18-002983TTS Polk County School Board vs. Randall J. Smith Status: Closed Recommended Order on Wednesday, March 6, 2019.

Summary: Petitioner failed to prove that just cause exists for termination of Respondent. A reprimand or verbal warning is more appropriate.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 - 2983TTS

RANDALL J. SMITH,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judge D. R. Ale xander conducted a hearing

in this case in Bartow, Florida, on February 11, 2019.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830 - 4620

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. Highway 19 North

Clearwater, Florida 33761 - 1526

STATEMENT OF THE ISSUE

The issue is whether just cause exists for Petitioner, Polk

County School Board (School Board), to terminate Respondent's

employment as a classroom teacher.

PRELIMINARY STATEMENT

By letter dated December 13, 2017, the School Board informed

Respondent, a classroom tea cher, that because of "serious

misconduct," he was suspended, with pay, effective immediately ;

and that a recommendation would be made at the School Board's

meeting on January 23, 2018, to terminate him , effective the

following day. Respondent timely requ ested a hearing, and the

matter was referred by the School Board to the Division of

Administrative Hearings to conduct a formal hearing to resolve

the dispute. Respondent requested, and was granted, two

continuances of the final hearing.

At the final hear ing, the School Board presented the

testimony of two witnesses. School Board Exhibits 1 through 6

and 8 were accepted in evidence. Respondent testified on his own

behalf. Respondent's Exhibit 1 was accepted in evidence.

A one - volume Transcript of the hearing has been prepared.

The parties timely submitted proposed recommended order s (PRO s ) ,

which h ave been considered.

FINDING S OF FACT

1. The School Board is charged with the duty to operate,

control, and supervise public schools in Polk County. This

includes the power to discipline classroom teachers. See

§§ 1012.22(1)(f) and 1012.33, Fla. Stat. (2018).

2 . The record does not disclose whether Respondent holds a

professional service contract or has an annual contract with the

School Board. In any event, he has been employed with the School

Board as a classroom teacher since September 2016.

3. Before moving to Florida in 2016, Respondent taught

motion picture television arts in Ohio for four and one - half

years. Before that, he worked in the motion picture industry for

27 years.

4. From September 2016 until he was suspended in

January 2018, Respondent taught Television (TV) Production at

Haines City High School and supervised the school's TV news

program. In the program, students film events on campus before

and after school, learn how to edit the film, and then prepare

videos for school use. Mr. Lane is the school principal.

5. Based on an allegation that he was observed sleeping in

class on November 29, 2017, coupled with a three - d ay suspension,

without pay, that he served a month earlier, the School Board

seeks to terminate Respondent's employment. Specifically, the

termination letter alleges that on November 29, 2017, Respondent

"was found sleeping at [his] classroom desk," " stud ents [were]

unsupervised and scattered about [the] classroom," and this

conduct constitutes "serious misconduct." Sch. Bd. Ex. 4.

6. To terminate Respondent, the School Board relies upon

the fourth step in the four - step progressive discipline process

f ound in the Teacher Collective Bargaining Agreement (CBA), which

governs the employment of instructional personnel. Article 4 - 4.1

provides that, "except in cases where the course of conduct or

the severity of the offense justifies otherwise," a teacher ma y

be terminated only after progressive discipline has been

administered in Steps I , II , and III . Sch. Bd. Ex. 8.

7. On October 24, 2017, Respondent received a three - day

suspension without pay for making inappropriate comments during a

discussion with stu dents in his class. Due to the serious nature

of the incident, the School Board accepted the principal's

recommendation that it bypass the first two steps of progressive

discipline and invoke discipline under Step III. Respondent did

not contest or griev e that action. Therefore, Respondent has not

been given progressive discipline under Step I (a verbal warning

in a conference with the teacher) or Step II (a dated written

reprimand following a conference).

8. In the fall of school year 2017 - 2018, Respon dent taught

TV Production - Editing during fourth period. The TV Production

area encompassed a large suite of rooms, including a main

classroom, a TV news room, a control room, and two hallways with

lockers for equipment. Typically, there were between 25 a nd 30

students in the class.

9. Respondent wears contact lens es , but because of

chronically dry eyes, he must use artificial tears four to eight

times per day in order to avoid swelling of the eyelids.

10. To properly hydrate his eyes, after using the

a rtificial tears, Respondent tilts his head back, closes his

eyes, and rolls his eyes for a few minutes to allow the eyes to

absorb the solution.

11. Midway through his fourth - period class on November 29,

2017, Ms. Young, the assistant principal, entered Respondent's

classroom to do an unannounced walk - through. She observed the

lights off and Respondent sitting at his desk with his eyes

closed and "leaned back" in his chair with his mouth open.

Ms. Young assumed he was asleep so she cleared her throa t, then

waved her hand, and finally knocked on his desk twice, but he did

not open his eyes. She then knocked louder on the desk and

called his name. This appeared to startle Respondent and he sat

up and looked around the class. After she informed him t hat she

was performing a walk - through in his class, Respondent replied

"okay," and said he was aware she was there.

12. Ms. Young was in Mr. Smith's classroom area

approximately five minutes. After getting his attention, she

walked through the entire s uite of rooms and observed "some"

students on their phones, "some" on the computer, and "some"

walking in the back of the room. Even though Mr. Smith testified

at hearing that his students were "absolutely malicious" and

"they'll do anything," Ms. Young d id not report seeing any

unusual or unsafe conditions that might result in placing any

student's safety in jeopardy.

13. Mr. Smith denies that he was asleep. He testified that

just before the assistant principal did her walk - through, he had

put drops in his eyes, cocked his head back, closed his eyes, and

was in the process of rolling his eyes to rehydrate them. A few

minutes earlier, he had given permission for a student to use the

restroom. When Ms. Young entered the classroom, he knew someone

had ent ered the room but assumed it was the student returning

from the restroom. When he opened his eyes, he greeted

Ms. Young, who replied that she was "walking through [his]

classroom."

14. According to Ms. Young, it was "very evident" that he

was as leep, "100 percent," and it was not possible that he just

had his eyes closed. Ms. Young's testimony concerning her

observations is the most persuasive and has been credited. The

incident was reported to Mr. Lane the same day.

15. After the incident w as reported to Mr. Lane, he

recommended that Respondent be terminated for serious misconduct.

Sch. Bd. Ex. 4. Mr. Lane explained that this action was

justified because of concerns over the "safety of the children"

in Respondent's class, given the large s uite of rooms under his

supervision. He also testified that the incident brought into

question Respondent's effectiveness as a teacher.

16. The School Board's attempted reliance at the hearing on

a few other times when Respondent allegedly was sleeping in class

has been disregarded for two reasons: they are based mainly on

hearsay testimony , which does not supplement or corroborate other

competent evidence ; and, more importantly, they are not included

as charges in the termination letter or parties' Pr e - h earing

Stipulation. Pilla v. Sch. Bd. of Miami - Dade Cnty. , 655 So. 2d

1312, 1314 (Fla. 3d DCA 1995) (the teacher must have fair notice

and an opportunity to be heard on each of the charges brought

against him).

17. On December 13, 2017, the School Boa rd's human resource

services department informed Respondent by letter that he was

suspended, with pay, pursuant to Article 4 - 4.1 of the CBA pending

the School Board's consideration of a recommendation that he be

terminated , effective January 24, 2018. Sch . Bd. Ex. 5.

18. According to the termination letter, the School Board

determined that Respondent's actions "constitute serious

misconduct" for which "just cause" for termination exists, and

"[t]ermination constitutes Step IV of Progressive Discipline as

outlined in Article 4 - 4.1 of the [CBA]." Sch. Bd. Ex. 5.

CONCLUSIONS OF LAW

19. This is a disciplinary proceeding in which the School

Board seeks to terminate Respondent's employment.

20. Respondent is a classroom teacher and his employment

with the S chool Board is governed by an instructional staff

contract. §§ 1012.01(2)(a) and 1012.33(1)(a), Fla. Stat. The

terms of his employment are also governed by the CBA.

21. The School Board is authorized to suspend or dismiss

instructional personnel pursu ant to sections 1012.22(1)(f),

1012.33(1)(a), and 1012.33(6)(a), Florida Statutes, but only for

just cause.

22. Because Respondent has not been given progressive

discipline under Steps I and II of Article 4 - 4.1 of the CBA,

termination is only permissibl e where Respondent's course of

conduct or the severity of the offense justifies otherwise.

Quiller v. Duval Cnty. Sch. Bd. , 171 So. 3d 745, 746 (Fla. 1st

DCA 2015)(school board is mandated to follow progressive steps in

administering discipline unless a s evere act of misconduct

warrants circumventing those steps); Polk Cnty. Sch. Bd. v. Boyd ,

Case No. 18 - 4764TTS (Fla. DOAH Dec. 18, 2018; Polk Cnty. Sch. Bd.

Feb. 1, 2019).

23. To terminate Respondent, the School Board bears the

burden of proving by a pre ponderance of the evidence that

Respondent committed the serious misconduct alleged, and that the

violations constitute just cause for dismissal. Cropsey v. Sch .

Bd. of Manatee C nty. , 19 So. 3d 351, 355 (Fla. 2d DCA 2009).

24. "Just cause" is defined a s including "the following

instances, as defined by rule of the State Board of Education:

immorality, misconduct in office, incompetency, gross

insubordination, [or] willful neglect of duty." § 1012.33(1)(a),

Fla. Stat. Here, the School Board alleges tha t Respondent is

guilty of "misconduct in office" as the basis for termination.

25. The State Board of Education has adopted Florida

Administrative Code Rule 6A - 5.056 (which replaced and amended

former rule 6B - 4.009) setting forth instances of "just cause" to

suspend or dismiss specified school personnel. 1/ The rule defines

"just cause" as "cause that is legally sufficient" and provides

the following definition of misconduct in office:

"Just cause" means cause that is legally

sufficient. Each of the charg es upon which

just cause for a dismissal action against

specified school personnel may be pursued is

set forth in section 1012.33 and 1012.335,

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

for each such charge is hereby defined:

* * *

(2) "Misconduct in Office" 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;

(b) A violation of the Principles of

Professional Conduct for the Education

Prof ession 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 student's

learning environment; or

(e) Behavior that reduces the teacher's

ability or his or her colleagues' abi lity to

effectively perform duties.

26. The termination letter fails to disclose which

provision within the foregoing definition the alleged misconduct

violates. And the parties' Pre - h earing Stipulation adds no

clarity. In his PRO, Respondent reiterate s this point by noting

that the School Board "has not identified any provision of the

Code to specifically define how Respondent's conduct constituted

'just cause' for the termination of his employment." While the

factual basis for the termination is set forth in the charging

document, the specific part of the rule being violated is not

disclosed. This left Respondent in the position of guessing

which of the five paragraphs within rule 6A - 5.056(2) may be

implicated, and which, if any, of the 31 disciplina ry principles

enumerated in rule 6A - 10.081(2) may be at issue.

27. In its PRO, the School Board alleges for the first time

that Respondent's conduct violates the Principle of Professional

Conduct found in rule 6A - 10.081(2)(a)1., which requires a teacher

t o make a "reasonable effort" to protect the student from

conditions harmful to his mental and/or physical health or

safety. The PRO alleges also for the first time that

Respondent's conduct equates to an impairment of his

effectiveness as a teacher.

28. Neither the charging document nor the parties' Pre -

h earing Stipulation provided adequate notice of the specific rule

provisions to support the violation. However, Respondent did not

complain about the adequacy of the notice until his PRO was

filed. In the absence of any demonstrated prejudice to

Respondent, the merits of the charges will be considered below.

29. The undersigned has accepted the more persuasive

evidence that Respondent was asleep when Ms. Young entered his

classroom on November 29, 201 7. However, this conduct is not so

severe that it warrants circumventing the progressive steps in

administering discipline in Article 4 - 4.1. Quiller , 171 So. 3d

at 746. While the safety of the students was given as the

primary reason for termination, th ere is no evidence that during

the very few minutes when Respondent was napping, the safety of

the students was in jeopardy because of a lack of supervision.

30. Finally, at hearing, Mr. Lane testified that sleeping

in class on one occasion equates to a n impairment of Respondent's

effectiveness as a teacher. In support of this testimony, in its

PRO, the School Board cites a string of cases for the proposition

that the misconduct of the teacher can be so serious that it

impairs th e teacher's effectivenes s. Purvis v. Marion Cnty. Sch.

Bd. , 766 So. 2d 492 (Fla. 5th DCA 2000); Walker v. Highland Cnty.

Sch. Bd. , 752 So. 2d 127 (Fla. 2d DCA 2000); Summers v. Sch. Bd.

of Marion Cnty. , 666 So. 2d 175 (Fla. 5th DCA 1996). In Purvis ,

a teacher resisted arrest by the police after a barroom brawl and

lied under oath; in Walker , a teacher's class "was out of

control," with one student being so intoxicated he could not

walk. The misconduct here is not even close. In the third case,

the school board's decision to te rminate the teacher because of

impairment of his effectiveness as a teacher was reversed on the

ground there was no specific evidence to support that action.

31. Sleeping in class on one occasion, with students

present, should not be condoned, even if t he safety of the

students is not placed in jeopardy. This action warrants no more

than a dated reprimand following a conference. Just cause does

not exist to terminate Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fac t and Conclusions of

Law, it is

RECOMMENDED that the Polk County School Board enter a final

order issuing a verbal warning (Step I) or a dated written

reprimand (Step II) to Respondent for being observed sleeping in

class on November 29, 2017.

DONE AND ENTERED this 6th day o f March , 2019 , in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of March , 2019 .

ENDNOTE

1/ The School Board's PRO incorrectly uses the definition of

"misconduct in office" found in former r ule 6B - 4.009(3), which

was repealed in 2012.

COPIES FURNISHED:

Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue

Bartow, Florida 33830 - 4620

(eServed)

Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

Suite 110

29605 U.S. H ighway 19 North

Clearwater, Florida 33761 - 1526

(eServed)

Jacqueline M. Byrd, Superintendent

Polk County School Board

1915 South Floral Avenue

Post Office Box 391

Bartow, Florida 33831

Richard Corcoran, Commissioner of Education

Department of Educat ion

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

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 Orde r in this case.