20-002019TTS Lee County School Board vs. Laura Licata Status: Closed Recommended Order on Friday, October 9, 2020.

Summary: Petitioner proved that Respondent committed misconduct in office by misappropriating funds contributed by students to participate in theatrical events. Termination of employment was recommended.

P RELIMINARY S TATEMENT

By letter dated February 1, 2020, R espondent, Laura Licata (Respondent),

was notified that she was suspended without pay beginning February 24,

2020 , and that a recommendation would be made for the termination of her

employment. A Petition for Termination (Petition) issued on March 13, 2020 ,

set forth the factual allegations and charges on which the proposed action is based, and gave notice to Respondent of her right to an administrative hearing.

Respondent timely requested an admin istrative hearing and on April 23,

2020, the Lee County Sch ool Board (Petitioner or School Board ) referred the

matter to the Division of Administrative Hearings for assignment of an administrative law judge to conduct the hearing requested by Respondent.

In consultation with the parties, the final hearing was set for August 4

and 5, 2020, in Naples, Florida. The hearing was later rescheduled to be held

by Zoom video conference because of social distancing and travel limitations

imposed due to the COVID - 19 pandemic. The hearing proceeded as

scheduled.

Prior to the hearing, the parties filed a n Amended Joint Pre - Hearing

Stipulation in which they agree d to several facts. The relevant stipulated

facts are incorporated in the Findings of Fact below.

At hearing, Petitioner presented the testimony of Douglas Santini, Ja nelle

Laux, Robert Butz, Linda Trainham, and Andrew Brown. Petitioner’s

Exhibits 1 through 25 were admitted in evidence. Respondent offered no

witness testimony or exhibits.

The Transcript of the hearing was filed on August 24, 2020. Respondent

requested an extension of the deadline to submit proposed recommended

orders (PROs) , which was granted. Both parties timely filed PROs by the

extended deadline of September 11, 2020, and they have been considered in

preparing this Recommended Order.

F INDINGS OF F A CT

1. Respondent is employed as a classroom teacher at Fort Myers High

School in Lee County, Florida. Respondent t aught the subject s of English and

d rama. Respondent was also the sponsor of the drama program at Fort Myers

High School.

2. The parties stipul ated that Respondent is considered “instructional

personnel” as defined by section 1012.40(2)(d), Florida Statutes , and that

Respondent’s employment can be terminated for “just cause” under the

collective bargaining agreement between the Teachers Associati on of Lee

County and the School Board (Collective Bargaining Agreement) .

3 . Florida Thespians is an Educational Theatre Association Affilia te,

which provides students an opportunity to compete in a variety of drama

competitions regionally and throughout th e State of Florida.

4 . District 6 is a chapter of the Florida Thespians organization that is

charged with organizing and hosting festivals and competitions for students at Florida Thespians member high schools in Charlotte, Collier, Lee,

Manatee, and Saras ota Counties. Fort Myers High School is a member of the

District 6 chapter of Florida Thespian s .

5 . Respondent was the Chair of District 6 . As the Chair of District 6,

Respondent collected funds from District 6 students who participated in

Florida Thespian s events , and deposited those funds in the District 6 bank

account. Respondent was a signatory on the District 6 bank account and had

a debit card that allowed her to access funds deposited into the account. The

District 6 bank account funds were to be use d to pay for Florida Thespian s

related activities and events only .

6 . In May of 2019, the principal of Fort Myers High School removed

Respondent from her position as a drama teacher for reasons unrelated to

this case. Because she no longer taught drama at a District 6 high school,

Respondent was ineligible to continue as Chair of District 6 , and resigned

from that position on May 31, 2019 .

7 . After Respondent resigned, Janelle Laux, another high school drama

teacher in Lee County, was elected as Chair of Di strict 6 . After Ms. Laux

became Chair, she reviewed the District 6 bank ac count statements and

identified certain expenditures linked to Respondent that appear ed to be

unrelated to Florida Thespian activities or events , including debit card

charges for med ical expenses and repairs to a motor vehicle owned by

Respondent.

8 . The parties stipulated that while Respondent was District 6 Chair, she

utilized the District 6 debit card to pay for personal medical expenses ,

including $25 on September 14, 2016 ; $158. 3 4 o n December 8, 2017 ; $132 o n

July 25, 2018 ; and $91.50 o n October 30, 2018 .

9 . Respondent argues in her PRO that she mistakenly used the District 6

debit card to pay these personal medical expenses. At her pre - determination

conference , however, Respond ent and her attorney admitted that Respondent

used the District 6 debit card to pay for these personal medical expenses

because her personal credit card would not work at the time and she did not

have any cash on hand . 1 Respondent , through her attorney, c laims to have

repaid the District 6 bank account for these personal medical expenses within

1 Under the Collective Bargaining Agre ement, Respondent is entitled to a pre - determination

conference to contest proposed discipline and is entitled to be represented by counsel.

Respondent’s pre - determination conference was held on February 20, 2020. A transcript of

Respondent’s pre - determina tion conference was admitted in evidence without objection as

Petitioner’s Exhibit 6 . The statements made by Respondent at her pre - determination

conference are admissible as admission s . Likewise, the statements made by Respondent’s

attorney at the pre - dete rmination conference are admissible as admission s because the

transcript shows that he was acting as Respondent’s agent at the time the statements were

made. See Fla. R. Evid. 90.803(18)(a) and (d) .

a year, but did not identify the date funds were deposited into the District 6

bank account to cover these expenses , and otherwise offered no proof to

substantiate this claim. 2 But even if Respondent had proven that she

reimbursed the District 6 bank account at a later date, she was not

authorized to borrow money from the District 6 bank account to pay for

personal medical expenses. The District 6 bank account funds were to be used

for Florida Thespian s activities or events only . The undersigned finds that

Respondent knowingly used the District 6 d ebit card to pay for her personal

medical expenses on four separate occasions , that the total of these payments

is $406.8 4 , and that the use of District 6 funds in this manner was solely for

Respondent’ s personal gain .

10 . The parties stipulated that while Respondent was District 6 Chair, she

used the District 6 debit card to pay for repairs to her personal motor vehicle,

in cluding $284.06 on October 28, 2016; and $433.54 on December 1, 2017.

Respondent did not reimburse the District 6 bank ac count for these personal

expenses .

11 . R espondent argues in her PRO that the motor vehicle repair bills were

legitimate District 6 exp enses because she used the subject motor vehicle to

travel to Florida Thespian s related events and did not charge District 6 a

mileage - based fee to do so. Respondent d id not, however, testify at the final

hearing, and did not prove that the subject vehicle was used to travel to

Florida Thespians events or otherwise used to benefit District 6 in any way.

But even if she had offered such evidence , t he undersigned rejects th e notion

that the payment of Respondent’s motor vehicle repair bills is the functional

equivalent of paying Respondent a mileage - based fee for travel. The

undersigned finds that Respondent knowingly used the District 6 debit card

to pay for repairs to her personal motor vehicle on two separate occasions,

2 The District 6 bank account statements admitted in thi s proceeding show that deposits

were made at various intervals, but do not identify the source of the funds or the purpose for

which the y were deposited.

that the total of these payments is $ 717.60 , and that the use of District 6

funds in this manner was solely for Respondent’s personal gain.

12 . On September 26, 2019, Florida Thespi ans dissolved the District 6

c hapter, citing the failure of District 6 to submit accurate financial

documents for review, among other grounds. The dissolution of District 6

made it more difficult for District 6 students to participate in Florida

Thespian s events. The undersigned finds that the dissolution of District 6

was due in part to Respondent’s misappropriat ion of District 6 bank account

funds.

13 . Petitioner alleged in its Petition that Respondent also misused

District 6 bank account funds to pay for meals, gas, Amazon purchases, and a

scholarship for her daughter , and that Respondent “conducted significant

personal business and District 6 related business during contract hours using

her District computer and email . ” These allegations were not proven.

C ONCLUSIONS OF L AW

14 . The Division of Administrative Hearings has jurisdiction over the

parties and the su b ject matter of this proceeding. §§ 120.569, 120.57(1), and

120.65(6), Fla. Stat.

15 . In this proceeding, Petitioner seeks to terminate Respondent’s

employment. Petitioner bears the burden of proof, and the standard of proof

is by a preponderance of the ev idence. § 120.57(1)(j), Fla. Stat.; McNeill v.

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

Bd. of Dade Cty. , 569 So. 2d 883 (Fla. 3d DCA 1990).

16 . Because R espondent is an “instructional employee” and employed by

Petition er pursuant to the terms of the C ollective Bargaining A greement,

Petitioner may terminate Respondent’s employment, but only for “just cause.”

§ 1012.33(1)(a), Fla. Stat. (2019). 3 Section 1012.33(1)(a) provides as follows:

3 The 2019 statute is cited for ease of reference, but the statute has not been amended since

2016, a nd, thus, was the law in effect at the time of Respondent’s actions at issue.

Each person employed as a member of the

instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or

s. 1012.57 or employed pursuant to s. 1012.39 and

shall be entitled to and shall receive a written contract as specified in this section. All suc h contracts, except continuing contracts as specified

in subsection (4), shall contain provisions for

dismissal during the term of the contract only for just cause. 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 e ntering a

plea of guilty to, regardless of adjudication of guilt,

any crime involving moral turpitude. (emphasis

added).

17 . Under Florida Administrative Code R ule 6A - 5.056, “ m isconduct in

office” include s a violation of the Principles of Professional Con duct for the

Education Profession in Florida (Principles of Conduct), promulgated as

Florida Administrative Code Rule 6A - 10.081 .

18 . Petitioner proved that Respondent committed misconduct in offi ce by

violating rule 6A - 10.081(2)(b ) 3. , one of the Principle s of Conduct, which

prohibits her from using “institutional privileges for personal gain or

advantage.”

19 . Respondent had access to the District 6 bank account as District 6

Chair because she was employed as a drama teacher and sponsor of the

drama progra m at Fort Myers High School, a member of the District 6

chapter of Florida Thespians. Once she was removed as a drama teacher at

Fort Myers High School, she no longer qualified to be the District 6 Chair and

had to resign. Respondent’s access to the Distri ct 6 bank account was

therefore an institutional privilege. Students enrolled in District 6 schools

contributed money to the District 6 bank account to fund Florida Thespian s

activities and events, not to help Respondent pay her bills. Respondent used

the District 6 funds for her personal gai n by knowing ly using the District 6

debit card to pay for personal medical expenses and repairs to her personal

motor vehicle. Respondent’s misappropriation of the District 6 bank account

funds in this manner constitute s the use of an institutional privilege for

personal gain.

20 . Having proved that Respondent misappropriated District 6 bank

account funds, Petitioner has also proven that Respondent failed to “maintain

honesty in all professional dealings , ” another one of the Principles of Conduct

found in rule 6A - 10.81 (2)(c)1 . This too constitutes misconduct in office.

21 . As to the appropriate penalty, Petitioner has “just cause” within the

meaning of the C ollective B argaining A greement to discipline Respondent for

misco nduct, up to and including termination of her employment. Termination

is justified here because Respondent’s repeated misappropriation of District 6

bank account funds was done knowingly, the total amount of funds

misappropriated — $1,124.84 — is significant, and her misuse of the District 6

bank account funds was a factor that led to the dissolution of the District 6

chapter of Florida Thespians, which negatively affected District 6 students.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclus ions of Law, it is

R ECOMMENDED that Petitioner enter a final order finding Respondent guilty

of misconduct in office and terminating her employment.

D ONE A ND E NTERED this 9th day of October , 2020 , in Tallahassee, Leon

County, Florida.

B RIAN A. N EWMAN

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 9th day of October , 2020 .

C OPIES F URNISHED :

Brian Anthony Williams, Esquire

Lee County School District

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

(eServed)

Robert F. McKee, Esquire

Robert F. McKee, P.A.

1718 East 7th Avenue , Suite 301

Tampa, Florida 33605

(eServed)

James Holloway, III, Esquire

Lee County School District

2855 Colonial Boulevard

Fort Myers, Florida 33966 - 1012

(eServed)

Katherine A. Heffner, Esquire

Robert F. McKee, P.A.

1718 East 7th Avenue , Suite 301

Tampa, Florida 33605

(eServed)

Dr. Gregory Adkins, Superintendent

Lee County School District

2855 Colonial Boulevar d

Fort Myers, FL 33966 - 1012

Richard Corcoran , Commissioner of Education

Department of Education

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)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties h ave 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.