17-001983TTS Lake County School Board vs. Patrick Mccallion Status: Closed Recommended Order on Friday, October 6, 2017.

Summary: Petitioner proved misconduct in office for changing door lock, but not incompetency. Just cause exists to support one-day suspension without pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAKE COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 1983TTS

PATRICK MCCALLION,

Respondent.

_______________________________/

RE COMMENDED ORDER

On July 25, 2017, a hearing was conducted pursuant to

sections 120.569 and 120.57(1), Florida Statutes, before Yolonda

Y. Green, an Administrative Law Judge of the Division of

Administrative H earings (ÐDOAHÑ) , in Tallahassee, Florida.

APPEARANCES

For Petitioner: Stephen W. Johnson, Esquire

McLin and Burnsed

1000 West Main Street

Post Office Box 491357

Leesburg, Florida 34749 - 1357

For Respondent: Mark S. Levine, Esquire

Levine & Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue is whether Petitioner had just cause to

discipline Respondent and; if so, what discipline should be

imposed for RespondentÓs actions.

PRELIMINARY STATEMENT

By letter dated March 6, 2017, Susan Moxley, Superintendent

of Schools, issued a letter to Respondent (ÐRespondentÑ or

ÐMr. McCallionÑ), notifying him that Petitioner took action to

suspend Respondent from his teaching position without pay for

one day. The Notice alleged that on February 9, 2017,

Respondent, without approval, removed door hardware from his

office and replaced it with unauthorized hardware. The Notice

further alleged that Respondent violated two provisions of the

Florida Principles of Professional Conduct for the Education

Profession (as adopted in Fl orida Administrative Code Rule 6A -

5.056) , including Florida Administ rative Code Rule 6A - 5.056(2) ,

by violating Sch ool Board Policy 7.65(3)(E) , and R ule 6A -

5.056(3).

On March 20, 2017, Respondent timely requested a hearing to

dispute PetitionerÓs intended a ction. On March 31, 2017, this

matter was referred to the Division for assignment to an

Administrative Law Judge.

On April 7, 2017, the undersigned issued a Notice of

Hearing scheduling this matter for May 9, 2017. On April 26,

2017, Respondent filed a Motion to Continue. The undersigned

granted the motion and rescheduled the hearing for July 25,

2017.

The hearing commenced as scheduled with both parties

represented by counsel. Petitioner presented the testimony of

the following witnesses: Robert McC ue (Clermont Middle School

Principal) and David Myers (Lake County Schools Assistant

Superintendent for Human Resources). PetitionerÓs Exhibits 1

through 7 were admitted into evidence. Respondent testified on

his own behalf and offered Exhibits 1 through 7, which were

admitted into evidence.

An electronic copy of the one - volume Transcript of the

hearing was filed on August 15, 2017. The parties requested

that they be permitted 20 days to file their Proposed

Recommended Orders (ÐPROsÑ). The parties timel y submitted PROs,

which have been considered in preparation of this Recommended

Order.

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to warrant

discipline. See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Florida Statutes (2016 ), unless otherwise noted.

FINDING S OF FACT

Parties

1. Petitioner is the constitutional entity authorized to

operate, control, and supervise the system of public schools in

Lake County, Florida. Art. IX, § 4(b), Florida Constitution;

§ 1001.32, Fla. Stat. Petitioner has the authority to

discipline instructional staff and other school employees.

§ 1012.22(1)(f), Fl a . Stat .

2. At all times relevant to thi s proceeding, Respondent

was a physical education ( Ð PE Ñ ) instructor at Clermont Middle

School. During the 2016 - 2017 school year, Mr. McCallion was

assigned to instruct five classes with 40 students in each

class, for a total of 200 students.

3. As a PE instructor Mr. McCallion maintains records for

students, including students in the Exceptional Student

Education ( Ð ESE Ñ ) program. The student files contain

confidential information , including student 504 plans,

Individual Education Plans ( Ð IEPs Ñ ), stud ent grades , teach er

comments regarding students, social security numbers, and

personal health information.

4. Mr. McCallion maintained the student records in five

binders and stored them on a cart so he could easily transport

the records between his off ice and the class meeting location .

When class was not in session , the records were stored in

Mr. McCallionÓs office.

5. In addition to student files, Mr. McCallion stored his

school - assigned lap top; his person al effects , including his

wallet and car keys; and money col lected from students for

school - related activities in his office .

Office /Security of Records

6. In accordance with the Collective Bargaining Agreement,

Mr. McCallion was assign ed an office located in the boy s Ó locker

room. He did not share his office with any other school

employee. However, there were reportedly 20 keys issued to

individuals that could be used for Mr. McCallionÓs office.

Mr. McCallion shared with the school principal, Mr. McCue, his

concern about the number of keys to his office .

7. S chool Board Policy 5.70 states that Ðrules and

procedures for maintaining student records shall be consistent

with Florida Statutes, State Board of Education rule s, and

Ð Federal Education Rights an d Privacy Act Ñ ( Ð FERPA Ñ ) and

Ð Privacy Rights of Parents and Students. Ñ

8. R ule 6A - 1.0955 requires that student records used or

maintained by a public institution or agency be protected in

accordance with FERPA. Further, this rule requires that the

confidentiality of the student records be maintained from

unauthorized or unintentional access a nd that the school

principal or designee is responsible for those records at the

school level.

9. Mr. McCue acknowledged that the security of student

records is important and that it was Mr. McCallionÓs

responsibility to secure the records.

10. Mr. Mc Callion did not have a locked file cabinet in

his office. The testimony at hearing revealed that there was a

room within Mr. McCallionÓs office that could be used to store

files. However, that room did not have a lock. While Mr. McCue

stated there were other alternatives within Mr. McCallionÓs

office that could be used to store files, all other options

known to Mr. McCallion would not provide the same security as a

locked office .

Events Giving Rise to This Proceeding

11. On February 9 , 2017, Mr. McCalli on was scheduled to

work the usual school day followed by car duty until 4:15 p.m.

On the same evening, two basketball games were scheduled to take

place in the school gym, beginning with the boy s Ó game at

5:30 p.m .

12. After car duty, at approximately 5:15 p.m.,

Mr. McCallion returned to his office and discovered a male

referee changing clothes in his office. Mr. McCallion had not

given the referee permission to use his office and had no

know ledge who gave him permission. Although each room at

Clermon t Middle School could be rented through a rental

agreement, Mr. McCue confirmed at hearing that t he referees did

not have an agreement to use Mr. McCallionÓs office. The

undersigned finds that the sec urity of the student records was

compromised when an un authorized person had access to them.

13. Mr. McCallion went to the gym and spoke with the

athletic director, Coach Seabrook. Mr. McCallion expressed his

ÐconcernÑ about the referee using his office without his prior

knowledge. According to Mr. McCallion, Coach Seabrook advised

him that she allowed the referee to use his office because she

did not know where to put him .

14. Concerned, in part, for the safety of the student

records, Mr. McCallion decided to replace the lock on his office

door. He purchased a lock fr om the local LoweÓs home

improv ement store, removed the School Board - owned lock, and

replaced that lock with the lock he purchased at LoweÓs. The

boy s Ó game had ended when Mr. McCalli on finished changing the

lock, so he placed the r efereeÓs personal items on a bench

within the locked locker room. The refereeÓs personal items

were secure because all persons with access to the locker room

after the game ended were school personnel .

15. Mr. McCallion did not have permission from Mr. Mc C ue

or any administrator to replace the lock on his office door.

Approximately five days later, h e told Mr. McCue a bout the lock

change.

16. Unbeknownst to Mr. McCallion, a t some point after the

boy s Ó game started on February 9, 2017 , Mr. McCue arrive d at the

game. The athletic director appro ached him and told him that

Mr. McCallion had a conversation with her about using his office

for the referees to change. However, Mr. McCue and

Mr. McCallion did not see each other at the game.

17. A fter the game, Mr. McCue went to let the referee into

Mr. McCallionÓs o ffice to retrieve his personal items . He

walked through the locked boysÓ locker ro om to get there .

Mr. McCueÓs key did not wor k on the office door. H e asked the

athletic director and her key did not work either. Then ,

Mr. McCue ask ed the custodian to try his key without success.

It was about this time that Mr. McCue notic ed that the refereeÓs

personal items were on a bench in the locker room and they had

walked past them. Mr. McCue also noticed t hat the door

handle/lock to Mr. Mc CallionÓs offi ce had been replaced with an

un authorized lock. School Board policy requires that only

authorized district personnel may change locks on school board

property.

Prior Discipline

18 . Prior to the Fe bruary 2017 incident, Mr. McCallion had

prior discipline which arose from an incident involving damage

to school property (a door lock). D uring the 2013 - 2014 school

year, Mr. Mc Callion chaperoned a school field trip. H e returned

from the field trip after 6:30 p.m. and discovered that the

lock s to the gym had been changed . Mr. McCallion was unable to

access h is office t o retrieve his personal items. Then, h e used

a pocket knife to gain access to the gym , which caused damage to

the gym door handle. Due to Mr. McCallionÓs actions , he was

issu ed a Level II written reprimand on April 15, 2014.

19 . After the incident, Mr. McCue discussed the

circumstances with the employee relations office. They

discussed the School BoardÓs policy on progressive dis cipline.

20 . Petitioner has adopted, as policy , section 6.361 of

the School Board of Lake County, an Employee Discipline Plan.

The Employee Discipline Plan includes a Progressive Discipline

Method by which sanctions are graduated based on the severity of

the occurrence, and on whether it has recurred. The purpose of

the policy is to let employees know the nature of the violation

and provide an opportunity to correct the behavior. Each

subsequent offense calls for the next step in discipline.

2 1 . O n February 15, 2017, Respondent discussed the

incident with Mr. McCue. On February 27, 2017, Mr. McCue issued

a letter notifying R espondent that he would recommend to the

Superintendent that Mr. McCallion be suspen ded without pay for

one day for his actions .

2 2 . Mr. McCallionÓs complete employee file was not

presented at the hearing. However, the performance evaluation

documents that were entered into evidence show that he was an

employee of the School Board for at least the past 12 years and

had received satisfactory evaluations in the area of classroom

instruction and supervision.

CONCLUSIONS OF LAW

Jurisdiction

23 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to sec tions 120.569 and 120.57(1) ,

Florida Statutes (2017 ).

24 . Respondent is an employee of the School Board and

holds a professional services contract pursuant to section

1012.33(3)(a) , Florida Statutes .

25 . Petitioner seeks to suspend Respondent's employment,

which does not involve the loss of a license or certification.

Thus, Petitioner has the burden of provin g the allegations in

its notice of suspension and charging document by a

preponderance of the evidence. Cropsey v. Sch. Bd. of Manatee

Cnty. , 19 So. 3d 351, 355 (Fla. 2d DCA 2009); Cisneros v. Sch.

Bd. of Dade Cnty. , 990 So. 2d 1179, 1183 (Fla. 3d DCA 200 8);

McNeill v. Pinellas Cnty. Sch. Bd. , 678 So. 2d 476 (Fla. 2d DCA

1996); Allen v. Sch. Bd. of Dade Cnty. , 571 So. 2d 568, 569

(Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade Cnty. , 569 So. 2d

883 (Fla. 3d DCA 1990).

2 6 . The preponderance of the ev ide nce standard Ðis defined

as Ò the greater weight of the evidence,Ó Black's Law Dictionary

1201 (7 th ed. 1999), or evidence that Òmore likely than notÓ

tends to prove a certain proposition.Ñ Gross v. Lyons , 763 So.

2d 276, 289 n.1 (Fla. 2000). See also Haines v. DepÓ t of Child.

& Fams. , 983 So. 2d 602, 606 (Fla. 5th DCA 2008).

Standards

27 . A district school board is considered a public

employer with respect to all empl oyees of the school district.

§ 447.203(2), Fla. Stat. As such, a school bo ard has the right

to direct its employees, take disciplinary action for proper

cause, and relieve its employees from duty because of lack of

work or other legitimate reasons. § 447.209, Fla. Stat.

28 . Secti on 1012.22(1) provides, in part, that a district

school board shall Ð[d]esignate positions to be filled,

prescribe qualifications for those positions, and provide for

the appointment, compensation, promotion, suspension, and

dismissal of employees . . . , subject to th e requirements of

[chapter 1012].Ñ

29 . Respond ent is an employee of the School Board pursuant

to section 1012.33.

30 . S ection 1012.33(1)(a ) provides that a teacher's

contract Ðshall contain provisions for dismissal during the term

of the cont ract for just cause,Ñ which includes misconduct in

office as defined by rule of the State Board of Education.

3 1 . The School Board alleged in its Notice that Respondent

violated the Principles of Professional Conduct for Education

Profession in Florida b ased on two violations . The N otice

alleges Respondent violated rule 6A - 5. 056(2) by violating school

board policy 7.65(3)(E).

32 . Rule 6A - 5.056 establishes the criteria for suspension

and dismissal of school personnel. Subsec tion (2) of the rule

provide s:

(2) ÐMisconduct in OfficeÑ means one or

more of the following:

* * *

(c) A violation of the adopted school board

rules;

33 . School Board Rule 7.65(3)(E) provides that actions

constituting fraud include unauthorized destruction, theft,

tampering, or removal of records, furniture, fixtures, or

equipment.

34 . The evidence established that Mr. McCallion removed

the School Board - owned door handle from his of fic e door and

replaced it with a handle he purchased . He did not receive

permis sion before he changed the lock and therefore, his

actions were unauthorized.

35 . Mr. McCallion contends that no one was harmed by him

changing the lock to his office because he was acting to secure

student reco rds. He also contends that Mr. McCue agreed that

Mr. McCallionÓs actions were reasonable at that time to secure

the student records. Despite the perceived reasonableness of

his actions, Mr. McCallion indeed removed a School B oard - issued

door lock and replaced it witho ut prior authorization from

Mr. McCue, or any other. Based on his actions, Mr. McCallion

engaged in misconduct by violating an adopted school board

policy.

36 . The School Board also alleged in its Notice that

Respondent violated rule 6A - 5. 056(3), which provides as follows:

(3) ÐIncompetencyÑ means the inability,

failure or lack of fitness to discharge the

required duty as a result of inefficiency or

incapacity.

(a) ÐInefficiencyÑ means one or more of the

following:

* * *

3. Failure to communicate appropriately

with and relate to colleagues,

administrators, subordinates, or parents.

3 7 . The evidence establishes that on February 9, 2017,

Mr. McCallion discovered a person alon e in his office where

student records were readily acce ssible. While Mr. McCue

testified that he had no expectation that the referee would

review the rec ords, the referee had unauthorized access to them.

3 8 . Mr . McCallion notified the athletic director of his

concerns of the referee using his office without his knowledge.

The athletic director later notified Mr. McCue of

Mr. McCallionÓs concerns. Instead of taking action, Mr. McCue

continued to watch the game.

39 . P rior to the February 2017 incident , Mr. McCallion

expressed to Mr. McCue his concerns about the number of keys to

his office and he requested that the lock be changed. Mr. McCue

acknowledged Mr. McCallionÓs concerns and assured him that he

would look into it .

40 . Petitioner contends that Mr. McCallion failed to

communicate with anyone that he had change d the lock on his

office door on the night of the incident. However, he reported

the changed lock five days later. The evidence offered at

h earing establishes that the totality of the facts demonstrates

that Mr. McCallion appropriately communicated his concerns about

the security of his office t o colleagues and administrators and

later communicated to Mr. McCue that he changed the lock on his

office door. Petitioner did not prove that Mr. McCallion failed

to appropriately communicate with colleagues and administrators.

4 1 . T he evidence introduced at hearing demonstrates that

Petitioner proved that Mr. McCallion engaged in misconduct by

remo ving the lock on his office door without authorization an d

replacing it with an unauthorized lock .

42 . Based on the foregoing, Petitioner had just cause to

discipline Respondent by imp osing a one - day suspension , without

pay , for misconduct in office.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Lake County School

Board, enter a final order:

a) dismissing the allegations in the notice of

recommendation of suspension that Respondent fa iled to

appropriately communicate with colleagues and administrators ;

b) finding that Patrick McCallion engaged in misconduct by

removing the lock on his office door without authorization and

replacing it with an unauthorized lock ; and

c) finding that La ke County School Board had just cause to

discipline Patrick McCallion with a one - day suspension without

pay for misconduct in office .

DONE AND ENTERED this 6th day of October , 2017 , in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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 6th day of October, 2017 .

COPIES FURNISHED:

Stephen W. Johnson, Esquire

McLin and Burnsed

1000 West Main Street

Post Office Box 491357

Leesburg, Florida 34749 - 1357

(eServed)

Mark S. Levine, Esquire

Levine & Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

(eServed)

Ronald G. Stowers, Esquire

Levine and Stivers, LLC

245 East Virginia Street

Tallahassee, Florida 32301

(eServed)

Diane S. Kornegay, M.Ed.

Superintendent

Lake County Schools

201 West Burleigh Boulevard

Tavares, Flori da 32778 - 2496

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Pam Stewart , Commissioner

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 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.