16-005872TTS St. Lucie County School Board vs. Jannifer Thomas Status: Closed Recommended Order on Tuesday, May 23, 2017.

Summary: School Board failed to prove by a preponderance of evidence that teacher's conduct constituted misconduct in office, immorality, or a violation of School Board policies justifying her suspension and termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 16 - 5872TTS

JANNIFER THOMAS,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administ rative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing on February 1, 2017, in Port St. Lucie, Florida.

APPEARANCES

For Petitioner: Johnathan A. Ferguson, Esquire

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947

For Respondent: Thomas L. Johnson, Esquire

Law Office of Thomas L. Johnson, P.A.

Suite 309

510 Vonderburg Drive

Brandon, Florida 33511

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to suspend without

pay and terminate RespondentÓs employment as a teacher.

PRELIMINARY STATEMENT

By letter dated September 9, 2013, Petitioner, St. Lucie

County School Board (ÐSchool BoardÑ), notified Respondent,

Jannifer Thomas (ÐRespondentÑ), of the School BoardÓs intent to

terminate her employment as a teacher. On September 10, 2013,

Respondent timely requested an administrative hearing.

Subsequently, the Sc hool Board referred the matter to the

Division of Administrative Hearings (ÐDOAHÑ) to assign an

Administrative Law Judge to conduct the final hearing. On

November 12, 2013, at its regularly scheduled meeting, the School

Board suspended Respondent without pay .

The matter was assigned to Administrative Law Judge

Jessica E. Varn under DOAH Case No. 13 - 4677TTS. The final

hearing was initially set for March 4 and 5, 2014. On

February 24, 2014, Respondent filed an U nopposed M otion for

C ontinuance based on on going discovery. On February 25, 2014,

Judge Varn entered an Order granting the motion. On February 26,

2014, Judge Varn entered an Order resetting the final hearing for

May 13 and 15, 2014. On May 9, 2014, Respondent filed an

unopposed motion to stay p roceedings based on pending criminal

felony charges against her. On May 12, 2014, Judge Varn entered

an Order granting the motion, and requiring the parties to advise

of the status of the criminal case b y no later than July 14,

2014.

On July 14, 2014, the parties filed a joint status report,

indicating that RespondentÓs felony case should be resolved at a

court date set for September 24, 2014. The parties also advised

of their availability for final hearing in October 2014.

Accordingly, on July 18, 2014, Judge Varn entered an Order

resetting the matter for final hearing on October 21 and 22,

2014. On October 1, 2014, Respondent filed a second unopposed

motion to stay proceedings because the court date on RespondentÓs

felony charges was delayed to Decembe r 17, 2014. On October 6,

2014, a telephonic hearing on the motion was held, during which

the parties agreed to closure of the DOAH file without prejudice,

and with leave to reopen, should a hearing be necessary.

Accordingly, on October 6, 2014, Judge Va rn ent ered an Order

closing the file.

On April 27, 2016, all criminal charges against Respondent

were Nolle Prossed. On August 2, 2016, Respondent requested an

administrative hearing. Subsequently, the School Board referred

the matter back to DOAH to ass ign an Administrative Law Judge to

conduct the final hearing.

On October 24, 2016, the undersigned entered an Order

setting this matter for final hearing on December 13 and 14,

2016. On November 11, 2016, the parties filed a joint motion for

temporary pos tponement of the hearing based on a scheduling

conflict. On November 18, 2016, the undersigned entered an Order

granting the motion, resetting the final heari ng for February 1

and 2, 2017.

On October 11, 2016, the School Board filed its Statement of

Charg es and Petition for Termination (ÐStatementÑ). The

Statement contains certain factual allegations, and based on

those factual allegations, the School Board charged Respondent

with the following violations: (1) Violation of School Board

Policy 5.37(8)(a), ÐReporting Child AbuseÑ; (2) Violation of

section 39.201 , Florida Statute , ÐMandatory reports of child

abuse, abandonment, or neglect; mandatory reports of death;

central abuse hotline.Ñ; (3) Violation of School Board

Policy 6.94(2)(a), ÐReporting Profes sional MisconductÑ;

(4) Violation of section 1006.061(1), Florida Statute, ÐChild

abuse, abandonment, and neglect policyÑ; (5) Violation of School

Board Policy 6.301(3)(b), ÐEmployee Standards of ConductÑ;

ÐDisciplinary Guidelines for EmployeesÑ; (6) Vio lation of Florida

Administrative Code Rule 6A - 10.080, ÐCode of Ethics of the

Education Profession in FloridaÑ; and (7) Violation of

rule 6A - 10.081(3)(a) and (5)(n), ÐPrinciples of Professional

Conduct for the Educa tion Profession of FloridaÑ.

The final he aring commenced as scheduled on February 1,

2017, with both parties present. At the hearing, the School

Board presented the testimony of Detective Ronald Wentz, Master

Deputy Jonathan Horowitz, and Detective Christopher Jadin. The

School BoardÓs Exhibits 1 through 7, 9 and 10, 12, 23A, 23F, 23G,

23H, and 25 were received into evidence. Respondent testified on

her own behalf and presented the additional testimony of Pastor

Theodore Sanders. RespondentÓs Exhibits 1 through 5, 8 and 9,

and 11 were received into evidence. The partiesÓ Joint Exhibit 1

was also received into e vidence.

At the hearing, the parties agreed to file their proposed

recommended orders within 30 days after t he filing of the final

hearing t ranscript at DOAH. The three - volume final hea ring

Transcript was filed at DOAH on February 21, 2017. On March 21,

2017, Respondent filed an unopposed motion to extend the deadline

to March 31, 2017, in which to file proposed recommended orders.

On March 22, 2017, the undersigned entered an Order gra nting the

motion. On March 29, 2017, Respondent filed a second unopposed

motion to extend the deadline to April 18, 2017, in which to file

proposed recommended orders. On March 29, 2017, the undersigned

entered an Order granting the motion. On April 14, 2017, the

School Board filed an unopposed motion to extend the deadline to

April 24, 2017, in which to file proposed recommended orders. On

April 17, 2017, the undersigned entered an Order granting the

motion.

The parties timely filed proposed recommende d orders, which

were given consideration in the preparation of this Recommended

Order. On January 25, 2017, the parties filed their Joint Pre -

Hearing Stipulation, in which they stipulated to certain facts.

These facts have been incorporated into this Rec omme nded Order as

indicated below.

Unless otherwise indicated, all rule s and statutory

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

alleged violations.

FINDING S OF FACT

1. The School Board is a duly - constituted school board

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

public schools wit hin St. Lucie County, Florida.

2. At all times material hereto, Respondent was employed by

the School Board as a music teacher at Manatee Academy K - 8 School

(ÐManateeÑ), pursuant to a Professi onal Services Contract, issued

in accordance with section 1012.33(3)(a), Florida Statutes.

RespondentÓs employment with the School Board a s a teacher began

in 2006.

3. At all times material hereto, RespondentÓs employment

with the School Board was govern ed by Florida law a nd the School

BoardÓs policies.

4. Prior to the incidents giving rise to this proceeding,

Respondent was not the subject of any discipline. She had

received overall ratings of ÐExceptionalÑ or ÐAbove ExpectationÑ

on her teaching evalua tion forms.

5. The incidents giving rise to this proceeding occurred on

October 18 and 19, 2012, durin g the 2012 - 2013 school year.

October 18 and 19

6. Respondent awoke around 6:00 a.m. on Thursday,

October 18, 2012, and reported to work at Manatee. Th at

afternoon, Respondent finished her work day at Manatee and left

the school sometime after 3:15 p.m. After running some errands,

Respondent arrived at her single - family residential home in

Fort Pierce, so metime after 5:00 p.m.

7. Respondent shared the home with her long - time boyfriend

and fiancé , Dominic Madison (ÐMadisonÑ). Madison was also a

teacher employed by the School Board. At that time, Madison was

a band director at a local high school. By the time Respondent

got home, Madison had not yet returned home from his work day at

the high school.

8. Shortly after arriving home, Respondent sat down at her

personal laptop computer to check e - mails and do some work. The

computer was connected t o the homeÓs wi - f i network. While

working on the compu ter, Respondent discovered an unfamiliar icon

and link to a file on the home network.

9. The icon peaked RespondentÓs interest. Upon clicking on

the icon, a video opened with MadisonÓs face. Respondent then

observed Madison and a white female engaged in sexual activity in

a room inside their home. 1/ While Respondent was unsure, it

appeared that the female might be a former student of MadisonÓs

who might also be a minor. As she continued watching the video,

Respondent recognized the female as one of Mad isonÓs 17 - year - old

students, K.M.

10. After watching the video, Respondent was devastated,

upset, angry, and unable to process what she saw. She called

Madison at 6:36 p.m. , to confront him about the video and confirm

her suspicions that he, in fact, eng aged in sexual activity with

a minor student. They spoke for approximately 36 minutes.

During the call, they argued, and Madison neither admitted nor

denied engaging in sexual activity with K.M. By this point,

Respondent was in tears and so upset and co mpletely devastated

th at she experienced chest pains.

11. After getting off the phone with Madison and while

still at home, Respondent called her pastor, Theodore Sanders,

for guidance. They spoke around 7:13 p.m., for approximately

14 minutes.

12. Pas tor Sanders knew Madison because his children had

been members of the band at MadisonÓs high school. Pastor

Sanders was shocked by RespondentÓs allegation that Madison had

engaged in sexual activity with a minor student. Due to the

ramifications of such a Ðhuge allegation,Ñ Pastor Sanders was

cautious and wanted to make sure that Respondent was certain

about w hat she saw on the video.

13. It is understandable that Respondent needed some period

of time in which to process the situation, given that Madison was

her fiancé; they had a long relationship together; and she

observed Madison on her personal computer engaging in sexual

activity with a minor student in their home. Sometime after

7:30 p.m., Respondent left the home. At 7:26 p.m., Respondent

and Ma dison spoke again on the phone for approximately

38 minutes.

14. Respondent and Pastor Sanders spoke again on the phone

at 8:03 p.m. and 8:45 p.m. , with such calls lasting one minute

and 10 minutes, respectively. In the interim, Respondent spoke

again o n the phone with Madison for 43 minutes starting at

8:03 p.m.

15. As a teacher, Respondent is a mandatory reporter of

child abuse under sections 39.201(2)(a) and 1006.061(1), Florida

Statutes. Respondent clearly understood that she had a mandatory

oblig ation to report the sexual activity she saw on the video

between Madison and K.M. 2/

16. Respondent and Pastor Sanders discussed the need to

report what Respondent saw. There was never any doubt that the

abuse needed to be reported. Because of Respondent Ós distraught

emotional state at the time, they agreed that Pastor Sanders

would make the call. Pastor Sanders told Respondent to get off

the road and go home. Pastor Sanders then called Ð911Ñ at some

point after they got off the phone at 8: 55 p.m., to r eport the

abuse.

17. At the hearing, Respondent acknowledg ed that there was

almost a four - hour gap from when she first saw the video until

the time that Pastor Sanders stated he was going to report the

abuse. Respondent further acknowledged that prior to 8:55 p.m.,

she had never made a phone call to report the abuse to 911, DCF,

or her principal.

18. However, given that Respondent had just recently seen a

video on her personal computer of her fiancé engaged in sexual

activity with a minor female student in their home, it was

understandable that Respondent needed time to process t he

situation. A less than four - hour delay from when Respondent

first saw the video to Pastor SandersÓ call to 911 was immediate,

and not an unreasonable delay given the unique fa cts of this

case.

19. Sometime before 10:00 p.m., Respondent returned to her

residence. She saw MadisonÓs vehicle and assumed he was inside

the home. According to Respondent, she knew the police were on

their way. Respondent nevertheless entered the ho me, but she did

not a pproach Madison in any manner.

20. At approximately 10:00 p.m., two St. Lucie County

SheriffÓs deputies arrived at the home and rang the doorbell at

the front door. Madison answered the door, and was told by one

of the deputies that they were there to talk to Respondent. The

officer asked Respondent to step outside to speak with them and

Madis on was directed to step back.

21. Madison then went back inside the home and closed the

door behind him.

22. One of the deputies remained at the front porch area

while Respondent and the other deputy began to discuss what

Res pondent had seen on the video.

23. At this point, one of the deputies requested to see the

video so Respondent and the deputies proceeded to attempt to go

back inside the front door. However, they discovered that

Madison had locked the door behind hi m when he re - entered the

home.

24. By this point, no law enforcement officer had explored

the perimeter of the home to determine whether there were any

other entrances or exis ts from the home. Nor was Respondent

asked by either deputy if there were any other entrances or exi ts

from the home.

25. Respondent began ringing the doorbell and knocking on

the front door. In the midst of Respondent ringing the doorbell,

knocking on the door, and receiving no response from Madison, the

deputies asked Respondent, for the first time, if there were any

guns in the home and any other entrances and exits.

26. Respondent advised the deputies that there was a back

door. Ultimately, it was determined that Madison had snuck out

the back door of the h ome to elude law enforcement.

27. Respondent gave the deputies permission to enter and

search the home. They entered through the open back door. Once

the house was cleared by the officers, Resp ondent and the

officers went inside the home.

28. Respondent was cooperative during the search of the

home and she consented to allowing the officers to lo ok at the

computer.

29. Respondent attempted to show one of the deputies what

she saw on the comput er, but nothing would come up. Ultimately,

it was determined that Madison took the evidence with him when he

fled the home.

30. When officers went into the front office and wanted to

collect some items belonging to Madison, Respondent told the

officers t hat she would prefer if they got a search warrant. The

officers obtained a search warrant and stayed all night searching

the home until approximately 5:00 a.m.

31. Respondent did not sleep or eat while the officers

were at the home and she was visibly Ð shaken - upÑ and crying at

times during the evening and earl y morning hours of October 19.

32. Detective Wentz was at the home and spoke with

Respondent throughout the night and early morning of October 19.

At some point, Detective Wentz Ðflat out askedÑ R espondent if she

knew where Madison was located. Respondent responded, indicating

she did not know where he fled to.

33. Detective Wentz made it clear to Respondent on multiple

occasions during the evening of October 18 and early morning of

October 19 th at if she knew MadisonÓs whereabouts, she should let

him know. Before he left the home on the morning of October 19,

Detective Wentz reiterated to Respondent that she needed to

contact law enforcement immediately if she had any information

about MadisonÓs whereabouts. Respondent clea rly understood this

directive.

34. At no time during the evening of October 18 and early

morning of October 19 did Respondent ever volunteer information

as to where she thought Madison might be. On the other hand, the

persua sive and credible evidence adduced at hearing establishes

that Respondent did not know of MadisonÓs whereabouts at any time

during the evening of October 18 and early hours of October 19

af ter he fled the home.

35. However, by 11:45 a.m., on October 19, R espondent

discovered that Madison m ight be staying at the local Holiday Inn

Expre ss, based on information she received from MadisonÓs father.

Respondent called the front desk of the hotel at 11:47 a.m. and

12:01 p.m., in an effort to confirm that Madison was indeed at

the Holiday Inn. Respondent and Madison spoke at 12:09 p.m., at

which time Respondent knew Madison was still at the hotel, about

to check - out of the hotel.

36. At no time between 11:47 a.m. and 1:39 p.m., did

Respondent make any calls to la w enforcement to let them know

that Madison might be at the Holiday Inn. Master Deputy Horowitz

was at RespondentÓs home before 1:39 p.m. However, Respondent

failed to inform Master Deputy Horowitz that Madison was at the

Holiday Inn. Master Deputy Horo witz specifically asked

Respondent if she knew where Madison was. Respondent responded,

stating that she Ðdid not know where his whe reabouts were at the

time.Ñ

37. Respondent spoke with Master Deputy Horowitz by

telephone on two or three occasions later that afternoon.

RespondentÓs testimony that she told Master Deputy during one of

these telephone conversations that Madison had been at the

Holiday Inn is not credited an d is rejected as unpersuasive.

38. Later that afternoon, Respondent was transported to the

SheriffÓs Office for an interview. During the interview,

Respondent admitted she failed to inform law enforcement that

Respondent had been st aying at the Holiday Inn:

DETECTIVE NORMAN: I know youÓve talked to

several detectives throughout yesterda y

evening, last night, this morning, this

afternoon. Probably seen more faces that you

want to see. HereÓs -- hereÓs what weÓre

trying to figure out, where your fianc é is.

Do you know where he is?

MISS THOMAS: And I understand that. And

like I told the officers that came to the

home, it was information that was left out.

And it truly was not intentional. I know the

way it looked, intentionally, it made me look

bad, but I honestly do not know where he is.

At the time when I did speak to him, he told

me thatÓs where he was, that he was leaving

that location so I havenÓt a clue. He hasnÓt

contacted me since the la st time I spoke with

him today.

* * *

And I mean, IÓm disappointed because I made a

mistake. I did. I omitted something that I

didn Ót realize at the time and I donÓt know

if it was, you know, just, you know, just did

it just because I gue ss deep down I was maybe

trying -- you know, I donÓt know why I didnÓt

say, ÐOh yea, by the way this.Ñ I donÓt know

why. That was so stupid.

Petitio nerÓs Exhibit 12 , pp. 5 - 7.

39. Following the interview, Respondent was placed under

arrest and charged with one felony count of failing to report

child abuse in violation of sections 39.201(1)(b) and 39.205,

Florida Statutes, and one felony count of being an accessory

after the fact, in violation of section 777.03(1)(c) , Florida

Statutes . After Respondent was arrested, she was placed on

temporary duty assignment at home wi th pay. On Monday,

October 22 , Respondent self - reported her arrest and the abuse o f

K.M. by Madison to her principal and the District. Subsequently,

the State Attorney charged Respondent in the Nineteenth Judicial

Circuit for the felony charges of failing to report child abuse

in violation of sections 39.201(1)(b) and 39.205, and for t he

felony charge of being an accessory after the fact in vio lation

of section 777.03(1)(c).

40. The persuasive and credible evidence adduced at hearing

establishes that Respondent did not call Madison while he was at

the Holiday Inn Express to warn him so that he could elude

arrest. Nevertheless, Respondent knew Madison was at the Holiday

Inn at least by 12:09 p.m. on October 19, when she spoke to

Madison on the telephone. Respondent failed to inform law

enforcement that he was at the Holiday Inn, or tha t he had been

at the Holiday Inn, until her interview at the SheriffÓs office

later that afternoon just prior to her arrest. After a 23 - hour

manhunt, law enforcement officers found and arrested Madison at

the Holida y Inn Express around 7:00 p.m.

41. Resp ondentÓs delay in informing law enforcement of

MadisonÓs whereabouts or that he had been at the Holiday Inn

Express delayed his arrest by at most, approximately seven hours.

Notably, the video was discovered by Respondent, reported by

Respondent to law en forcement, and Madison was arrested, within

the span of approximately 25 or 26 hours. Ultimately, it was

Respondent who identified the victims of MadisonÓs crimes. It

was RespondentÓs discovery of the video, her immediate reporting

of the abuse, and her later identification of the victims, which

led to MadisonÓs arrest and his conviction on all c harges.

42. The State Attorney charged Madison in the Nineteenth

Judicial Circuit with 40 counts of criminal activity: 34 felony

charges of sexual activity with a minor; five felony charges of

sexual battery on a child in custodial relationship; and one

felony charge of using a child in a sexual performance. On

April 1, 2016, Madison was adjudicated guilty on five counts of

sexual activity with a minor. Madiso n was sentenced to 15 years,

consecutive, for each count.

43. On August 7, 2013, Respondent pled no contest to both

charges. On the plea form, Respondent checked s ection 25, which

states: ÐI specifically believe the plea is in my best interest

even thou gh I am innocent of the charge, charges, or violations,

or may have defenses to them.Ñ After Madison was adjudicated

guilty, all criminal charges against Respondent were Nolle

Prossed.

44. The persuasive and credible evidence adduced at hearing

fails to establish that Respondent is guilty of miscon duct in

office in violation of Florida Administrative Code R ule 6A -

5.056(2)(d) or (e). The evidence does not establish that

Respondent engaged in behavior that disrupted a studentÓs

learning environment or redu ced her ability or his or her

colleaguesÓ ability to effectively perform duties.

45. The persuasive and credible evidence adduced at hearing

fails to establish that Respondent violated Florida

Administrative Code R ule 6B - 1.006(3)(a). The evidence does no t

establish that Respondent failed to make reasonable efforts to

protect a student from conditions harmful to learning and/or to

the studentÓs mental and/or physical health.

46. Indeed, Respondent protected students from any further

abuse by Madison. Res pondent is responsible for MadisonÓs abuse

of K.M. being brought to the attention of law enforcement

immediately after she observed the vid eo on her personal

computer.

47. Within about four hours after observing her fiancé

engaging in sexual activity with a minor on her personal computer

and processing the situation and speaking with her pastor, the

matter was reported to 911, and law enforcement arrived at

RespondentÓs home.

48. Madison was at the home when the deputies arrived.

Notably, the deputies wh o arrived at RespondentÓs home did not

ask to speak with Madison first. Instead, they asked to speak

with Respondent, and Respondent was asked to step outside the

home. Madison, the alleged perpetrator of the sexual abuse, was

ordered by one of the deput i es to go back inside the home.

49. Knowing full well that the suspect, Madison, went back

inside the home through the front door, neither deputy undertook

any efforts to determine whether Madison might have an escape

route through another door. A perime ter was not established

until after law enforcement officers discovered that Madison had

fled the home.

50. Respondent cooperated with law enforcement while they

were at her home. She cooperated fully in the prosecution of

Madison and she was instrumenta l in securing MadisonÓs crim inal

conviction for the abuse.

51. Given the totality of the circumstances, RespondentÓs

failure to inform law enforcement du ring the afternoon of

October 19 of MadisonÓs whereabouts at the Holiday Inn, which

delayed the arres t of Madison by seven hours, at most, does not

rise to the level of conduct sufficient to support a finding of

guilt in vi olation of rule 6B - 1.006(3)(a).

52. The persuasive and credible evidence adduced at hearing

fails to establish that Respondent violat ed rule 6B - 1.006(3)(n).

Respondent reported the abuse to appropriate authorities when

Pastor Sanders called 911. She also reported the abuse to

appropriate authorities when deputies arrived at her home.

Respondent also self - reported the incident to her principal and

the District on th e following Monday, October 22.

53. The persuasive and credible evidence adduced at hearing

fails to establish that Respondent is guilty of immorality in

violation of rule 6A - 5.056(1). Insufficient credible and

persuasive evidence was adduced at hearing to establish that

Respondent engaged in conduct inconsistent with the standards of

public conscience and good morals, and that the conduct was

sufficiently notorious so as to disgrace or bring disrespect to

Respondent or the teaching profession and impair RespondentÓs

service in the community.

54. The persuasive and credible evidence adduced at hearing

fails to establish that Respondent violated Policy 5.37(8)(a).

Respondent ÐdirectlyÑ reported her knowledge of MadisonÓs ab use

of K.M. as required by the policy when Pastor Sanders called 911

within four hours of Res pondentÓs view of the video.

55. The persuasive and credible evidence adduced at hearing

fails to establish that Respondent violated Policy 6.301(3)(b).

As to Po licy 6.301(3)(b)(viii), Respondent did not engage in

immoral conduct, nor was it shown that RespondentÓs conduct was

Ðindecent.Ñ As to Policy 6.301(3)(b)(xxx), the School Board

failed to prove that Respondent engaged in off - duty conduct that

does not prom ote the good will and favorable attitude of the

public toward the School Distri ct, its programs, and policies.

56. In reaching this conclusion, it is notable that the

School Board did not call any members of the public or any

administrators, teachers, or other personnel as witnesses to

support this claim. Moreover, the School Board does not argue in

its proposed recommended order that it proved that Respondent

violated Policy 6.301(3)(b)(xxx). Paragraphs 71 through 73 refer

to another specific subdivisio n within Policy 6.301(3)(b),

6.301(3)(b)(viii). However, there is no specific argument that

Respondent vio lated Policy 6.301(3)(b)(xxx).

57. The persuasive and credible evidence adduced at hearing

fails to establish that Respondent violated Policy 6.94(2 )(a).

As detailed above, Respondent reported the abuse when Pastor

Sanders called 911. Respondent also reported the incident to the

deputies when they arrived at her home shortly after Pastor

Sanders called 911, and when she self - reported the abuse to he r

principal and the District on the following Monday, October 22.

CONCLUSIONS OF LAW

58. DOAH has jurisdiction of the subject matter and the

parties to this proceeding pursuant to sections 120.569 and

1 20.57(1), Florida Statutes.

59. Respondent is an ins tructional employee, as that term

is defined in section 1012.01(2), Florida Statutes. The School

Board has the authority to suspend without pay and terminate

instructional employees pursuant to sect ions 1012.33(1)(a) and

(6)(a).

60. The School Board has the burden of proving, by a

preponderance of the evidence, that Respondent committed the

violations alleged in the Administrative Complaint and that such

violations constitute Ðjust causeÑ for suspension without pay and

dismissal. §§ 1012.33(1)(a) and (6) (a), Fla. Stat.; Dileo v.

Sch. Bd. of Dade Cnty. , 569 So. 2d 883, 884 (Fla. 3d DCA 1990).

61. The preponderance of the evidence standard requires

proof by Ðthe greater weight of the evidenceÑ or evidence that

Ðmore likely than notÑ tends to prove a certai n proposition.

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

preponderance of the evidence standard is less stringent than the

standard of clear and convincing evidence applicable to loss of a

license or certification. Cisneros v. Sch. Bd. of Miami - Dade

Cnty. , 990 S o. 2d 1179 (Fla. 3d DCA 2008).

62. Whether Respondent committed the charged offenses is a

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

in the context of each alleged violation. Holmes v. Turlington ,

480 So. 2d 1 50, 153 (Fla. 1985); McKinney v. Castor , 667 So. 2d

387, 389 (Fla. 1st DCA 1995); McMillian v. Nassau Cnty. Sch. Bd. ,

629 So. 2d 226, 228 (Fla. 1st DCA 1993).

63. Sections 1012.33(1)(a) and (6)(a) provide in pertinent

part that instructional staff may be suspended without pay and

terminated during the term of their employment contract only for

Ðjust cause.Ñ ££ 1012.33(1)(a) and (6)(a), Fla. Stat. ÐJust

causeÑ is defined in section 1012.33(1)(a) to include, but not be

limited to, the following material in stances as defined by rule

of the State Board of Education: Ðmisconduct in officeÑ and

Ðimmorality.Ñ

64. Section 1001.02(1), Florida Statutes, grants the State

Board of Education authority to adopt rules pursuant to

sections 120.536(1) and 120.54 to imp lement provisions of law

conferring duties upon it. The statues and rules governing this

de novo administrative proceeding are penal in nature and thus

must be strictly construed, with any ambiguities resolved in

favor of the employee. Gainey v. Sch. Bd. , 387 So. 2d 1023, 1029

(Fla. 1st DCA 1980); Broward Cnty. Sch. Bd. v. Joseph , 2013 Fla.

Div. Adm. Hear. LEXIS 399, *19, Case No. 13 - 049 0TTS (Fla. DOAH

July 8, 2013).

65. Consistent with the LegislatureÓs grant of rulemaking

authority, the State Board of Education has defined Ðmisconduct

in officeÑ in rule 6A - 5.056(2), which provides:

(2) ÐMisconduct in OfficeÑ means one or more

of the following:

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

Education Profession in Florida as adop ted in

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

(b) A violation of the Principles of

Professional Conduct for the Education

Profession in Florida as adop ted in Rule 6A -

10.081, F.A.C.;

(c) A violation of the adopted school board

rules;

(d) Behavior that disrupts the stu dentÓs

learning envir onment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleaguesÓ ability to

effectiv ely perform duties.

66. Rule 6A - 10.080 became effective January 11, 2013. The

applicable rule in effect in October 2012 was rule 6B - 1.001.

Rule 6B - 1.001 contains the same language as rule 6A - 10.080, which

became effective January 11, 2013. Rule 6B - 1.001, titled ÐCode

of Ethics of the Education Pr ofession in Florida,Ñ provides:

(1) The educator values the worth and

dignity of every person, the purs uit of

truth, devotion to excellence, acquisition of

knowledge, and the nurture of democratic

citizenship. Essential to the achievement of

these standards are the freedom to learn and

to teach and the guarantee of equal

opportunity for all.

(2) The educ atorÓs primary professional

concern will always be for the student and

for the development of the studentÓs

potential. The educator will therefore

strive for professional growth and will seek

to exercise the best profe ssional judgment

and integrity.

(3) Aware of the importance of maintaining

the respect and confidence of oneÓs

colleagues, of students, of parents, and of

other members of the community, the educator

strives to achieve and sustain the highest

degree of ethical conduct.

67. While rule 6A - 5 .056(2)(a) provides that violation of

the Code of Ethics rule constitutes Ðmisconduct,Ñ it has been

frequently noted that the precepts set forth in the above - cited

ÐCode of EthicsÑ are Ðso general and so obviously aspirational as

to be of little practical use in defining normative behavior.Ñ

Miami - Dade Cnty. Sch. Bd. v. Lantz , 2014 Fla. Div. Adm. Hear.

LEXIS 399, *29 - 30, Case No. 12 - 3970 (Fla. DOAH July 29, 2014).

68. Rule 6A - 5.056(2)(b) incorporates by reference rule 6A -

10.081, which is titled ÐPrinciples of Professional Conduct for

the Education Profession in Florida.Ñ Rule 6A - 10.081 became

effective January 11, 2013. The applicable rule in effect in

October 2012 was rule 6B - 1.006. Rule 6B - 1.006 contains the same

language as rule 6A - 10.081, which becam e effective January 11,

2013. Rule 6B - 1.00 6 provides, in pertinent part:

(3) Obligation to the student requires that

the individual:

(a) Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs men tal

and/or physical health and/or safety.

* * *

(n) Shall report to appropriate authorities

any known allegations of a violation of the

Florida School Code or State Board of

Education Rules as defined in Sectio n

231.28(1), Florida Statutes.

69. Consistent with its rulemaking authority, the State

Board of Education has defined ÐimmoralityÑ in rule 6A - 5.056(1),

whi ch provides, in pertinent part:

(1) ÐImmoralityÑ means conduct that is

inconsistent with the standards of public

conscience and go od morals. It is conduct

that brings the individual concerned or the

education profession into public disgrace or

disrespect and impairs the individu alÓs

service in the community.

70. To support a finding of just cause to discipline a

teacher based on i mmorality, the evidence must establish both

that: a) the teacher engaged in conduct inconsistent with the

standards of public conscience and good morals; and b) that the

conduct was s ufficiently notorious so as to ( 1 ) disgrace or bring

disrespect to the i ndividual or the teaching profession and

( 2 ) impair the teacherÓs service in the community. McNeill v.

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

71. School Board Policy 5.37(8)(a) is a ÐruleÑ within the

meaning of rule 6A - 5.056(2) (c). School Board Policy 5.37(8)( a)

provides, in pertinent part:

(8) Child Abuse, Abandonment, or Neglect

(a) All School Board employees who know or

have reasonable cause to suspect that a

student is an abused, abandoned, or neglected

child shall repor t such knowledge or

suspicion directly both (i) to the state - wide

central abuse hotline established and

maintained by the Florida Department of

Children and Families (DCF), and/or (ii) to

the appropriate local law enforcement agency,

either through the S chool Resource Officer or

through the central dispatch center telephone

number (911).

72. School Board Policy 6.94(2)a. is a ÐruleÑ within the

meaning of rule 6A - 5.056(2)(c). School Board Policy 6.94(2)a.

provides as follows:

2. Reporting Professional Misconduct

a. District staff members are required to

report to the principal of the school and the

Assistant Superintendent of Human Resources

alleged misconduct by District employees

which affects the health, safety, or welfare

of a student. If the all eged misconduct to

be reported is regarding the Assistant

Superintendent of Human Resources, the

District employee shall report the alleged

misconduct to the Superintendent. Failure to

report such alleged misconduct shall result

in appropriate disciplinar y action, as

provided in Section 10 12.796(1)(d) , Florida

Statutes.

73. School Board Policy 6.301 is a ÐruleÑ within the

meaning of rule 6A - 5.056(2)(c). School Board Policy 6.301

provides, in pertinent part, as follows:

(2) Each principal, supervisor, o r member of

the instructional staff shall abide by the

Code of Ethics of the Education Profession in

Florida, the Principles of Professional

Conduct for the Education Profession in

Florida, and the Standards of Competent and

Professional Performance in Flo rida. All

certificated employees shall be required to

complete training on the standards of ethical

conduct upon employment and annually

thereafter. All employees shall abide by the

Florida Code of Ethics for Public Of ficers

and Employees.

(3) The Scho ol District generally follows a

system of progressive discipline in dealing

with deficiencies in employee work

performance or conduct. Should unacceptable

behavior occur, corrective measures will be

taken to prevent reoccurrence. The

Superintendent is au thorized to place

employees on administrative assignment and/or

leave as necessary during an investigation.

However, some behavior may be so extreme as

to merit immediate dismissal.

(b) The following list is not intended to be

all inclusive, but is typi cal of infractions

tha t warrant disciplinary action:

(viii) Immoral or indecent conduct

* * *

(xix) Violation of any rule, policy,

regulation, or established procedure

* * *

(xxix) Any violation of the Code of Ethics

of the Education Profession, of Professional

Conduct of the Education Profession, the

Standards of Competent and Professional

Performance, or the Code of Ethics for Public

Officers and Employees.

(xxx) Off duty conduct that does not promote

the good will and favorable a ttitude of the

public toward the School Distri ct, its

programs, and policies.

74. Turning to the instant case, the School Board failed to

prove by a preponderance of the evidence that Respondent violated

rule 6B - 1.006(3)(a). As detailed above, the evide nce does not

establish that Respondent failed to make reasonable efforts to

protect a student from conditions harmful to learning and/or to

the studentÓs mental and/or physical health.

75. The School Board failed to prove by a preponderance of

the evidenc e that Respondent violated rule 6B - 1.006(3)(n). As

detailed above, Respondent reported MadisonÓs abuse of K.M. to

Ðappropriate authorities.Ñ

76. The School Board failed to prove by a preponderance of

the evidence that Respond ent violated rule 6A - 5.056(1) .

77. The School Board failed to prove by a preponderance of

the evidence that Respondent violated Policy 5.37(8)(a). Policy

5.37(8)(a) requires that suspected abuse be reported Ðdirectly.Ñ

According to the School Board, the word ÐdirectlyÑ means that

Respondent had a non - delegable duty to report the abuse to 911,

herself. In other words, under the School BoardÓs

interpretation, Respondent was prohibited from having someone

else, such as Pastor Sanders, make the call to 911, even though

Respondent spok e to law enforcement shortly after the call was

made.

78. Because the word ÐdirectlyÑ is undefined in the policy

and susceptible to different meanings, an examination of the

dictionary definition is appropriate. BrandyÓs Prods. V. DepÓt

of Bus. & ProfÓl Reg. , 188 So. 3d 130, 132 (Fla. 1st DCA 2016).

The dictionary defines ÐdirectlyÑ as: Ðin a direct manner; in

immediate physical contact; in t he manner of direct variation.Ñ

However, the dictionary also defines ÐdirectlyÑ as:

Ðwithout delay: IMMEDIATELY ; in a little while; SHORTLY.Ñ See

ÐDirectly.Ñ Merriam - Webster Online Dictionary, www.merriam -

webster.com/dictionary/directly (last visited May 22, 2017).

79. Thus, ÐdirectlyÑ may be use d to relate to a period of

time ( i.e. , Ðwithout delay: ÐIMMEDIATELYÑ, Ðin a little whileÑ).

Alternatively, ÐdirectlyÑ may be used to relate to the

intervention of something or someone ( i.e. , Ðin a direct manner;

in immediate physical contact; in the manne r of direct

variation.Ñ). The latter definition supports the School BoardÓs

position. The former definition does not.

80. In the present case, strictly construing the policy in

a light most favorable to the employee, ÐdirectlyÑ relates to a

period of ti me. To hold otherwise would lead to an absurd

result. For example, a teacher who learns of sexual activity

involving another teacher and minor student would be found to

have complied with the policy, if the teacher failed to report

the abuse within six m onths, but when the teacher finally did

report the abuse, she made t he report herself.

81. Also, consider a situation where a teacher observed

abuse and, instead of calling 911 herself, shouted across the

home to her husband, who was also inside the house , requesting

that her husband make the call. The husband makes the call to

911, and within a short period of time, law enforcement arrives

at the home in response to the call and speaks with the teacher.

The teacher then communicates the fact of the abus e to the

officer. It cannot seriously be contended that the teacher,

under that scenario, would have violated the policy and be

subjected to discipline simply because she did not make the call

herself to 911.

82. In sum, Respondent complied with the poli cy when Pastor

Sanders called 911 on her behalf within four hours after

Respondent saw the video. That Respondent, herself, did not

personally call 911, is of no consequence. 3/

83. The School Board failed to prove by a preponderance of

the evidence that Respondent violated Policy 6.94(2)a.

84. On page four of its proposed recommended order, the

School Board asserts that:

[I] n accordance with Florida Statute section

1012.33, Respondent should be terminated from

her position as a teacher due to her conduct

occurring on October 18 th and 19 th of 2012,

which also formed the basis of RespondentÓs

two felony criminal charges (failing to

report child abuse (Fla. Stat. section

39.201(1)(B), 39.205(2) and being an

accessory after the fact (Fla. Stat. section

777.03 (1)(c). (emphasis added ).

85. Section 39.201(1)( a) and (b) provide as follows:

(a) Any person who knows or has reasonable

cause to suspect, that a child is abused,

abandoned, or neglected by a parent, legal

custodian, caregiver, or other person

respons ible for the childÓs welfare, as

defined in this chapter, or that a child is

in need of supervision and care and has no

parent, legal custodian, or responsible adult

relative immediately known and available to

provide supervision and care shall report

such knowledge or suspicion to the department

in the manner prescribed in subsection (2).

(b) Any person who knows, or has reasonable

cause to suspect, that a child is abused by

an adult other than a parent, legal

custodian, caregiver, or other person

respon sible for the childÓs welfare, as

defined in this chapter, shall report such

knowledge or suspicion to the department in

the manne r prescribed in subsection (2).

86. Section 39 .201(2)(b) provides as follows:

Each report of known or suspected abuse by an

adult other than a parent, legal custodian,

caregiver, or other person responsible for

the childÓs welfare, as defined in this

chapter, shall be made immediately to the

departmentÓs central abuse hotline. Such

reports may be made on the single statewide

toll - free telephone number or via fax, web -

based chat, or web - based report. Such

reports or calls shall be immediately

electronically transferred to the appropriate

county sheriffÓs office by the central abuse

hotline.

87. Section 39.205( 2) provides as follows:

(2) Unless the court finds that the person

is a victim of domestic violence or that

other mitigating circumstances exist, a

person who is 18 years of age or older and

lives in the same house or living unit as a

child who is known or suspected to be a

victim of child abuse, neglect of a child, or

aggravated child abuse, and knowingly and

willfully fails to report the abuse commits a

felony of the third degree, punishable as

provided in s. 775.082, 2. 775.083, or s.

775.084.

88. Section 777 .03(1)( c) provides as follows:

(c) Any person who maintains or assists the

principal or an accessory before the fact, or

gives the offender any other aid, knowing

that the offender has committed a crime and

such crime was a capital, life, first degree,

or secon d degree felony, or had been an

accessory thereto before the fact, with the

intent that the offender avoids or escapes

detection, arrest, trial, or punishment, i s

an accessory after the fact.

89. Importantly, the undersigned and the School Board lack

jur isdiction to enforce sections 39.201(1) and (2) and

777.03(1)(c). Any purported violations of these statutes must be

established elsewhere, such as in a criminal court. Palm Beach

Cnty. Sch. Bd. v. Harrell , 2017 Fla. Div. Adm. Hear . LEXIS 234,

*25, n. 6, Case No. 16 - 686 2 (Fla. DOAH April 11, 2017).

90 . The School Board can, of course, adopt its own rules

containing certain requirements for reporting suspected abuse of

minor students, which it has done. 4/ In support of its

termination of Respondent, the School Board alleged that

Respondent violated Policy, 5.37(8)(a). As detailed above,

construing the Policy favorable to Respondent, reporting to DCF

is only one possible option available to a teacher for reporting

abuse. Another option is to report the a buse by calling 911.

Respondent complied with the requ irements of Policy 5.37(8)(a).

91 . Even if section 39.205(2) could be considered by the

undersigned as a potential independent ground for RespondentÓs

termination, a review of the statute demonstrates that it has no

application to the facts of this case. No evidence was presented

at the hearing that K.M. resi ded in RespondentÓs household.

9 2 . Even if the undersigned had jurisdiction to consider

whether Respondent was an accessory after the fact in vi olation

of section 777.03(1)(c), the facts found herein fail to establish

that Respondent violated the statute. As the Fifth District

Court of Appeal stated in Melahn v. State , 843 So. 2 d 929, 930

(Fla. 5th DCA 2003):

The crime of accessory after the fact

requires some overt action by the defendant.

See Bowen v. State , 791 So. 2d 44, 52

(Fla. 2d DCA 2001)(citing Roberts v. State ,

318 So. 2d 166 (Fla. 2d DCA 1975)). Certain

falsehoods told to an officer seeking

information, which go beyond merely

disavow ing knowledge or refusing to cooperate

with an investigation, may support a

conviction for accessory after the fact. Id.

at 53 (citing State v. Taylor , 283 So. 2d 882

(Fla. 4th DCA 1973)). In the instant case,

MelahanÓs conduct upon being questioned by

p olice cannot support a conviction for

accessory after the fact because he merely

refused to cooperate, and he told no alleged

falsehoods be yond disavowing knowledge.

Melahn v. State , 843 So. 2d 929, 930 (Fla. 5th DCA 2003).

9 3 . In sum, and as detailed ab ove, the School Board failed

to prove, by a preponderance of the evidence, that Respondent

violated the rules and policies alleged in the Statement of

Charges and Petition as a basis for RespondentÓs termination. 5/

RECOMMENDATION

Based on the foregoing Fin dings of Fact and Conclusions of

Law, it is RECOMMENDED that the St. Luc ie County School Board

enter a f inal o rder rescinding RespondentÓs suspension without

pay and termination, and reinstate her with back pay and

benefits.

DONE AND ENTERED this 23rd day of May , 2017 , in Tallahassee,

Leon County, Florida.

S

DARREN A. SCHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of May, 2017 .

ENDNOTE S

1/ Respondent and Madison are both African - American.

2 / Notably, section 1006.061 , Florida Statu tes, obligates the

School Board to:

(1) Post in a prominent place in each school

a notice that, pursuant to chapter 39, all

employees and agents of the district school

board, charter school, or private school have

an affirmative duty to report all actua l or

suspected cases of child abuse, abandonment,

or neglect; have immunity from liability if

they report such cases in good faith; and

have a duty to comply with child protective

investigations and all other provisions of

law relating to child abuse, aban donment, and

neglect. The notice shall also include the

statewide toll - free telephone numbe r of the

central abuse hotline.

(2) Post in a prominent place at each school

site and on each schoolÓs Internet website,

if available, the policies and procedure s for

reporting alleged misconduct by instructional

personnel or school administrators which

affects the health, safety, or welfare of a

student; the contact person to whom the

report is made; and the penalties imposed on

instructional personnel or school

administrators who fail to report suspected

or actual child abuse or alleged misconduct

by other instructional perso nnel or school

administrators.

At the hearing, no evidence was presented to establish that

the School Board complied with these requirement s.

3 / Notably, Policy 5.37(8)(a) contains an inherent inconsistency

because of the use of the term ÐbothÑ before subdivision (i),

which is then followed by the use of the phrase Ðand/or.Ñ

Construing the policy in a light most favorable to Respondent as

is required, the rule actually provides for three mechanisms for

a teacher to directly report abuse of a student. First, the

teacher may report the abuse to the DCF central abuse hotline.

Second, the teacher may report the abuse to the appropriate local

law enforcement agency through the School Resource Officer.

Third, the teacher may report the abuse to appropriate local law

enforcement through the central dispatch center telephone number

(911).

The School BoardÓs reliance on Barber v. State , 592 So. 2 d

330 (Fla. 2d DCA 1992), is misplaced. That case is

distinguishable from the instant case because it involved a

foster care workerÓs reporting requirements under chapter 415 of

the Florida Statutes and the workerÓs challenge to the

constitutionality of s ection 415.513(1). No issue was presented

in that case as to the meaning of Ðdirectly,Ñ and whether the

initial reporting of suspected abuse could be made by someone

other than the person first havi ng knowledge of the abuse.

RespondentÓs contention that Policy 5.37(8)(a) applies only

to students and incidents that occur on campus, during school

time, or involving a school event while a teacher is on - duty, is

without merit. Nowhere in Policy 5.37(8)(a) is there any

requirement that the alleged conduct occ ur on campus, during

school time, or during a school event while a teacher is on - duty.

A plain reading of the Policy demonstrates that it applies to a

situation, as in the present case, where a teacher knows or

should have reasonable cause to suspect that a student is ab used,

abandoned, or neglected.

In addition, RespondentÓs position that Policy 5.37(8)(a)

cannot be applied to her because it contains no language

regarding disciplinary consequences for failing to report abuse,

is without merit. Rule 5.05 6(2)(c) clearly provides that

violation of a School Board rule constitutes misconduct in

office. B ecause a teacher can be terminated for misconduct in

office, a teacher can be terminated for violating a School Board

P olicy, which amounts to a rule.

The S chool Board contends for the first time in paragraphs

45 and 46 of its proposed recommended order that Respondent also

violated Policy 5.37(4) and 5.37 (8)(b)(iii). However, as to

Policy 5.37, the School BoardÓs Statement of Charges and Petition

for Termi nation alleged a violation of 5.37(8)(a), only.

Policy 5.37(4) and 5.37(8)(b)(iii) were not alleged as a basis

for discipline in the School BoardÓs Statement of Charges and

Petition for Termination.

At no time did the School Board request to amend its

S tatement of Charges to include these provisions as a basis for

RespondentÓs proposed termination. Policy 5.37(4) and

5.37(8)(b)(iii) were also not alleged as a basis for RespondentÓs

termination in the par tiesÓ Pre - Hearing Stipulation.

To expand the scop e of this administrative proceeding to

address a purported violation of Policy 5.37(4) and

5.37(8)(b)(iii) would violate RespondentÓs due process rights.

Accordingly, the School Board is precluded from arguing

Policy 5.37(4) and 5.37(8)(b)(iii) as ground s for RespondentÓs

termination. McMillian v. Nassau Cnty. Sch. Bd. , 629 So. 2d 226,

228 (Fla. 1st DCA 1995); Trevisani v. DepÓt of Health , 908 So. 2d

1108, 1109 (Fla. 1st DCA 2005); Cottrill v. DepÓt of Ins. , 685

So. 2d 1371, 1372 (Fla. 1st DCA 1996).

Even if the School Board was not precluded from arguing

Policy 5.37(4) and 5.37(8)(b)(iii) as grounds for RespondentÓs

termination, the aforementioned facts demonstrate that the School

Board failed to prove, by a preponderance of the evidence, that

Resp on dent violated such policies.

Po licy 8.37(4) states as follows:

(4) Prosecution of Crimes Î - School

authorities shall cooperate fully with the

applicable law enforcement agency in the

prosecution of any criminal case that, in the

opinion of such a gency, has prosecutorial

merit.

This policy refers to a situation where criminal charges

have been filed and there is an active prosecution of that

criminal case. The policy does not apply before an individualÓs

arrest and prior to the institution of criminal c harges. As

detailed above, Respondent cooperated fully in the State

AttorneyÓs prosecution of MadisonÓs criminal case.

Policy 5.3 7(8)(b)(iii) states as follows:

(b) Each school in the District shall post

in a prominent place a notice containing the

sta te - wide toll - free telephone number of the

central abuse hotline and stating that,

pursuant to Florida Sta tutes, all District

employees:

* * *

(iii) Have a duty to comply and cooperate

with child protective investigations and all

provisions of la w relating to child a buse,

abandonment, or neglect.

This policy imposes an affirmative obligation on the part of

the School Board to post a particular type of notice.

Insufficient evidence was presented at the hearing to establish

that the information re quired by the policy was posted by the

school in a prominent place at the school. The policy is

inappli cable to the instant case.

4 / In Dietz v. Lee Cnty. Sch. Bd. , 647 So. 2d 217 (Fla. 2d DCA

1994), Judge Blue (specially concurring) stated the followin g:

I agree section 231.36, Florida Statutes

(1991), provides no objective standard by

which school boards are required to judge the

conduct of instructional staff, resulting in

school boards exercising a purely subjective

analysis when deciding to termina te a teacher

during the term of a professional service

contract. I write because I am not sure the

legislature intended to endow school boards

with this absolute discretion. If not,

section 231.36 should be amended to clarify

the conduct that would warra nt the dismissal

of teachers holding a professional services

contract.

Dietz, 647 So. 2d at 218.

Subsequent to Dietz, the Florida Legislature amended

section 231.36. The 1999 amendment removed from local school

boards the absolute discretion to define just cause relating to

the termination of instructional staff during the term of the

employeeÓs professional service contract and vested with the

State Board of Education the authority to define by rule what

constitutes just cause. Gabriele v. Sch. Bd. of Manatee Cnty ,

114 So. 3d 477, 480 (Fla. 2d DCA 2013)(recognizing that

Ðsection 1012.33 sets forth detailed provisions regulating and

limiting a school boardÓs authority over discipline of teachers

under a professional service contract.Ñ); Duval Cnty. Sch . Bd. v.

Hunter , 2012 Fla. Div. Adm. Hear. LEXIS 605, *24, Case No. 12 -

2080TTS (Fla. DOAH October 3, 2012).

5 / In paragraph 67 of its proposed recommended order, the School

Board also contends that Respondent violated ÐSection 1006.06(1),

Florida Statute .Ñ There is no section 1006.06(1) of the Florida

Statutes. Assuming that the School Board is referring to section

1006.061(1), that section is inapplicable and does not provide a

basis for disciplining Respondent for the reasons detailed above.

Finally, the School BoardÓs proposed recommended order also

asserts that Respondent violated an employee handbook. The

employee handbook is not a rule, nor is there any mention of it

in the Statement of Charges and Petition or the partiesÓ

Prehearing Stipulation. Accordingly, the employee handbook does

not provide a basis for disciplining Respondent.

COPIES FURNISHED:

Johnathan A. Ferguson, Esquire

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947

(eServed)

Thomas L. Johnson, E squire

Law Office of Thomas L. Johnson, P.A.

Suite 309

510 Vonderburg Drive

Brandon, Florida 33511

(eServed)

Glen Joseph Torcivia, Esquire

Torcivia, Donlon, Goddeau & Ansay, P.A.

701 Northpoint Parkway

Suite 209

West Palm Beach, Florida 33407

(eServed)

Wayne Gent, Superintendent

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947 - 5414

Pam Stewart, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eSe rved)

Matthew Mears, General 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.