17-003640TTS Duval County School Board vs. Jason Perry Status: Closed Recommended Order on Friday, October 27, 2017.

Summary: Petitioner proved Respondent engaged in misconduct in office by engaging in pattern of conduct resulting in a number of arrests and incurring excessive absences; Petitioner did not prove Respondent harmed students.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DUVAL COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 17 - 3640TTS

JASON PERRY,

Respondent.

_______________________________/

RECOMMENDED ORDER

On August 24 , 2017, Administrative Law Judge Yolonda Y.

Green, of the Division of Administrative Hearings (ÐDivisionÑ),

conducted a duly - noticed final hearing in Jacksonville , Florida,

pursuant to 120.57(1), Florida Statutes (2017).

APPEARANCES

For Petitioner: Jason Perry, pro s e

11755 Chestnut Oak Drive

Jacksonville, Florida 32218

For Respondent: Wendy Byndloss, Esquire

Office of General Counsel

City of Jacksonville

117 West Du val Street , Suite 480

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue to be determined is whether just cause exists to

terminate RespondentÓs employment as a teacher in the Duval

County School System.

PRELIMINARY STATEMENT

By letter dated March 17, 2017, Petitioner, Duval County

School Board (ÐPetitionerÑ or ÐSchool BoardÑ), provided

Respondent, Jason Perry (ÐRespondentÑ or ÐMr. PerryÑ), with a

Notice of Termination of Employment Con tract and Immediate

Suspension w ithout Pa y ( ÐNoticeÑ) . The Notice alleged Mr. Perry

exercised poor judgment by engaging in behavior which resulted

in his being arrested four times during the past two years and

accruing excessive leave without pay. On the basis of that

alleged conduct, Petitione r alleged that Respondent violated

section 1012.33(1)(a) by violating Florida Administrative Code

R ule s 6A - 5.056(2) (b) , 6A - 10.081(1)(b) and (1)(c) , and 6A -

10.081(2)(a)1 .

The Notice informed Mr. Perry of his right to a hearing to

contest the allegations in the Notice. By letter received by

the School Board on April 7 , 2017, Respondent timely filed a

request for an administrative hearing to dispute th e allegations

in the Notice.

On June 22, 201 7, the School Board referred this case to

the Division for assignment to an administrative law judge and

the case was assigned to the undersigned to conduct the final

hearing.

The fi nal hearing was scheduled for August 24, 2017. The

hearing initially convened at 9:30 a.m. as scheduled. Howeve r,

Petitioner was not present at that time . The undersigned held a

20 - minute recess to allow Respondent the opportunity to appear.

After the recess, with Respondent having arrived at the hearing

location, the hearing reconvened at 9:50 a.m. , and continue d

until conclusion.

At the final hearing, Petitioner presented the testimony of

three witnesses: Reginald Johnson, an i nvestigator for the

Office of Equity and Inclusion/Professional Standards for the

School Board ; Scott Schneider, the p rincipal at Robert E. Lee

High School within the School Board system ; and Sonita D. Young,

the assistant s uperintendent of Human R esources for the School

Board . Petitioner offered Exhibits 1, 2, and 4 through 6, which

were admitted into evidence without objection . PetitionerÓs

Exhib it 3 ( the investigatorÓs investigative report) was admitted

over objection. Respondent testified on his own behalf and

offered Exhibit 1, which was admitted over objection.

A one - volume Transcript of the hearing was filed on

September 21 , 2017. Petitioner timely filed a Proposed

Recommended Order (ÐPROÑ) , which has been considered in the

preparation of this Recommended Order. Respondent did not file

a post - hearing submittal.

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 (201 5 - 2016 ).

FINDING S OF FACT

Background

1. Petitioner, the School Board, is the constitutional

entity authorized to operate, control, and supervise the Duval

County School System. PetitionerÓs authority to supervise the

school system includes the hiring, discipline, and termination

of employees wi thin the school district.

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

employed by the School Board as a teacher at Robert E. Lee High

School and Raines High School . During the 2016 - 2017 school

year, Respon dent was a mathematics teacher.

3 . Mr. Perry is subject to the collective bargaining

agreement for teaching personnel between the School Board and

the Duval TeacherÓs Union (ÐDTUÑ) .

4. On March 17, 2017, the School Board issued a Notice,

notifying Mr. Perry of its intent to recommend suspension

without pay and termination of Mr. PerryÓs position as a

teacher.

5 . On April 4, 2017, the School Board, at a regularly

scheduled meeting, voted to accept the recommendation to suspend

without pay and terminate Mr. Perry . The allegations and

charges in the Notice served as the bases upon which the School

Board members cast their vote s .

6 . On April 7, 2017, Respondent timely filed a request for

an administrative hearing to dispute the allegations in the

Notice.

Prior Disciplinary Action

7. The School Board has issued prior disciplinary action

against Mr. Perry . A School Board teacher may receive

progressive or non - progressive disciplinary actio n. Progressive

discipline is formal action that begins with less severe

discipline and progresses to more severe discipline. On the

other hand, non - progressive discipline is informal action.

8 . The Notice listed the prior disciplinary action imposed

a gainst Mr. Perry as discussed further below.

9 . In October 2014, Respondent was investigated for

inviting students to view his T witter page , 1 / which allegedly

contained inappropriate and offensive images. Mr. Perry was

issued a verbal warning, which is considered non - progressive

discipline.

10 . In March 2015, Respondent was arrested for M aking

Repeated Harassing Phone C alls, a misdemeanor, to which he

ente red into a pre - trial intervention program. On September 25,

2015, Respondent received Progressive Discipline ( Step II ) of a

written reprimand. This was Mr. PerryÓs first disciplinary

action involving progressive discipline.

11 . In January 2016, Respondent was arrested a second time

and charged with stalking, a misdemeanor, to which he pled nolo

contendere. On May 31, 2016, Respondent received Progressive

Discipline ( Step II ) of a written reprimand .

Recent Conduct

12 . In addition to the prior a rrests resulting in prior

discipline, the Notice indicates Respondent had two additional

arrests. The Notice refe rences arrests on August 5, 2016, and

January 24, 2017 .

13. Regarding the August 2016 arrest , t he evidence offered

at hearing does not support the allegations in the Notice

regarding that arrest or the alleged subsequent incarceration.

14. O n January 24, 2017, Respondent was arrested for

Violation of Injunction for Protective Order.

15 . Regarding the January 2017 arrest, Petitioner offered

at hearing RespondentÓs email (dated February 20, 2017) to

Reginald Johnson, in its case - in - chief. In the email,

Respondent admits that he was arrested on January 24, 2017. The

statement was offered by Petitioner against Respondent, and

thus, meets a hearsay exception. 2 /

16. In an attempt to explain the circumstances surrounding

the January 2017 arrest, Petitioner offered a police report

( with attached affidavits ) , which w as included in Mr. JohnsonÓs

investigative report. The police report and affidavits contain

hearsay that does not meet a hearsay exception. 3/ Therefore, any

statements in the police report and affidavits cannot be relied

upon to support a finding of fact. Furthermore, since the

affiants did not testify at hearing, Respondent did not have an

opportunity to cross - examine them.

17 . Mr. Johnson also included summaries of the affidavits

in his investigative report. The summaries , like the

affidavits , are hearsay and are not credible evidence to

support a finding of fact.

18. Mr. Perry also acc rued a number of unexcused absences

durin g the 2016 - 2017 academic school year. B etween August 29,

2016, through March 6, 2017, Petitioner accrued 58 days of

unauthorized leave without pay ( Ð LWOP Ñ ). The re were

approximately 180 days in the academic school year. Based on

the number of absences , Respondent was absent approximately 32

percent of the school days, which is excessive.

19 . The School Board policy specifically requires requests

for leave to be made and approved in advance of the period of

leave. Mr. Schneider explained the protocol for teachers to

report absences. If a teacher is unable to request leave before

an absence, the teacher is required to call in to the school and

complete a le ave request form upon return to work.

20 . Mr. Schneider explained that w hen a teacher does not

request leave before an absence, it affects the administrationÓs

ability to obtain a substitute teacher. Mr. Schneider also

discussed the impact of Mr. Perry Ós absen ce on parents and

students. Mr. PerryÓs absence s resulted in the inability of

students and paren ts to determine the student s Ó cur rent grades.

21. Mr. Schneider also testified that he Ðthinks the

students felt a lack of confidence and then they h ave increased

anxietyÑ regarding lack of knowledge of their grades and test

scores. However, Mr. Schneider did not identify any students or

parents who confirmed his assertion . Therefore, the undersigned

is not persuaded by Mr. Schneider Ós unsubstantiated testimony

regarding the impact Mr. PerryÓ s absence s had on students .

22 . Mr. Perry testified that the LWOP was a result of his

incarceratio n because h e was unable to report his absence s to

the appropriate school officials. However, there was no

credible evidence to support RespondentÓs assertion that he was

unable to report his absence s and seek approval for leave for

the 58 days he was absent from work. Although he was

incarcerated, it was RespondentÓs respon sibility to pr operly

request leav e according to the leave policy.

Disciplinary Action Recommendation

23 . At the completion of the investigation of the

allegations against Mr. Perry, his investigative file was

referre d to Human Resource Services for review . Ms. Young , the

assistant superintendent of Human Resources, is responsible for

overseein g the Department of Equity and I nclusion and

Professional Standards, which conducts investigations of

complaints made against dist rict employees for misconduct.

Ms. Y oungÓ s duties include reviewing investigative record s to

determine a recomm endation of disciplinary action based on the

progressive discipline policy . Ms. Young primarily reviews

cases involving allegations that could result in suspension

without pay or termination.

24 . The progressive discipline policy provides four

levels of discipline beginnin g with a verbal reprimand

(S tep I), written reprimand (S tep II), suspension without pay

(S tep III ), and termination ( S tep IV ).

25 . The purpose of progressive discipline is to allow the

teacher an opportunity to rehabilitate his or her behavior.

However, a ny of the steps may be skipped if the conduct is

deemed severe as determined by assessing the totality of the

circumstances. Th e factors considered include the nature of

incident, whether there is a pattern of behavior, whether

students are involved, and whether there are mitigating or

aggravating circumstances.

26 . Ms. Young reviewed Mr. PerryÓs investigative file and

determined that Mr. PerryÓs pattern of numerous arrests and

excessive absences resulting in leave without pay demonstrated

that he was unable to perform his duties a teacher. Ms. Young

explained that a teacherÓs conduct outside of work may be

considered misconduct because it impacts the teache rÓs

reputation in the community with peers and with students.

27 . Regarding mitigating fa ctors, Ms. Young considered

Mr. PerryÓs cooperation as a mitigating factor. Although

Ms. Young had no information regarding Mr. PerryÓs conduct

within the classroom, Mr. Schneider testified that Mr. Perry

had an effective rating for conduct in the classroom.

Ultimate Finding s of Fact

28 . The undersigned recognizes that PetitionerÓs actions

arise from a set of events related to a child custody dispute.

Based on the facts set forth herein, the preponderance of the

evidence supports a finding that PetitionerÓs acti ons resulted

in a number of arrests over the course of 18 months .

29 . The preponderance of the evidence demonstrates that

Respondent accrued excessive absences by accruing 58 absences

resulting in LWOP during the 2016 - 2017 academic school year .

CONCLUSIONS OF LAW

Jurisdiction

30 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to section s 120.569, 120.57(1) , and

1012.33(6)(a), Florida Statutes.

Standards

31 . Section 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 the requirements of

[chapter 1012].Ñ

32 . Respondent is an employee of p etitio ner pursuant to

section 1012.33 . Respondent was an instructional employee as

defined by sect ion 1012.01(2) .

33 . Petitioner has the authority to suspend or terminate

instructional employees pursuant to sections 1012.22(1)(f) and

1012.33( 1) ( a ) and (6)(a) .

34 . The standard for termination of instructional

personnel is Ðjust cause,Ñ pursuant to section 1012.33(1)(a) .

35 . Section 1012.33(1)(a) provides that a teacher's

contract Ðshall contain provisions for dismissal during the term

of the contract for jus t ca use,Ñ which includes misconduct in

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

36 . Florida Administrative Code Rule 6A - 5.056 establishes

the criteria for suspension and dismissal of school personnel

for misconduct .

37 . Rule 6A - 5.056(2) p rovides that:

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 Conduct for the Education

Profession in Florida as adopted in Rule

6A - 10.081, F.A.C.;

(c) A violation of the adopted school

board rules;

(d) Behavior that disrupts the studentÓs

learning environment; or

(e) Behavior that reduces the teacherÓs

ability or his or her colleagueÓs ability

to effectively perform duties.

38 . Petitioner alleges Respondent violated the

Principle s of Professional Conduct. Rule 6A - 10.081 provides,

in pertinent part :

(1) Florida educators shall be guided by

the follo wing ethical principles:

* * *

(b) The educatorÓs 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 professional

judgment and integrity;

(c) 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.

(2) Florida educators shall comply with

the following disciplinary principles.

Violation of any of these principles shall

subject the individual to revocation or

suspension of the individual educatorÓs

certificate, or the other penalties as

provided by law .

(a) Obligation to the student requires

that the individual:

1. Shall make reasonable effort to protect

the student from conditions harmful to

learning and/or to the studentÓs mental

and/or physical health and/or safety.

Burden and Standard of Proof

3 9 . Petitioner seeks to discipline Respondent, which

does not involve the loss of a license or certification.

Thus , Petitioner has the burden of proving the allegations in

its notice of recommendation of termination 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 2008); McNeill

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

1996); Sublett v. Sumter Cnty. Sch. Bd. , 664 So. 2d 1178, 1179

(Fla. 5th DCA 1995); 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, 884 (Fla. 3d DCA 1990).

40 . The preponderance of the evidence standard Ðis

defined as Òthe greater weight of the evidence,Ó Black's Law

Dictionary 1201 (7th ed. 19 99), 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. DepÓt of Child. & Fams. , 983 So. 2 d 602, 606 (Fla. 5th DCA

2008).

Application of Standards to the Facts

41 . The S chool Board in this case has cited three

specific aspect s of the Principles of Professional Conduct as

the base s for Mr. Perry's termination . The charges include

misconduct by violating the principles of professional conduct

for the education profession including rule s 6A - 10.081 (1)(b)

and (1)(c) , and 6A - 10.081(2)(a) 1 .

42 . The allegations of fact set forth in the charging

document are the facts upon which this proceeding is

predicated. Once the School Board has delineated the offenses

alleged to justify termination in its notice of recommendation

of termination, those are t he only grounds upon which

dismissal may be predicated. Trevisani v. DepÓt of Health ,

908 So. 2d 1108, 1109 (Fla. 1st DCA 2005). See also Klein v.

Dep't of Bus. & Prof'l Reg. , 625 So. 2d 1237, 1238 - 39 (Fla. 2d

DCA 1993); Cottrill v. DepÓt of Ins. , 685 So . 2d 1371, 1372

(Fla. 1st DCA 1996). Due process prohibits the School Board

from disciplining a teacher based on matters not specifically

alleged in the notice of recommendation of termination. See

Pilla v. Sch. Bd. of Dade Cnty. , 655 So. 2d 1312, 1314 ( Fla.

3d DCA 1995); Texton v. Hancock , 359 So. 2d 895, 897 n.2 (Fla.

1st DCA 1978); see also Sternberg v. Dep't of Prof'l Reg. ,

465 So. 2d 1324, 1325 (Fla. 1st DCA 1985) (Ð For the hearing

officer and the Board to have then found Dr. Sternberg guilty

of an o ffense with which he was not charged was to den y him

due process.Ñ) .

43 . Thus, the scope of this proceeding is properly

restricted to those matters as framed by Petitioner in the

Notice . M.H. v. DepÓt of Child. & Fam. Servs. , 977 So. 2d

755, 763 (Fla. 2d DCA 2008).

44 . The School Board proved by a preponderance of the

evidence that it had just cause to terminate Respondent for

misconduct . Specifically, the School Board proved that

Respondent violat ed the Principles of P rofessional C onduct by

failing to maintain professional j udgment , a violation of rule

6A - 10.081(1)(b) ; and failing to maintain the respect and

confidence of his colleagues, stude nts, parents, and the

community, a violation of rule 6A - 10.081(1)(c).

45 . Petitioner did not prove by a preponderance of the

evidence that Respondent failed to protect students from

conditions harmful to lea rning which was an alleged violation

of rule 6A - 10.081(2)(a)(1).

46 . As discussed in the Findings of Fact herein,

Petitioner offered a police repo rt with supporting affidavits to

support factual allegations of PetitionerÓs arrests. In its

PRO, Petitioner argued that the police report and supporting

affidavits are not hearsay because they were offered to show

that Petitioner carefully investigated t he underlying conduct

which was the basis for RespondentÓs arrests and the disposition

of those arrests.

47 . Here, the rep ort and affidavits were offered as

evidence of the underlying conduct related to RespondentÓs

arrest, and therefore, they were being offered for the truth of

the matters asserted therein . Thus , the y are hearsay.

Petitioner did not offer sufficient evidence to demonstrate

that the police report and affidavits would be otherwise

admissibl e in a civil action.

48 . In addition, Petitioner argued in its P RO, f or the

first time in this matter , that Respondent violated se ction

1012.67 by willfully being absent without leave for 58 days in

the 2016 - 2017 school year. 4/ However, that statutory violation

was not alle ged in PetitionerÓs Notice .

49 . The relevant al legations in the Notice state ÐDuring

this time, your attendance reco rd revealed that you accrued

58 days of unauthorized LWOP. Ñ The factual allegation s did not

include the element of willfulness . Equally concern ing , is that

the School Board did not charge Mr. Perry with a violation of

section 1012.67 in the Notice , yet it argues in its PRO that

Mr. Perry is in violation of that charge .

50 . The teacher must have fair notice and an opportunity

to be heard on each factual allegation and charge against him .

Because this new charge was raised after the conclusion of the

hearing, Petitioner did not provide Mr. Perry fair notice or an

opportunity to be heard regarding the charge . T he l ate addition

of this addition al charge did not allow Mr. Perry a fair

opportunity to develop a defense to the allegation. As a

result, Mr. Perry did not have sufficient notice or adequate

opportunity to defend himse lf against the charge.

5 1 . The refore, a violation of section 1012.67 can not be

cons idered when analyzing whether Respondent violated rule

6A - 10. 081(2)(a)(1) . T he undersigned will neither consider nor

find a violation related to section 1012.67 as it is not all eged

in the Notice and such a ruling would be a violation of due

process.

52. To be clear, while the undersigned will not consider a

vi olation of rule 6A - 10.081(2)(a) 1 . where section 1012.67 served

as the basis for the violation, there was not sufficient

evidence presented at hearing to otherwise prove a vi olation of

rule 6A - 10.081(2)(a)1 .

Disciplinary Policy

5 3 . Article V. C. 1 of the CBA, the Progressive Discipline

Policy, provides as follows, in relevant part:

When reasonably possible, the school

principal or site based supervisor shall

administer progressive discipline. The

following progressive steps must be

followed in administering discipline, it

being understood, however, that some more

severe acts of misc onduct may warrant

circumventing the established procedure:

a. Verbal Reprimand

1. No written conference summary is

placed in personnel file

2. Employees must be told that a verbal

reprimand initiates the discipline

process

b. Written Reprimand

c. Suspension without Pay

d. Termination

5 4 . Teachers are held to a higher moral standard than

others in the community because they are leaders and role

models. See Adams v. State ProfÓl Practices Council , 406 So. 2d

1170, 1172 (Fla. 1st DCA 1981). Petitioner had sufficient

justification to warrant proceeding to termination of

RespondentÓs employment .

5 5 . The evidence produced at the hearing demonstrates that

Petitioner had just cause to terminate the employment of

Respondent for misconduct in office as outlined in the findings

of fact herein.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conc lusions of

Law, it is RECOMMENDED that Petitioner, Duval County Sc hool

Board, enter a final order terminating the employment of J ason

Perry as a teacher.

DONE AND ENTERED this 27th 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 27th day of October , 2017 .

ENDNOTE S

1/ Twitter is a free, public social messaging service for

sending and receiving short messages.

2 / See § 90.80 3(18)(a), Fl a . Stat .

3 / The officer did not directly observe any of the events on

January 6, 2017 , that were docume nted in his report. Ms. S.L.

w as also not present at the time of the events. Ther e fore, the

officer and S.L.Ós statements were based on unsubstantiated

statements from other individuals.

4 / See Section 1012.67 , which provides that a ny district school

board employee who is willfully absent from duty without leave

shall forfeit compensation for the time of such absence, and his

or her employment shall be subject to termination by the

district school board.

COPIES FURNISHED:

Wendy Byndloss, Esquire

Office of General Counsel

City of Jacksonville

117 West Duval Street , Suite 480

Jacksonville, Florida 32202

(eS erved)

Jason Perry

11755 Chestnut Oak Drive

Jacksonville, Florida 32218

Dr. Patricia Wiliis , Superintendent

Duval County Public Schools

1701 Prudential Drive

Jacksonville, Florida 32207 - 8152

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.