18-006215TTS Broward County School Board vs. Craig Dudley Status: Closed Recommended Order on Wednesday, July 17, 2019.

Summary: Petitioner proved that Respondent violated State Board of Education rules and school board policies. This constitutes just cause to suspend him without back pay. Recommend suspension and reinstatement without back pay.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs. Case No. 18 Ï 6215TTS

CRAIG DUDLEY ,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2018), before

Cathy M. Sellers, an Administrative Law Judge of the Division of

Administrative Hearings ( " DOAH " ), on April 9, 2019 , in Fort

Lauderdale , Florida.

APPEARANCES

For Petitioner: Douglas G. Griffin , Esquire

Broward County School Board

Office of the General Counsel

600 Southeast Third Avenue , 11th Floor

Fort Lauderdale , Florida 33301

For Respondent: Robert F. McKee , Esquire

Robert F. McKee , P.A.

1718 East Seventh Avenue , Suite 301

Tampa , Florida 33605

STATEMENT OF THE ISSUE

Whether just cause exists for Petitioner to terminate

Respondent's em ployment as a teacher .

PRELIMINARY STATEMENT

On or about August 28, 2018 , the S uperintendent of the

School Board of Broward County, Florida, notified Respondent,

Craig Dudley , that he was recommending to Petitioner, Broward

County School Board, that Respondent 's e mployment as a teacher

with Broward County Public Schools (hereafter, " District " )

be terminated. On September 5, 201 8 , Petitioner served an

Administrative Complaint on Respondent. On October 2, 2018 ,

Petitioner took action to terminate Respondent 's employment.

Respondent timely challenged Petitioner's action , and the matter

was referred to DOAH to conduct a hearing pursuant to sections

120.569 and 120.57(1).

The final hearing initially was schedul ed for February 12

and 13, 2019 , but was continued to April 9 through 11 , 201 9 .

The hearing was conducted on April 9 , 201 9 .

P etitioner presented the in - person testimony of

Cindi Ancona, Tyrell Dozier, Ben Reeves, Sabine Phillips,

Julianne Gilmore, and A ston Henry, and the deposition testimony

of Phillip Lopez and Michael Suls was admitted into evidence in

lieu of in Ï person testimony at the final hearing. Petitioner's

Exhibits 1 through 41 were admitted into evidence without

objection. Respondent testif ied on his own behalf and did not

tender any exhibits for admission into evidence.

The one - volume Transcript was filed at DOAH on May 3 , 201 9 .

Pursuant to the parties' agreement made at the close of the

final hearing, the deadline for filing proposed r ecommended

orders was set for June 3, 201 9 . Subsequently , p ursuant to

motion, the deadline for filing proposed recommended orders was

extended to June 17, 2019 . The parties' proposed recommended

orders were timely filed and have been duly considered in

preparing this Recommended Order.

FINDINGS OF FACT

Based on the parties ' stipulations and the competent

substantial evidence adduced at the final hearing, the following

findings of fact are made:

I. The Parties

1. Petitioner, Broward County School Board, is charged with

the duty to operate, control, and supervise free public schools in

Broward County pursuant to article IX, section 4(b) of the Florida

Constitution and section 1012.33, Florida Statutes.

2. Respondent has been employe d by the District as a

physical education teacher since 200 4 . His last teaching

assignment was as a physical education teacher at Crystal Lakes

Middle School in Pompano Beach, Florida.

II. Administrative Charges

3. The alleged conduct giving rise to this proceeding

occurred on or about May 18, 2018.

4. The Administrative Complaint allege s that on that day,

Respondent did not fully cover his early morning duty in the

school caf eteria, did not fully attend his assigned homeroom , and

did not attend his first period class , thereby leaving his

students unsupervised for part of those periods ; and reported to

work under the influence of controlled substance s ÏÏ specifically,

alcohol and cocaine.

5 . As a result of this alleged conduct, Petitioner has

c harged Respondent , in the Administrative Complaint , with

violating F lorida Administrative Code Rule 6A - 5.056(2) , (3), (4),

and (5), and specified provisions of school b oard p olicies 2400,

4008, and 4.9 , discussed in greater detail below.

III. Events Giving Rise to this Proceeding

6. On the morning of May 18, 2018, Respondent reported to

work under the influence of alcohol and cocaine, both of which

are defined as "controlled substances" by school board policy.

7. As a result, Respondent did not f ully cover his early

morning cafeteria duty, did not fully attend his assigned

homeroom , and did not attend his first period class. A fellow

physical education teacher, Cindi Ancona, was forced to cover

Respondent's first period class. During the portions of the

periods in which Respondent was not present in his classroom and

in which Ancona was not covering his class, his students were left

unsupervised.

8. Ancona saw Respondent at the beginning of second period.

When she questione d Respondent regarding his whereabouts during

first period, she noticed that he appeared confused and off Ï

balance and that his eyes were glassy, so she sent a t ext message

to Sabine Phillips, the P rincipal at Crystal Lake Middle School ,

regarding Respondent's demeanor and appearance .

9. Phillips and Assistant Principal Ben Reeves responded to

Ancona's text message . Reeves entered the boys' locker room and

found Respondent lying down in his office outside of the locker

room. Phillips then enter ed the locker room and told Respondent

that he needed to go to the office with her and Reeves.

10. In the course of questioning Respondent about where he

had been during his first period class, Phillips surmised, and

informed Respondent that she had reas onable suspicion , that he was

under the influence of controlled substances.

11. Phillips contacted the District's Special Investigative

Unit to request that Respondent be subjected to testing to

determine whether he was under the influence of controlled

substances.

12. Phillips followed the designated procedures, which

entailed completing and transmitting a completed Incident Report

Form to the designated District personnel. The Risk Management

Department determined that the requested test ing was warranted and

transmitted an Anti Ï Drug Program Passport to Phillips, who

delivered it to Respondent. The Anti Ï Drug Passport informed

Respondent that he would be subjected to controlled substances

testing , and that the testing would be performed at Crystal Lakes

Middle School .

13. Respondent consented to the drug and alcohol testing.

1 4 . The Risk Management Department sent an employee health

testing collector to Crystal Lake Middle School, where she

conducted a breath alcohol and urine test on Respondent .

1 5 . The breath alcohol test ing indicated that Respondent had

blood alcohol level s of .101 and .095, both of which exceed the

blood alcohol level of .04 that Petitioner has adopted as the

threshold for being under the influence of alcoho l. Petitioner's

third Ï party contractor confirmed that Respondent had a blood

alcohol level of .095 at the time he was tested.

1 6 . Julianne Gilmore, an environmental health testing

specialist with the District's Risk Management Department,

contacted Phillips and Respondent, notifying them both that

Respondent was being placed on A dministrative R eassignment and was

to remain at home ÏÏ i .e., not report to work ÏÏ pending the result of

the drug testing. This informal contact was followed by a letter

dated May 21, 2018, confirming that Respondent had been placed on

Administrative Reassignment and directing him to stay home pending

further no tice. 1/

1 7 . Gilmore also advised Respondent of the availability of

the District's Employee Assistance Program ("EAP"), participation

in which was not mandatory. 2/

1 8 . The result s of Respondent's drug test were received by

the Risk Management Dep artment on or about June 1, 2018 .

Respondent tested positive for cocaine.

19. Respondent does not dispute that he was under the

influence of alcohol and cocaine while at school on May 18, 2018 ,

and also does not dispute accuracy of the results of the b lood

alcohol and drug tests.

20 . Upon receiving the result s of Respondent's drug test , it

was determined 3 / that Respondent's employment with the District

should be terminated , notwithstanding that the next step in

sequential progressive disciplinary process ordinarily would be

suspension . A significant consideration in this decision was that

Respondent had left his students unsupervised, placing their

safety at risk .

21. No evidence was presented that the students in

Respondent's class were actually physically or psychologically

injured or harmed as a result of Respondent being absent from his

classroom on May 18, 2018.

IV. Prior Discipline

2 2 . Petitioner has a policy (Policy 4.9, discussed below) of

imposing discipline in a progressive manner, which means that

discipline typically is imposed in sequential steps in order to

afford the employee the opportunity to correct his/her conduct and

per formance before he /she is suspended or terminated . The

progressive discipline policy authorizes sequential disciplinary

steps to be skipped for sufficiently severe misconduct.

2 3 . Petitioner previously has disciplined Respondent .

2 4 . On April 21, 2016, Petitioner issued a Summary of

Conference memo, memorializing a conference in which Respondent

was verbally admonished for having briefly left the students in

his class unattended while he took an injured student to the

physical education office to t end to his injury, during which time

some of the students physically assaulted other students in the

class.

2 5 . On February 10, 2017, Petitioner issued a Verbal

Reprimand to Respondent, reprimanding him for being tardy to, and

absent from , work without following the proper protocol for

entering an absence.

2 6 . On December 1, 2017, Petitioner issued a Written

Reprimand to Respondent, reprimanding him for continuing to be

tardy to, and absent from, work without following the proper

protocol for enterin g an absence.

2 7 . On February 14, 2018, Petitioner issued a nother Written

Reprimand to Respondent, reprimanding him for consistently fail ing

to follow absence/tardy Ï reporting procedures, resulting in his

students being left unsupervised. He was informe d that if he

again failed to adhere to the appropriate procedure, he would be

subject to further discipline, including possible termination of

his employment.

V. Other Key Considerations in this Proceeding

2 8 . Respondent was forthright in admitting that he suffers

from a substance abuse problem.

29. In 2016, Respondent sought help for his substance abuse

issue through the District's EAP program at Phillips' suggestion ,

but did not complete the program ÏÏ in part because he did not find

its methods helpful in dealing with his problem, and in part

because he believed that he could overcome his problem on his own

as he always had done in his life.

30. Respondent has come to realize that he cannot overcome

his substance abuse problem on his own and that there is no shame

in asking o thers for help in dealing with his problem.

31. To that end, Respondent participated in , and has

completed, the Evolution substance abuse program , which consist ed

of counseling session s three to four days a week , for a three Ï to Ï

four Ï month period, and attending therapy classes and meetings each

week.

32. As a condition of participation in Evolution,

Respondent was subject to random substance abuse testing . He did

not test positive for alcohol or drug use during his participation

in the program.

3 3 . The spiritual counseling and substance abuse trigger

counseling that Respondent received in the Evolution program have

resonated with him and have helped him su ccessfully address his

substance abuse problem. 4 /

3 4 . In order to avoid backsliding, Respondent remains in

weekly contact with one of his therapists at Evolution, and

attends meetings three to four times a week , to p lace himself in

an environment that enables and fosters his success in fighting

his substance abuse problem.

35. Since commencing Evolution, Respondent has not engaged

in alcohol or drug use .

36. Respondent expressed remorse at his behavior and poor

judgment at having reported to work under the influence of

controlled substances on May 18, 2018. He testified that he did

so because he previously had been reprimanded for being absent,

and was c oncerned about missing more school. He recognized that

his choice to go to school in that condition was "bad thinking at

the time."

37 . Respondent credibly testified that he greatly enjoys

teaching and that he chose teaching as a career because he loves

working with kids , relates well to them, and believes he can help

them. His colleague, Tyrell Dozier, testified that Respondent

gets along well with his students and is a caring , effective

teacher.

V I . Findings of Ultimate Fact

38 . As noted above, t he Administrative Complaint charges

Respondent with having violated State Department of Education

rules and specified school board policies. Specifically ,

Petitioner has charged Respondent , pursuant to rule 6A Ï 5.056,

with misconduct in of fice , incompetency, gross insubordinatio n,

and willful neglect of duty. Petitioner also has charged

Respondent with violating school board policies 2400(1) and (3);

4008 B. 1 . , 3. , and 8 . and certain provisions of P olicy 4.9.

39 . Whether the charged offenses constitute violation s of

the applicable rules and policies is a question of ultimate fact

to be determined by the trier of fact in the co ntext of each

alleged violation. Holmes v. Turlington , 480 So. 2d 150, 153

(Fla. 1985)(whether there was a deviation from the standard of

conduct is not a conclusion of law, but instead is an ultimate

fact); McKinney v. Castor , 667 So. 2d 387, 389 (Fla. 1st DCA

1995)(whether a particular action constitutes a violation of a

statute, rule, or policy is a fa ctual question); Langston v.

Jamerson , 653 So. 2d 489, 491 (Fla. 1st DCA 1995)(whether the

conduct, as found, constitutes a violation of statutes, rules,

and policies is a question of ultimate fact).

40 . Based on the foregoing , it is found, as a matter of

ultimate fact, that Respondent violated some, but not all, of

the rule s and school board policies charged in the

A dministrative Complaint.

41 . B y engaging in the conduct addressed above, Respondent

committed misconduct in office under rule 6A Ï 5.056(2) , which

includes violating Florida Administrative Code R ule 6A Ï

10.081(2)(a) , by having left his students unsupervised.

42 . B y engaging in the conduct addressed above , Respondent

engaged in conduct constituting incompetency under rule

6A Ï 5.056(3) .

43 . By engaging in the conduct addressed above, Respondent

engaged in conduct constituting gross insubordination under rule

6A Ï 5.056(4 ) .

44 . By engaging in the conduct discussed above ,

Respondent engaged in conduct constituting willful neglect of

duty under rule 6A Ï 5.056(5).

45 . Respondent violated P olicy 2400 (1) by reporting to

work while under the influence of controlled substances .

However, no evidence was presented that Respondent was in

possession of , or used, a controlled substance while on school

board property or at a school Ï sponsored activity . Rather, the

evidence establishes that Respondent consumed alcohol and used

cocaine in a social setting the night before he reported to

school on May 18, 2018 . Therefore , the evidence does not

establish that Respondent violated P olicy 2400(3) , as charged in

the Administrative Complaint.

46 . P olicy 4008 , subsections (B)1. and 8., require s school

board employees to comply with State Board of Education rules

and school board policies. As discussed above, the evidence

shows that Respondent violated rule 6A Ï 5.056(2), (3), (4),

and (5), and rule 6A Ï 10.081 (2)(a) . In violating these rules,

Respondent violated Policy 4008 , subsections (B) 1. and 8 .

However, the evidence does not establish that Respondent

violated P olicy 4008B , subsection 3. , as charged in the

Administrative Complaint. This policy imposes on instructional

personnel the duty to "Infuse in the c lassroom , the District's

adopted Character Education Traits of Respect, Honesty,

Kindness, Self Ï control, Tolerance, Cooperation, Responsibility

and Citizenship." While Respondent's conduct in reporting to

school under the influence of controlled substances on May 18,

2018, may not have c onstitute d self Ï control or respect for his

dutie s as a teacher on that specific day, no evidence was

presented regarding Respondent's behavior in the classroom ÏÏ

whether on that day or on any other day . T o the contrary, as

discussed above, the evidence est ablished that Respondent is a

caring and effective teacher in dealing with his students.

Accordingly, it is determined that Respondent did not violate

P olicy 4008 , subsection B.3.

4 7 . The evidence establishes that Respondent violated

Policy 4008( C ) , which requires instructional personnel to be on

duty for a minimum of 7.5 hours on an instructional day.

48 . However, t he evidence does not establish that

Respondent violated the provision in P olicy 4008 ,

"Miscellaneous" section, which states that "all members of the

instructional staff shall be expected to teach a full schedule

of classes, unless prior approval from the area superintendent

or superintendent is obtained." Policy 4008 establishes the

over arching responsibilities and duties of P rincipals and

instructional personnel in the context of performing their

employment contracts. In this context, the "full schedule of

classes" provision refers to a teacher's instructional schedule

assignment for th e school year rather than a specific per Ï hour

requirement. In fact, to read this provision as urged in the

Administrative Complaint would render it redundant to the

statement (also in the "Miscellaneous" section) that

"instructional personnel must be on d uty a minimum of seven and

one Ï half hours (7 1/2) hours daily.

49 . The Administrative Complaint also charges Respondent

with having violated the District's progressive discipline

policy, P olicy 4.9. As more fully discussed below, it is found

that Resp ondent that did not violate this policy.

5 0 . Based on the foregoing, it is found, as an ultimate

fact, that although Respondent violated the rule and many of the

school board policies charged in the Administrative Complaint,

under the progressive discipline policy set forth in Policy 4.9,

the appropriate penalty that should be imposed on Respondent in

this case is suspension without pay for the entire period during

which he has been reassigned from the classroom .

51. Additionally, Respondent should be required to submit

to random drug and alcohol testing, at his personal expense, as

a condition of his continued employment by Petitioner. 5 /

5 2 . This penalty is appropriate based on the fact that

Respondent has not previously been subject to suspension without

pay under the progressive discipline policy , and takes into

account several relevant considerations : specifically, that

Respondent has a substance abuse problem for which he actively

sought ÏÏ and finally has been able to obtain ÏÏ real, effective

help in overcoming; that he has an approximately 14 Ï year

employment histo r y with Petitioner th at only , in the last two

years , entailed discipline as the result of conduct that was

caused by his substance abuse problem; that he is remorseful ,

understands that he m ade poor choices, and has obtained the

cou nseling and therapy he needs in order to corr ect his

performance problems through overcoming his substance abuse

problem; that he is a caring and effective teacher who loves

children and enjoys his teaching job; and , importantly, that no

students were injured or otherwise harmed by Respondent's

condu ct on May 18, 2018.

5 3 . This penalty also is sufficiently severe to deter

Respondent from committing future violations of rules and school

board policies, and sends the message that this is truly his

last chance.

CONCLUSIONS OF LAW

5 4 . The Division of Administrative Hearings has

jurisdiction over the parties to, and subject matter of, this

proceeding.

5 5 . This is a disciplinary proceeding in which Petitioner

seeks to terminate Respondent 's employment as a teacher.

5 6 . Respondent is an " instruct ional employee " as defined

in section 1012.01(2). Pursuant to sections 1012.22(1)(f),

1012.27(1)(f), and 1012.33(1)(a) and (6)(a), 6 / Petitioner has the

authority to suspend and terminate him.

5 7 . To do so, Petitioner must prove that Resp ondent

committed the alleged act , that the act violates the rules and

policies cited in the Administrative Complaint, and that the

violation of these rules and policies constitutes just cause for

dismissal. See § 1012.33(1)(a), (6), Fla. Stat.

5 8 . The standa rd of proof applicable to this proceeding is

a preponderance of the evidence. McNeil v. Pinellas C ty. Sch.

Bd. , 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v. Sch. Bd.

of Dade C ty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

5 9 . Section 1012.22(1)(f) authorizes Petitioner to take

disciplinary action against instructional personnel. That

statute states: " [t] he district school board shall suspend,

dismiss, or return to annual contract members of the

instructional staff and othe r school employees; however, no

administrative assistant, supervisor, principal, teacher, or

other member of the instructional staff may be discharged,

removed, or returned to annual contract except as provided in

this chapter. "

60 . Section 1012.27(5) au thorizes the district school

superintendent to:

Suspend members of the instructional staff

and other school employees during

emergencies for a period extending to and

including the day of the next regular or

special meeting of the district school board

a nd notify the district school board

immediately of such suspension. When

authorized to do so, serve notice on the

suspended member of the instructional staff

of charges made against him or her and of

the date of hearing. Recommend employees

for dismissal under the terms prescribed

herein.

6 1 . Section 1012.33(1)(a) also authorizes the suspension

and termination of instructional personnel for " just cause. "

The statute, in pertinent part, defines " just cause " as follows:

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 and unsatisfactory under

s. 1012.34 , gross insubordination, willful

neglect of duty, or being convicted or found

guilty of, or entering a plea of guilty to,

regardless of adjudication of guilt, any

crime involving moral turpitude.

6 2 . Rule 6A Ï 5.056, in pertinent part, defines "just cause "

as " cause that is legally sufficient. " The rule states:

"[e] ach 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." The rule

identifies spe cific conduct that constitutes "just cause."

6 3 . Petitioner charged Respondent with misconduct in

office, pursuant to rule 6A Ï 5.056(2). "Misconduct in Office"

means one or more of the following:

(a) A violation of the Code of Ethics of

the Education P rofession in Florida as

adopted in Rule 6A - 10.080, F.A.C. [ 7/] ;

(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. ; [ 8 /]

(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.

6 4 . Pursuant to the facts found above, it is concluded

that Res pondent committed misconduct in office, in violation of

rule 6A Ï 5.056 , including violating rule 6A Ï 10.081(2).

6 5 . Petitioner also charged Respondent with incompetency,

pursuant to rule 6A Ï 5.056(3). "Incompetency" is defined as:

[T]he inability, failure or lack of fitness

to discharge the required duty as a result

of inefficiency or incapacity.

(a) "Inefficiency" means one or more of the

following:

1. Failure to perform duties prescribed by

law;

2. Failure to communicate appropriately

with and relate to students;

3. Failure to communicate appropriately

with and relate to colleagues,

administrators, subordinates, or parents;

4. Disorganization of his or her classroom

to such an extent that the health, safety or

welfare of the students is diminished; or

5. Excessive absences or tardiness.

(b) "Incapacity" means one or more of the

following:

1. Lack of emotional stability;

2. Lack of adequate physical ability;

3. Lack of general educational background;

or

4. Lack of adequate comma nd of his or her

area of specialization.

6 6 . Pursuant to the facts found above, it is concluded

that Respondent's conduct constituted incompetency .

6 7 . Petitioner also charged Respondent with gross

insubordination, pursuant to rule 6A Ï 5.056(4). "Gr oss

insubordination" is defined to mean "the intentional refusal to

obey a direct order, reasonable in nature, and given by and with

proper authority; misfeasance, or malfeasance as to involve

failure in the performance of the required duties." Pursuant t o

the facts found above , it is concluded that Respondent committed

gross insubordination.

6 8 . Petitioner charged Responden t with willful neglect of

duty. "Willful neglect of duty" is defined in rule 6A Ï 5.056(5)

to mean "intentional or reckless failure to carry out required

duties." Pursuant to the facts found above , it is concluded

that Respondent committed willful neglect of duty.

6 9 . Specifically, Petitioner charged Responde nt with

violating school board P olicy 2400, the Drug Ï Free Workplace

policy. This policy states, in pertinent part 9 / :

RULES

1. The Superintendent shall provide each

permanent Board employee with a statement

indicating that the unlawful manufacture,

distribution, dispensing, possession or use

of a controlled substance, including

alcohol, is prohibited on all school board

property and at school sponsored activities.

Employees are strictly prohibited from

reporting to work or being on duty while

under the influence of alcohol or a

controlled substance.

* * *

3. Each Board employee must refrain from

the unlawful manufacture, distribution,

dispensing, possession or use of a

controlled substance, including alcohol, in

the workplace.

* * *

5. Upon request of the Executive Director

of Professional Standard s & Special

Investigative Unit and/or his/her designee

the employee shall submit to testing for the

purpose of determining the alcohol content

or the presence of controlled substances

when reasonable suspicion is determined

under applicable laws. The test should be

performed in a reasonable manner through

Risk Management. (F.S. 440.101) (F.S.

112.0455)

An employee who tests positive shall be

recommended for discipline action up to and

including termination of employment. An

employee who refuses to submit to testing

will be recommended for termination of

employment.

* * *

c. Applicants who test positive for

drugs/alcohol shall no longer be considered

for employment. School Board employees who

test positive shall be recommended for

disciplinary action up to and including

termination of employment to the

Superintendent.

70 . Pursuant to the facts found above, it is concluded

that Respondent violated policy 2400(1) by reporting to work

under the influence of alcohol and cocaine, which are defined as

constituting controlled substances. However, pursuant to the

facts found above , it is concluded that Respondent did not

violate policy 2400(3) because no evidence was presented showing

that Respondent engaged in the manufacture, distribution,

dispensi ng, possession or use of a controlled substance,

including alcohol, in the workplace.

7 1 . Petitioner also charged Respondent with violating

school board policy 4008 , Responsibilities and Duties.

Specifically, Petitioner charged Respondent with violating

sections (B) (1), (3), and (8) , and two provisions in (C) .

Policy 4008 states, in pertinent part 10 / :

All employees of the Board who have been

issued contracts as prov ided by Florida

Statutes . . . shall comply with the

provisions of the Florida School Code, State

Board regulations[,] and regulations and

policies of the Board.

* * *

B. Duties of Instructional Personnel

The members of instructional staff shall

perform the following functions:

1. Comply with the Code of Ethics and the

Principles of Professional Conduct of the

Education Profession in Florida.

* * *

3. Infuse in the classroom, the DistrictÓs

adopted Character Education Traits of

Respect, Honesty, Kindness, Self - control,

Tolerance, Cooperation, Responsibility and

Citizenship.

* * *

8. Conform to all rules and regulations

that may be prescribed by the State Board

and by the School Board.

* * *

C. Miscellaneous

* * *

Instructional personnel must be on duty a

minimum of seven and one - half (71/2) hours

daily.

* * *

All members of the instructional staff shall

be expected to teach a full schedule of

classes, unless prior approval from the Area

Superintendent or Superintendent of Schools

has been obtained.

7 2 . Pursuant to the facts found above, it is concluded

that Respondent violated policy 4008 B.1. and 8 . by violating

rule 6A Ï 5.056, and by violating rule 6A Ï 10.081(2) (a) by being

absent from his classroom during his homeroom and first period

classes, and, thus, failing to make a reasonable effort to

protect his students from conditions harmful to their physical

health and/or safety. However, pursuant to the facts found

above, it is concluded that Responden t did not violate policy

4008 B.3.

7 3 . Petitioner also charged Respondent with violating

specified provisions of school board policy 4.9, titled

Corrective Action. Specifically, the Administrative Complaint

charges Respondent with having violated a provision set forth in

the "Intent & Purpose" section of the policy that states:

"[e]mployees are expected to comply with workplace policies,

procedures and regulations; local, state, and federal laws; and

State Board Rule, both in and out of the workplace. " The Intent

& Purpose section of policy 4.9 further states: "[t]he

District's correction action policy is designed to improve

and/or change employees' job performance, conduct, and

attendance . " In that context, policy 4.9 prescribes the type of

discipline appropriate to be imposed for the specified offenses,

rather than establishing separate enforceable standards of

conduct that are in addition to the standards of conduct

established in other school board policies. Con sistent with the

concept of improving or changing employee job performance,

conduct, or attendance, policy 4.9 identifies categories of

offenses and the appropriate type or range of discipline that

may be imposed if the employee is shown to have engaged in

conduct constituting that offense.

7 4 . Policy 4.9, section II, states that "[u]nlawful

possession, use or being under the influence of a controlled

substance" con stitutes a "Category B" offense , for which the

recommended range is "Suspension/Dismissal . " Per the language

of policy 4.9, Category B offenses are :

acts of misconduct . . . considered to be so

egregious, problematic, or harmful that the

employee may be immediately removed from the

workplace until such time a workplace

investigation is compl eted. The severity of

the misconduct in each case, together with

relevant circumstances (III(c)) will

determine what step in the range of progress

corrective action is followed. In most

cases, the District follows a progressive

corrective action process consistent with

the "Just Cause" standard designed to give

employees the opportunity to correct the

undesirable performance, conduct, or

behavior. A more severe corrective measure

will be used when there is evidence that

students, employees, or the commun ity we

serve was negatively impacted. It is the

intent that employees who engage in similar

misconduct will be treated as similarly

situated employees and compliant with the

principle of Just Cause.

7 5 . Policy 4.9, section III, titled "Other

Considerat ions," subsection (c), sets forth circumstances that

are "illustrative and not meant to be exhaustive and may be

considered when determining the appropriate penalty within a

penalty (II Category B) range." These include , as relevant :

1. The severity of the offense

2. Degree of student involvement

3. Impact on students, educational process

and/or community

4. The number of repetitions of the

offenses and length of time between offenses

5. The length of time since the misconduct

6. Employment history

7. The actual damage, physical or

otherwise, caused by the misconduct

8. The deterrent effect of the discipline

imposed

9. Any effort of rehabilitation by the

employee

10. The actual knowledge of the employee

pertaining to the misconduct

11. Attempts by the employee to correct or

stop the misconduct

12. Related misconduct by the employee in

other employment including findings of guilt

or innocence, discipline imposed and

discipline served

* * *

15. Degree of physical and ment al harm to a

student, co - worker or member of the public

16. Length of employment

7 6 . Based on the foregoing findings of fact , it is

determined that, pursuant to Policy 4.9, Respondent should be

suspended without pay for the duration of the period since his

reassignment from the classroom .

77. Based on the foregoing findings of fact, it is

determined that he should not be terminated from his employment,

and should be reinstated to his teaching position .

7 8 . B ased on the foregoing findings of fact, it is

concluded that Respondent should be required to submit to random

drug and alcohol testing, at his personal expense, as a

condition of his continued employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner, Broward County School

Board, enter a final order suspend ing Respondent from his

teaching position without pay commencing on the date on which he

was reassign ed from the classroom ; reinstating R espondent to his

teaching position ; and requiring Respondent to submit to random

drug and alcohol testing, at his personal expense, as a

condition of his continued employment .

DONE AND ENTERED this 17 th day of July , 20 1 9 , in

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

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 17 th day of July , 2018.

ENDNOTES

1/ Petitioner's Exhibit 18, Respondent's attendance report,

lists Respondent as not being present at school on school days

from May 21, 2018, through June 4, 2018. It is noted that

Respondent had been ordered by letter dated May 21, 2018, from

the Risk Man agement Department (Petitioner's Exhibit 27) to

remain at home on those days, rather than reporting to school.

2/ In connection with previous discipline of Respondent,

Phillips had suggested that Respondent contact and participate

in the EAP program.

3/ This determination was made by a committee consisting of

Gilmore; Ashton Henry, Director of the Risk Management

Department; Phillips; Susan Rockelman, Director of Instructional

Staffing; and Doug Griffin, Assistant General Counsel for the

District, wh o is now the attorney of record for Petitioner in

this proceeding.

4/ Respondent testified that Evolution has been successful for

him because it emphasizes a lifestyle change that entails making

correct choices. He credibly testified that has changed h is

circle of friends and other aspects of his personal environment

to remove circumstances and influences that acted as triggers

for his substance abuse.

5/ Respondent has agreed to this penalty, pursuant to

Respondent's Proposed Recommended Order filed in this proceeding

on June 17, 2019.

6/ All references to chapter 1012, Florida Statutes, are to the

2017 version, which was in effect at the time of Respondent's

conduct at issue in this proceeding.

7/ Rule 6A Ï 10.080 was repealed on March 23, 2016, after

Respondent is alleged to have engaged in conduct constituting

misconduct in of fice. Accordingly, this rule has not been

considered in determining whether Respondent engaged in conduct

constituting misconduct in office under rule 6A Ï 5.056(2).

8/ Ru le 6A - 10.081, titled Principles of Professional Conduct for

the Education Profession in Florida, is a lengthy rule that sets

forth numerous principles, some of which constitute defined

standards of conduct and others of which constitute aspirational

standa rds. It is noted that the Administrative Complaint does

not specifically identify which of these many principles

Respondent is alleged to have violated.

9/ Only the provisions of the school board policies specifically

cited in the Administrative Com plaint have been addressed,

because the charging document must specifically identify the

provisions statute, rule, and/or policy alleged to have been

violated. See Cottri l l v. Dep't of Ins. , 685 So. 2d 1371 (Fla.

1st DCA 1996).

10/ Refer to note 9, ab ove.

COPIES FURNISHED:

Katherine A. Heffner, Esquire

Robert F. McKee, P.A.

1718 East Seventh Avenue, Suite 301

Tampa, Florida 33605

(eServed)

Douglas G. Griffin , Esquire

School Board of Broward County

600 Southeast Third Avenue, 11th Floor

Fort Lauderdale, Florida 33301

(eServed)

Robert F. McKee, Esquire

Robert F. McKee, P.A.

1718 East Seventh Avenue, Suite 301

T ampa, Florida 33605

( eServed)

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Richard Corcoran , Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

Robert Runcie, Superintendent

Broward County School Board

600 Southeast Third Avenue, Floor 10

Fort Lauderdale, Florida 33301 - 3125

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.