15-001770TTS Franklin County School Board vs. David Meyer Status: Closed Recommended Order on Monday, September 14, 2015.

Summary: The School Board proved that Respondent's actions warrant termination of his employment as a teacher.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRANKLIN COUNTY SCHOOL BOARD ,

Petitioner ,

vs. Case No. 15 - 1770TTS

DAVID MEYER ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a final adminis trative hearing was

conducted in this case on June 30 and July 1, 2015 , in

Apalachicola , Florida, before Administrative Law Judge R. Bruce

McKibben of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Bob L. Harris, Esquire

S ummer Denay Brown, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

For Respondent: H.B. Stivers, Esquire

Levine & Stivers, LLC

245 East Virginia Street

Tallahassee , Florida 32 3 01

STATEMENT OF THE ISSUE

The issue in this case is whether just cause exists to

impose discipline on Respondent, David Meyer, for violating

provisions of statutes, rules, and/or policies , and , if so, what

discipline should be imposed .

PRELIMINARY STAT EMENT

Nina M. Marks , Superintendent of Franklin County Schools ,

issued a letter to Mr. Meyer dated February 23, 2015, that he

was being suspended with pay pending an investigation into

alleged misconduct . On March 3, 2015, Superintendent Marks

recommended to the Franklin County School Board (ÐSchool BoardÑ)

that Mr. MeyerÓs instructional contract be terminated

immediately. At a specially - called meeting on March 12, t he

School Board voted unanimously to terminate the contract.

Mr. Meyer requested a formal administrative hearing to contest

the School Board action , resulting in the instant case .

At the final hearing, the School Board called the following

witnesses: Kevin Ward, Eagle Tree Technologies, which served as

internet techn ology (ÐITÑ) provider for the School Board;

Richard Herrington, assistant IT technician; Al London, director

of auxiliary services for the Franklin County School s ; Nina

Marks, superintendent; Kris Bray, principal of Franklin County

School; and Sean Reilly, offered and accepted as an expert in

IT, school acceptable use policies, and computer forensics. 1/

School Board Exhibits 1 , 4 - 16, 19, 22 - 26, 29 - 32, 34, 36 - 38, and

66 - 68 were admitted into evidence . Mr. Meyer testified on h is

own behalf . His exhibit 1 was admitted into evidence . The

parties also jointly asked that the testimony of Harilyn Walker

be admitted by way of her deposition transcript. The transcript

was read by the undersigned and considered in the preparation of

this Recommended Order . (All hearsay evidence was admi tted

subject to corroboration by competent, non - hearsay evidence. To

the extent such hearsay was not corroborated, it will not be

solely used as a basis for any finding herein.)

The parties advised the undersigned that a transcript of

the final hearing would be ordered. They were given 10 days

from the date the transcript was filed at DOAH to submit

proposed recommended orders. The T ranscript was filed on

August 10, 2015 . The parties subsequently filed a joint motion

for additional time to file their proposed recommended orders;

the motion was granted. Each party timely submitted a P roposed

R ecommended O rder, and both parties' submissions were given due

consideration in the preparation of this Recommended Order.

Unless specifically stated otherwise he rein, all references

to Florida Statutes shall be to the 20 1 5 codification.

FINDINGS OF FACT

1. T he School Board is responsible for hiring, firing , and

overseeing all employees within the Franklin County School

system . There is one large public school in Franklin County:

Franklin County School (the ÐSchoolÑ), which contains grades

pre - kindergarten through 12 . There were approximately 1 , 220

students enrolled at the School in the 2014 - 2015 school year .

There are approximately 170 employees working for th e School

Board. There is also a charter school and one private school in

the county.

2. At all times relevant hereto, Mr. Meyer was a teacher

at the School. At the time of his termination from employment

by the School Board, Mr. Meyer was teaching an a lternative

education class (referred to as ÐSOARÑ) containing only a few

students . His classroom was located in Building 8, Room 807,

located just behind the Schoo l administrative building.

Mr. Meyer has been employed by the School Board since 1990 and

h as held various teaching positions. He also served a s the IT

director for the School Board for approximately 10 years, but

returned to the classroom in the 2013 - 2014 school year when

Eagle Tree Technologies took over IT responsibilities .

Mr. MeyerÓs teac hing certification i s in science . During his

entire career with Franklin County schools , he was never

disciplined before the events related to the present case.

3. Eagle Tree Technologies has a contract with the School

Board to provide IT services to the School. Eagle Tree

Technologies will be referred to herein as Ðthe IT department.Ñ

I n August 2014, i.e., at the start of the 2014 - 2015 school year

during which all events of the present action took place,

Mr. Meyer was tasked with teaching students in t he SOAR program,

a project intended to help children who were struggling with

school for one reason or another , mostly behavioral or absentee

issues . At t he beginning of the school year , there were no

students in Mr. MeyerÓs classroom. Because he had no students

of his own to teach , Mr. Meyer would fill in for teachers who

were out sick, in training, or otherwise absent from their

classrooms . As the year progressed , a few students were

assigned to SOAR . Mr. Meyer basically taught those students in

all o f the core subjects , i.e., math, science, reading, language

arts, civics, and history. When the first SOAR students were

assigned, Mr. Meyer had several computers in his classroom: his

teacher workstation , two or three student computers, his

personal com puter, and a t least one laptop.

4. At some undisclosed time in August 2014 , Mr. Meyer was

having trouble getting his teacher workstation to Ðcome on right

away.Ñ In order to remedy that problem, Mr. Meyer ÐwipedÑ his

computer and re - installed Windows 7. He did not check with the

IT department before doing so, but admits that he probably

should have. As a result of Mr. MeyerÓs actions, the IT

department could not access Mr. MeyerÓs computer by way of its

ÐTeamViewerÑ remote access program. Herrington le ft Mr. Meyer a

note on his classroom white board, telling Mr. Meyer to

reconnect to the School network.

5. In December 2014, just prior to the SchoolÓs w inter

break, the IT department sent out an email to all staff warning

against non - School Board - issued computers (including laptops)

being connected to the School network. There was at that time a

concern at the State Department of Education of potential

computer hacking in statewide test sites. Personal laptops were

a potential source for hacking. Mr. M eyer had, in fact, issued

a warning against the use of personal laptops on the School

system when he was the IT director back in 2013.

6. Shortly after the IT departmentÓs email warning went

out, Herrington went into Mr. MeyerÓs classroom and saw non -

Sc hool Board computer equipment plugged into the School network

portals. The equipment included a personal desktop computer, a

laptop, and an external hard drive , among other items .

Herrington notified an assistant principal, Ms. Walker, about

what he had observed in the classroom.

7. On January 6, 2015, Herrington, Ms. Walker, and Patty

Kramer (media specialist at the School) went to Mr. MeyerÓs

classroom to confirm HerringtonÓs observations . The equipment

was just as Herrington had reported. Per Ms. W alkerÓs

direction, Herrington un p lugged all the personal computer

equipment from the School network . They stacked th at equipment

in one corner of the room and placed a sign saying ÐPersonalÑ on

top of the equipment . Before leaving the classroom, Herringt on

made sure that only School - authorized equipment was plugged into

the school network. Meanwhile, Ms. Walker organized the

classroom, cleaning up superfluous papers and books.

8. The next day, January 7, Ms. Walker went back to

Mr. MeyerÓs room to add ress her findings with him , but he was

absent from work that day. She came back on January 8 and

talked with Mr. Meyer about what she had done two days earlier

in his classroom . Ms. Walker also reminded Mr. Meyer that

students were to work only o n studen t computers, not on

Mr. MeyerÓs teacher workstation or on unauthorized laptops. She

told him that the personal computer equipment should not be re -

connected to the School system . About three weeks later,

Ms. Walker went to see Mr. Meyer and saw a student sitting at

the teacher workstation . She called Mr. Meyer outside the

classroom and reminded him of their conversation earlier about

students using his workstation .

9. In February 2015 , Herrington noticed that an inordinate

amount of the SchoolÓs bandwid th was being used. He was able to

track the use to Building 8 and then to Room 807, Mr. M e yerÓs

classroom. When he went into the room to determine what was

causing the bandwidth usage , he saw that the personal computer

equipment was again plugged into th e School network portals.

Conversely, t he School Board - issued computers were not plugged

into the network and the ir keyboards were in various states of

disrepair. The teacherÓs workstation was also plugged into the

network. Herrington reported his findi ngs to his supervisor,

Ward , but did not address the situation with Mr. Meyer directly .

10. On February 18, Herrington , Ward , and London went to

Mr. MeyerÓs classroom at approximately 6:00 in the evening to

further investigate t he personal computer equi pment situation .

They took pictures of the room and inventoried all the equipment

found there. A computer audit was conducted of the computers

found in the room . Herrington made copies of the computer

internet histories and files. He attempted to copy the external

hard drive but its contents were too extensive , so he took the

hard drive back to his office where he had better copying

capability. He was able to copy much Î but not all Î of the

hard drive . The hard drive was then returned to Mr. MeyerÓs

classroom. Later, on or about February 24, Ward went back to

Mr. MeyerÓs room for the purpose of confiscating all of the

computer equipment. The hard drive was missing at that time

and , as of the date of the final hearing, has not been located .

Mr. Meye r did not shed any light on the status of the external

hard drive in his final hearing testimony.

11. The computer audit show ed that there were unauthorized

computers and equipment connected to the School network, there

were inappropriate internet sites v isited on the computer and/or

appearing on the hard drive, and there w as some suspicious

software on the computer. It also appeared that Mr. Meyer had

attempted to circumvent the School network security system by

plugging a ÐswitchÑ into one of the school portals. There were

two portals in the classroom, one for the teacher workstation

and one for the teacherÓs school - issued telephone . The switch

gave Mr. Meyer the ability to allow other computers to access

the teacherÓs portal. This connection would pr esumably give

users the ability to surf the internet with fewer restrictions

than a student would normally encounter . Unfettered internet

usage would increase the possibility of allowing a virus into

the school network. That access could potentially g i ve students

the ability to access confidential school information.

12. There was also a Ðbridge,Ñ which provides some sort of

network connection, at Mr. MeyerÓs desk. He admits that he

bought the bridge and brought it to the classroom. However, he

was n ever able to figure out what it was to be used for and so

he never connected it in the classroom. His explanation begs

the question of why it was lying out on his desk, but that

question was never answered at final hearing. The appearance of

the bridge, in conjunction with the other devises, is Î at the

very least Î suspicious.

13. One of the unauthorized items found in Mr. MeyerÓs

classroom by the IT d epartment was an external hard drive , which

was connected to Mr. MeyerÓs personal computer, which was , in

turn , hooked up to the School District network. Mr. Meyer

admitted bringing the hard drive to his classroom. He would

t ransport it in his backpack and, on most days, take it home at

the end of the school day. The hard drive contained a large

amount of data and materials dating back several years.

14. Ward and Herrington found many unauthorized programs

on Mr. MeyerÓs external hard drive, his teacher workstation ,

and /or his personal computers . On Mr. MeyerÓs laptop computer ,

for example, there wer e programs that should only be used by the

school network administrator, i.e., Ward and Herrington. Some

of the unauthorized programs and material found on Mr. MeyerÓs

personal equipment by the IT department include :

• Windows Password Blocker Î which could possibly have

been used by Mr. Meyer to gain administra tive

privileges on his computer. This particular software

can also help remove a password from a system so that

an unauthorized person could access that system ;

• IP Hider Pro Î which is used most freq uently to hide a

userÓs history on the internet , or, as Mr. Meyer

maintains, it could be used simply to avoid

advertisers who rely on a userÓs history ;

• A HackerÓs Life Î which included a chapter about how

to create a computer virus;

• Virtual Machine (VM) so ftware Î which gave Mr. MeyerÓs

laptop access to his teacherÓs workstation ;

• Inappropriate YouTube videos Î including sexually -

related videos, various prank videos, and others;

• A how - to book on oral sex Î which included provocative

pictures and explicit sex ual language; and

• A list of XXX - rated sex questions Î which also

included prov ocative photographs and content.

15. As to the Password Blocker, IP Hider Pro, HackerÓs

Life, and VM software, Mr. Meyer said those were things he was

curious about and investi gated. He said that despite his IT

background , he was not able to successfully install the programs

and never was able to use them. Mr. MeyerÓs explanation for the

programs on his computer and hard drive is not persuasive and

seems inconsistent with his IT background . There was also one

instance when someone using Mr. MeyerÓs personal computer made a

Google search entitled, ÐLike a hacker; five steps.Ñ If a

student did that, it would be a problem; if Mr. Meyer made the

search, i t suggests more to the ha cking issue than admitted by

Mr. Meyer.

16. As to the books on o ral sex and sex questions,

Mr. MeyerÓs explanation seemed to change, depending on who asked

him about them. In response to his counselÓs question,

Mr. Meyer said he downloaded the books Ð last year sometime.Ñ

When asked again on cross examination, Mr. Meyer said that it

might have been someone else who downloaded those things, he

just did not remember. Although Mr. Meyer said none of his

students saw those books, his failure to adequately supervise

students means that he could not be certain of that fact.

17. One concern of the School Board was that Mr. Meyer had

a ÐTORÑ browser installed on his computer. A TOR is generally

used by people who are pirating movies and software and do no t

want to be detected. It is another tool, like the IP HiderPro,

to help users avoid detection.

18. Mr. Meyer admits using the switch and bridge ; he

asserts that the only reason for doing so was to have enough

portals for his laptop, a personal printer, and sometimes other

devises . The fact that it also allowed his students access to

the internet while using computers in the classroom seems to be

lost on Mr. Meyer.

19. Mr. Meyer says he brought his personal computer and

laptop into the classroom as a p ossible means of convincing his

students not to destroy computer equipment. He reasoned that if

he let the unruly students use his personal equipment instead of

School - issued computers, they would be more likely to treat it

properly. There is no credible support for this contention.

The students had broken keyboards, mouse(s), and other equipment

previously. And when they did so, Mr. Meyer did not contact the

IT department to have the equipment repaired or replaced.

Instead, he came up with the idea of replacing the equipment

with his own personal equipment. The use of his personal

equipment, however, violated School policies concerning outside,

unauthorized equipment being connected to the School network.

It was also a violation of School policy to a llow the students

to use his teacher workstation (even if, as Mr. Meyer alleged ,

other teachers allowed that to happen as well ).

20. The IT department did not find any actual harm to the

school network caused by Mr. MeyerÓs actions , nor did they find

t hat a major security breach had occurred. However, it is clear

there was a strong potential for harm and for a breach. For

example, s tudents were using the teacher workstation and the

laptop to access social media sites and surf the internet.

Students p otentially had access to Mr. MeyerÓs programs

concerning hacking into a computer system.

21. At one point , it was clear that Mr. MeyerÓs teacher

workstation and his personal computer were being used

simultaneously. During that time, there were question able and

inappropriate internet websites being visited on the computers.

For example, at least one person was accessing Facebook on the

teacher workstation, a clear violation of School policy.

Clearly, Mr. Meyer was not properly supervising students who

were using the computers in his classroom. He, in fact, admits

his failure to adequately supervise his students. His

supp osition that perhaps his daughter was using one of the

computers while he worked on the other is not very likely when

looking at the kind of sites being visited during the

simultaneous usage.

22. Mr. Meyer admits violating School policy regarding

changing or altering a School computer by creating a second

account on his workstation . He admits using the T OR browser on

his personal comp uter when it was plugged into the School

system. He admits putting a thumb - drive into his teacher

workstation , but denies the IT departmentÓs finding that he did

so 10 to 15 times a day. Mr. Meyer admits that plugging

additional devises into the School s ystem could increase the

potential for risk.

23. Both the superintendent of schools and the p rincipal

at the School ha ve serious reservations about allowing Mr. Meyer

to hold any position at the School due to the fact that he could

not be trusted to pro perly utilize the School computer system.

While there could be ways to limit his access or restrict his

usage, neither the Superintendent nor the Principal would be

comfortable because Mr. Meyer could possibly find a way to

circumvent the limitations or r estrictions. There are

essentially no teaching positions at the School which do not

require some use of computers.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proc eeding pursuant to a contract with the Franklin County

School District. The proceedings are governed by s ections

120.57 and 120.569, Florida Statutes .

25. The Superintendent of the School Board has the

authority to recommend to the School Board that an employee be

suspended or dismissed from employment. § 1012.27(5), Fla.

Stat. Superintendent Marks acted within her authority when

recommending to the School Board that Mr. MeyerÓs employment be

terminated.

26. The School Board has the authority to t erminate the

employment of or to suspend teachers without pay and benefits.

See §§ 1012.22(1)(f) and 1012.40(2)(c), Fla. Stat. By unanimous

decision, the School Board voted to exercise its authority to

terminate Mr. MeyerÓs employment.

27. The burden of proof in this proceeding is on the

School Board to prove by a preponderance of the evidence that

just cause exists to suspend or terminate the employment

contract of Mr. Meyer . McNeil v. Pinellas C nty . Sch . B d . , 678

So. 2d 476 (Fla. 2d DCA 1996). Pre ponderance of the evidence is

evidence that more likely than not tends to prove the

proposition set forth by a proponent. Gross v. Lyons , 763

So. 2d 276 (Fla. 2000).

28. There is no definition of Ðjust causeÑ in the SchoolÓs

Employee Handbook , in the Collective Bargaining Agreement, or in

School policies. In the absence of a definition , the School

Board has discretion to set standards which subject an employee

to discipline. See Dietz v. Lee C nty . Sch . Bd . , 647 So. 2d 217

(Fla. 2d DCA 1994). Nonetheless, just cause for discipline must

rationally and logically relate to an employee's conduct in the

performance of the employee's job duties and be in connection

with inefficiency, delinquency, poor leadership, and lack of

role modeling or miscondu ct. State ex. rel. Hathaway v. Smith ,

35 So. 2d 650 (Fla. 1948); In Re: Grievance of Towle , 665 A.2d

55 (Vt. 1995).

29. Just cause for purposes of discipline is discussed in

s ection 1012.33, Florida Statutes:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education:

immorality, misconduct in office,

incompetency, gross insubordination, willful

neglect of duty, or being convicted and

found guilty of, or entering a plea of

guilty to, regardle ss of adjudication of

guilt, any crime involving moral turpitude.

30. BlackÓs Law Dictionary defines just cause as:

A cause outside legal cause, which must be

based on reasonable grounds, and there must

be a fair and honest cause or reason,

regulated by good faith.

31. The American Heritage Dictionary defines cause as:

ÐGood or sufficient reason or ground.Ñ

32. Florida Administrative Code Rule 6A - 5.056 states:

ÐÒJust causeÓ means cause that it legally sufficient.Ñ

33. From the totality of the defi nitions, it appears that

just cause is cause that can be proven and which falls within

the general parameters of immorality, misconduct in office,

incompetency, gross insubordination, willful neglect of duty, or

certain prescribed criminal activity.

34. Rule 6A - 5.056 provides definitions and criteria for

suspension or dismissal of teachers. Misconduct in office is

defined in subsection (2) of that rule as a violation of the

Code of Ethics for teachers, set out in r ule 6A - 10.080. Gross

insubordination is defined in subsection (4) as the intentional

refusal to obey a direct order, reasonable in nature, given by a

person with proper authority. Willful neglect of duty is

defined in subsection (5) as intentional or reckless failure to

carry out required duti es.

35. In the present case, the School Board proved that:

Mr. Meyer is guilty of misconduct in office , gross

insubordination, and willful neglect of duty . He did not

properly supervise his students, he allowed students to access

prohibited internet sit es, and he ignored directions concerning

the use of unauthorized equipment . He also brought into his

classroom materials that were not appropriate for students and

failed to protect that information, not even having a password

on his computer.

36. Just cause therefore exists to impose some discipline

on Mr. Meyer. The question is whether there is sufficient cause

in this case to impose the ultim ate penalty, termination of

Mr. MeyerÓs employment with the School.

37. The factors supporting termination are: Mr. Meyer

caused unauthorized computer equipment to be plugged into the

SchoolÓs computer system. He exposed his students to

inappropriate materials by allowing them access to his

computers. He failed to properly supervise his students. He

ignore d computer - use policies of which he was intimately

familiar. He also ignored direct orders from a superior who was

authorized to issue such orders.

38. The factors militating against termination and in

favor of a lesser sanction are: Mr. MeyerÓs intent ions do not

appear to be malicious, i.e., he used personal computers and

expanded use of the portal to the benefit of his students who

were undeniably the most challenging in the School; Mr. Meyer

had never been sanctioned for bad behavior before the event s at

issue in this proceeding ; a nd, it is always difficult to

terminate a person from their employment if other options are

reasonable and acceptable.

39. Taking all of the evidence and testimony into

consideration, it is clear that Mr. MeyerÓs effectiven ess as a

teacher has been severely decimated by his actions . He cannot

be trusted in any position which would allow him access to

computer equipment. He cannot be trusted to effectively monitor

the students in his charge.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order b e entered b y Petitioner,

Franklin County School Board, upholding the termination of

Respondent, David Meyer 's, employment for the reasons set forth

above.

DONE AND ENT ERED this 14th day of September, 2015 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 14th day of September, 2015.

ENDNOTE

1/ The School Board expert was accepted as tendered and allowed

to testify as an expert. His testimony was based, in part, upon

a virtual copy of Mr. MeyerÓs personal c omputer and related

equipment. During the discovery process in this case, Mr. Meyer

requested via legitimate discovery requests all information that

the School Board would be relying upon in the presentation of

its case. Neither the personal computer nor the virtual copy

(which was made just days prior to final hearing) were produced

to Mr. Meyer. As a result, Mr. Meyer moved to strike the

testimony of the School BoardÓs expert for failure to comply

with the discovery request. It is hereby ordered that any

testimony from Mr. Reilly , based exclusively on the virtual copy

of Mr. MeyerÓs computer (tantamount to a copy of a written

document) , wil l not be relied upon to base a finding of f act in

this Recommended Order.

COPIES FURNISHED :

Donna Deloris Dunc an, Esquire

Sanders and Duncan, P.A.

Post Office Box 157

Apalachicola, Florida 32329

(eServed)

Mark S. Levine, Esquire

Levine and Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

(eServed)

Summer Denay Brown, Esquire

Messer Caparello, P .A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Bob L. Harris, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Cameron H. Carstens, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallaha ssee, Florida 32308

(eServed)

H. B. Stivers, Esquire

Levine & Stivers , LLC

245 East Virginia Street

Tallahassee, Florida 32301

(eServed)

Nina M. Marks, Superintendent

Franklin County District Schools

Administrative Offices

85 School Road, Suite 1

Eastp oint, Florida 32328

(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

Turlingt on 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 exception s

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.