohol.

Petitioner has failed to meet its burden of proof with respect to

the allegation that Respondent engaged in immoral conduct.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Orange County School Board enter

a final order that:

1. Terminates RespondentÓs Professi onal Service Contract

for just cause, due to Respondent committing misconduct in office

by violating PetitionerÓs drug - free workplace policy;

2. Dismisses the allegation(s) that Respondent committed an

act of drunkenness;

3. Dismisses the allegation(s ) that Respondent committed

misconduct in office by violating the Code of Ethics of the

Education Profession in Florida;

4 . Dismisses the allegation(s) that Respondent committed

misconduct in office by violating the Principles of Professional

Conduct for the Education Profession in Florida; and

5 . Dismisses the allegation(s) that Respondent committed an

act of immorality.

DONE AND ENTERED this 7th day of January , 2016 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

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 Administr ative Hearings

this 7th day of January , 2016 .

ENDNOTE S

1/ The RBT IV testing device is approved by the United States

Department of Transportation. The United States Department of

Transportation, Omnibus Transportation Employee Testing Act of

1991, Pub . L. No. 102 - 143 (OTETA), lists devices that may be used

for evidential breath tests on individuals in safety - sensitive

positions in commercial transportation, such as truck drivers,

airline pilots, vessel navigators, and mass transit and railroad

operator s. OTETA list s the RBT IV as an eviden tial breath

measurement device. S ince the RBT IV is a sufficiently reliable

device to test bus drivers, auto pilots and train drivers for the

purpose of determining whether such employee s are under the

influence of a n intoxicant , the undersigned finds that the device

is a sufficiently reliable for purposes of testing individuals

who hold a professional services contract, such as Respondent.

2/ All subsequent references to Florida Statutes will be to 2015,

unless oth erwise indicated.

3/ The referenced collective bargaining agreement is the

ÐContract between The School Board of Orange County, Florida and

The Orange County Classroom Teachers Association, as ratified on

May 27, 2014.Ñ

COPIES FURNISHED:

John C. Palmer ini, Esquire

Orange County Public Schools

445 West Amelia Street

Orlando, Florida 32801

(eServed)

Suzanne Tzuanos, Esquire

Egan, Lev and Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

(eServed)

Dr. Barbara Jenkins, Superintendent

Orange Coun ty School Board

445 West Amelia Street

Orlando, Florida 32801 - 0271

(eServed)

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, General Couns el

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 thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.