16-002580TTS Orange County School Board vs. Kimberly Honaker Status: Closed Recommended Order on Thursday, March 30, 2017.

Summary: The School Board proved, by a preponderance of the evidence, that just cause exists to terminate Respondent's employment as a teacher based on misconduct in office.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ORANGE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 2580TTS

KIMBERLY HONAKER,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1), Florida Statutes (2016), 1/ on November 15 through 17

and December 9, 2016, by video - teleconference s ites in

Tallahassee and Orlando, Florida.

APPEARANCES

For Petitioner: John C. Palmerini, Esquire

Orange County Public Schools

445 West Amelia Street

Orlando, Florida 32801

For Respondent: Tobe M. Lev, Esquire

Egan, Lev & Siwica, P.A.

231 East Colonial Drive

Orlando, Florida 32801

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner, Orange County

School Board, to terminate Kimberly Honaker Ós employment contract

as a teacher.

PRELIMINARY STATEMENT

On April 16, 2015, the Superintendent for Petitioner, Orange

County School Board (the ÐSchool BoardÑ), served an

Administrative Complaint against Respondent, Kimberly Honaker

(ÐRespondentÑ), notify ing Respondent of her intent to recommend

that the School Board term inate RespondentÓs employment.

On May 9, 2016, Respondent timely requested an

administrative hearing to challenge her termination. On May 10,

2016, the School Board referred the matter to the Division of

Administrative Hearings (ÐDOAHÑ) and requested the assignment of

an Administrative Law Judge to conduct a chapter 120 evidentiary

hearing.

The final hearing was initially held on November 15

through 17, 2016. 2/ The hearing was not comple ted on the

scheduled dates. Therefore, the final hearing was continued to

December 9, 2016, at which time the final hearing was completed.

At the final hearing, the School Board presented the

testimony of K.H., Brandon Adkins, Sherri Pruitt, Jefferson

Wer ts, Mike Ganio, Sr., and Kelly Pelletier. School BoardÓs

Exhibits 1 through 36 were received into evidence. 3/ Respondent

testified on her own behalf. Respondent also presented the

testimony of C.H., Scott Honaker (RespondentÓs husband), Judy

Babb, Debbi e Cook, and Vivian Duff (RespondentÓs mother).

RespondentÓs Exhibits 7 through 9, 11 through 13, 15 through 20,

and 31 were received into eviden ce. Respondent also proffered

E xhibits 29 and 30 , which were not admitted into evidence.

A court reporter reco rded the final hearing. A seven - volume

Transcript of the final hearing was filed with DOAH on

December 27, 2016. At the close of the hearing, the parties were

advised of a ten - day timeframe following receipt of the hearing

transcript at DOAH to file pos t - hearing submittals. The parties

agreed to a deadline for filing their post - hearing submissions

more than ten days after the filing of the transcript. Both

parties filed Proposed Recommended Orders which were duly

considered in preparing this Recommende d Order.

FINDING S OF FACT

1. The School Board is the duly - constituted governing body

charged with the duty to operate, control, and supervise public

schools within Orange County, Florida. See Art. IX, § 4(b),

Fla. Const.; and §§ 1001.30 and 1001.33, Fla . Stat.

2. At all times material to this matter, Respondent was

employed by the School Board as a classroom teacher at Apopka

Memorial Middle School (ÐApopka Middle SchoolÑ). Respondent

holds a professional service contract with the School Board.

3. The School Board brings this action pursuant to section

1012.33 , Florida Statutes . The School Board asserts that Ðjust

causeÑ exists to terminate RespondentÓs employment contract based

on misconduct in office, immorality, crimes involving moral

turpitude, co nduct unbecoming a public employee, violations of

the Principle s of Professional Conduct for the Education

Profession in Florida, and violation of her employment agreement.

4. The School Board initiated this action following a

series of arrests Respondent experienced in 2014. RespondentÓs

arrests were based on the actions of Robert Pruitt, a family

friend who Respondent allowed to stay in her home in May 2014.

On November 18, 2014, Mr. Pruitt plead guilty to lewd or

lascivious molestation of RespondentÓs daughter, K.H. 4/ That same

day, Respondent plead nolo contendere to the charge of neglect of

a child.

5. In May 2014, Mr. Pruitt was 58 years old. K.H. was

13 years old.

6. The events which culminated in RespondentÓs arrests and

plea to the charge of neglect of a child began in March 2014.

That month, Respondent and her twin daughters, K.H. and C.H.,

encountered Mr. Pruitt while vacationing in Melbourne, Florida.

Respondent, Mr. Pruitt, K.H. and C.H. spent at least a night and

a day in each otherÓs company.

7. Mr. Pruitt was well ` known to Respondent. She had known

him since childhood when they grew up in Miami together. At some

point, Respondent and Mr. Pruitt may have dated. Mr. Pruitt

eventually marr ied RespondentÓs older sister.

8. At the ti me of their trip to Melbourne, Mr. Pruitt had

long since divorced RespondentÓs sister. He was remarried to

Sherri Pruitt for approximately 18 years. (Mr. Pruitt and Sherri

have been divorced since May 2014.)

9. Respondent testified that she had not seen or spoken to

Mr. Pruitt for at least ten years prior to March 2014. While in

Melbourne , they reconnected. (As set forth below, testimony

differs as to whether this meeting was a chance rendezvous or a

planned liaison betwe en Respondent and Mr. Pruitt.)

10. When Mr. Pruitt returned from Melbourne, Sherri

confronted him about his trip. She was not pleased that he left

her to spen d time with Respondent and her daughters. At the

final hearing, Sherri testified that during an argument several

days after th e trip, Mr. Pruitt told her that he had stayed with

Respondent and K.H. in a hotel in Melbourne. Mr. Pruitt also

told her that he had sex with both Respondent and K.H.

11. On April 16, 2014, Sherri Pruitt filed a Petition for

Injunction for Protection Ag ainst Repeat Violence against

Respondent. Ms. PruittÓs petition was denied that same day for

failing to allege an act of violence.

12. Mr. Pruitt has a history of mental illness and

hospitalizations. Sherri Pruitt reported that around 2000 , her

husband was diagnosed as bipolar, severely depressed, and

suffering from a borderline personality disorder. He had been

hospitalized numerous times based on his mental health issues and

stroke symptoms. Mr. Pruitt had been prescribed anti - psychotic

medication.

1 3. Sherri Pruitt had frequently initiated Baker Act

proceedings against Mr. Pruitt. 5/ On April 16, 2014, Sherri had

Mr. Pruitt readmitted under the Baker Act into Springbrook

Hospital in Brooksville, Florida. Springbrook Hospital is a

private psychiatri c hospital and a designated Baker Act receiving

facility.

14. On April 29, 2014, Sherri Pruitt filed a Petition for

Injunction for Protection Against Domestic Violence against

Mr. Pruitt for repeated violence. Ms. Pruitt alleged that

Mr. Pruitt had thr eatened to commit violence against her. On

May 12, 2014, Ms. PruittÓs petition was denied due to

insufficient evidence.

15. Also on April 29, 2014, Respondent received an e - mail

on her personal cell phone from the e - mail account of

robertpruitt@hotmail. com . The e - mail contained a recording of an

audio message. Respondent listened to the recording on her

classroom computer at Apopka Middle School. On the recording,

Respondent heard a heated discussion between Mr. Pruitt and

Sherri. Respondent recogniz ed the voice of Mr. Pruitt who m ade

the following statements: Ð I am a pedophile. Wh o do I care that

knows that?Ñ Ð We had [sex] together, me, [Respondent], and

[K.H.]. The same day. How about that? Ñ (Ms. Pruitt testified

that she recorded the statemen t during the argument with her

husband after he returned from Melbourne.)

16. On or about May 1, 2014, while still admitted to

Springbrook Hospital, Mr. Pruitt called RespondentÓs mother,

Vivian Duff, and asked her to come get him out of the hospital.

Mr . PruittÓs psychiatrist agreed to discharge Mr. Pruitt to

Ms. Duff. Mr. PruittÓs Discharge Instruction noted that he was

diagnosed as bipolar. The Discharge Instruction also recorded

that Mr. Pruitt had been prescribed medications , including

Seroquel, A tivan, Lith ium , Lamicta1 , and Wellbutrin.

17. Ms. Duff picked up Mr. Pruitt on May 1, 2014, from

Springbrook Hospital. She drove him to RespondentÓs home.

Sherri Pruitt testified that Ms. Duff took Mr. Pruitt out of

Springbroo k Hospital against her wish es.

18. On the drive from Springbrook Hospital to RespondentÓs

house, Mr. Pruitt announced that he wanted to stop by his home

and Ðget ridÑ of his wife.

19. In May 2014, Respondent lived with her husband, Scott

Honaker, her mother (Ms. Duff), as well as her twin, 13 - year - old

daughters (K.H. and C.H.).

20. Respondent lived in a two - story house. Respondent and

her husbandÓs bedroom was on the first floor. Mr. Pruitt was

moved into a bedroom on the second floor. Ms. DuffÓs bedroom was

in the next room. RespondentÓs daughters shared a bedroom which

was also on the second floor.

21. When Mr. Pruitt arrived at RespondentÓs home, he was

very frail. Respondent testified that Mr. Pruitt stayed mostly

in his bedroom. She relayed that he could not climb up or down

the stairs without assistance.

22. After Mr. Pruitt moved into RespondentÓs home, he

purchased iPhones for both K.H. and C.H. Mr. Pruitt told the

girls that they had to share their passwords with him, which they

did. Respondent was aware and appro ved of Mr. P ruittÓs gift to

her daughters.

23. While Mr. Pruitt was living at RespondentÓs home,

Sherri Pruitt discovered Facebook exchanges, text messages, and

e - mails between Mr. Pruitt, Respondent, and K.H. Ms. Pruitt

believed that these messages impl ied a sexual relationship

between Mr. Pruitt and K.H. Ms. Pruitt also became concerned

that Respondent was aware of a nd condoned this relationship.

24. On May 30, 2014, Ms. Pruitt contacted the Florida

Department of Children and Families (ÐDCFÑ) and the Apopka Police

Department (ÐAPDÑ) to report her misgivings about the

relationship between Mr. Pruitt, Respondent, and K.H. Ms. Pruitt

divulged that she suspected Mr. Pruitt was sexually molesting at

least one of RespondentÓs daughters. APD requested DCF

p articipate in their i nvestigation of the complaint.

25. Based on Sherri PruittÓs report, around midnight on

May 30, 2014, APD, along with Brandon Adkins, a Child Protective

Investigator with DCF, converged on RespondentÓs home. APD made

contact with Res pondent, as well as her daughters. Respondent

volunteered to ride to the Apopka police station with APD

detectives. At that same time, Mr. Adkins drove K.H. and C.H. to

the police station. Mr. Pruitt was not present at RespondentÓs

home that night. He had been admitted to a hospital several days

earlier.

26. At the Apopka police station, Respondent was separated

from her daughters. APD detectives then questioned Respondent

about the relationship between Mr. Pruitt and K.H. and

allegations of sexual mi sconduct. Respondent admitted to APD

that Mr. Pruitt and K.H. began communicating through Facebook in

January 2014. Respondent also told APD that occasionally she and

K.H. had fallen asleep in the same bed with Mr. Pruitt after he

moved into their home, usually when they were watching TV

together. However, Respondent vigorously denied that Mr. Pruitt

had committed any misconduct, sexual or otherwise , with either of

her children.

27. APD completed their interview with Respondent early on

the morning of M ay 31, 2014, and released her.

28. After APD detectives questioned Respondent, they then

interviewed K.H. and C.H. The daughters denied that Mr. Pruitt

molested either of them or engaged in any other sexual

misconduct.

29. Brandon Adkins participated in the APD questioning of

K.H. and C.H. Mr. Adkins did not detect any behavior indicating

abuse or neglect. However, he thought K.H. was lying during the

interview.

30. Mr. Adkins decided that K.H. and C.H. should be

temporarily placed in a shelter away f rom their parentsÓ custody.

Mr. Atkins drove K.H. and C.H. to Greater Oaks Village. They

arrived a t the shelter around 7:00 a.m.

31. After they arrived at the shelter, Mr. Adkins

approached K.H. one last time to discuss the allegations that

Mr. Pruitt inappropriately touched her. He asked her if she was

ready to tell the truth. K.H. said that she was. Referring to

his Investigative Summary report, Mr. Adkins relayed that K.H.

told him that Mr. Pruitt touched her vagina at least three times

and her br easts at least 20 times. In addition, Mr. Pruitt made

K.H. watch him ejaculate. K.H. also stated that Mr. Pruitt held

her down on his bed against her will and kissed and licked her

face. K.H. confessed that she did not admit the truth to the APD

detecti ves becau se Mr. Pruitt prepared her to lie to them .

32. Later on May 31, 2014, K.H. and C.H. were returned to

the police station for another interview with APD detectives and

the DCF Child Protective Team. During this interview, K.H.

conveyed that she fi rst began communicating with Mr. Pruitt

through their personal Facebook accounts. K.H. detailed that

they talked every d ay through Facebook messenger.

33. K.H. also recounted to the interviewers that after

Mr. Pruitt moved into her home, he wanted her t o sleep in his

bedroom with him. K.H. divulged that her mother (Respondent)

told Mr. Pruitt that K.H. was too young, but this sleeping

arrangement would be acceptable if Respondent also slept in the

bedroom with them.

34. During the interview, K.H. revea led that Mr. Pruitt had

touched her inappropriately. K.H. declared that Mr. Pruitt

Ð touched my butt like three times. He tried to touch my private

areas. He has touched my boobs at least twenty times.Ñ K.H.

expressed that on one occasion Mr. Pruitt pin ned her arms to her

sides and began licking and kissing her breasts. K.H. also

disclosed that, ÐWhile we were sleeping, he would . . . try and

stick his ha nd down my pants and underwear.Ñ K.H. relayed that

Mr. Pruitt would force her hand to his private a rea and say

Ðtouch it, squeeze it.Ñ K.H. stated that on one occasion

Mr. Pruitt pulled down his underwear in front of her and

ejaculated. Finally, K.H. voiced that every time her mother

(Respondent) left her alone in the room with Mr. Pruitt, her

mother would tell her Ðdon't let [Mr. Pruitt] touch you in your

private areas.Ñ

35. K.H. expressed that Mr. PruittÓs nickname for her was

ÐAnne.Ñ Mr. Pruitt would refer to himself as ÐAramis.Ñ

36. APD concluded that K.H.Ós statements constituted

sufficient ev idence to believe that at least one of the children

(K.H.) was being sexually abused by Mr. Pruitt, and Respondent

knew about it. More specifically, after Respondent moved

Mr. Pruitt into her home, she became aware that he desired to

have an inappropriat e sexual relationship with her 13 - year - old

daughter, K.H. Thereafter, Respondent did not exercise

reasonable care to protect her daughter from Mr. PruittÓs sexual

advances. Later that day, on May 31, 2014, APD arrested

Respondent and charged her with neg lect of a child under section

827.03, Florida Statutes (2014) . 6/

37. Also on May 31, 2014, after taking Respondent and her

daughters in for questioning, APD searched RespondentÓs home.

APD found several letters which appeared to be written by

Mr. Pruitt . One of these letters was addressed to ÐAnne My

BelovedÑ and stated, ÐI love you, baby. I am so totally in love

you with you that you r [sic] all I think about. However, I too

love another person too and I am in love with Kim. I sometimes

confuse the t wo of you but you both are different in so many

ways. I want to marry Kim but that would mean your parents

getting a divorce.Ñ In these letters, Mr. Pruitt also wrote ÐI

love you and IÓm in love with you [K.H.] Ñ ; ÐI love d you and

wanted you. Still do Ñ ; and ÐI love you [K.H.] and I know its

[sic] real.Ñ

38. On June 3, 2014, APD arrested Mr. Pruitt at the

hospital in which he was staying. He was charged with lewd or

lascivious exhibition in violation of section 800.04, Florida

Statutes (2014). After he was arrested, Mr. Pruitt was

transported to the Apopka police station. There, after waiving

his Miranda rights, he willing ly participated in a video - recorded

interview. Mr. Pruitt did, however, warn the APD detectives that

he is bipolar, schizophrenic, a nd take s anti - psychotic

medication.

39. Initially, Mr. Pruitt denied that he was a pedophile.

However, as the interview progressed, Mr. Pruitt admitted to

sexual conduct with K.H. He knew K.H. was 13 years old at the

time.

40. Mr. Pruitt stated that he began communicating with both

K.H. and C.H. online through their Facebook accounts. Soon

thereafter, he wanted to see Respondent again. Mr. Pruitt

relayed that he and Respondent set up the trip to Melbourne,

Florida, in March 2014. RespondentÓs daughte rs accompanied her

on the trip. Mr. Pruitt stated that he stayed with Respondent in

a hotel room. The girls stayed together in an adjoining room.

Mr. Pruitt declared that he had sex with Respondent in Melbourne.

41. Mr. Pruitt told the APD detectives t hat after his trip

to Melbourne he had a Ðsexual fantasyÑ about K.H.

42. Mr. Pruitt expressed that Respondent encouraged his

developing relationship with K.H. because it brought them closer

together. Mr. Pruitt explained that Respondent Ðwanted me to

mar ry [K.H.] and be the father of her children.Ñ Mr. Pruitt

remarked that Respondent Ðencouraged the whole thingÑ and

Ðallowed me to get close to [K.H.] as long as she could be close

to me.Ñ

43. Mr. Pruitt declared that when he stayed at RespondentÓs

home, he slept in the same bed with K.H. and Respondent.

Mr. Pruitt disclosed that Respondent Ðbrings her child into my

bedroom.Ñ He articulated that Ðas long as [Respondent] was

sleeping next to me with her child over here and me right here,

she was fine wit h that.Ñ

44. Mr. Pruitt described more sexually explicit activity

while Respondent and K.H. were with him in bed. Specifically,

Respondent would touch his penis while he would touch K.H.Ó s

breast. Mr. Pruitt later added, ÐWhen I was doing it [to K.H.],

[Respondent] was doing something to me, you know, at the same

time. She put my hand on [K.H.Ós] breasts several time [s] . You

know, [Respondent] would pick my hand up and put it on [K.H.Ós]

breasts several times.Ñ He also offered that, ÐMaybe I did kiss

[K.H.Ós] vagina.Ñ But, he Ðreally hope[d] that didnÓt happen.Ñ

Mr. Pruitt also described an occasion when K.H. walked in on him

Ðplaying with myself.Ñ

45. Mr. Pruitt voiced to the APD detectives, ÐMy psychosis

and, you know, the fantasies that you get w hen youÓre bipolar.

Its [sic] just so vivid. You act upon them, you know.Ñ

Mr. Pruitt added, ÐYou know, maybe, it was a fantasy. I donÓt

know if I did it or not though. To be honest with you, I donÓt

know if I did it or not though. Probably not.Ñ

46 . At one point, Mr. Pruitt expressed to the APD

detectives that, ÐThe whole thing was sick, very sick.Ñ

47. After Mr. Pruitt concluded his interview with APD, he

requested to write a letter to K.H. After he was provided a

pencil, Mr. Pruitt wrote on an APD Witness Statement form:

My Beloved Anne, I am so sorry for all of

this. I want you to know that none of this

is your fault. Your mother and I take full

responsibility. I was the adult. I should

have known better. I let my emotions for you

allow my physical actions take over. I love

you Anne.

* * *

Take care and if you ever need anything Î

Please do not hesitate to call. IÓll be

around. Aramis.Ñ

Mr. Pruitt confirmed for the APD detectives that h is pet name for

K.H. was ÐAnne.Ñ He re fe rred to himself as ÐAramis.Ñ

48. Following the interview with Mr. Pruitt, on June 3,

2014, APD arrested Respondent for a second time and charged her

with lewd or lascivious molestation. On July 1, 2014, the State

AttorneyÓs Office formally charged both R espondent and Mr. Pruitt

with four counts of lewd or lascivious molestation and one count

of lewd or lascivious exhibit ion pursuant to section 800.04 .

Respondent was also charge d with one count of neglect of a child

pursuant to section 82 7.03 .

49. Respon dent was released on bail pending trial. At her

initial appearance in circuit court in June 2014, Respondent was

ordered not to have any unsupervised contact with her daughters.

50. K.H. and C.H. remained at Greater Oaks Village for

approximately two wee ks. At that time, they were released to the

custody of RespondentÓs sister. RespondentÓs mother, Vivian

Duff, moved in with RespondentÓs sister to be with the children.

51. On June 3, 2014, due to the seriousness of the charge,

the School Board placed R espondent on relief of duty with pay.

On June 10, 2014, the School Board placed Respondent on relief of

duty without pay pending resolution of her criminal charges.

52. At the final hearing, to reveal further insight into

the alleged sexual relationship between Mr. Pruitt, Respondent,

and K.H. during May 2014, the School Board produced a voluminous

record of Facebook messages in the personal Facebook accounts of

Mr. Pruitt, K . H . , and Respondent. T he messages between

Mr. Pruitt and K.H. include the follo wing 7/ :

a. May 17, 2014: Mr. Pruitt writes to K.H., ÐWhen was the

last time I told you that you are [the] s weetest girl IÓve ever

known.Ñ

b. May 18, 2014: Mr. Pruitt writes to K.H., ÐCan we kiss

and hold each other tonight.Ñ K.H. responds, Ðsure.Ñ M r. Pruitt

later tells K.H., ÐDonÓt wear any und erwear.Ñ K.H. responds,

Ð ok. Ñ

c. May 18, 2014: Mr. Pruitt writes to K.H., Ð We'll do all

our playing at night in bed. Ñ K . H . responds, Ð ok. Ñ Mr. Pruitt

then writes to K . H ., ÐIÓ ll get your mom to come up as soon as she

puts Scott to bed. Then be ready to come o ver. Please donÓt

fall asleep.Ñ

d. May 19, 2014: Mr. Pruitt writes to K.H., ÐI love you,

Anne.Ñ K.H. responds, ÐI love you aramis. I leave this class at

3:09 I will message u at 3:15.Ñ

e. May 19, 201 4: Mr. Pruitt writes to K.H., Ð Are you going

to kiss me tonight? Ñ K . H . responds, ÐYes. Ñ

f. May 19, 2014: Mr. Pruitt writes to K.H., ÐTell me where

you like me to touch you.Ñ K.H. responds, ÐI love when you touch

my heart. <3 is="" my="" mom="" still="" th="">

g. May 19, 2014: Mr. Pruitt writes to K.H., ÐDid you know

I put my hand down your pants las t night?Ñ K.H. responds, Ðno.Ñ

h. May 19, 2014: K.H. writes to Mr. Pruitt , Ði had on a

really long gown.Ñ Mr. Pruitt replies, ÐI know, I had to pull it

up three feet to get und er it to feel your breast. Ñ

i. May 21, 2014: Mr. Pruitt writes to K.H., Ð I try to find

the words or phrases to label our relationship and love. . . . I

hope we do get married it would be the most defined moment of my

life. . . . You truly are my best friend and in 20 months I hope

lovers. Ñ K.H. responds, Ð I love you. I feel the same way of

what you said. You a re my best friend and lovers.Ñ

j. May 22, 2014: Mr. Pruitt writes, ÐIf your [sic] willing

to live with your mom ha ting you every time she sees or hears us

making love then IÓll stay. I will do anything for you for us.Ñ

K.H. responds, ÐIÓm willing to.Ñ

k. May 23, 2014: Mr. Pruitt writes to K.H., ÐIÓm going to

touch you everywhere but you canÓt move too much or you Óll wake

up [Respondent] and sheÓll want to join our private party.Ñ

l. May 23, 2014: Mr. Pruitt writes to K.H., ÐWill you make

love t o me tonight?Ñ K.H. responds, ÐYes.Ñ

m. May 27, 201 4: K.H. writes to Mr. Pruitt, Ð Did you touch

my mom under her un derwear at 13? If you did y ou can touch me

under mine.Ñ

n. May 29, 2014: Mr. Pruitt writes K.H., Ð I think Sherri

[Pruitt] i s up to something. I think sheÓ s going to have me and

[Respondent] arrested for the e - mails. You promise you wouldn't

s ay an yth ing we've dine [sic] .Ñ

53. The personal Facebook accounts of Respondent and

Mr. Pruitt also record active communications in May 2014. T he

Facebook accounts of Respondent and Mr. Pruitt regarding K.H.

include the following:

a. May 6, 2014: Re spondent writes to Mr. Pruitt, Ð I NEVER

thought you would openly love someone more.Ñ Mr. Pruitt

responds, Ð She Ó s not just someone. SheÓ s a piece of you. Ñ

Respondent replies , Ð You LOVE making me jealous. Ñ

b. May 10, 2014: Mr . Pruitt writes to Respondent, Ð S he

f ell asleep next to me. Ok?Ñ Respondent responds, Ð She gets all

of your affection.Ñ (Respondent specifically acknowledged this

exchange and explained that she thought that Mr. Pruitt was

referring to one of her dogs who had fallen asleep next to him.)

c . May 10, 2014: Mr. Pruitt writes to Respondent, ÐSheÓs

as attached as I am.Ñ Respondent responds, Ð Duh. As long as its

not more.Ñ Mr. Pruitt replies, ÐMight be. IÓm not leaving her.

I want to marry her. I need her in my life. ItÓs the only life

I have now.Ñ

d. May 11, 2014: Mr . Pruitt writes to Respondent, Ð Are you

and K. going to sleep with me. Ñ Respondent responds, ÐYes.Ñ

Mr. Pruitt replies, Ð Can I kiss her boob. Ñ Respondent responds,

Ð Can you find them.Ñ

e. May 13, 2014: Mr. Pruitt wr ites to Respondent, Ð I guess

I am one saying I l ove [K.H.] and sheÓ s only 13. Ñ

f. May 13, 2014: Mr . Pruitt writes to Respondent, Ð Where

are you and [K.H.] sleeping tonite.Ñ Respondent responds,

Ð Wherever you want us to. Ñ (Respondent admitted she wrote this

Facebook message to Mr. Pruitt. Respondent stated that she was

joking.)

g. May 16, 2014: Mr. Pruitt writes to Respondent, ÐI Ó ve

given eve rything up for a 13 year old. Ñ

h. May 17, 2014: Mr. Pruitt writes to Respondent, Ð If I

give you 15 minutes of personal time in bed doing what you want

can I continue to touch her breasts? Ñ Respondent responds, ÐNo

way forget it. Ñ M r. Pruitt replies, Ð Too late. Ñ

i. May 21, 2014: Mr. Pruitt writes to Respondent, Ð You

donÓ t think that if I wanted to I could get her to have sex w ith

me.Ñ Respondent responds, Ð Of course you could you better

realize your po wer . . . take it from her mom.Ñ

j. May 21, 2014: Mr. Pruitt writes to Respondent, ÐThere

is or was no couple who had a c loser lifelong relationship than

you and me. Next is what [K.H.] and I think we have.Ñ

Respondent responds, ÐLove .Ñ Mr. Pruitt later writes, ÐIÓm in

love with her. . . . IÓ ll take care of your baby. . . . Love

her, not cheat on her and commit. This is it for me. I found

who I want to grow old with.Ñ Respondent res ponds, ÐSo nice of

you to lovd [ sic ] her that much.Ñ Then, she writes, ÐYouÓ re not

trying to make me jealous, are you.Ñ

k. May 22, 2014: Mr. Pruitt writes to Responde nt, Ð Your

actions last night with me and [K.H.] are inexcusable. But I

forgive you but I wish you would knock before coming into my

room. You pr obably should apologize to K.H.Ñ Respondent

responds, ÐOne time I didnÓ t knock because I thought [K.H.] was

in there. I am sorry. Y ou know I have been knocking .Ñ

54. Respondent also described a Facebook exchange with

Mr. Pruitt not long before APD appeared at her home. On this

occasion, Mr. Pruitt sent Respondent a message about having anal

sex with her and ÐK.Ñ Respondent testified that she believed

that M r. Pruitt was ta l king about a friend of hers who was also

named ÐKim.Ñ Respondent confronted Mr. Pruitt about the message

and demanded to know why he was saying crazy things. Respondent

expressed that Mr. Pruitt had never previously sent her a message

th at crude. At that point, Respondent began to suspect that

Mr. Pruitt was up to something objectionable on Facebook.

Respondent also began to realize that Mr. PruittÓs mental illness

may have presented more difficulties than she could handle.

However, s he asserted that she never suspected that Mr. Pruitt

had involved her daug hter in a sexual relationship.

55. On September 30, 2014, Respondent was arrested for a

third time related to this incident. On that day, an APD

Sergeant observed Respondent eating lunch in a restaurant with

both K.H. and C.H. Neither RespondentÓs mother nor any other

supervising adult was present with them. RespondentÓs meeting

alone with her daughters violated the conditions of her pretrial

release not to have contact with K.H.

56. After leaving the restaurant, Respondent was arrested

for violation of a pretrial condition, pursuant to section

741.29(6) , Florida Statutes (2014). APD also charged Respondent

with possession of a controlled substance pursuant to section

893.13( 6)(a ), Florida Statute s (2014).

57. Following her third arrest, the State Attorney moved to

revoke RespondentÓs bail. The bail revocation hearing was held

on October 3, 2014. K.H. testified at the hearing. K.H. denied

that Mr. Pruitt had ever sexually mole sted her. K.H.

acknowledged that she told APD detectives in May 2014 that

Mr. Pruitt touched her, slept in the same bed with her, and was a

pedophile. However, K.H. announced to the court that she was not

telling the truth when she made those statements . K.H. asserted

that she offered that information because Mr. Adkins had

threatened to take her to jail if she told APD that nothing

happened between Mr. Pruitt and her. K.H. also explained that

the meeting with her mother (Respondent) at the resta urant for

lunch was unplanned.

58. At the conclusion of the hearing, the court revoked

RespondentÓs bond. The court commented that RespondentÓs meeting

with her daughters appeared Ðto be a ruse to allow [Respondent]

to have contact with her child.Ñ Respondent was sent to jail to

await trial.

59. Ultimately, on November 18, 2014, Respondent ple d nolo

contendere to the charge of neglect of a child, a third - degree

felony under section 827.03(2)(d ). The court withheld

adjudication. All remaining charges , includ ing the six felony

charges alleging lewd or lascivious molestation, lewd or

lascivious exhibition, and possession of a controlled substance

were dismissed. The misdemeanor charge of violation of a

pre trial condition on domestic violence was also close d a s

"No Information Noticed.Ñ

60. Respondent was sentenced to 54 days in jail with credit

for time served. She was placed on probation for two years and

had to perform 200 hours of community service.

61. On November 18, 2014, Mr. Pruitt pled guilty to on e

count of lewd or lascivious molestation, a second - degree felony

under section 800.04(5)(c ) 2 . Mr. Pruitt was sentenced to

30 months in jail and required to register as a sex offender.

62. At the final hearing, Respondent professed that she

greatly de sires to return to teaching. She maintains that she

can still be an effective teacher and make a difference in her

studentsÓ lives. Outside of this incident, Respondent

represented that the School Board has never disciplined her.

Respondent suggests tha t if the School Board has any reservations

about her teaching capabilities following the underlying events,

she is aware of other teaching positions she can fill within the

school district which do not require direct contact with

children.

63. Respondent testified that prior to this matter , she

taught for the Orange County School District for 17 years. She

has taught in both elementary and middle schools for the School

Board.

64. Respondent began teaching at Apopka Middle School in

2012. Her daughters e ntered Apopka Middle School that year, and

Responden t transferred to be with them.

65. Respondent testified that in January 2014 , Re spondentÓs

sister asked K.H. to use Facebook and f i nd out about M r. PruittÓs

current situation. Respondent personally reun ited with

Mr. Pruitt on her trip to Melbourne in March 2014. Respondent

claimed that her meeting with Mr. Pruitt was unexpected and

unplanned. Respondent denied that they stayed together during

the trip. Respondent testified that she and her daughters lodged

with her sister, not in a hotel with Mr. Pruitt.

6 6 . While in Melbourne, Respondent learned from Mr. Pruitt

that he was experiencing marital problems with his wife. In

April 2014, Respondent became aware that Sherri had filed several

injunctions a gainst both her and him a lleging domestic violence.

67 . Respondent fully acknowledged receiving the audio

recording on April 29, 2014, from the [e-mail]

e - mail account. Respondent recognized Mr. PruittÓs voice. She

heard the declaration he made to being a pedophile and having sex

with both her and K.H. Respondent expressed that she dismissed

the audio recording as the result of a marital tiff between

Mr. Pruitt and his wife. Respondent asserted that Mr. PruittÓs

statements were not tr ue. Respondent believed that Mr. Pruitt

was just ÐmessingÑ with Sherri Pruitt. Respondent surmised that

he was angry with Ms. Pruitt and was trying to hurt her.

68 . Respondent testified that in her long association with

Mr. Pruitt, she had never known h im to show signs of pedophilia.

She had never received any information that he could be a threat

to her daughters.

69 . Respondent further expressed th at she believed that her

familyÓ s living arrangements precluded the possibility of

Mr. Pruitt abusing K .H. Mr. Pruitt could be observed in her home

by membe rs of her family at all times.

70 . Respondent declared that she never observed Mr. Pruitt

make any physical or sexual advances on K.H. Respondent never

saw him touch her daughter in an improper manner or do anything

suspicious with his hands or body. Furthermore, Respondent never

noticed any changes in K.H.Ós behavior that would indicate that

she was being sexually abused or exploited. K.H. never

complained to her about any inappropriate acti ons on t he part of

Mr. Pruitt.

71 . Respondent testified that she was aware that Mr. Pruitt

was communicating with K.H. through Facebook both before and

after he moved into her home. She also knew that he bought

iPhones for his daughters to facilitate their commu nications.

However, she conceded that she was not aware of the extent of

their exchanges on social media. Respondent stated that she did

not check her daughterÓs Facebook account to review the

conversations between Mr . Pruitt and K.H.

72 . At the final h earing, Respondent admitted that she

frequently communicated with Mr. Pruitt through Facebook during

May 2014. However, Respondent vehemently denied that she ever

sent or received any sexually related or inappropriate comments

on Facebook to or from Mr. P ruitt regarding her daughters.

73 . Respondent speculated that Mr. Pruitt created the

Facebook conversations all by himself. Respondent opined that

Mr. Pruitt would sign on to both his, K.H.Ós, and Respondent's

Facebook accounts and then send the offensiv e messages back and

forth between the accounts. Thereafter, he would delete all the

messages so that neither Respondent nor K.H. could see them.

Respondent explained that Mr. Pruitt had access to K.H.Ós cell

phone. He also knew her passwords. Responden t offered that

while Mr. Pruitt was alone in RespondentÓs home, he had ample

opportunity to construct (and then delete) these sexually

explicit conversations. Consequently, neither R espondent nor

K.H. had ever seen, or were aware of, the sexual fantasy

M r. Pruitt was living out through Facebook. Respondent also

suggested that Sherri Pruitt, who knew Mr. PruittÓs Facebook

passwords and had access to his Facebook accounts, may have

authored the messages in an attempt to discredit or incriminate

Mr. Pruitt and Respondent.

7 4 . When confronted with the sexual statements K.H. made to

DCF and APD regarding Mr. Pruitt, Respondent opined that APD

either took K.H.Ós words out of context or flatly made them up.

Respondent also asserted that APD altered the Faceboo k messages.

Respondent suggested that the APD twisted K.H.Ós testimony and

the Facebook exchanges so that they would support a criminal

action again st Respondent and Mr. Pruitt.

75 . Respondent testified that she was not aware of

Mr. PruittÓs handwritten letters that were found in her home.

Respondent pointed out that t here was no indication that

Mr. Pruitt had actually delivered the letters to K.H. or that

K.H. physically received them.

76 . Respondent declared that she never left K.H. alone with

Mr. P ruitt. However, Respondent conceded that she and K.H.

watched television with Mr. Pruitt in his bedroom. Respondent

admitted that on several occasions they fell asleep for about an

hour while watching television.

77 . Regarding the September 30, 2014 , me eting with her

daughters, Respondent testified that she randomly encountered her

mother and her daughters. Respondent also asserted that she

believed that she was authorized to see her children with another

adult present. Respondent claimed that her moth er was in the

restaurant Ós vicinity during their meal.

78 . At the final hearing , Respondent explained that she

elected to plead nolo contendere to the criminal charge so that

she could leave jail and return to her family. She was facing

felony charges an d the possibility of a lengthy jail sentence.

Therefore, she believed pleading nolo contendere to the single

charge of neglect of a c hild was in her best interests.

79 . K.H. testified at the final hearing. She unwaveringly

declared that Mr. Pruitt never communicated with her or touched

her in an inappropriate or sexual manner.

80 . K.H. conveyed that she first contacted Mr. Pruitt in

January 2014, when she sent a friend request to his Facebook

account. She also communicated with him through text message s

from the ce ll phone he purchased for her.

81 . K.H. stated she did not personally encounter Mr. Pruitt

until their trip to Melbourne in Marc h 2014. K.H. corroborated

her m otherÓs statement that she and her mother stayed at her

aunt's house while in Melb ourne.

8 2 . K.H. admitted that she frequently communicated with

Mr. Pruitt through her Facebook account after he moved into their

home. K.H. accessed Facebook through her cell phone. However,

K.H. denied ever reading or receiving any sexually suggestive

Facebook messages that originated from Mr. PruittÓs Facebook

account. K.H. also denied drafting or sending any sexually

ex plicit messages to Mr. Pruitt.

83 . K.H. offere d that if the sexually explicit messages

appeared on her Facebook account, someone mu st have opened her

account and deleted them before she saw them. K.H. relayed that

she left her cell phone at home during school days. (K.H. stated

that Apopka Middle School did not permit students to use cell

phones while at school.) K.H. surmised that if Mr. Pruitt sent

the messages to her, he must have accessed her Facebook account,

possibly through her cell phone, and deleted the message he sent

before she read them. K.H. also posited that Mr. Pruitt used her

cell phone to send messages back to hims elf.

84 . At the final hearing, K.H. persistently testified that

she never slept in Mr. PruittÓs bedroom overnight. She

specifically denied that she and her mother ever slept with

Mr. Pruitt in his bed. K.H. did recount that on one occasion she

did fall asleep in his room watching television. But, she was

asleep for no more than an hour. She also stated she was never

alone in his bedroom. A family member was always present with

her.

85 . Regarding the letters allegedly written from Mr. Pruitt

to her, K.H. testified that she had no memory of ever receiving

the letters introduced into evidence. However, she did concede

that she received other letters from Mr. Pruitt.

86 . At the final hearing, K.H. announced that the story she

told Mr. Adkins, the DCF C hild Protection Team, APD, and later, a

State Attorney, alleging that Mr. Pruitt molested her was not the

truth. K.H. explained that she made up her graphic accusations

because Mr. Adkins coerced her. K.H. testified that Mr. Adkins

threatened her with ja il time unless she provided some

incriminating testimony against Mr. Pruitt and her mother.

Because Mr. Adkins threatened not to let her return home from the

shelter, she felt compelled to tell him something. K.H.

expressed that the story she told was no t her words, but

Mr. AdkinsÓ. (At the final hearing, Mr. Adkins denied that he

coerced K.H. into making a statement. He asserted that K.H. came

up with the number of times Mr. Pruitt to uched her vagina and

breasts.)

87 . At the final hearing, C.H. adama ntly testified that

nothing inappropriate or sexual occurred between Mr. Pruitt and

her sister, K.H, during his stay at their home. She never saw

Mr. Pruitt do any improper physical act or make any statement

involving K.H. C.H. stated that she and her tw in sister were

constantly in each otherÓs presence. C.H. and K.H. shared the

same bedroom. She never observed, nor had any knowledge of, any

sexual activity between Mr. Pruitt and her sister. Neither did

she see Mr. Pruitt and her mother engage in any s exual activity.

88 . Furthermore, C.H. stated that she and K.H. kept no

secrets from each other. C.H. never heard anything from K.H.

about a relationship with Mr. Pruitt.

89 . C.H. relayed that Mr. Pruitt began contacting her and

K.H. in January 2014, thr ough Facebook. C.H. stated that she

first met Mr. Pruitt on the trip to Melbourne with her mother and

K.H. Contrary to K.H. and Respondent, however, C.H. testified

that Mr. Pruitt picked them up on their way to Melbourne, and

th ey stayed at a hotel toget her.

90 . C.H. agreed with K.H.Ós testimony that the sisters

would watch television in Mr. PruittÓs bedroom. C.H. also

relayed that K.H. was ne ver in Mr. PruittÓs room alone.

91 . Regarding her interview with DCF and APD on May 31,

2014, C.H. recounted th at the APD detectives screamed and yelled

at K.H. and her and called them Ðliars.Ñ C.H. further testified

that prior to K.H. talking to Mr. Adkins after he drove them to

the shelter, Mr. Adkins indicated they would not see their mother

again unl ess they g ave him a statement.

92 . At the final hearing, Scott Honaker, RespondentÓs

husband and the father of K.H. and C.H., determinedly testified

that nothing sexual or inappropriate happened between Mr. Pruitt

and his daughter, K.H. He never saw Mr. Pruitt mak e any improper

contact with or comments to K.H. Mr. Honaker relayed that he has

known Mr. Pruitt most of his life and has never had a problem

with him. In April 2014, he and Respondent discussed how to help

Mr. Pruitt after he called RespondentÓs mother from Springbrook

Hospital. Mr. Honaker agreed that Respondent could bring him

into their home to h elp him get his life together.

93 . Mr. Honaker did not have any concerns regarding the

well - being of his daughters when Mr. Pruitt moved in.

Mr. Honaker r elayed that when Mr. Pruitt arrive d , he was in bad

shape. He was weak, frail, and on medication. Mr. Honaker did

not believe that Mr. Prui tt posed any threat to anyone.

94 . Furthermore, Mr. Honaker never saw his daughters or

wife sleep in Mr. PruittÓs b edroom.

95 . When asked about his daughters Ó graphic statements to

APD and Mr. Adkins, Mr. Honaker believes that the APD detectives

harassed and screamed at them to say that Mr. Pruitt sexually

molested K.H. He believes that K.H. made up a story to tell A PD

what they wanted to hear.

96 . At the final hearing, RespondentÓs mother, Vivian Duff,

resolutely testified that nothing sexual or inappropriate

happened between Mr. Pruitt and K.H. Ms. Duff relayed that she

has known Mr. Pruitt since he was three year s old. She was not

aware of any past behavior on his part that would cause her to be

concerned with his relationship with K.H. or C.H.

97 . Ms. Duff described her outing to pick up Mr. Pruitt

from Springbrook Hospital on May 1, 2014. When Ms. Duff arrive d

at the hospital, she spoke with Mr. PruittÓs treating physician.

She relayed that he had no concerns with releasing Mr. Pruitt

into her care. He believed that staying with her family in their

home would help Mr. Pruitt straighten himself out.

98 . At R espondentÓs home, Ms. Duff stayed in the bedroom

right next to the one Mr. Pruitt used. Ms. Duff stated that

Mr. Pruitt mostly stayed in his room. Ms. Duff testified that

she never saw or observed Mr. Pruitt have any sexual interest in

K.H.

99 . Also at the final hearing, Respondent produced two

witnesses, Judy Babb and Debbie Cook, who were fellow teachers

with Respondent in the Orange County School District. Both

witnesses knew Respondent and her daughters and have observed

them in their school enviro nments. The witnesses relayed that

Respondent had a very healthy relationship with her daughters.

They also described Respondent as a very protective mother.

Ms. Babb called Respondent a Ðwonderful motherÑ and a Ðwonderful

teacher.Ñ Ms. Cook character ized Respondent as Ðvery nurturing,

caring, very attentive.Ñ In addition, Ms. Cook personally

selected Respondent to teach her son in middle school. Ms. Babb

asserted that Respondent can still be an effective teacher at

Apopka Middle School.

10 0 . Apopka Middle School Principal, Kelly Pelletier,

testified at the final hearing regarding the impact of this

matter on RespondentÓs teaching position at Apopka Middle School.

Principal Pelletier stated that HonakerÓs ability to perform her

teaching duties has b een unacceptably impaired, regardless of

whether she was actually convicted of the charges brought against

her. Principal Pelletier did not want Respondent returning to

her school. According to her, the extensive press publicity

alone made it impossible for Respondent to teach. Local,

national, and international media covered the story of

RespondentÓ s arrest. Multiple news trucks stationed themselves

around the cam pus after RespondentÓ s arrest.

101 . Principal Pelletier also expressed reluctance to

retu rn Respondent to a classroom teaching position because of the

negative parental reaction. Principal Pelletier stated that a

number of parents contacted her and requested that she not pla ce

their children in RespondentÓ s class. Principal Pelletier

explain ed that, right or wrong, these parents were very

uncomfortable with the thought of Respondent teaching their

children. Principal Pelletier did not believe she could reassign

Respondent to another position in the sc hool based on the same

reason.

102 . The School Board also asserts that RespondentÓs

employment contract should be terminated because she failed to

self - report her arrests within 48 hours after the arrest. As a

member of the School BoardÓs instructional staff, RespondentÓs

employment is governed by Florida law, as well as a contract

between the School Board and the Orange County Classroom T eachers

Association. The School BoardÓs Management Directive A - 10,

Guidelines on Self - Reporting of Arrests and Convictions by

Employees (ÐDirective A - 10Ñ), st ates that:

1. The security and safety of our employees,

students and guests is of paramount

importance. To this end, all employees shall

adhere to the following directives. All

arrests and convictions (with the exception

of minor traffic offenses) of al l employees

shall be self - reported within 48 hours to the

district. Such notice shall not be

considered an admission of guilt nor shall

such notice be admissible for any purpose in

any proceeding, civil or criminal,

administrative or judicial. The approp riate

authority to self - report arrests and

convictions is the Office of Employee

Relations. A phone message can be left 24

hours a day at (407) 317 - 3239, and the

employee must provide a written follow - up

statement within five business days of

leaving the m essage. Failure to self - report

may result in discipline, up to and

including, dismissal.

2. Arrests shall include cases in which the

employee was taken into custody, as well as

charges of criminal misconduct for which the

employee was not taken into cus tody.

Convictions shall include any conviction,

finding of guilt, withholding of

adjudication, commitment to a pretrial

diversion program, or entering of a plea or

Nolo Contendere for any criminal offense

other than a minor traffic offense.

103 . The Sch ool Board argues that Respondent did not notify

the Office of Employee Relations within 48 hours of her arrest on

Saturday, May 31, 2014. Therefore, Respo ndent violated

Directive A - 10.

10 4 . Respondent acknowledged that she had a responsibility

to report her May 31, 2014, arrest. However, Respondent asserts

that she made a good faith attempt to comply with the self -

reporting requirement and should be shown leniency under the

circumstances. Respondent explained that she was booked into

jail early Sunday morning, June 1, 2014, at 12:37 a.m. On Monday

morning, June 2, 2014 (within 48 hours of the arrest) , Respondent

called Principal PelletierÓs office and reported that she had

experienced a family emergency. Respondent received a call back

from the school and was advise d to set up an appointment to meet

with Mike Ganio in the Office of Employee Relations. Mr. Ganio

was unavailable that Monday because he was attending a

graduation. Therefore, Mr. Ganio offered to meet with Respondent

on Tuesday, June 3, 2 014, at 9:30 a.m. Respondent met Mr. Ganio

at the appointed time. Prior to their meeting, Mr. Ganio

received a copy of RespondentÓs arrest affidavit from the Florida

Department of Law Enforcement (ÐFDLEÑ). Based on these

circumstances, Respondent assert s that she constructively

complied with the 48 hour s elf - reporting requirement for the

May 31, 2014 , arrest. Therefore, she should not be considered to

have violated Directive A - 10.

105 . Principal Pelletier confirmed that she received a

phone message fr om Respondent on Sunday, June 2, 2014. However,

Principal Pelletier stated that Respondent only relayed that she

had a family issue and did not specifically report her arrest.

Principal Pelletier contended that reporting a Ðfamily emergencyÑ

is not suffi cient to meet the self - reporting requirement under

Directive A - 10. Directive A - 10 clearly requires the employee to

call the Office of Employee Relations and that the employee

should actually report the arrest.

106 . The School Board charges that Responden t also failed

to self - report her arrest for lewd or lascivious molestation on

June 3, 2014, within 48 hours of her arrest.

10 7 . Respondent conceded that she did not report this

arrest to the Office of Employee Relations within 48 hours.

However, Responde nt argues that she should be excused from

violating Directive A - 10 because she was in jail without access

to a phone , which prevented her from calling the Office of

Employee Relations. Respondent explained that a fter she was

arrested on Tuesday, June 3, 2 014, she was booked into jail about

8:00 p.m. There, she was placed in isolation, for 48 hours,

during which she was unable to make a phone call. Respondent was

released from jail on Thursday, June 5, 2014, at 6:00 p.m.

Respondent met with Mr. Ganio on Friday morning, June 6, 2014, at

9:30 a.m. In addition, when Respondent arrived for her meeting,

she saw that Mr. Ganio had documentation from FDLE of her second

arrest on his desk. Respondent asserts that based on these

circumstances, as well as the fac t that she was only a day late,

she should not be disciplined for violating the 48 - hour reporting

requirement.

108 . The School Board claims that Respondent failed to

self - report her arrest on September 30, 2014, for violation of

the pretrial condition wit hin 48 hours of her arrest.

109 . Respondent testified that when she was arrested, she

was once again jailed without access to a telephone from which to

make a timely call. Respondent also insists that she was under

no duty to report this third arrest bec ause she was on

administrative leave from her teaching position and did not

consider herself a School Board employee at that time.

(Mr. Ganio responded that Respondent was still considered an

emplo yee of the School Board o n September 2014. While the Sch oo l

Board had placed Respondent on l eave without pay status in June

2014, Respondent had not been terminated from Apopka Middle

School.)

1 1 0 . Finally, the School Board asserts that Respondent

failed to self - report her November 18, 2014, plea of nolo

conte ndere to the charge of neglect of a child within 48 hours.

Respondent concedes that she did not self - report her plea deal.

However, Respondent testified that she did not believe she was

required to rep ort a plea of nolo contendere.

111 . Based on compete nt substantial evidence in the record,

the preponderance of the evidence establishes that Respondent

committed Ðmisconduct in officeÑ in violation of Florida

Administrative Code R ule 6A - 5.056(2). The evidence and testimony

presented during the final heari ng demonstrate that RespondentÓs

behavior , which led to her plea to the charge of neglect of a

child , reduces her ability to effectively perform her duties at

Apopka Middle School. Accordingly, the School Board met its

burden of proving that Ðjust causeÑ exists to terminate

RespondentÓs employment pursuant to section 1012.33(1)(a).

CONCLUSIONS OF LAW

112 . DOAH has jurisdiction over the subject matter and

parties to this proceeding pursuant to sections 120.569,

120.57(1), and 1012.33(6)(a)2 . , Florida Statu tes.

113 . The School Board brings this matter under sections

1012.33(1)(a) and 1012.315 and r ule 6A - 5.056(1), (2), and (8).

Specifically, the School Board asserts that Ðjust causeÑ exists

pursuant to section 1012.33(1)(a) and as defined in rule 6A - 5.056

to terminate RespondentÓs employment contract based on misconduct

in office, immorality, crimes involving moral turpitude, conduct

unbecoming a public employee, violations of the Principles of

Professional Conduct for the Education Profession in Florida, a nd

for violation of her employment agreement.

114 . Respondent is an Ðinstructional personnelÑ as defined

in section 1012.01(2). A district school board in Florida, such

as the School Board, is authorized to suspend or dismiss

instructional personnel purs uant to sections 1012.22(1)(f),

1012.33(1)(a), 1012.33(6)(a), and 1012.335(4).

115 . Pursuant to sections 1012.33(1)(a), 1012.33(6)(a), and

1012.335(4), the School Board may only dismiss Respondent during

the term of her employment contract for Ðjust cause .Ñ Section

1012.33(1)(a) states, in pertinent part:

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, . . . or being convicted

or found guilty of, or entering a plea of

guilty to, regardless of adjudication of

guilt, any crime involving moral turpitude.

See also § 1012.335(5), Fla. Stat.

116 . Section 1001.02(1) grants the State Board of Education

authority to adopt rules pursuant to sections 120.536( 1) and

120.54 to implement provisions of law conferring duties upon it.

Consistent with this rulemaking authority, the State Board of

Education adopted rule 6A - 5.056 to establish the charges upon

which Ðjust causeÑ to dismiss specified school personnel ma y be

pursued.

117 . Rule 6A - 5.056, entitled ÐCriteria for Suspension and

Dismissal,Ñ defines Ðjust causeÑ as Ðcause that is legally

sufficient.Ñ Rule 6A - 5.056 also provides the following

definitions:

(1) ÐImmoralityÑ means conduct that is

inconsistent wi th 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 individ ualÓs

service in the community.

(2) ÐMisconduct in OfficeÑ me ans one or more

of the following:

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

Education Profession in Florida as adopted in

Rule 6A - 10.080, F.A.C. 8/ ;

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adopted in Rule 6A -

10.081, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectively perform duties.

* * *

(8) ÐCrimes involving moral turpitudeÑ means

offenses listed in Section 1012.315, F.S.

118 . Rule 6A - 5.056(2)(b) incorporates by reference Florida

Administrative Code R ule 6A - 10.081, which is titled: ÐPrinciples

of Profes sional Conduct for the Education Profession in Florida.Ñ

Rule 6A - 10.081 provides in pertinent part:

(2) Florida educators shall comply with the

following disciplinary principles. Violation

of any of these principles shall subject the

individual to revoc ation or suspension of the

individual educatorÓs certificate, or the

other penalties as provided by law.

* * *

(c) Obligation to the profession of

education requires that the individual:

* * *

13. Shall self - report within forty - eight

(48) hours to appropriate authorities (as

determined by district) any arrests/charges

involving the abuse of a child or the sale

and/or possession of a controlled substance.

Such notice shall not be considered an

admission of guilt nor shall such notice be

admissible for any purpose in any proceeding,

civil or criminal, administrative or

judicial, investigatory or adjudicatory. In

addition, shall self - report any conviction,

finding of guilt, withholding of

adjudication, commitment to a pretrial

diversion p rogram, or entering of a plea of

guilty or Nolo Contendere for any criminal

offense other than a minor traffic violation

within forty - eight (48) hours after the final

judgment.

119 . School Board Directive A - 10.1 provides that, ÐThe

appropriate authority to self - report arrests and convictions is

the Office of Employment Relations.Ñ

120 . Section 1012.315, entitled ÐDisqualification from

employment,Ñ states, in pertinent part:

[I]nstructional personnel and school

administrators, as defined in s. 1012.01, ar e

ineligible for employment in any position

that requires direct contact with students in

a district school system . . . if the person,

instructional personnel, or school

administrator has been convicted of:

(1) Any felony offense prohibited under any

of the following statutes:

* * *

(kk) Section 827.03, relating to child

abuse, aggravated child abuse, or neglect of

a child.

121 . To terminate RespondentÓs employment, the School Board

has the burden of proving, by a preponderance of the eviden ce,

that Respondent committed the alleged violations and that such

violations constitute Ðjust causeÑ for dismissal. £ 1012.33,

Fla. Stat.; Cropsey v. Sch. Bd. , 19 So. 3d 351 (Fla. 2d DCA

2009); and Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d 883

(Fla. 3 d DCA 1990).

122 . Preponderance of the evidence is defined as Ðthe

greater weight of the evidence,Ñ or evidence that Ðmore likely

than notÑ tends to prove a certain proposition. S. Fla. Water

Mgmt. v. RLI Live Oak, LLC , 139 So. 3d 869, 872 (Fla. 2014);

see also Dufour v. State , 69 So. 3d 235, 252 (Fla. 2011)

(ÐPreponderance of evidence is defined as evidence Òwhich as a

whole shows that the fact sought to be proved is more probable

than not.ÓÑ).

123 . Whether Respondent committed the alleged misconduct i s

a question of ultimate fact to be determined by the trier of fact

in the context of each alleged violation. See Holmes v.

Turlington , 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor ,

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

653 So. 2d 489, 491 (Fla. 1st DCA 1995).

124 . Turning to the matter at hand, the undersigned

concludes that Ðjust causeÑ exists to terminate RespondentÓs

employment contract with the School Board under section

1012.33(1)(a). The competent substantial eviden ce in the record

establishes that Respondent committed Ðmisconduct in officeÑ in

violation of rule 6A - 5.056. Specifically, the evidence and

testimony adduced at the final hearing demonstrates that

Respondent violated:

(1) Rule 6A - 5.056(2)(b) for a breach of the Principles of

Professional Conduct for the Education Profession in Florida as

adopted in r ule 6A - 10.081 ; and

(2) Rule 6A - 5.056(2)(e) for Ðbehavior that reduces the

teacherÓs ability . . . to effectively perform duties.Ñ

125 . RespondentÓs Ðmiscond uct in officeÑ is based on three

episodes. These include: 1) RespondentÓs ÐbehaviorÑ while

allowing Mr. Pruitt to live in her home in May 2014 ;

2) RespondentÓs ÐbehaviorÑ in violating a courtÓs pretrial order

not to have unsupervised contact with her da ughters in September

2014 ; and 3) RespondentÓs failure to self - report her arrests,

charges, and plea of nolo contendere to crimes involving abuse of

a child within 48 hours to the appropriate School Board

authority.

12 6 . RespondentÓs unacceptable Ðbehavio rÑ in May 2014 :

a. At the final hearing, Respondent stated that if she was

Ðneglectful for having no knowledge of things, then I canÓt

dispute that. . . . I had no knowledge [Mr. Pruitt ] was doing

these things.Ñ RespondentÓs statement succinctly sets fo rth the

poor judgment she exercised in May 2014, and why her decisions

concerning Mr. Pruitt, which involved the welfare of her two

middle school - aged children, reduces her ability to effectively

perform her duties.

b. On May 1, 2014, Respondent invited a man to live in her

home. She had not seen this man for over 10 years outside of one

brief encounter. In the interim, this man had struggled with

mental health issues. He had been Baker Acted on several

occasions due to presenting a danger to himself or others. This

man had been diagnosed as bipolar, severely depressed, and

schizophrenic . This man was taking a number of anti - psychotic

medications. This man was retrieved directly from a hospital at

which he had been admitted following his latest Baker Act

proceeding. This man was in a contentious relationship with his

wife. So much so that, just two days before Respondent brought

him into her home, his wife filed a petition against him alleging

domestic violence. And, most significantly, two days bef ore

Respondent allowed this man to live with her, she heard an audio

recording in which he stated that he was a pedophile and that he

had sex with Respondent and her daughter, K.H. Respondent placed

this man in a bedroom in her home just a few feet awa y f rom her

daughtersÓ bedroom.

c. Furthermore, Respondent knowingly permitted Mr. Pruitt

free, unrestricted, and unmonitored communications with her

daughters. Respondent cannot excuse her judgment by claiming Ðno

knowledge Robert was doing these things.Ñ The warning signs that

the situation would end badly were clearly evident even before

Mr. Pruitt was released from Springbrook Hospital. Yet,

Respondent made a conscious and deliberate decision to allow

Mr. Pruitt into her home where he had direct and da ily contact

with her 13 - year - old daughters.

d. Even if Mr. PruittÓs confession that he molested K.H.

was just the product of his (sexual) fantasy, and even if

Mr. Pruitt was just ÐmessingÑ with his wife when he declared that

he was a pedophile and had se x with K.H., Respondent did not

exercise sound judgment in allowing him unfettered access to her

daughters in such a mental state. Evidence of Mr. PruittÓs

prurient interest in K.H. was overwhelming, both before and after

he moved into RespondentÓs house. Despite these signs,

Respondent exposed her daughters (who were the same age as the

students who attend Apopka Middle School) to Mr. Pruitt without

taking any apparent steps to ensure their safety or well - being.

Consequently, the poor judgment Respondent used in May 2014

establishes, by a preponderance of the evidence, ÐbehaviorÑ that

reduces RespondentÓs ability to effectively perform her teaching

duties at Apopka Middle School. 9/

127 . RespondentÓs unacceptable ÐbehaviorÑ on September 30,

2014 :

a. Resp ondent next exhibited unacceptable behavior when she

willingly participated in an unsupervised meeting with her

daughters on September 30, 2014, in direct contravention of a

courtÓs pretrial order. Respondent was aware of the order.

Respondent was aware of the seriousness of the allegations

against her. Respondent was aware that she was facing charges

involving the sexual abuse of her daughter. Yet, she

intentionally and purposefully violated that order. Respondent

does not offer any rational excuse or explanation justifying her

decision to meet with her daughters alone. Consequently,

RespondentÓs decision - making process again demonstrates

ÐbehaviorÑ that reduces her ability to effectively perform her

duties for the School Board.

b. Further, Responden tÓs decision to violate the cou rtÓs

pretrial order directly led to her incarceration during the 2014

school year. Therefore, even though Respondent had already been

placed on administrative leave, the judgment she exercised caused

her not to be available to return to the classroom in any

capacity until after she resolved her criminal case. Such

behavior certainly reduced her ability to effectively teach at

Apopka Midd le School in the fall of 2014.

128 . RespondentÓs failure to self - report :

a. Respondent does not dispute that she failed to meet the

self - reporting requirement set forth in rule 6A - 10.081(2)(c)13 .

and Directive A - 10. Instead, Respondent asserts that the

circumstances surrounding her failure to comply with the self -

reporting requirement do no t warrant dismiss al from her teaching

position.

b. Regarding RespondentÓs arrests on May 31, 2014, and

June 3, 2014, the undersigned is not unsympathetic to the fact

that RespondentÓs reports of those arrests were only a day late.

Respondent provided cr edible excuses for not timely contacting

the appropriate School Board author ity. Respondent explained

that following her arrests, she was placed in jail without access

to a telephone for most, if not all, of the next 48 hours.

Respondent also demonstrate d a good faith effort to comply with

the reporting requirement. Respondent called her principalÓs

office within 48 hours of her May arrest to report an

Ðemergency.Ñ Thereafter, she met with Mr. Ganio at his soonest

convenience. Following her June 3, 201 4, arrest, after she was

released from jail on the evening of the second day, Respondent

met with Mr. Ganio on the morning of June 6, 2014, to report the

incident. No evidence in the record suggests that Respondent

attempted to conceal her arrest s or misl ead the School Board.

c. Unfortunately for Respondent, however, rule 6A - 10.081

does not provide any leeway around the 48 - hour reporting time

period. Rule 6A - 10.081(2)(c)13 . mandates that a Florida educator

Ð [s]hall self - report wit hin forty - eight (48) hou rs.Ñ (E mphasis

added) . Directive A - 10 echoes this requirement instructing that,

ÐAll arrests and convictions . . . of all employees shall be

self - reported withi n 48 hours to the district.Ñ (E mphasis

added) .

d. The only flexibility authorizing the Schoo l Board to

consider extenuating circumstances for a failure to self - report

appears to be the type of punishment the School Board may impose.

Directive A - 10 only indicates that failure to self - report ÐmayÑ

result in discipline. Rule 6A - 10.081(2), on the o ther hand,

imposes a harsher guideline directing that an educatorÓs

violation of the disciplinary principles Ðshall subject the

individual to revocation or suspension of the individual

educatorÓs certificate, or the other penalties as provided by

law.Ñ

e. However, RespondentÓs failure to self - report does not

end with the arrests on May 31, 2014, and the June 3, 2014.

Respondent was also arrested on September 30, 2014, for violating

the courtÓs pretrial condition. RespondentÓs argument that she

did not co nsider herself an employee of the School Board in

September 2014, and , therefore, was not obligated to report the

September 30, 2014, arrest, is not persuasive. Following her

June 2014 arrest, the School Board informed Respondent that it

was placing her o n administrative leave. Ho wever, the School

Board did not terminate her employment contract (and still has

not) . 10/ No evidence supports RespondentÓs contention that she

was not a School Board employee in September 2014. Neither is

there any evidence th at Respondent was misinformed that she no

longer worked for the School Board on that date.

f. Finally, Respondent failed to report her nolo contendere

plea to the charge of neglect of a child on November 18, 2014.

Rule 6A - 10.081(2)(c) 13 . specifically dir ects the educator to

Ðself - report any . . . withholding of adjudication . . . or

entering of a plea of guilty or Nolo Contendere for any criminal

offense.Ñ As with her September 30, 2014, arrest, RespondentÓs

explanation that she did not believe that she was required to

report a plea of nolo contendere to the School Board is not

persuasive. Both r ule 6A - 10.081(2)(c)13 . and Directive A - 10

clearly state that an educator is to self - report nolo contendere

pleas in which adjudication is withheld.

g. Therefor e, the School Board proved, by a preponderance

of the evidence, that Respondent violated the Principles of

Professional Conduct for the Education Profession in Florida as

set forth in rule 6A - 10.081(2)(c)13 . by failing to self - report

three arrests and a pl ea of nolo contendere to the School Board

within 48 hours of the incidents. Such failure s constitute

Ðmisconduct in officeÑ under rule 6A - 5.056(2)(b).

1 29 . In sum, RespondentÓs actions and judgment from

May through November 2014, when considered in thei r entirety,

were of such an imprudent and irresponsible nature as to reduce

her ability to effectively perform her duties as a teacher. 11/

Accordingly, the competent substantial evidence in the record

establishes Ðjust causeÑ to dismiss Respondent from he r teaching

position at Apopka Middle School pursua nt to section

1012.33(1)(a).

130 . Notwithstanding the above conclusions, the School

Board failed to meet its burden of proving Ðjust causeÑ to

dismiss Respondent under section 1012.33(1)(a) on the basis of

either ÐimmoralityÑ or by reason of a ÐconvictionÑ of a crime

involving moral turpitude.

131 . Rule 6A - 5.056(1) defines ÐimmoralityÑ as Ðconduct that

is inconsistent with the standards of public conscience and good

morals. It is conduct that brings the i ndividual concerned or

the education profession into public disgrace or disrespect and

impairs the individualÓs service in the community.Ñ The

preponderance of the evidence does not establish that

RespondentÓ s conduct in May 2014 deviated from the standar ds of

public conscience and good morals to such an extent as to

constitute Ðimmorality.Ñ

132 . Initially, the undersigned finds that Respondent did

not offer a convincing reason why Mr. Pruitt confessed to, and

then pled guilty to, lewd or lascivious moles tation of her

daughter. Neither did K.H. satisfactorily explain why she lied

to APD and DCF (twice) about being sexually assaulting by

Mr. Pruitt.

133 . Further, both RespondentÓs and K.H.Ós explanation for

presence of voluminous sexually explicit messag es to and from

Mr. Pruitt on their respective Facebook accounts (and why

Mr. Pruitt admitted t o s en ding and receiv ing such messages) is

questionable. The reasoning that Mr. Pruitt surreptitiously

obtained K.H.Ós cell phone and single - handedly created an

extensive record documenting his efforts to sexually molest and

solicit a 13 - year - old girl is dubious. Similarly, the

undersigned is skeptical of both RespondentÓs and K.H.Ós claims

that they had absolutely no knowledge of these messages involving

Mr. Pr uittÓs sexual aspirations (real or imagined).

134 . However, the testimony at the final hearing denying

any actual sexual activity between Mr. Pruitt and either

Respondent or K.H. was compelling, earnest, and, ultimately, the

more persuasive. When testify ing at the final hearing, K.H. did

not reveal, in demeanor or expression, that she was lying. She

did not blink or falter when describing the underlying

circumstances behind these very troubling accusations. She did

not display any signs of animosity, di sgust, or fear against

Mr. Pruitt. She did not harbor any resentment or regret when

confirming her motherÓs statements. In short, K.H. acted and

testified in line with her motherÓs basic narrative that the

Honakers invited an old family friend into thei r home to help him

recuperate from an emotional and mental setback. K.H.Ós

testimony bolstered RespondentÓs theme that the legal issues

which have ensnared her family since May 2014, have resulted

solely from Mr. PruittÓs unsound, psychological condition.

135 . The undersigned is mindful of K.H.Ós bias and motive

to protect her mother. Yet, when directly confronted with very

forceful evidence that her account was not truthful, she did not

vacillate. She did not waiver when describing her relationship

wit h Mr. Pruitt as purely platonic. Nor did she expose her

motherÓs testimony at the final hearing as deceitful.

136 . At the final hearing, K.H. Ós testimony was followed by

testimony from her sister, her father, and her grandmother.

Each, in turn, substant ially corroborated her testimony. Each

testified with the same conviction. Consequently, the

undersigned finds that the more persuasive evidence supports

RespondentÓs version of the facts that neither she, nor K.H., had

a sexual relationship with Mr. Pru itt. 12/

137 . Therefore, despite the fact that ample evidence of

Mr. PruittÓs unhealthy mental status should have prompted

Respondent to take affirm ative steps to safeguard her 13 - year - old

daughters, not enough evidence was produced at the final hearing

t o extrapolate that Respondent was actually aware of and condoned

a sexual relationship between K.H. and Mr. Pruitt (if such a

sexual relationship occurred at all). The evidence in the record

does not show that Respondent acted with culpable criminal

negle ct while Mr. Pruitt lived in her home . Consequently, the

preponderance of the evidence doe s not establish that

RespondentÓ s conduct rose to the level of ÐimmoralityÑ under

rule 6A - 5.056(1). Therefore, the School Board did not meet its

burden of proving Ðjust causeÑ under section 1012.33(1)(a) to

dismiss Respondent based on Ðimmorality.Ñ

138 . Finally, the School Board did not prove that it has

Ðjust causeÑ under section 1012.33(1)(a) to dismiss Respondent

based on her Ðbeing convicted or found guilty of, or entering a

plea of guilty to, regardless of adjudication of guilt, any crime

involving moral turpitude.Ñ RespondentÓs nolo contendere plea,

with adjudication withheld, is not a ÐconvictionÑ which would

allow the School Board to termin ate her employmen t contract.

139 . Florida case law has determined that a plea of nolo

contendere where the court has withheld adjudication is not a

ÐconvictionÑ of the crime. See Clarke v. United States , 184 So.

3d 1107, 1116 (Fla. 2016) 13/ (Ð[W] e adhere to our longstand ing,

consistent definition of ÒconvictionÓ to require a n adjudication

by the court.Ñ) .

140 . PetitionerÓs reliance on Montgomery v. State , 897

So. 2d 1282 (Fla. 2005) , is not persuasive on this issue. On the

contrary, Montgomery emphasizes that if the Le gislature intended a

nolo contendere plea (with adjudication of guilt withheld) to

constitute a ÐconvictionÑ for the purposes of sections 1012.33 and

1012.315, it would have expressly added such language to those

statutes. 14/

141 . Therefore, while Respond ent did enter a plea of nolo

contendere to the charge of neglect of a child, she was not

Ðconvicted or found guilty ofÑ a Ðcrime involving moral

turpitude.Ñ Accordingly, RespondentÓs nolo contendere plea does

not constitute Ðjust causeÑ to terminate her e mployment contract

under sections 1012.33(1)(a) and 1012.315 or rule 6A - 5.056(8).

142 . Based on the competent substantial evidence in the

record, the preponderance of the evidence establishes that

RespondentÓs actions from May through November 2014, const itute

Ðmisconduct in officeÑ under rule 6A - 5.056(2). Therefore, Ðjust

causeÑ exists under section 1012.33(1)(a) to dismiss Respondent

from her employment contract with the School Board. Accordingly,

the School Board met its burden of proving legally suff icient

grounds to terminate RespondentÓs employment as a teacher at

Apopka Middle School.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Orange County School

Board, enter a final order dism issing Respondent, Kimberly

Honaker, from her teaching contract.

DONE AND ENTERED this 30 th day of March , 2017 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrativ e 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 30 th day of March , 2017 .

ENDNOTE S

1/ Unless otherwise stated, all statutory references are to the

2016 codification of the Florida Statutes.

2 / The final hearing was initially scheduled for July 26, 2016.

Following RespondentÓs unopposed Motion For Continuance, the

final hearing was res et for September 20 through 22, 2016.

Respondent filed a second motion for continuance on September 8,

2016, and the final hearing was rescheduled for November 15

through 17, 2 016.

3 / Following the final hearing, with the undersignedÓs

permission, Respo ndent filed an interview between Apopka Police

Department and Mr. Pruitt that occurred on June 3, 2014, as

Mr. Pruitt was transported to the police station. The School

Board objected to this late - filed exhibit. The undersigned

overrules the School Bo ard Ós objection and admits the T ranscript

of the transportation interview with Mr. Pruitt into evidence.

4 / RespondentÓs daughters, K.H. and C.H., are minors. Their

names are abbreviated to protect their identities.

5 / See §§ 394.451 Î . 47891, Fla. Stat. The Florida Mental Health

Act, also known as the ÐBaker Act,Ñ allows for involuntary

examination or treatment in a medical facility upon evidence that

a person may have a possible mental illness or is a harm to self

or others.

6 / Section 827.03(1)(e) , Florida Statutes (2014) , defines

Ðneglect of a childÑ to mean:

1. A caregiverÓs failure or omission to

provide a child with the care, supervision,

and services necessary to maintain the

childÓs physical and mental health,

including, but not limited to, f ood,

nutrition, clothing, shelter, supervision,

medicine, and medical services that a prudent

person would consider essential for the well -

being of the child; or

2. A caregiverÓs failure to make a

reasonable effort to protect a child from

abuse, neglect, or exploitation by another

person.

Except as otherwise provided in this section,

neglect of a child may be based on repeated

conduct or on a single incident or omission

that results in, or could reasonably be

expected to result in, serious physical or

me ntal injury, or a substantial risk of

death, to a child.

7 / The Facebook messages were obtained through a search warrant

served on Facebook by APD for the Facebook accounts of

Mr. Pruitt, Respondent, K.H., and C.H. APD Detective Jefferson

Werts testifi ed that the Facebook messages presented into

evidence at the final hearing were obtained from the individual

Facebook accounts of Mr. Pruitt, Respondent, and K.H. However,

he conceded that he could not verify whether Mr. Pruitt,

Respondent, or K.H. actual ly authored the Facebook messages that

were sent from or received in their respective Facebook pages.

The undersigned refers to the names of Respondent, Mr. Pruitt,

and K.H. to indicate from whose individual Facebook accounts the

messages were retrieved.

8 / Florida Administrative Code Rule 6A - 10.080 was repealed on

March 23, 2016.

9 / See Purvis v. Marion Cty. Sch. Bd. , 766 So. 2 d 492, 498 (Fla.

5th DCA 2000)([A] teacher's impaired effectiveness can be

inferred from the nature of the violation.) .

10 / If Respondent was no longer a School Board employee following

the School BoardÓs decision to place her on administrative leave,

then this administrative matter to determine whether the School

Board has just cause to dismiss Respondent would not be

necessar y.

11 / See Crews v. State , 183 So. 3d 329, 338 n.11 (Fla. 2015)

( citing Purvis , 766 So. 2d at 498 - 99) (Ð[T] he conduct of a public

school teacher that takes place off of school grounds, outside of

school hours, and unconnected with school activities can p rovide

the basis for a finding of "misconduct in office" for purposes of

disciplinary action against a public school teacher.Ñ) .

12 / See Young v. DepÓ t of Educ. , 943 So. 2d 901, 902 (Fla. 1st

DCA 2006) (Ð [I]t is the responsibility of the administrative la w

judge to evaluate and weigh the testimony and other evidence

submitted at the hearing to resolve factual conflicts, and to

arrive at findings of fact.Ñ); Reily Enters., LLC v. Fla. DepÓ t

of Envtl. Prot. , 990 So. 2d 1248, 1251 (Fla. 4th DCA 2008)

(Evident iary matters such as credibility of witnesses and

resolution of conflicting evidence are the prerogative of the

Administrative Law Judge (ÐALJÑ) as finder of fact in

administrative proceedings.); and Resnick v. Flagler Cty. Sch.

Bd. , 46 So. 3d 1110, 1112 ( Fla. 5th DCA 2010)([W] here an

employee Ó s conduct is at issue, great weight is given to the

findings of the ALJ, who has the op portunity to hear the

witnessesÓ testimony and evaluate their credibility.) .

13 / As of the date of this Order, the Clarke opinio n is not final

until time expires to file a rehearing motion, and if filed,

determined.

14 / Montgomery reviewed whether a no contest plea, where

adjudication of guilt was withheld, should be considered a

ÐconvictionÑ for the specific purposes of section 921.0014 ,

Florida Statutes (2002) . The court observed that section

921.0021(2) provides a definition for ÐconvictionÑ as Ða

determination of guilt that is the result of a plea or a trial,

regardless of whether adjudication is withheld.Ñ Based on this

pre cise definition , the court concluded that the L egislature

intended for a no contest plea, where adjudication was withheld,

to be considered a ÐconvictionÑ because the statute did not

distinguish between guilty pleas and nolo contendere pleas. The

court al so explained that its interpretation was consistent with

the specific purpose behind the sentencing guidelines outlined in

chapter 921. See also State v. Finelli , 7 80 So. 2d 31, 32 - 33

(Fla. 2001) (Ð[T] he term ÒconvictionÓ draws its meaning from the

statuto ry context in which it is used.Ñ) . Neither section

1012.33 nor section 1012.315 include a definition of ÐconvictionÑ

that grants the School Board the authority to terminate a

professional services contract based solely on a teacherÓs plea

of nolo contende re with adj udication of guilt withheld.

Further, the undersigned finds the School BoardÓs reference

to Torreya Landrea D avis v. Pam Stewart , as Commissioner of

Education , Case No. 13 - 2501 ( Fla. DOAH Dec. 13, 2014 ; Fla. EPC

Mar. 26, 2014 ) and Palm Beach Co unty School Board v. Cassandre

Lawrence , Cas e No. 01 - 28 5 0 (Fla. DOAH Feb. 21 , 20 02 ) , not

applicable to the School BoardÓs final agency action in this

proceeding. Davis examined a license application denial and did

not review whether it was appropriate for the Department of

Education to consider the applicantÓs nolo contendere pleas

together with her other convictions. ALJ E. Gary Early did not

analyze the definition of ÐconvictionÑ as the term is used in

section 1012.33(1)(a). Nor did he review whether a School Board

should treat a nolo contendere plea, with adjudication of guilt

withheld, as a ÐconvictionÑ in the context of a teacher dismissal

decision. (The undersigned also notes that ALJ Early recommended

that the Department of Education not deny the applicantÓs

application for a teacher certificate based on her criminal

history.)

Regarding Lawrence , ALJ John G. Van LaninghamÓs analysis of

a School Board employeeÓs confession of guilt to a crime aligns

with the undersignedÓs conclusions of law. ALJ V an Laningham

reviewed whether the employeeÓs confession constituted a

ÐconvictionÑ under sections 435.03(2) and 4 35.04(2) , Florida

Statutes (2001) . In section 435.03(2), the Legislature

specifically directed background screening for persons who Ðhave

been found guilty of, regardless of adjudication, or entered a

plea of nolo contendere or guilty to, any offense.Ñ Similarly,

se ction 435.04(2) also requires criminal background screening for

persons who Ðentered a plea of nolo contendere.Ñ ALJ Van

Laningham concluded that, even in light of an admission of guilt,

the employee Ðhas not been convicted of the charge.Ñ

Therefore , both Davis and Lawrence support the undersignedÓs

conclusion that, if the Legislature had intended for a plea of

nolo contendere to se rve as Ðjust causeÑ to dismiss a School

Board employee under section 1012.33(1)(a), it would have

specifically included that phrase in the statute. Since the

Legislature has not included such designation in section

1012.33(1)(a), the undersigned concludes that a plea of nolo

contendere, even to a crime involving moral turpitude, does not

constitute Ðjust causeÑ for RespondentÓs dismissal from her

employment contract.

COPIES FURNISHED:

Joseph Egan, Jr., Esquire

Egan, Lev & Siwica, P.A.

Post Office Box 22 31

Orlando, Florida 32802

(eServed)

John C. Palmerini, Esquire

Orange County Public Schools

445 West Amelia Street

Orlando, Florida 32801

(eServed)

Tobe M. Lev, Esquire

Egan, Lev & Siwica, P.A.

231 East Colonial Drive

Orlando, Florida 32801

(eServed)

Tshaka Randall

Egan, Lev & Siwica, P.A.

Post Office Box 2231

Orlando, Florida 32802

Andrea L. Diederich, Esquire

Marshall Dennehey Warner Coleman & Goggin

Suite 550

315 East Robinson Street

Orlando, Florida 32801

(eServed)

Dr. Barbara Jenkins, Supe rintendent

Orange County School Board

445 West Amelia Street

Orlando, Florida 32801 - 0271

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Matthew Mears, G eneral Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.