19-006802TTS Lake County School Board vs. Todd Erdman Status: Closed Recommended Order on Friday, November 6, 2020.

Summary: The School Board established, by a preponderance of the evidence, just cause to terminate Respondent's professional services contract with the Lake County School District.

Petitioner Lake County School Board’s (School Board) October 28, 2019 ,

correspondence.

P RELIMINARY S TATEMENT

In correspondence dated October 28, 2019, Lake County School

Superintendent Dian e S. Kornegay informed Mr. Erdman of her

recommendation that the School Board terminate his professional service

contract, and thus his employment, with the Lake County School District, at an upcoming School Board meeting. Ms. Kornegay’s letter outlined th e

findings of an investigation of Mr. Edrman that the Lake County School

District’s Employee Relations department conducted, and she concluded that Mr. Edrman violated s ections 1012.27(5) and 1012.335, Florida

Administrative Code Rules 6A - 10.081 and 6A - 5. 056, and School Board

Policies 6.301(2) and (4), 6.37, and 6.371.

On November 8, 2019, Mr. Erdman, through counsel, timely requested a

formal hearing to contest the charges alleged in the October 28, 2019 ,

correspondence from Ms. Kornegay.

The final hear ing in this matter was originally scheduled for February 24

through 26, 2020. On February 5, 2020, Mr. Erdman’s counsel filed an Unopposed Motion to Continue Final Hearing, which the undersigned granted in a February 7, 2020 , Order Granting Continuance and

Rescheduling Final Hearing. The undersigned rescheduled the final hearing for May 12 through 14, 2020. On April 7, 2020, the parties filed a Joint Motion to Continue Hearing, citing difficulties preparing for the final hearing

as a result of the COVID - 19 pandemic. On April 9, 2020, the undersigned

entered an Order Granting Continuance and Rescheduling Hearing, which

rescheduled the final hearing for July 28 through 30, 2020. On July 10, 2020, the undersigned entered an Amended Notice of Hearing by Zoom Con ference,

which established that the final hearing would occur via the Zoom web -

conference platform.

On July 17, 2020, the School Board filed a Motion to Quash Subpoenas

and Motion for Protective Order Regarding Board Members Bill Mathias and

Stephanie Luk e. On July 20, 2020, Mr. Erdman filed a response. On July 23,

2020, the undersigned conducted a telephonic motion hearing, and on

July 24, 2020, issued an Order Denying Petitioner’s Motion to Quash

Subpoena and Motion for Protective Order Regarding School Board Members

Bill Mathias and Stephanie Luke.

The undersigned conducted a final hearing on July 28 through 30, 2020.

The School Board presented the testimony of: Mr. Erdman; Michael Hart, the

parent of a student at Umatilla Middle School (UMS); Crystal Goff, the parent of a student at UMS; Barbara Cooper, Manager of Employee Relations

at Lake County School Board; Tonya Scott Rogers, Vice Principal at UMS;

Brent Frazier, Principal at UMS; David Meyers, Supervisor of Employee Relations at Lake County Schoo l Board; and Ms. Kornegay. The undersigned admitted into evidence Petitioner’s Exhibits P1 through P 20, P 22 through

P 48, P 52, P 58, and P 59a through k, n, and o.

Mr. Erdman presented the testimony of: Shannon Erdman, Mr. Edrman’s

wife; Shawn Hayes, friend of Mr. Erdman; Toni Beckett, former teacher at

UMS; David Howard, teacher at UMS; Brent Smith, friend of Mr. Erdman;

Queenie Thompson Morrison, bookkeeper at UMS; Heather Widmann, former

teacher at UMS; Diane Thomas, former teacher at UMS; and Mr. Erdman.

The undersigned admitted into evidence Respondent’s Exhibits R1 through

R16, R20, and R 21.

At the conclusion of the hearing, the undersigned left the record open for

the limited purpose of Respondent providing a complete copy of his exhibits

to the Divi sion. On August 3, 2020, the undersigned entered an Order

Closing Record, after receiving Respondent’s exhibits. 1

The three - volume Transcript was filed with the Division on September 9,

2020. On September 11, 2020, Respondent moved for a 20 - day extension of

time to file a proposed recommended order, which the undersigned granted

on September 16, 2020. Thereafter, the parties timely filed proposed

recommended orders, which the undersigned has considered in the

preparation of this Recommended Order .

This pr oceeding is governed by the law in effect at the time of the

commission of the acts alleged to warrant discipline. See McCloskey v. Dep’t

of Fin. Servs., 115 So. 3d 441, 444 (Fla. 5th DCA 2013). Accordingly, all

statutory references are to the 2019 codific ation of the Florida Statutes ,

unless otherwise indicated.

F INDINGS OF F ACT

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

supervise free public schools within the School District of Lake County (School District). See Art. IX, § 4(b ), Fla. Const.; § 1012.33(1)(a), Fla. Stat.

1 On July 31, 2020, the undersigned also entered an Order Concerning Exhibits R20 and

R21, which were deposition transcripts of Ms. Kornegay and Harold C. Farnsworth, the

Assistant Superintendent of Schools. The undersigned admitted these exhibits, over

Petitioner’s objection, pursuant to Florida Rule of C ivil Procedure 1.330(a)(2) and

section 90.803(18)(d), Florida Statutes, but subject to any objections made during the

depositions. Petitioner’s counsel noted that at the depositions, he made “form” objections,

which may not have provided the complete basi s for an objection. The undersigned allowed

Petitioner the opportunity to provide a more detailed description of any form - type objections

made during those depositions, within 10 days, and allowed Respondent to file a more

detailed response to any of those objections, within 10 days of Petitioner’s filing. Petitioner

did not file a response.

2. The School Board hired Mr. Erdman in 2007, and he has been employed

as a teacher at UMS since his hire, until the incident at issue.

3. In August 2010, the School Board and Mr. Erdman executed a

professional services contract, as defined in section 1012.33.

4. The School Board has renewed this professional services contract on an

annual basis, until the incident that is at issue.

5. The parties’ employment relationship is governed by School Board

policies, Flo rida laws, Department of Education rules, and the Collective

Bargaining Agreement (CBA) between the School Board and the Lake County

Education Association, Inc. The CBA relevant to this matter was effective

from July 1, 2018, through June 30, 2019.

Mr. Erd man’s Employment at UMS

6. The School Board employed Mr. Erdman as a teacher at UMS, which

included children in the sixth, seventh, and eighth grades.

7. During his employment, Mr. Erdman served in various service and

leadership roles, including: girls’ ba sketball coach; boys’ assistant basketball

coach; athletic director; testing coordinator; and representative of the school’s

leadership team.

8. Mr. Erdman also served as the chief chaperone for “Grad Venture,” a

late - night field trip to Universal Studios in Orlando, for graduating eighth

graders.

9. Mr. Erdman also participated in volunteer opportunities, which

included tutoring children, and participating in an organization of individuals who dressed up in full costume as “Stormtroopers” from the Star War s movies and who would attend community and school events and

fundraisers.

10. During his career with the School Board, Mr. Erdman received

positive employment evaluations. Prior to the incident at issue, the School

Board had never disc iplined Mr. Erd man.

11. For the 2019 - 2020 school year, Mr. Erdman was the PASS teacher at

UMS. “PASS” means “Positive Alternative to School Suspension.” A PASS

teacher:

Provides a supervised and structured environment

for students assigned to the in - school suspension

program , working with classroom teachers to

coordinate the academic activities of assigned students and support students in completing the assigned work along with the implementation of social, emotional learning, behavioral and academic

support.

12. As the PASS teacher, the School Board required of Mr. Erdman

specific duties and responsibilities, including that he “communicates

appropriate behavior, school rules, and regulations to students in the

program[,]” and “[t]eaches replacement behaviors in the In - School

Suspension classroom; reinforces appropriate behavior.” Mr. Erdman had the

opportunity, as PASS teacher, to teach certain students from all grades at

UMS.

TikTok

13. TikTok is a social media network and video - sharing application that

allows its users to c reate and share 15 - second videos that incorporate s lip -

synching, singing, and dancing; additionally, users can create original videos.

TikTok’s lip - synching feature allows the user to lip - sync to music, movies,

and comedy routines, while being recorded.

1 4. TikTok users must create an account on the TikTok social media

network before creating videos.

15. As a social media network, TikTok allows users to “follow” other users,

share their videos, and communicate, all through the TikTok social media network.

16. TikTok has other features as well. A user can add text and effects to a

video. A user can edit a video that another user has shared, and add their

edited video to the original video, creating a “duet.”

17. Mr. Erdman testified that he created a TikTok account during the

summer of 2019. He further testified that, in his account settings, he set his

account to “private,” so that he would not share any videos or communicate

with anyone else through the TikTok social media platform .

18. Mr. Erdman testified that he created his TikTok account under the

username “swfan29,” a reference to his affinity for the Star Wars movie

franchise. Additionally, he registered his TikTok account with a personal

Google account. Mr. Erdman’s other personal email address,

“jang [e-mail],” is another reference to Star Wars.

19. During the summer of 2019, and prior to the start of the school year in

August 2019, Mr. Erdman created videos with his smart phone using TikTok. He testified that he created some videos with childre n’s songs and movies to

entertain his kids over summer break. And, he testified that he created some

videos with Mrs. Erdman, his wife, which were of a more sexual or adult

nature, and that he created some of these videos in the couple’s master

bedroom and bathroom.

20. Mr. Erdman testified that he shared some of these videos with his

friends by text, as opposed to using the TikTok social media platform , to

communicate and for entertainment .

21. Erdman testified that he stopped making TikTok videos in Augu st

2019, before the start of the school year.

22. On or around August 3, 2019, Mr. Erdman testified that someone stole

his smart phone, which he had left in his car while attending a back - to - school

event. Mr. Erdman reported this stolen smart phone to his provider, Verizon.

23. On August 10, 2019, and again on August 17, 2019, Mr. Erdman

received notices from his e - mail provider of attempted sign - ins to his

“[e-mail]” account from locations in Belarus and the Czech

Republic.

September 2019 Incide nt and Investigation

24. On or around September 5, 2019 — after the school year had started,

and immediately after Lake County S chools reopened after closing because of

Hurricane Dorian — the School Board and UMS received complaints from

various students, pare nts, and School Board employees who had viewed

numerous TikTok videos of Mr. Erdman under the username “jfett1975.”

25. Principal Frazier explained that he began receiving complaints, via

email and text message, the evening before September 5, 2019, from p arents

and a staff member, concerning Mr. Erdman’s TikTok videos. He testified

that he spoke with Vice Principal Rogers about this, and referred this matter

to the School Board’s employee relations department.

26. Vice Principal Rogers testified that she a lso received phone calls and

texts concerning Mr. Erdman’s TikTok videos, spoke with Principal Frazier,

and then called Mr. Erdman, who was not at school that day. She testified

that she spoke with Mr. Erdman twice on September 5, 2019, and told him not to report to UMS the next day.

27. Mr. Erdman testified that he deleted his “swfan29” TikTok account

that same day.

28. Around this same time, Superintendent Kornegay viewed one of

Mr. Erdman’s TikTok videos. She stated that she was “appalled” at its

conten ts, and asked Assistant Superintendent Harold C. Farnsworth to look

into the videos.

29. Ms. Cooper conducted the investigation of Mr. Erdman’s TikTok

videos. Upon learning of these videos, Ms. Cooper, under Assistant

Superintendent Farnsworth’s direction, alternatively placed Mr. Erdman

during the pendency of the investigation.

30. Ms. Cooper, who candidly admitted that she was not familiar with

TikTok at the onset of this investigation, first spoke with Principal Frazier

and Vice Principal Rogers. She the n created a TikTok account and searched

for videos under the username “jfett1975,” which she had learned of from her

discussions with Principal Frazier and Vice Principal Rogers.

31. Ms. Cooper also received, from Principal Frazier, a list of students who

had complained about the TikTok videos. Ms. Cooper interviewed these and

other students, as well as parents and co - workers, who had complained about

these TikTok videos or who Mr. Erdman requested Ms. Cooper speak to. All

told, Ms. Cooper interviewed eight students, six parents, five School Board

employees, Mr. Erdman, and four additional witnesses at Mr. Erdman’s

request.

32. During this investigation, Ms. Cooper testified that she found “at

least” a hundred videos that feature Mr. Erdman, and which Mr. Er dman

(under the username “jfett1975”) was tagged in, or was in a duet with

someone. A description of the TikTok videos under the username “jfett1975,”

which students, parents, or Lake County school administration viewed and

provided to the School Board, an d which were received into evidence at the

final hearing include:

a. A video depicting Mr. Erdman drinking a beer; he is asked by a voice

off - camera if he is really drinking a beer before work, to which Mr. Erdman

lip - synch responds, “You’re damn right I’m having a beer, have you been to

that fucking job, have you dealt with those fucking idiots all day, let me do

me”;

b. A video depicting a shirtless Mr. Erdman, with water dripping from his

face, in which Mr. Erdman lip synchs to a song that repeats the ly ric, “I need

Onstar to find the clit”;

c. A video depicting a shirtless Mr. Erdman, in a candlelit bathtub, lip

synching, “I want to fuck you into the middle of next week,” with a woman’s

voice off - screen answering “ok”;

d. A split - screen video, also known as a “duet,” with an unidentified

woman, in which Mr. Erdman lip - synchs, “Baby girl, I don’t care if you’re big,

small, got big - ass titties or no rack at all. You could have nice thick thighs or

that thigh gap – you can still come over here and sit on my face”;

e. A video depicting Mr. Erdman licking a piece of garlic bread, in which

Mr. Erdman lip - synchs, “I don’t know if you know this or not, but as soon as

I’m finished with this, you’re next”;

f. Another split - screen video, or “duet,” with an unidentifi ed woman, in

which Mr. Erdman lip - synchs, “You sucked that guy’s dick? But you said you

only had sex with three other guys, you never mentioned him[,]” and then,

after a response from the woman, “Anyway, something like 36, does that

include me … I’m 37?”;

g. A video depicting a shirtless Mr. Erdman, in which an unidentified

woman off - screen says, “Just so you know, a dick is not an apology. I mean,

I’m going to bend over though, but it’s not an apology”;

h. A video in which Mr. Erdman is in his car, recordi ng himself speaking,

where he says “Hey everybody” and continues to state that he “hopes

everybody had a great day and great evening,” and stated that he wanted to

“remind everyone to have fun out there,” “be kind to each other,” and that he

will “talk to you and see you in some videos tomorrow”; this TikTok also video

states, at the bottom of the screen , that the “original audio” was created by

“jfett1975”;

i. Another duet, with an unidentified woman, in which Mr. Erdman lip -

synchs, “I hope you are ok with anal”;

j. Another duet, with another unidentified woman, in which she asks,

“Hey babe, did you know a bull fucks 3,000 times a year, why can’t you do that,” to which Mr. Erdman lip - synch replies, “ask the bull if he fucks the

same miserable cow every nigh t”; and

k. Another duet, with an unidentified woman (and a screen name

“chubzmonkiee23”) in which she asks Mr. Erdman if he will be her “TikTok Brother,” to which Mr. Erdman replied, “yes.”

33. Two of the six parents Ms. Cooper interviewed testified at the final

hearing:

a. Mr. Hart, who has three children, two of whom previously attended

UMS, and one who is a current UMS student, testified that his three children

showed him four of the TikTok videos described in paragraph 32. Mr. Hart

stated, after viewing these videos, that he was concerned that Mr. Erdman

had interacted with his daughters, and had served as the UMS girls’

basketball coach. He further stated that Mr. Erdman used “horrible

judgment”; and

b. Ms. Goff, who has a daughter at UMS, testified tha t her daughter

showed her four of the TikTok videos described in paragraph 32. Ms. Goff

testified that she was “disgusted” and refused to send her daughter back to

UMS until she found out that Mr. Erdman had been removed from the school.

34. Principal Fraz ier and Vice Principal Rogers testified that they

believed that these TikTok videos were offensive and inconsistent with the morals and standards expected at UMS, that these TikTok videos negatively

impacted the learning environment at UMS, and that they b elieved that

Mr. Erdman failed to exercise good judgment in making these TikTok videos.

Mr. Erdman’s Explanation and Investigation Recommendation

35. Mr. Erdman provided a five - page statement as part of the School

Board’s investigation, dated September 5, 2019. The statement does not

mention the theft of Mr. Erdman’s smart phone. The statement provides a

detailed explanation of irregularities that occurred with Mr. Erdman’s

personal Google account, which he believed resulted in a hacking of his “swfan29” T ikTok account.

36. Mr. Erdman, in his first interview with Ms. Cooper on September 24,

2019, stated that his TikTok account had been hacked, and that he was not responsible for the public posting of the videos described in paragraph 32. He told Ms. Cooper that his TikTok account username was “swfan29,” and not

“jfett1975.” In a second interview on October 14, 2019, Mr. Erdman similarly

stated that his TikTok account had been hacked.

37. Mr. Erdman testified at the hearing that someone stole his

smartphone on August 3, 2019, and that he had received notices from his e -

mail provider of attempted sign - ins to his personal e - mail address,

“ jangofett29@ aol.com,” from foreign countries, thereafter.

38. Mr. Erdman, and Mrs. Erdman, confirmed that Mr. Erdman, or th e

two of them, made the TikTok videos described in paragraph 3 2 , with the

exception of those videos that were “duets” with other women. Both testified

that Mr. Erdman’s “swfan29” account was set to private — meaning that they

believed the videos would never make their way into the public domain — and

that Mr. Erdman never intended to share these videos publicly through the

TikTok social media network, or have “followers” of his “swfan29” account.

Mr. Erdman testified that he never notified TikTok of the suspect ed hack of

his “swfan29” account.

39. Essentially, to credit Mr. Erdman’s explanation that he is not

responsible for the public sharing of the videos described in paragraph 3 2 on

the TikTok social media platform, the undersigned would need to find credible evidence that all of the following occurred:

a. Mr. Erdman’s “swfan29” TikTok account was set to “private,” meaning

that any content he (or his wife) created was completely shielded from public

view for as long as it remained “private”;

b. Someone stole M r. Erdman’s smart phone on August 3, 2019, after he

made the TikTok videos, and someone thereafter hacked his personal Google

account that he used to register the “swfan 29 ” TikTok account (Mr. Erdman

provided evidence and testimony that he received notice of an attempted sign - in of his “[e-mail]” email account);

c. Someone then hacked his “swfan29” TikTok account, presumably

through hacking his Google or “ [e-mail] ” account, or possibly

through hacking the TikTok account on his stolen s martphone;

d. Someone then created a “jfett1975” TikTok account (which, by

coincidence, is similar to his email account, an homage to Mr. Erdman’s Star

Wars affinity, and a number that Mr. Erdman used previously to reflect the

year he was born);

e. Someone in control of the “jfett1975” TikTok account transferred the

content from Mr. Erdman’s “swfan29” TikTok account to the “jfett1975” account and made sure these videos could be publicly posted or shared across the TikTok social media platform;

f. Someone in control of the “jfett1975” TikTok account posed as

Mr. Erdman, accepted followers, and created “duets” with other TikTok

users, including a user named “chubzmonkiee23,” and would have

manipulated these “duet” videos to make it look like Mr. Erdman is act ually

interacting with these other TikTok users;

g. Someone in control of the “jfett1975” account was able to manipulate

the video described in paragraph 32(h) above (in which Mr. Erdman, in his

own voice, asks everybody to “be kind to each other” and the like) to indicate

that the “original audio” was created by “jfett1975”; and

h. Mr. Erdman’s failure to notify TikTok of the suspected hack of

“swfan29” was inconsequential.

40. Ms. Cooper investigated whether Mr. Erdman’s “swfan29” TikTok

account had been hacked, and whether Mr. Erdman was the owner of the

“jfett1975” TikTok account. She concluded that Mr. Erdman was the owner of

“jfett1975,” and had posted at least one hundred videos under that username.

She based this conclusion, in part, on a duet video with a woman with the username “chubzmonkiee23” in which “chubzmonkiee23” asked Mr. Erdman,

under the “jfett1975” username, to be her TikTok brother, and Mr. Erdman,

actually interacting with this woman, responded yes. Ms. Cooper also based this conclusion on the “jfett1975” profile page, which had Mr. Erdman’s

picture and many videos, including those listed in paragraph 3 2 , and the

profile page of “chubzmonkiee23,” which listed her TikTok brother as

“jfett1975.”

41. Ms. Cooper’s investigation concluded wit h a recommendation that

Mr. Erdman’s employment with Lake County Schools be terminated.

Recommendation for Termination

42. Superintendent Kornegay made the recommendation to terminate

Mr. Erdman’s professional services contract. She testified that she ne ver

considered a lesser form of punishment, stating:

I felt like this was, in my many, many years as we

discussed in education, this is probably one of the most disturbing and most appalling things that I’ve ever seen from an educator… . I have no doubt th at

my decision to terminate Mr. Erdman is right for

students and that I am upholding the commitment

that I made several years ago to protect our kids.

43. Superintendent Kornegay further testified that it did not matter to

her that Mr. Erdman intended for the TikTok videos to be private and that

these videos were never intended to be viewed by the public; Superintendent

Kornegay stated that:

[R]egardless, they were viewed by children and

parents. And I think that as the employees in alignment with our cod e of ethics, there were

policies that he bears the burden to make sure if they were not intended for outside viewing, that

that not occur. And it did.

44. Superintendent Kornegay also testified that the TikTok videos:

brought the school district into disr epute and disrupted the orderly process of

the school district; demonstrated that Mr. Erdman engaged in conduct that

brought him into public disgrace or disrespect; resulted in a disruption to the

learning environment; reduced Mr. Erdman’s ability to effec tively perform his

duties as a PASS teacher at UMS; and demonstrated that Mr. Erdman

engaged in conduct that exposed students to unnecessary embarrassment or

disparagement.

Mr. Erdman’s Additional Evidence

45. Mr. Erdman called several colleagues as witnes ses, who testified that

they had not seen the TikTok videos. For example, Ms. Beckett, who is a

former UMS teacher, had not seen the TikTok videos. Ms. Thompson

Morrison, the UMS bookkeeper and accountant (and not a teacher), testified

that she had not see n the TikTok videos. Ms. Widman, who is a former UMS

teacher and currently teaches at a different school, also testified that she had

not seen the TikTok videos. And, Ms. Thomas, a current UMS teacher,

testified that she had not seen the TikTok videos, and did not think the

TikTok videos were widespread among the UMS students.

46. These former colleagues testified to Mr. Erdman’s good character and

their respect for him as an educator.

47. Mr. Erdman testified that he shared some of the TikTok videos with a

friend named Amanda Yaudes. He testified that he had a falling out with

Ms. Yaudes.

48. Mr. Erdman also presented evidence of social media postings of two

School Board members, who are subject to School Board Policy 6.00

(“Principles of Professional Cond uct”), in an attempt to establish the social

norms in the School District. The various social media postings presented of one School Board Member, Mr. Mathias, appear to contain attempts at

humor that some would consider vulgar, boorish, offensive, and som etimes

political, but also contain references to updates to school district programs.

The other social media post presented of Ms. Luke included a video of a

young woman lip - synching to a song that contained vulgar lyrics, but also

included other social me dia posts that contain references to school district

programs.

2

2 While the School Board members may be subject to School Board Policy 6.00, neither are

teachers or contract employees of the school district.

Ultimate Findings of Fact

49. Mr. Erdman created and appeared in the TikTok videos described in

paragraph 3 2 , using the TikTok social media application. Those TikTok

videos contain lewd and o ffensive material.

50. Mr. Erdman contends that he never intended to share these videos

publicly through the TikTok social media network, and that these TikTok

videos made their way into the public after hackers manipulated his TikTok account. The undersig ned finds that Mr. Erdman’s explanation is not

credible, as the sequence of events outlined in paragraph 39 to reach such an

explanation is not plausible. The undersigned finds that the School Board

established, by a preponderance of the evidence, that Mr. Erdman either

posted the TikTok videos publicly using the “jfett1975” account, or posted

them to the “swfan29” account and shared them in a manner that did not

ensure that they remain private.

51. Further, the TikTok videos described in paragraph 3 2 ultim ately made

their way into the public sphere, and students, parents, and school district personnel viewed and became aware of them.

52. Mr. Erdman violated rule 6A - 10.081(1)(b), because the School Board

established, by a preponderance of the evidence, that he failed to exercise

best professional judgment and integrity. As a result, the School Board has

also established, by a preponderance of the evidence, a violation of rule 6A -

5.056(2)(b).

53. Mr. Erdman violated rule 6A - 10.081(1)(c), because the School Boa rd

established, by a preponderance of the evidence, that he failed to maintain the respect and confidence of his colleagues, students, and parents, and failed

to sustain the highest degree of ethical conduct. As a result, the School Board

has also establis hed, by a preponderance of the evidence, a violation of rule 6A - 5.056(2)(b), which concerns “misconduct in office.”

54. Mr. Erdman violated rule 6A - 10.081(2)(a)1., because the School Board

established, by a preponderance of the evidence, that he failed to make

reasonable effort to protect students from conditions harmful to learning

and/or to the students’ mental and/or physical health and/or safety. As a

result, the School Board has also established, by a preponderance of the

evidence, a violation of rule s 6A - 5.056(2)(b), (c), and (d), which concerns

“misconduct in office.”

55. Mr. Erdman violated rule 6A - 10.081(2)(a)5., because the School Board

established, by a preponderance of the evidence, that he intentionally

exposed students to unnecessary embarrass ment or disparagement. As a

result, the School Board has also established, by a preponderance of the

evidence, a violation of rule 6A - 5.056(2)(b), (c), and (d), which concerns

“misconduct in office.”

56. Mr. Erdman violated rule 6A - 10.081(c)1., because the School Board

established, by a preponderance of the evidence, that he failed to maintain

honesty in all professional dealings. As a result, the School Board has also

established, by a preponderance of the evidence, a violation of rule 6A -

5.056(2)(b), whic h concerns “misconduct in office.”

57. Mr. Erdman violated rule 6A - 5.056(1), which concerns “immorality,”

because the School Board established, by a preponderance of the evidence, that his actions constituted immorality, which is “conduct that brings the

i ndividual concerned or the education profession into public disgrace or

disrespect and impairs the individual’s service in the community.”

Additionally, the School Board has established, by a preponderance of the

evidence, that Mr. Erdman violated School B oard Policy 6.301(4), by

engaging in conduct unbecoming of an employee of the School Board that

brings the school district into disrepute or that disrupts the orderly processes

of the school district.

58. Mr. Erdman violated rule 6A - 5.5056(3)(a)2., which c oncerns

“incompetency” and “inefficiency,” because the School Board established, by a

preponderance of the evidence, that he failed to communicate appropriately

with and relate to students.

59. The School Board established that Mr. Erdman’s conduct consti tuted

“immorality,” and thus, under article VIII, section 2 of the CBA,

Superintendent Kornegay was not required to follow the steps of progressive

discipline, and had just cause to terminate Mr. Erdman’s professional

services contract.

C ONCLUSIONS OF L AW

60. The Division has jurisdiction over the subject matter and the parties

to this proceeding in accordance with sections 120.569, 120.57(1), and

1012.33(6)(a)2 .

61. This is a disciplinary proceeding in which Petitioner seeks to

terminate Mr. Erdman’s profe ssional service contract as a teacher with the

Lake County School District.

62. This is a de novo proceeding designed to formulate agency action, not

review agency action taken earlier and preliminarily. See Dep’t of Transp. v. J.W.C. Co., 396 So. 2d 778, 785 (Fla. 1st DCA 1981); Capelleti Bros., Inc. v.

Dep’t of Transp. , 362 So. 2d 346, 348 (Fla. 1st DCA 1978); McDonald v. Dep’t

of Banking & Fin. , 346 So. 2d 569, 584 (Fla. 1st DCA 1977). Accordingly, the

undersigned is charged in this proceeding with deter mining anew, based on the competent substantial evidence in the record, whether just cause exists to terminate Mr. Erdman’s professional service s contract as a teacher with the

Lake County School District.

63. Section 1012.01(2), classifies Mr. Erdman as “ instructional personnel.”

64. Section 1012.33(6)(a) states that, “[a]ny member of the instructional

staff … may be suspended or dismissed at any time during the term of the

contract for just cause as provided in paragraph (1)(a).”

65. Section 1012.33(1)(a ) defines “just cause” a s including, but not limited

to:

[T]he following instances, as defined by 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. 1 012.34,

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.

66. Similarly, section 1012.335(5) provides:

JUST CA USE. — The State Board of Education

shall adopt rules pursuant to ss. 120.536(1) and 120.54 to define the term “just cause.” Just cause

includes, but is not limited to:

(a) Immorality.

(b) Misconduct in office.

(c) Incompetency.

(d) Gross insubordination .

(e) Willful neglect of duty.

(f) Being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.

67. Rule 6A - 5.056(1) defines immorality as “conduct that is inconsistent

wi th the standards of public conscience and good morals. It is conduct that

brings the individual concerned or the education profession into public

disgrace or disrespect and impairs the individual’s service in the community.”

68. Rule 6A - 5.056(2) defines m isconduct in office as:

(a) A violation of the Code of Ethics of the

Education Profession in Florida as adopted i n 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 Rul e 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 colleague’s ability to perform duties.

69. Rule 6A - 5 .056(3)(a)2. , defines incompetency as :

(3) “Incompetency” means the 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:

* * *

2. Failure to communicate appropriately with and relate to students[.]

70. To terminate Mr. Erdman’s professional service s contract, the School

Board must prove that he committed the alleged conduct, that the conduct

violates the rules and policies cited in the Octo ber 28, 2019, letter from Lake

County School Superintendent Diane S. Kornegay, and that the violation of

these rules and policies constitutes just cause to terminate his professional services contract. See Dileo v. Sch. Bd. Of Dade Cty., 569 So. 2d 883 (Fl a. 3d

DCA 1990); Balino v. Dep’t of HRS, 348 So. 2d 349, 350 (Fla. 1st DCA 1977)

(holding that unless otherwise provided in statute, the burden of proof is on

the party asserting the affirmative of the issue).

71. It is well - established under Florida law t hat determining whether

alleged misconduct violates a statute or rule is a question of ultimate fact to

be decided by the trier - of - fact, based on the weight of the evidence. See

Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor,

667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d

489, 491 (Fla. 1st DCA 1995). Thus, determining whether alleged misconduct

violates the law is a factual, rather than a legal, inquiry.

72. The burden of proof applicable to this procee ding is a preponderance,

or greater weight, of the evidence. McNeil v. Pinellas Cty. Sch. Bd. , 678 So.

2d 476, 477 (Fla. 2d DCA 1996); Dileo , 569 So. 2d at 884.

73. Rule 6A - 10.081, the Principles of Professional Conduct for the

Education Profession in Flor ida, prescribes standards of conduct applicable to

instructional personnel. The rule states, in pertinent part:

(1) Florida educators shall be guided by the

following ethical principles:

(a) The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the

achievement of these standards are the freedom to

learn and to teach and the guarantee of equal opportunity for all.

(b) The ed ucator’s primary professional concern will

always be for the student and for the development of the student’s 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 respect

and confidence of one’s 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 sh all comply with the

following disciplinary principles. Violation of any of

these principles shall subject the individual to revocation or suspension of the individual educator’s 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 student’s mental and/or physical health and/or safety.

* * *

5. Shall not intentionally expose a student to u nnecessary embarrassment of disparagement.

* * *

(c) Obligation to the profession of education requires that the individual:

1. Shall maintain honesty in all professional

dealings.

74. The ethical principles in rule 6A - 10.081(1) have been described as

“aspirational in nature, and in most cases [are] not susceptible of forming a

ba sis for suspension or dismissal[,] ” Sarasota County School Board v.

Simmons, Case No. 92 - 7278 (Fla. DOAH Nov. 9, 1993), and “of little practical

use in defining normative behav ior.” Miami - Dade Cty. Sch. Bd. v. Lantz,

Case No. 12 - 397 0 (Fla. DOAH Jul. 29, 2014). By contrast, the disciplinary

principles in rule 6A - 10.081(2) enumerate specific “dos” and “don’ts” to put a

teacher on notice concerning forbidden conduct. See Miami - Dade Cty. Sch.

Bd. v. Brenes, Case No. 06 - 1758 (Fla. DOAH Feb. 27, 2007; Fla. Miami - Dade

C ty. Sch. Bd. Apr. 25, 2007). “Thus, it is concluded that while any violation of

[rule 6A - 10.081(2)] would also be a violation of [rule 6A - 10.081(1)], the

converse is not true.” Id. “Put another way, in order to punish a teacher for

misconduct in office, it is necessary but not sufficient that a violation of the

broad ideal articulated in [rule 6A - 10.081(1)] be proved, whereas it is both

necessary and sufficient that a viol ation of a specific rule in [rule 6A -

10.081(2)] be proved.” Id. ; see Miami - Dade C ty. Sch. Bd. v. Regueira , Case

No. 06 - 4752RO n.4 (Fla. DOAH A pr. 11, 2007; Fla. Miami - Dade C ty. Sch. Bd.

May 25, 2007).

7 5 . The School Board proved, by a preponderance of th e evidence, that

Mr. Erdman violated rules 6A - 5.056(1), (2)(b), (c), (d), and (3)(a)2., and

rules 6A - 10.081(1)(b), (1)(c), (2)(a)1., and 5., by establishing that:

(a) Mr. Erdman created and appeared in the TikTok videos described in

paragraph 3 2 , using t he TikTok social media application;

(b) Those TikTok videos contain lewd and offensive material;

(c) Those TikTok videos made their way into the public sphere, and were

viewed by students and parents in the school district, as well as school

district perso nnel;

(d) Mr. Erdman either posted the TikTok videos publicly using the

“jfett1975” account, or posted them to the “swfan29” account and shared them

in a manner that did not ensure that they would remain private. 3

3 Florida courts have h eld that generally, content posted on a social media site is neither

privileged nor protected by any right of privacy, regardless of any privacy settings that the

user may have established. Nucci v. Target Corp., 162 So. 3d 146, 154 (Fla. 4th DCA 2015).

Th e Nucci court, reviewing cases from other jurisdictions, noted that the sharing of

information with others on a social media network “is the very nature and purpose of these

social networking sites else they would cease to exist.” Id. (quoting Romano v. St eelcase, Inc.,

30 Misc.3d 426, 907 N.Y.S.2d 650, 656 (N.Y.Sup.Ct. 2010). Thus, the undersigned has

considered Mr. Erdman’s contentions that he intended to set his TikTok account to private

and intended that his TikTok videos remain private, but reject thes e contentions pursuant to

Nucci .

7 6 . Based on the above, the School Board has demonstrated, by a

preponderance of the evidence, just cause in this matter to terminate

Mr. Erdman’s professional services contract.

7 7 . Although the CBA provides for progressive discipline, the School

Board established that Mr. Erdman’s conduct cons tituted “immorality,” and

thus, under article VIII, section 2 of the CBA, the School Board has just cause

to terminate Mr. Erdman’s professional services contract. See Costin v. Fla. A&M Univ. Bd. of Trs., 972 So. 2d 1084, 1086 - 87 (Fla. 5th DCA 2008)

(hold ing whether employee’s misconduct justified dismissal based on terms of

the university’s progressive discipline rule was “an ‘ultimate fact’ best left to”

the ALJ).

R ECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, the

unde rsigned hereby R ECOMMEND S that the Lake County School Board enter a

final order terminating Mr. Erdman’s professional services contract.

D ONE A ND E NTERED this 6th day of November, 2020 , in Tallahassee, Leon

County, Florida.

R OBERT J. T ELFER III

Admini strative 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 Hearing s

this 6th day of November, 2020 .

C OPIES F URNISHED :

Eric J. Lindstrom, Esquire

Egan, Lev, Lindstrom & Siwica, P.A.

Post Office Box 5276

Gainesville, Florida 32627

(eServed)

Stephen W. Johnson, Esquire

Johnson Turner PLLC

215 North 2nd Street

Leesburg, F lorida 34748

(eServed)

Patricia M. Rego Chapman, Esquire

Dean, Ringers, Morgan & Lawton, P.A.

Post Office Box 2928

Orlando, Florida 32802

(eServed)

Douglas T. Noah, Esquire

Dean, Ringers, Morgan & Lawton, P.A.

Post Office Box 2928

Orlando, Florida 328 02

(eServed)

Diane Kornegay, Superintendent

Lake County Schoosl

201 West Burleigh B ou l e v ar d

Tavares, Florida 32778 - 2496

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)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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.