20-003409TTS Palm Beach County School Board vs. Jhonny Felix Status: Closed Recommended Order on Monday, March 8, 2021.

Summary: Just cause exists to terminate a teacher who pressured an 11th grade student for a naked "selfie" and who forwarded her an article about sex relieving a medical condition.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P ALM B EACH C OUNTY S CHOOL B OARD ,

Petitioner ,

vs. Case No. 20 - 3409TTS

J HONNY F ELIX ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a formal administrative hearing was conducted before

Administrative Law Judge Mary Li Creasy of the Division of Administrative

Hearings ( Ñ DOAH Ò ) on November 19, 2020, by Zoom video teleconference.

A PPEARANCES

For Petitioner: V. Danie lle Williams, Esquire

Jean Marie Middleton, Esquire

Office of the General Counsel

School Board of Palm Beach County

3300 Forest Hill Boulevard, Suite C - 3 31

West Palm Beach, F lorida 33406

For Respondent: Jhonny Felix, pr o se

5938 Ithaca Circle West

Lake Worth, Florida 33463

S TATEMENT OF T HE I SSUE

Whether just cause exists to suspend and terminate the employment of

Respondent, a teacher, for the reasons set forth in the Administrative

Complaint .

P RELIMINARY S TATEMENT

On June 17, 2020, at its scheduled meeting, Petitioner, the Palm Beach

County School Board ( Ñ Board Ò ), took action to suspend Respondent, Jhonny

Felix, without pay and terminate him from his teaching position at Palm

Beach Lakes High School ( Ñ PBL HS Ò ). Respondent timely requested an

administrative hearing. The Palm Beach County Public School System

( Ñ District Ò ) referred the matter to DOAH on July 30, 2020, to assign an

Administrative Law Judge to conduct the final hearing.

The final hearing was h eld November 19, 2020. At the final hearing, the

Board presented the testimony of Respondent ; Detective Eulises Munoz ; and

Brenda Johnson. Petitioner Ô s Exhibits 1 through 12, 14 through 33, 35 , and

3 6 were admitted into evidence. Respondent testified on hi s own behalf and

did not call any other witnesses. Respondent Ô s E xhibits 1 and 2 were

admitted .

The final hearing Transcript was filed on January 7, 2021. The parties

requested an extension of time within which to file their proposed

recommended orders, w hich was granted. The parties timely filed proposed

recommended orders, which were given consideration in the preparation of

this Recommended Order. Unless otherwise indicated, all statutory

references are to the versions in effect at the time of the alleg ed violations.

F INDINGS OF F ACT

The Parties

1. The Board is the constitutional entity authorized to operate, control,

and supervise the District. Pursuant to Article IX, section 4(b) of the Florida

Constitution, and section 1001.32, Florida Statutes, the District has the

authority to discipline employees pursuant to section 1012.22(1)(f), Florida

Statutes.

2. Respondent began his employment with the District in November 2014.

Respondent was employed as a math teacher for grades 9 through 12 at

PBLHS until December 12, 2018, which was his last day in a classroom.

3. Respondent is an experienced teacher who was trained on the proper

method of interacting with students, exercising best professional judgment,

and following policies, rules, and directives. Respo ndent completed the

orientation process for new employees of the District three times. Respondent

signed the District Ô s Code of Ethics each of the three times he received it and

was aware it governed his behavior as an employee of the District.

Circumstanc es Giving Rise to Respondent Ô s Discipline

4. Respondent met former student, S.E., in Haiti in 2015 when she was

approximately 15 years old. S.E. and Respondent worked on a political

campaign together. While in Haiti, Respondent became friendly with S.E.

an d her family. Respondent was aware that S.E. was planning to come to the

United States to attend high school.

5. In 2018, while S.E. was an 11th grade student at PBLHS , Respondent

was a teacher at the same school. Respondent exchanged phone numbers

wi th S.E. so they could communicate outside of school hours. Respondent and

S.E. frequently communicated outside of school hours between 5 p . m . and

11 p . m . by telephone and text messages in Haitian - Creole because S.E. did

not speak English.

6. According to R espondent, these conversations were primarily personal,

as they had Ñ all kind of conversation from family matter[s], from life, from a

sexual content, from Ï you know, everything. Everything like two normal

people. Any conversation that two normal people w ould take. It was about

everything. Ò

7. On or about December 3, 2018, a student reported to school staff at

PBLHS that Respondent sent S.E. an inappropriate text stating , Ñ send me a

picture in your underwear. Ò Respondent allegedly also asked S.E. to go to a

hotel with him.

8. Detective Eulises Munoz was called to PBLHS to conduct an

investigation regarding Respondent. As a part of Detective Munoz Ô s

investigation, he conducted an audio recorded interview with S.E. , with the

assistance of an interpreter. As p art of the investigation, Detective Munoz

had the text messages between S.E. and Responden t extracted from S.E.Ôs

phone and transcribed from Haitian - Creole to English.

9. S.E. Ô s cell phone call log report revealed 48 calls and 94 messages

between S.E. and Respondent between October 26, 2018 , and December 4,

2018.

10. Respondent admitted to asking S.E. on November 27, 2018, at

8:04 p.m., for Ñ your picture while you are wearing only your underwear. Ò S.E.

refused but instead sent a picture of herself clothed. Respondent told S.E.

that she was Ñ mistreating Ò him because she would not send a naked picture

of herself to him.

11. At the final hearing, Respondent admitted that he was aware that it

was against Board policy to have asked S.E. for a photograph of her i n her

underwear while she was a student at PBLHS and he was a teacher at the

same school.

12. The investigation also revealed that on December 4, 2018, Respondent

told S.E. that she was having headaches because she was not having sex and

then sent her an a rticle regarding stress headaches being relieved by sex.

13. Respondent denied asking S.E. to meet him at a hotel.

Disciplinary Action

14. After Detective Munoz completed his investigation into the text

conversations between Respondent and S.E., he drafted a criminal Probable

Cause Affidavit , which was ultimately forwarded to Human Resource

Manager Brenda Johnson for further investigation.

15. Ms. Johnson provided Respondent with a letter acknowledging

opening an investigative file based on inappropriate in teractions with a

student. As of December 18, 2018, Respondent was removed from the

classroom and directed to have no further contact with students. He was

instead assigned to a District warehouse.

16. Respondent was provided with a Pre - Determination Meeti ng ( Ñ PDM Ò )

Notice dated March 9, 2020 , signed by Vicki Evans - Pare, Director of

Employee & Labor Relations, explaining to him that the investigation was

concerning the allegations levied against him and that a meeting was needed

to discuss the findings. Pri or to the PDM, Respondent was provided with the

PDM Notice, as well as a copy of the investigative file.

17. Respondent Ô s PDM was held on March 13, 2020, at which time he was

given the opportunity to provide a response to the allegations against him.

18. A fter the PDM was completed, Ms. Johnson typed up the notes and

summary from the PDM , which were provided to Respondent who was given

three business days to review the documents and make any edits or revisions

he felt were warranted and add any additional i nformation relative to the

investigation. Respondent did not make any changes to the PDM Summary

or Notes.

19. After Respondent Ô s PDM, Ms. Evans - Pare decided to have the

investigative file reviewed by the Employee Investigative Committee (EIC) ,

which found th e following allegations were substantiated: Soliciting an

Inappropriate Relationship with a Student ; Ethical Misconduct ; Failure to

Exercise Best Professional Judgment ; and Failure to Follow Policy, Rule , or

Directive .

20. The EIC recommendation was tha t Respondent Ô s employment be

terminated despite Respondent not having any prior discipline history. The

EIC proposed skipping the Progressive Discipline steps ( verbal reprimand

with written notation, written reprimand, and suspension ) because

Respondent Ô s inappropriate interaction s with the student , his admission that

he had the text conversations with the student , and his request to the

student for a picture of her in her underwear posed a direct threat to the

District and the student.

21. On May 21, 2020, Respondent was notified that Dr. Donald Fennoy, II ,

the District Superintendent, would recommend RespondentÔs termination to

the Board at its June 17, 2020 , meeting. T ermination was the same

disciplinary action that was taken against other employees who e ngaged in

the same or similar conduct.

22. Respondent acknowledged that Ñ [a] lmost everybody Ò at PBLHS found

out about the text conversations between Respondent and S.E. Respondent

knew that his co - workers knew about the text conversations because people

we re calling him and asking him about it. Respondent Ô s co - workers lost

confidence in him as a teacher after they learned about the text conversations

between him and S.E. Respondent was also aware that S.E. Ô s guardians lost

confidence in him as a teacher as a result of the sexual text conversations he

had with S.E .

23. Respondent acknowledged during the final hearing that his conduct

was inappropriate and in violation of the Board Ô s policies. Respondent only

contests the level of discipline (termination) as t oo harsh . He argued that the

Board skipped intervening steps of the progressive discipline policy and

claimed that his level of discipline was a result of his complaining that he

was no t physically capable of the work to which he was assigned in the

wareho use.

C ONCLUSIONS OF L AW

24. DOAH has jurisdiction over the parties and the subject matter of these

proceedings pursuant to sections 120.569 and 120.57(1), Florida Statutes

(20 20 ).

25. This is a disciplinary proceeding in which the Board in its

Administrat ive Complaint seeks to suspend Respondent from his teaching

position, without pay, and terminate his employment for violating the

following:

A. Soliciting an Inappropriate Relationship with a

Student in violation of School Board Policy

3.02(5)(a)(iv), (5)( a)(vi), and (5)(a)(ix), Code of

Ethics, and rule 6A - 10.081(2)(a)(8) Florida

Administrative Code.

B. Ethical Misconduct in violation of School Board

Policy 3.02(4)(d) and (4)(g), Code of Ethics, and

rule 6A - 10.081(1)(c) Florida Administrative Code.

C. Fai lure to Exercise Best Professional Judgment

in violation of rule 6A - 10.081(1)(b) Florida

Administrative Code.

D. Failure to Follow Policy, Rule, or Directive in

violation of School Board Policy 1.013(1)

Responsibilities of School District Personnel and

St aff.

26. Respondent is an instructional employee, as that term is defined in

section 1012.01(2). Section 1012.33(1)(a) and (6)(a) authorize the suspension

and termination of instructional personnel only for Ñ just cause. Ò Ñ Just cause Ò

is defined in section 1012.33(1)(a) to include Ñ misconduct in office Ò and Ñ gross

insubordination. Ò

27. To suspend Respondent Ô s employment, Petitioner must prove that

Respondent committed the acts alleged in the Administrative Complaint ;

that those acts violate the laws, rules, and policies cited in the

Administrative Complaint ; and that the violation of these laws, rules, and

policies constitute just cause for his termination. § 1012.33(1)(a), (6), Fla.

Stat.

28. Ordinarily, the evidentiary burden in disciplinary proceedings in

which a school board proposes to suspend or terminate instructional

personnel is a Ñ preponderance of the evidence. Ò See, e.g., McNeill v. Pinellas

Cty. 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). However, where, as here, the

Board has agreed through collective bargaining to a more demanding

evidentiary standard, it must act in accordance with the applicable contract.

See Chiles v. United Faculty of Fla. , 615 So. 2d 671, 672 - 73 (Fla. 1 993); Palm

Beach Cty. Sch. Bd. v. Zedrick Barber , Case No. 15 - 0047 (Fla. DOAH Aug. 31,

2015; PBCSB Oct. 13, 2015).

29. Article II, section M of the applicable collective bargaining agreement

( Ñ CBA Ò ) provides that Ñ disciplinary action may not be taken again st an

employee except for just cause, and this must be substantiated by clear and

convincing evidence which supports the recommended disciplinary action. Ò

Accordingly, Petitioner has the burden of proof in this proceeding by clear

and convincing evidence.

30. This burden, described in Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983), and later adopted by the Florida Supreme Court in In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), requires the following:

[T]he evidence must be found to be credible ; the

facts to which the witnesses testify must be

distinctly remembered; the testimony must be

precise and explicit and the witnesses must be

lacking in confusion as to the facts in issue. The

evidence must be of such weight that it produces in

the mind o f the trier of fact a firm belief or

conviction, without hesitancy, as to the truth of the

allegations sought to be established.

31. Whether Respondent committed the charged offenses is a question of

ultimate fact to be determined by the trier of fact in the context of each

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

McKinney v. Castor , 66 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.

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

A. Soliciting an Inappropriate Relation ship with a Student

32. School Board Policy 3.02(5)(a)(iv), Ethical Standards, Abuse of

Students, provides , in pertinent part :

[W] e are committed to ensuring that employee -

student relationships are positive, professional and

non - exploitative. We will not t olerate improper

employee - student relationships. Each employee

should always maintain a professional relationship

with students, both in and outside of the classroom.

Unethical conduct includes but is not limited to È

using one Ô s professional relationship or authority

with students for one Ô s personal advantage. Ò

33. School Board Policy 3.02(5)(a)(vi), Ethical Standards, Abuse of

Students, provides , in pertinent part, Ñ Unethical conduct includes but is not

limited to È engaging in any sexually related beha vior with a student with or

without consent of the student. Sexually related behavior shall include, but

not limited to, such behaviors as sexual jokes; sexual remarks; sexual

innuendo; pressure for dates or sexual favors È . Ò

34. School Board Policy 3.02 (5)(a)(ix), Ethical Standards, Abuse of

Students, provides , in pertinent part, Ñ Unethical conduct includes but is not

limited to È soliciting, encouraging, participating or consummating an

inappropriate written, verbal, or physical relationship with a stud ent. Ò

35. Florida Administrative Code Rule 6A - 10.081(2)(a)8 . , Principles of

Professional Conduct for the Education Profession, states , in pertinent part ,

Ñ Florida educators shall be guided by the following ethical principles: shall

not exploit a relations hip with a student for personal gain or advantage. Ò

36. Respondent was a teacher within the District and S.E. was a student

at PBLHS in the 11th grade when he obtained her cell phone number for the

purpose of communicating after school hours from 5 p . m . t o 11 p . m . , and he

ultimately requested for S.E. to send him a picture of her in her underwear.

Respondent told S.E. that she was mistreating him when she refused to

provide him with a picture of her in her underwear as a method of pressuring

her to do so.

37. Respondent admitted that he and S.E. would engage in sexual banter,

jokes, and innuendo while he was employed as a teacher with the District

and S.E. was a student within the same District and school.

38. Respondent encouraged and participated in text messages with a

student and sent her articles regarding sex relieving headaches and

explained that she might have been having headaches because she was not

having sex.

39. Respondent admitted that he was aware that his conduct was

inappropriate and acknowl edged that it violated the Board policies.

40. The record in this case, clearly and convincingly, establishes that

Respondent committed the first charged violation, Soliciting an Inappropriate

Relationship with a Student in violation of School Board Policy 3.02(5)(a)(iv),

(5)(a)(vi), and (5)(a)(ix), Code of Ethics, and rule 6A - 10.081(2)(a)8 . , Principles

of Professional Conduct for the Education Profession in Florida.

B . Ethical Misconduct

41. School Board Policy 3.02(4)(d), Accountability and Compliance, st ates ,

in pertinent part, Ñ each employee agrees to treat all students and individuals

with respect and to strive to be fair in all matters. Ò

42. School Board Policy 3.02(4)(g), Accountability and Compliance, states

in pertinent part, Ñ each employee agrees to avoid conflict of interest or any

appearance of impropriety. Ò

43. Rule 6A - 10.081(1)(c), Principles of Professional Conduct for the

Education Profession in Florida, states , in pertinent part, Ñ Florida educators

shall be guided by the following ethical pr inciples: A ware of the importance of

maintaining the respect and confidence of one Ô 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. Ò

44. Respond ent did not treat S.E. with respect nor was he fair to her in all

manners when he began having inappropriate sexual conversations with her

while she was an 11th grade student at PBLHS.

45. Respondent did not avoid conflicts of interest or the appearance of

impropriety that resulted from the public being made aware of the sexual

text conversations that he held with S.E. Respondent acknowledged losing

the respect of his colleagues and S.E. Ô s parents when they learned of the text

conversations he was having wi th S.E. , and that he did not sustain the

highest degree of ethical conduct.

46. The record in this case, clearly and convincingly, establishes that

Respondent committed the second charged violation, Ethical Misconduct , in

violation of School Board Policy 3 .02(4)(d) and (4)(g), Code of Ethics, and

rule 6A - 10.081(1)(c), Principles of Professional Conduct for the Education

Profession in Florida.

C. Failure to Exercise Best Professional Judgment

47. Rule 6A - 10.081(1)(b) states , in pertinent part , Ñ Florida educa tors shall

be guided by the following ethical principles : È (b) the educator Ô s primary

professional concern will always be for the student and for the development of

the student Ô s potential. The educator will therefore strive for professional

growth and wi ll seek to exercise the best professional judgment and

integrity. Ò

48. Respondent admitted to not being primarily concerned with S.E. Ô s

development as a student when he communicated sexual text messages to the

student . H e did not strive for professional gr owth and did not exercise the

best professional judgment and integrity while inappropriately

communicating with S.E.

49. The record in this case, clearly and convincingly, establishes that

Respondent committed the third charged violation, Failure to Exerc ise Best

Professional Judgment in violation of rule 6A - 10.081(1)(b), Principles of

Professional Conduct for the Education Profession in Florida.

D. Failure to Follow Policy, Rule, or Directive

50. School Board Policy 1.013(1), Responsibilities of School Di strict

Personnel and Staff, states , in pertinent part , that Ñ it shall be the

responsibility of the personnel employed by the district school board to carry

out their assigned duties in accordance with federal laws, rules, state

statutes, state board of edu cation rules, school board policy, superintendent Ô s

administrative directives and local school and area rules. Ò

51. The record is clear that Respondent engaged in activity that he knew

violated Board policies and was inappropriate. Respondent does not disp ute

that his actions were wrong and that he should be disciplined for the

inappropriate communication with the student, S.E. Instead, Respondent

claims that he should not be terminated and that the Board should follow its

Progressive Discipline steps.

52. The record in this case, clearly and convincingly, establishes that

Respondent committed the fourth charged violation, Failure to Follow Policy,

Rule, or Directive in violation of School Board Policy 1.013(1) ,

Responsibilities of School District Personnel and Staff.

E. Progressive Discipline

53. Respondent, as a teacher, was covered under the CBA between the

District and the Classroom Teachers Association ( Ñ CTA Ò ).

54. The CTA CBA has provisions that allows for the District to skip steps

in progressive disc ipline when there i s a clear danger to the District, an

employee , and/or student, as well as when there are flagrant or purposeful

violations of District rules and policies.

55. Respondent asserts that since he is a teacher with no prior

disciplinary histo ry, the District erroneously skipped intermediate

disciplinary steps such as verbal or written warning, and suspension with

pay. Respondent contends that the student was coerced into coming forward

by her cousin ; that she was 18 at the time of the inapprop riate messages ; and

that this type of flirtatious communication is not uncommon in their culture.

Respondent also suggests he was retaliated against for complaining about the

working conditions in the warehouse.

56. Respondent presented no evidence to supp ort his contentions that this

behavior was welcome d by the student or that his level of discipline was

impacted by his complaining about the warehouse work assignment.

57. Respondent Ô s behavior warranted skipping steps to go directly to

termination because his interaction with the student created an immediate

danger not only to her, but to the District, and subjected it to potential

liability and exposure if the relationship and communications continued,

notwithstanding the student Ô s age, because she was a student within the

District that employed him.

R ECOMMENDATION

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

R ECOMMENDED that the Palm Beach County School Board uphold the

suspension and termination of Respondent Ô s employment.

D ONE A ND E NTERED this 8th day of March , 2021 , in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of March , 2021 .

C OPIES F URNISHED :

V. Danielle Williams, Esquire Donal d E. Fennoy, II, Ed.D.

Palm Beach County School Board Superintendent

Office of the General Counsel Palm Beach County School Board

3300 Forest Hill Boulevard , Suite C - 331 3300 Forest Hill Boulevard, Suite C - 316

West Palm Beach, Florida 33406 West Palm Beach, Florida 33406 - 5869

Jean Marie Middle ton, Esquire Jhonny Felix

Palm Beach County School Board 5938 Ithaca Circle West

Office of the General Counsel Lake Worth, Florida 33463

3300 Forest Hill Boulevard , Suite C - 331

West Palm Beach, Florida 33406 Matthew Mears, General Counsel

Department of Education

Richard Corcoran Turlington Building, Suite 1244

Commissioner of Education 325 West Gaines Street

Department of Education Tallahassee, Florida 32399 - 0400

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

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.