17-000244TTS St. Lucie County School Board vs. Dan A. Hussan Status: Closed Recommended Order on Tuesday, April 25, 2017.

Summary: Respondent was convicted of 16 felony counts of lewd and lascivious conduct, and is ineligible for employment as a teacher. Just cause for termination demonstrated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. LUCIE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 0244TTS

DAN A. HUSSAN,

Respondent.

_______________________________/

RECOMMENDED ORDER

On March 8, 2017, Administrativ e Law Judge Lisa Shearer

Nelson conducted an administrative hearing pursuant to section

120.57(1), Florida Statutes (2016), by video teleconferen ce with

sites in Tallahassee and Port St. Lucie, Florida.

APPEARANCES

For Petitioner: Barbara Lee Sadaka, Esqu ire

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947

For Respondent: No appearance

STATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent violated

section 1012.315, Florida Statutes ; Florida Administrative Code

Rules 6A - 5.056 and 6A - 10.081 (1) through (5); and School Board

Polic ies 6.30(2) , (3)(b) , and 6.301(2), as alleged in the

Statement of Charges and Petition for Termination (Petition) ;

and , if so, what penalty sho uld be imposed for these violations.

PRELIMINARY STATEMENT

On January 13, 2017, Petitioner, the St. Lucie County School

Board ( the School Board), filed a Petition against Respondent,

Dan A. Hussan (Respondent or Mr. Hussan). That same day, the

Board forwa rded the Petition , along with RespondentÓs request for

hearing, to the Division of Administrative Hearings (Division)

for the assignment of an administrative law judge. Also filed

with the Petition was a Motion for DOAH to R elinquish

J u risdiction Back to School Board for Ent ry of Final Order

Terminating Employment of Respondent (Motion to Relinquish

Jurisdiction) .

On January 24, 2017, an Order to Show Cause was issued,

directing Respondent to respond to the M otion to R elinquish

J urisdiction. Counsel for R espondent responded to the motion and

also filed an amended motion to withdraw .

On February 2, 2017, PetitionerÓs Motion to Relinquish

Jurisdiction was denied, and the case was scheduled for hearing

on March 8, 2017. Because Respondent is incarcerated,

arrangements were made for him to participate by telephone.

RespondentÓs amended m otion to w ithdraw was granted by Order

dated February 2 1, 2017, with directions that counsel provide to

Respondent a copy of the Notice of Hearing for this case, which

he di d.

On March 1, 2017, Respondent wrote a letter requesting that

no hearing be conducted until the Fourth District Court of Appeal

resolved his appeal related to the underlying criminal charges.

No copy of the letter was provided to counsel for Petitioner , and

a Notice of Ex Parte Communication was issued. On March 3, 2017,

an Order Denying Continuance was entered, in which it was

explained that this hearing was not an opportunity to relitigate

the basis for the underlying criminal action, but instead was

focused on the allegations in the State ment of Charges: i.e.,

was Respondent arrested and subsequently convicted of 16 counts

of lewd and lascivious conduct toward children under 18 , and had

Petitioner established a basis for terminating his employment.

On March 8, 2017, the hearing was scheduled to commence.

Before beginning the hearing, a phone call was placed to the Gulf

Correctional Institution in order to allow Respondent to

participate in the hearing. Once Respondent was placed on the

line , on spe aker phone, and the purpose of the call was

identified, Respondent stated that he did not understand the

purpose for the hearing and that he was not guilty of the

charges; that he had been advised not to speak while his appeal

of the underlying charges was pending; and that he was

terminating the call. At that point he did, in fact, end the

telephone call.

The hearing then began , with the administrative law judge

reciting the contents of the telephone call, which counsel for

Petitioner confirmed was an acc urate rendition of what she had

heard . Petitioner presented the testimony of Aaron Clements, and

PetitionerÓs Exhibits numbered 1 through 28 were admitted into

evidence. PetitionerÓs Motion for Official Recognition,

previously filed, was granted.

The Tra nscript of the proceedings was filed with the

Division on March 28, 2017 . Once the Transcript was filed,

copies of the Transcript, exhibits, and the pleadings on the

docket were forwarded to Respondent.

At PetitionerÓs request, the date for submission o f proposed

recommended orders was established as 20 days following the

filing of the Transcript. PetitionerÓs Proposed Recommended

Order was timely filed on April 17, 2017 , and has been considered

in the preparation of this Recommended Order. All referen ces to

Florida Statutes are to the 2013 codification , unless otherwise

indicated.

FINDING S OF FACT

1. Petitioner, the School Board, is the constitutional

entity authorized to operate, control, and supervise the

St. Luc ie County School System. The author ity to supervise the

school system includes the hiring, discipline, and termination of

employees within the school district.

2. Respondent was employed by the School Board as a teacher

at F ort Pierce Westwood High School. He worked for the School

Board s ince at least September 2007, albeit originally at a

different school.

3. Respondent signed a professional services contract with

the School Board on or about February 12, 2010. He is covered by

the collective bargaining agreement between the School Bo ard and

the St. Lucie County Classroom TeachersÓ Association (CBA) , as

stated in Article I, section A of the CBA.

4. On October 28, 2011, Respondent was advised of a meeting

to take place on November 1, 2011, regarding a Schoo l Board

investigation into a lleged inappropriate contact with students.

There is no indication in the record whether Respondent attended

the meeting or gave any information. There is also no indication

whether the investigation referenced in the October 28, 2011,

letter is the same investigation giving rise to these

proceedings.

5. On March 3 , 2014, Maurice Bonner, the Director of

Personnel for the School Board, provided to Respondent a Notice

of Investigation and Temporary Duty Assignment (Notice). The

Notice advised that Respond ent was being investigated regarding

allegations of inappropriate contact with students, and that he

was being placed on temporary duty assignment as assigned by the

Personnel Office. Respondent signed the letter acknowledging its

receipt on March 1 4, 201 4.

6 . On April 1, 2014 , Genelle Zoratti Yost, Superintendent

of the School Board, wrote to Respondent with a reference line

entitled Notice of Intent to Terminate Employment. The letter

states , in pertinent part:

On March 21, 2014 you were arrested for

v iolating Section 800.04(6)(a)(b), Florida

Statutes, ÐLewd or lascivious offenses

committed upon or in the presence of persons

less than 16 years of age.Ñ [1/] Pursuant to

the Arrest Warrant issued on March 21, 2014

you are not to be within 100 feet of Fort

Pierce Westwood High School or Harbor Branch.

As a result, you are unavailable to work on

campus so your temporary duty assignment

outlined in the notice of Temporary Duty

Assignment provided to you on March 3, 2014

shall remain in full force and effect until

further notice. Furthermore, you have not

reported your arrest to the Superintendent

within 48 hours as required. . . .

Based on the information available to the

School District there is sufficient

information to charge you with violating the

foll owing [ list of State Board of Education

rule violations and School Board Policy

violations ] . . . .

7 . The April 1, 2014, letter notified Respondent that the

superintendent would be recommending to the School Board that it

terminate his employment, and pr ovided him with notice of how he

could request a hearing on the proposed termination. The letter

also advised that, should he seek a hearing, the superintendent

would recommend that he be suspended without pay pending the

outcome of the hearing. Responde nt signed the letter

acknowledging receipt of it on April 3, 2014.

8 . Respondent request ed a hearing with respect to his

termination and was notified by letter dated April 23, 2014 , that

he was suspended without pay.

9 . RespondentÓs request for hearing was forwarded to the

Division , and the case was docketed as Case N o. 14 - 1978. B ecause

of the pendency of the criminal proceedings against Respondent,

at the request of the parties, on September 30, 2014,

Administrative Law Judge Darren Schwartz entered a n Order Closing

File and Relinquishing Jurisdiction, which closed the fi le with

leave to re - open.

10 . On a date that is not substantiated in this record, 2 /

Respondent was tried by jury and convicted of seven counts of

lewd or lascivious conduct in violati on of section 800.04(6 )(a)

and (b) and nine counts of lewd and lascivious molestation in

violation of section 800.04(5)(c)2. All 16 counts were second -

degree felonies.

11. On July 29, 2016, counsel for the School Board wrote to

then - counsel for Responden t, advising him that in light of the

jury verdict, notice was being given that on August 9, 2016, the

superintendent would be recommending RespondentÓs termination

from employment. The letter also provided Respondent notice of

his rights to a hearing in a ccordance with section 1012.33(6)(a).

Counsel for Respondent notified the superintendent that

Respondent continued to request a hearing in accordance with the

CBA.

12. On October 31, 2016, a Judgment and Sentence was

entered in the case of State of Flori da v. Dan Allen Hussan , Case

No. 562014CF 000857A (19th Jud icial Cir cuit in and for St. Lucie

County ), adjudicating Respo ndent guilty of all 16 counts.

Respondent was sentenced to 15 concurrent sentences of life in

prison, with credit for 103 days served p rior to sentencing.

With respect to Count XVI , Respondent wa s sentenced to 15 years

of sexual offender probation , consecutive to the sentence set

forth in Count I.

13. On November 7, 2016, Judge James McCann entered , nunc

pro tunc to October 31, 2016, an Order of Sex Offender Probation

with respect to Count XVI . The Order of Sex Offender Probation

adjudicated Respondent guilty and set the terms for sexual

offender probation following the life sentence.

14. Respondent remains incarcerated. He also mai ntains

that he is not guilty of the underlying charges.

15. Petitioner contends that Respondent did not self - report

his arrest as required by School Board policy. However, no

competent, substantial evidence was presented to demonstrate

RespondentÓs fai lure to report. While a notice provided to him

regarding th is allegation was admitted into evidence, the

accusation, standing alone, does not amount to evidence that the

accusation is true.

CONCLUSIONS OF LAW

1 6 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

proceeding. §§ 120.569, 120.57(1), and 1012.33(6)(a)2., Fla.

Stat.

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

of the School District of St. Lucie County pursuant to

Article IX, section 4 of the Florida Constitution, and sections

1001. 30 and 1001.33, Florida Statutes. The School Board has the

authority to adopt rules governing personnel matters pursuant to

sections 1001.42(5) and (28) , 1012.22 (1) , and 1012.23 .

18. District superintendents are authorized to make

recommendations for dismissal of school board employees, and

school boards may dismiss school board instructional staff for

Ðjust cause.Ñ §§ 1001.42(5), 1012. 22 (1)(f), and 1012.33(6)(a),

Fla. Stat.

19. Petitioner is seeking to terminate RespondentÓ s

employment for just cause . Therefore, Petitioner bears the

burden to establish the charges against Respondent by a

preponderance of the evidence . Dileo v. Sch. Bd. o f Dade Cnty. ,

569 So. 2d 883 (Fla. 3d DCA 1990); § 120 .57(1)(l), Fla. Stat.

20. The preponderance of the evidence standard requires

that the proof against Respondent be by the greater weight of the

evidence, or evidence that Ðmore likely than notÑ tends to prove

the allegations. Gross v. Lyons , 763 So. 2d 2 76, 280 n.1 (Fla.

2000).

21 . Section 1012.33(6)(a) provides that any member of

instructional staff may be suspended or dismissed during the term

of his or her contract for just cause as defined in section

1012.33 (1)(a) . Section 1012.33 (1)(a) provides t hat:

Just cause includes, but is not limited to,

the following instances, as defined by rule

of the State Board of Education: immorality,

misconduct in office, incompetency, two

consecutive annual performance evaluation

ratings of unsatisfactory under s. 1012.34 ,

two annual performance evaluation ratings of

unsatisfactory within a 3 - year period under

s. 1012.34 , three consecutive annual

performance evaluation ratings of needs

improvement or a combination of needs

improvement a nd unsatisfactory under

s. 1012.34 , gross insubordination, willful

neglect of duty, or being convicted or found

g uilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

22 . By virtue of the convictions for 16 counts of lewd and

lascivious conduct, Petitioner has established just cause for

termination.

23. In the Petition , Petitioner alleges that Respondent is

also disqualified from employment pursuant to section 1012.315,

by virtue of his criminal convictions.

2 4 . Section 1012.315 provides that an individual is

ineligible for educator certification, and instructional

personnel are ineligible for employment in any position that

requires direct contact with students , if the person has been

convicted of certain enumerated offenses. Among those offenses

are offenses under chapter 800 , related to lewdness and indecent

exposure. § 1012. 315( 1 )(u), Fla. Stat.

2 5 . In light of RespondentÓs conviction of 16 felonies

pursuant to chapter 800, Petitioner has established that

Respondent is disqualified from employment in an instructional

position.

2 6 . In his request for a delay in the hearing, Respondent

contended that this matter should not be decided while his case

is on appeal. However, as stated in the Order Denying Motion for

Continuance, the School Board clearly has authority to take

action with respect to his employment while the appeal in his

criminal proceeding is pending. Kale v. DepÓt of Health , 175 So.

3d 815, 820 (Fla. 1 st DCA 2015).

2 7 . At p aragraph 21 of the Petition, Respondent is charged

with violating School Board Policy 6.30(2) for failing to rep ort

his arrest to the s uperintendent within 48 hours.

2 8 . By its terms, School Board Policy 6.30(2) requires

employees to report both arrests and convictions. However, the

only evidence submitted in this case regarding a failure to

report is PetitionerÓs Exhibit 28, which is a memorandum sent to

Mr. Hussan advising him that he should have reported his arrest

within 24 hours and that he must r eport the outcome of his case.

This memorandum certainly makes the accusation that Respondent

did not report his a rrest, but it does not establish the truth of

the accusat ion. No testimony was presented concerning the

process for reporting, or that Respondent did not report to the

s uperintendent as required by School Board Policy 6.30(2) , or

that there w as no record for the School Board consistent with

Respondent reporting his arrest. Absent some type of testimony,

PetitionerÓs Exhibit 28 is simply hearsay upon which no finding

of fact can be made. Therefore, the School Board did not meet

its burden of proof with re spect to this charge.

2 9 . The Petition charges Respondent at paragraph 23 with

violating School Board Policy 6.301(3)(b), which provides in

part:

(b) The following list is not intended to be

all inclusive, but is typical of infractions

that warrant disci plinary action:

* * *

(vi) C onviction of a criminal act that

constitutes a felony

* * *

(xix) V iolation of any rule, policy,

regulation, or established procedure

* * *

(xxix) Any violation of the Principles of

Professional Conduct for the Education

Profession, the Standards of Competent and

Professional Performance, or the Code of

Ethics for Public Officers and Employees.

30 . By virtue of his criminal convictions, Respondent has

violated School Board Policy 6.301(3) (b) (vi).

3 1 . Peti tioner listed a variety of other grounds in its

Petition, such as immoral or indecent conduct, sexual harassment,

off - duty conduct that does not promote the goodwill and favorable

attitude of the public toward the School District, inappropriate

relationshi p with a student, etc. All of these charges would

require that the School Board present evidence related to

PetitionerÓs conduct, as opposed to simply proving that he was

convicted of a felony. Evidence of a conviction is not evidence

of the underlying c onduct. Williams v. Castor , 613 So. 2d 97, 99

(Fla. 1st DCA 1993) .

3 2 . At paragraph 25 of the Petition, the School Board

charges Respondent with violating r ule 6A - 5.056 . The rule

states , in pertinent part:

Ð Just causeÑ means cause that is legally

suffic ient. Each of the charges upon which

just cause for a dismissal action against

specified school personnel may be pursued are

set forth in Sections 1012.33 and 1012.335,

F.S. In fulfillment of these laws, the basis

for each such charge is hereby defined:

(1) ÐImmoralityÑ means conduct that is

inconsistent with the standards of public

conscience and good morals. It is conduct

that brings the individual concerned or the

education profession into public disgrace or

disrespect and impairs the individualÓs

se rvice in the community.

(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 adopted in

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

(b) A violation of the Principles of

Professional C onduct 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) ÑCrimes involving moral turpitudeÑ means

offenses listed in Section 1012.315, F.S.

3 3 . As stated above, Petitioner did not present any

competent, substantial evidence to prov e RespondentÓs conduct,

other than the existence of the convictions for lewd and

lascivious conduct. To the extent that Respondent has committed

a crime involving moral turpitude, as defined in

rule 6A - 5.056(8), Petitioner has demonstrated just cause for

RespondentÓs termination. The other alleged violations that

would demonstrate just cause have not been demonstrated.

3 4 . The same can be said for alleged violations of

rule 6A - 10.081, the Code of Ethics for the Education Profession

in Florida, which wo uld have required Petitioner to present

evidence of the underlying conduct giving rise to the

convictions.

3 5 . While Petitioner has proven only that Respondent was

convicted and found guilty of the 16 counts of lewd and

lascivious conduct, those convictio ns alone are more than enough

to demonstrate just cause for RespondentÓs termination. Not only

does just cause for termination exist, but section 1012.315

requires it.

3 6 . Petitioner has asked for sanctions pursuant to

section 57.105 , Florida Statutes, because Respondent requested a

hearing in this case. While the convictions are clearly without

dispute, the Petition alleged violations that would require

evidence of the underlying conduct, which Petitioner did not

present. Moreover, as noted in the Or der Denying PetitionerÓs

Motion to Relinquish Jurisdiction, section 1012.33 does not

condition RespondentÓs right to a hearing on a dispute of

material fact. To terminate RespondentÓs employment without at

least giving him the opportunity for a hearing is not

contemplated by the statute, and Respondent consistently

maintained that he was not guilty. Respondent is entitled to

require the School Board to prove its reasons for terminating

him, and by virtue of the convictions, it has done so. However,

the u ndersigned does not believe that fees pursuant to section

57.105 are warranted, and PetitionerÓs request is denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

ente r a f inal o rder terminating RespondentÓs employment based on

a finding of just cause.

DONE AND ENTERED this 2 5 th day of April , 2017 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Div ision 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 2 5 th day of Apr il , 2017 .

ENDNOTE S

1/ No arrest warrants or indictments are included in the exhibits

provided for hearing, and the only reference listed to support of

the proposed fact reciting the arrests is a citation to the

School BoardÓs pre - hearing st atement . Th e pre - hearing statement

is also listed as a basis in support of other proposed facts.

However, t here is no indication that Mr. Hussan agreed to the

facts listed as requiring no evidence at hearing in the pre -

hearing stipulation, which was filed as a unila teral document ,

and the pre - hearing statement is not evidence that can be

considered in this proceeding . Given the lack of evidence

regarding the arrests, no express finding of fact can be made

regarding the arrests. Given the evidence in the record that

Respondent was convicted and sentenced for 16 counts of lewd and

lascivious conduct, it can be inferred that at some point, he was

arrested for these crimes.

2/ The jury verdict is also not included in the record, although

the Judgment and Sentence, a s well as the Order of Sex Offender

Probation are. While the Judgment indicates on its face that

Respondent was tr i ed and found guilty of the listed crimes, it

does not indicate when the jury trial took place.

COPIES FURNISHED:

Barbara Lee Sadaka, Esqu ire

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947

(eServed)

Dan Hussan DC# K90974

Gulf Correctional Institution

500 Ike Steele Road

Wewahitchka, Florida 32465 - 0010

Dan A. Hussan

5380 Third Manor

Vero Beach, Florida 3296 8

Wayne Gent, Superintendent

St. Lucie County School Board

4204 Okeechobee Road

Fort Pierce, Florida 34947 - 5414

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 040 0

(eServed)

Pam Stewart, Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writ ten 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.