16-000271TTS Indian River County School Board vs. Brian Krystoforski Status: Closed Recommended Order on Monday, May 2, 2016.

Summary: School Board properly terminated the Respondent under its policy directing that no person could be "hired or retained under any circumstances" for a felony conviction, including felony DWLS. The conviction also violated employee's probation with the EPC.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INDIAN RIVER COUNTY SCHOOL

BOARD,

Petitioner,

vs. Case No. 16 - 0271TTS

BRIAN KRYSTOFORSKI,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was hel d in this case before Robert L.

Kilbride, an Administrative Law Judge ( " ALJ " ) of the Division of

Administrative Hearings ( " DOAH " ), on March 14, 2016, via video

teleconference between Port St. Lucie and Tallahassee, Florida.

APPEARANCES

For Petitioner: Eli zabeth Coke, Esquire

Richeson and Coke, P.A.

Post Office Box 4048

Fort Pierce, Florida 34948

For Respondent: Brian Krystoforski, pro se

1126 Southeast Maxwell Lane

Port St. Lucie, Florida 34952

STATEMENT OF THE ISSUE S

The nature of the instant controversy is whether Petitioner

has just cause to terminate Respondent under section 1012.33 ,

Florida Statutes (2015), 1/ and whether Respondent ' s acts and/or

omissions disquali fy him from being employed in the Indian River

County School District ( " School District " ) .

PRELIMINARY STATEMENT

Respondent , Brian Krystoforski, pled guilty and was

convicted of the felony charge of Driving While License Suspended

( " DWLS " ) . The s uperinten dent recommended to Petitioner, Indian

River County School Board ( " Petitioner " or " School Board " ) , that

Respondent ' s employment with the School District be terminated

for : ( 1) violation of the policy prohibiting conviction of a

felony , ( 2) violation of th e policy requiring self - reporting

within 48 hours of a conviction , and ( 3) violation of the

Education Practices Commission ( " EPC " ) f inal o rder placing

Respondent on probation. Petitioner alleges that Respondent ' s

actions either independently or in combina tion make him

ineligible for continued employment , which constitutes just cause

under section 1012.33(6)(a) to terminate Respondent ' s employment.

Respondent filed a timely written request for a hearing with

Petitioner .

Petitioner referred the matter to DOA H for a final hearing

on this matter.

Pursuant to notice, a formal administrative hearing was held

on March 14, 2016 , via video tele conference before Judge

Kilbride, the assigned DOAH A LJ . At the hearing, Petitioner

presented the testimony of Dr. William Fritz, the a ssistant

s uperintendent for Human Resources and Risk Management for the

School District. Petitioner's Exhibits A through L were admitted

into evidence. Respondent presented testimony on his own behalf.

Respondent's Exhibits 1 through 9, 11, 12, 17, 18, 36, and 37

were admitted into evidence.

The Transcript was filed with the Clerk of DOAH on April 5,

2016. The parties filed post - hearing proposed recommended

orders, which were duly considered in the preparation of this

Recommended Order.

FIND ING S OF FACT

Based on the evidence presented at the final hearing, the

undersigned makes the following findings of relevant and material

facts:

1. Respondent was employed by the School Board as a

classroom teacher.

2. As a teacher, Respondent was require d to abide by all

Florida Statutes which pertain to teachers, the Code of Ethics

and Principles of Professional Conduct for the Education

Profession in Florida, and all School Board p olicies .

Testimony of William Fritz

3 . William Fritz, a ssistant s uperint endent for Human

Resources and Risk Management, testified for the Sch ool Board.

4 . One of his primary duties is to conduct employee

disciplinary investigations for the School Board . He is

considered the " point person " for such matters.

5 . Fritz was info rmed by the fingerprint specialist in his

office that Respondent had been arrested for felony DWLS .

Subsequently, the same person informed him that Respondent had

been convicted of the felony DWLS on October 6, 2015. The felony

designation for Respondent 's DWLS was based on this being his

third or subse quent DWLS offense. The Judgment of Conviction

dated October 6, 2015, designated the crime as "Driving While

License Revoke d - Permanently Revoked." Pet.'s Ex. F.

6 . After learning of Respondent ' s felony c onviction, Fritz

conducted an internal investigation. He had an informal

discussion with Respondent to discuss the matter. This occurred

in November 2015.

7 . When they met, Respondent told Fritz that he felt he did

n ot need to self - report the conviction because the School

District was automatically notified by the court. 2/

8 . Respondent explained to Fritz that there were some

extenuating circumstances for the car trip that day involving a

visit to a very ill friend.

9 . As a follow - up to the meeting, Fr itz reviewed the S chool

Board policies pertaining to discipline. He concluded that the

situation likely warranted termination. He requested to meet

with Respondent again, but his invitation was declined by

Respondent.

10 . During the course of his invest igation and review of

Respondent ' s personnel file, Fritz concluded that Respondent had

been put on employment probation by EPC in 2012 and that the

probation was still active when the 2014 arrest and subsequent

conviction in 2015 occurred.

11 . The EPC ord er proscribed certain conduct by Respondent

during probation. The EPC o rder provided that Respondent

" violate no law and shall fully comply with all District S chool

Board policies, school rules, and State Board of Education

rules. "

12 . Fritz concluded th at the DWLS conviction viol ated that

provision of the EPC o rder, as well as certain School Board

employee rules and policies.

13 . Notably, Fritz concluded that Respondent ' s 2015

felony DWLS conviction was a Category 3 violation of School Board

P olicy 3121 .01. Convictions for Category 3 offenses, by

definition, expressly prevented the hiring or retention of an

employee " under any circumstances . " Pet . ' s Ex. K. 3/

14 . After reviewing all of the relevant documents and

concluding his investigation, Fritz met with the S chool Board

superintendent and recommended that Respondent be terminated. In

arriving at that recommendation, Fritz took into account the

mitigating factors explained by Respondent during their first

meeting, namely needing to visit a sick frien d.

1 5 . Fritz noted during his investigation that another f inal

o rder of EPC had also been entered in 2007 , disciplining

Respondent for a conviction for driving under the influence

("DUI") .

16 . Fritz testified that there had been a termination of

another teacher in the School D istrict for a felony offense. The

termination occurred in 2013 and was referred to DOAH , which

recommended that termination was appropriate .

17 . There was no suggestion or testimony during the course

of Fritz ' s testimony that the r ecommendation to terminate

Respondent was related in any manner to problems with

Respondent ' s job performance or other conduct on the job.

Rather, the felony conviction violated School Board policy

requiring termination and also constituted violations of the EPC

o rder and resulting EPC probation.

1 8 . On cross - examination, Fritz acknowledged that the most

recent felony conviction in October 2015 had not yet been

addressed or ruled on by EPC insofar as Respondent ' s teaching

certificate was concerned.

1 9 . F ritz further testified that a collective bargaining

agreement ("CBA") exists which governs the discipline of

teachers, including Respondent. Article 5.1, section (A) of the

CBA, states as follows:

Discipline of an MBU shall be progressive.

Progression sh all be as follows: documented

verbal warning presented in a conference with

the MBU, a letter of reprimand, suspension,

termination. Serious first offenses may

result in an immediate, strong consequence up

to and including termination.

Resp . ' s Ex. 18 .

2 0. Fritz testified that Respondent's felony conviction for

DWLS was a " serious first offense , " which gave the School

D istrict the discretion to move directly to termination under

Article 5.1, section (A) of the CBA . 4/

2 1. When questioned by Respondent as to whether or not a

felony conviction for a worthless check offense, for instance,

could also result in a termination, Fritz pointed out

Petitioner ' s Exhibit K, which specifically designated worthless

check convictions as a different and separate " Categor y 5 "

offense. Category 5 offenses, by express definition and unlike

Category 3 offenses, afforded the School District considerable

leeway on discipline, on a case - by - case basis.

22. Conversely, Fritz testified that a felony conviction

for DWLS fell under a different category, " Category 3 , " and was

considered significant and serious enough to warrant termination

of the employee.

Testimony of Brian Krystoforski

2 3 . Respondent started teaching in 1984 and is in his 24th

year of teaching in the s tate of Flo rida.

2 4 . Respondent testified, and emphasized throughout the

proceeding, that the S chool D istrict was aware of a prior

criminal traffic conviction and EPC sanctions in 2012 but,

nonetheless, permitted Respondent to continue to teach in the

School D istric t. 5 /

2 5 . Respondent testified that the 2012 EPC f inal o rder

related, as well, to a prior DWLS felony conviction.

2 6 . Respondent testified that , on the date he was arrested

for the 2015 DWLS conviction, he was driving to visit a good

friend who had seriou s medical issues and was very depressed.

However, he acknowledges his trip was a " bad decision . "

2 7 . He characterized his plea of no contest on October 6,

2015 , as more of a plea of convenience belie ving that his

explanation for driving that day would mi tigate the effect of the

criminal plea and conviction before the circuit court judge.

2 8 . The undersigned has considered the collection of

exhibits offered by the parties and admitted into evidence.

2 9 . The undersigned has also reviewed the plea colloqu y

from October 2015 before the circuit court judge who took

Respondent ' s felony plea to DWLS . 6 /

30 . Respondent emphasized that his felony conviction for

DWLS should be evaluated using several mitigating factors found

in Florida Administrative Code Rule 6B Î 11.007, Disciplinary

Guidelines . 7 /

31. Insofar as the severity of this conviction is

concerned, Respondent felt that he was just guilty of using " bad

judgment . "

3 2. Furthermore, Respondent argues that he is not a danger

to the public under one of the mi tigating factors outlined in the

Florida Administrative Code.

33 . Another mitigating factor Respondent felt should be

considered is that he has been an educator for a long period of

time. He felt that his commitment and participation as the

football defe nsive coordinator at Vero Beach High School should

also be considered a mitigating factor.

3 4 . Respondent felt that there had been no actual damage,

physical or otherwise, caused by his driving while license

suspended. Furthermore, in 24 years of teachin g , he has never

been considered for termination for any other conduct or

offenses. Finally, he argues that the effect of termination on

his livelihood and ability to earn a living warrants

consideration.

3 5 . On cross - examination , the evidence revealed th at

Respondent had a conviction for DUI in 1988, a conviction for DUI

in 1990 , and a conviction for a DUI in 2002. In 2004,

adjudication was withheld for driving while intoxicated on a

revoked license.

3 6 . Respondent also conceded that EPC warned him that a

permanent revocation of his educator certificate could occur

under certain circumstances, particularly if the educator ' s

certificate had been sanctioned by EPC on two or more previous

occasions. Respondent testified that he had, indeed, been

sanctioned by EPC on two previous occasions prior to this 2015

conviction for DWLS.

3 7 . There is also evidence to show that Respondent has been

characterized as a " highly effective " teacher during recent

evaluations.

CONCLUSIONS OF LAW

3 8 . DOAH has jurisdiction ov er the subject matter and the

parties to this proceeding. §§ 120.569, 120.57(1), and

1012.33(6)(a)2 . , Fla. Stat.

39. In the absence of a CBA establishing a different

standard, a school board is required to prove disciplinary

charges against an employee b y a preponderance of the evidence.

§ 120.57(1)(j) , Fla. Stat. ; M.H. v. Dep ' t of Child . & Fams . , 977

So. 2d 755 (Fla. 2d DCA 2008) ; and Cropsey v. School Bd. of

Manatee Cnty. , 19 So. 3d 351 (Fla . 2 d DCA 2009). That standard

of proof applies in this case.

40. The preponderance of the evidence standard requires

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

" more likely than not " tends to prove a certain proposition. In

this case, that proposition would be whether or not there is just

cause to terminate Respondent. See Gross v. Lyons , 763 So. 2d

276, 280 n.1 (Fla. 2000).

41 . A hearing at DOAH before an ALJ is " de novo . "

Evidence must be developed at the administrative hearing to

justify the action contemplated by P etitioner. See , generall y ,

§ 120.57(1)(j) and (k) , Fla. Stat. ( " All proceedings conducted

under this subsection shall be " de novo . " ).

4 2 . Further, this de novo proceeding is intended to

formulate and determine action by Petitioner and is not simply to

review action taken earlier or preliminarily. Beverly Enters . -

Fla . , Inc. v. Dep ' t of HRS , 573 So. 2d 19 (Fla. 1st DCA 1990).

43 . Petitioner is the duly - constituted governing body of

the School District. Art. IX, § 4, Fla. Const.; §§ 1001.20 and

1001.33, Fla. Stat. As such, it ha s the statutory authority to

adopt rules governing personnel matters pursuant to section

1001.42(5).

44. An agency or school board ' s interpretation of its own

rules and policies has traditionally been accorded considerable

respect. Beach v. Great Western Bank , 692 So. 2d 146, 149 (Fla.

1997) ; and Purvis v. Marion Cnty . Sch . Bd . , 766 So. 2d 492

(Fla. 5th DCA 2000).

45. Although this deference is not absolute, and this is a

de novo proceeding, courts and administrative tribunals should

defer to the agency interpretation and application of its rules

and policies, unless the agency ' s construction or interpretation

of its rule s or polic ies amounts to an unreasonable

interpretation, or is clearly erroneous. Purvis , supra. ; Legal

Envtl. Assistance Found., Inc. v. Bd. o f Cnty . Comm ' rs o f Brevard

Cnty . , 642 So. 2d 1081, 1083 - 84 (Fla. 1994) .

46. Generally, in the absence of a rule or written policy

specifically defining " just cause , " a s chool b oard has broad

discretion to set standards which subject an employee to

discipline. Dietz v. Lee Cnty. Sch. Bd. , 647 So. 2d 217 (Fla. 2d

DCA 1994 )( concurring opinion Judge Blue). " Just cause " for

discipline or " terminations for cause " must rationally and

logically relate to misconduct, some violation of the law or

derelicti on of duty on the part of the officer or employee

affected. State ex. rel. Hathaway v. Smith , 35 So. 2d 650

(Fla. 1948).

47. In this case, Petitioner properly followed its own

internal procedures in investigating and disciplining Respondent.

48. School Board P olicy 3121.01 is clear and unambiguous in

its mandate that employees may not be retained, under any

circumstances , for a Category 3 felony conviction.

49. Petitioner's conclusion that a felony DWLS was a

Category 3 offense was not unreasonable , sin ce it qualifies as

" other felony crimes , " and it is not a " felony crime involving

worthless checks " under Category 5 .

50. The discretion exercised by Petitioner to terminate

Respondent was appropriate and consistent with its rules and past

practices.

51. There is no legitimate factual or legal basis to

recommend a different penalty than that proposed by Petitioner .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Indian River County School Board

imp lement its preliminary decision to terminate the employment of

Respondent.

DONE AND ENTERED this 2 nd day of May , 2016 , in Tallahassee,

Leon County, Florida.

S

ROBERT L. KILBRIDE

Administrative Law Judge

Division of Admin istrative 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 2 nd day of May , 2016 .

ENDNO TE S

1/ References to Florida Statutes are to the 2015 version, unless

otherwise indicated.

2/ Employees are obligated to self - report such convictions or

incidents. Respondent did not do so.

3/ The undersigned finds that a felony DWLS conviction qual ifies

as a Category 3 conviction under the policy.

4/ The undersigne d concludes that it was not unreasonable or

clearly erroneous to conclude Respondent's felony conviction was

a "serious first offense."

5 / The undersigned is not aware of, nor has he b een provided, any

compelling case law to suggest that the School District has

waived its enforcement prerogative or is estopped to mete out the

discipline it now proposes under these circumstances. In fact,

in Florida, equitable estoppel against governmen t agencies is

rarely permitted. Associated Indus. Inc. Co. v. Dep't of Labor &

Emp. Sec. , 923 So. 2d 1252 (Fla. 1st DCA 2006)("Equitable

estoppel will apply against a governmental entity only in rare

instances and under exceptional circumstances."). Thos e rare

instances or exceptional circumstances do not exist in this case.

6 / There is no dispute concerning this plea and felony

conviction.

7 / This Florida Administrative Code rule pertains to how, when,

and under what circumstances an educator's teach ing certificate

may be impacted by EPC for certain conduct. While it may provide

mitigating factors that an ALJ could consider as a part of his or

her de novo review and ultimate recommendation, a school board is

not bound by these factors. In the absenc e of state or federal

law to the contrary, a school board may enact and enforce

reasonable rules and policies governing its own employees.

§§ 1001.41 and 1001.42(6), Fla. Stat.

COPIES FURNISHED:

Elizabeth Coke, Esquire

Richeson and Coke, P.A.

Post Off ice Box 4048

Fort Pierce, Florida 34948

(eServed)

Brian Krystoforski

1126 Southeast Maxwell Lane

Port St. Lucie, Florida 34952

Dr. Mark J. Rendell, Superintendent

Indian River County School Board

6500 57th Street

Vero Beach, Florida 32967

Matthew Me ars, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines S treet

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be fil ed with the agency that

will issue the Final Order in this case.