STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HAMILTON COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 00-2977

)

MARTHA LEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Notice was provided, and a formal hearing was held on October 23, 2000, at the Hamilton County School Board Office, Jasper, Florida, and conducted by Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Stephen C. Bullock, Esquire

J. Rhett Bullard, Esquire Brannon, Brown, Haley,

Robinson & Bullock, P.A.

10 North Columbia Street Post Office Box 1029

Lake City, Florida 32056-1029

For Respondent: Donald K. Rudser, Esquire

Post Office Box 1011 Jasper, Florida 32052

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner had just or good cause to reject the Superintendent's recommendation that Respondent be re-appointed on probationary status to a one- semester teaching position as agriculture teacher.

PRELIMINARY STATEMENT

On March 16, 2000, Respondent Martha Lee (Ms. Lee), was informed by Ms. Patricia B. Parks, Superintendent of the Hamilton County School Board (Board), that she had been suspended without pay for an incident which occurred on the school grounds. The alleged incident, which occurred immediately prior to March 16, 2000, reportedly involved the use, by Ms. Lee, of vulgar language in the presence of at least one student. Superintendent Parks stated in the letter that she had made this decision after having listened to a tape-recording of Ms. Lee made during the alleged incident.

Subsequent to having been advised by Ms. Lee's attorney that the use of the tape-recording might be a violation of the law, Superintendent Parks informed Ms. Lee that she could return to her position with full back-pay and benefits. She was told, moreover, that there would be no record of the incident.

On June 19, 2000, the Hamilton County School Board met and considered, inter alia, a recommendation by Superintendent Parks

that Ms. Lee's instructional contract be renewed. A motion to

approve the contract failed. Ms. Lee was not provided notice that this action would be on the agenda nor was she advised that she had a right to a hearing. Ms. Lee was notified that her contract would not be renewed in a letter signed by Superintendent Parks on June 21, 2000. On July 17, 2000,

Ms. Lee timely demanded a hearing.

Several motions were addressed prior to the hearing. Two were substantive.

The first was a motion filed by the Board asserting that changes in Section 230.23(5)(a), Florida Statutes, in the 1997 session of the Florida Legislature precluded Ms. Lee from having a right to a hearing. The legislature added the following:

The district school board's decision to reject a person's nomination does not give that person a right of action to sue over the rejection and may not be used as a cause of action by the nominated employee.

In ruling on this motion the undersigned considered the legislative history as well as the specific due process rights provided to school employees. Upon consideration of the foregoing, it was determined that the language added by the 1997 Florida Legislature, did not infringe upon a teacher's right to an administrative hearing. Accordingly, Ms. Lee was permitted to maintain this action.

A second substantive motion addressed the use of a tape- recording as evidence in this case. The undersigned found that

the tape-recording was a surreptitious recording of Ms. Lee's spoken words made by a student, Ruben Perez. The recording was an "intercept" as that word is used in Section 934.02(3), Florida Statutes. The interception of Ms. Lee's words was in violation of Section 934.03(1)(a), Florida Statutes. The use of this tape-recording is forbidden by Section 934.03(1)(b), Florida Statutes. Accordingly, the use of the tape-recording was not permitted during the hearing.

The Board called seven witnesses. Ms. Lee testified on her own behalf and called one witness. Respondent's Exhibit No. 1 was admitted into evidence. This exhibit is a compilation of documents relating to Ms. Lee. Respondent's Exhibit No. 2 was admitted under seal. This is the aforementioned tape-recording. It was not used by the undersigned in any manner. Respondent's Exhibit No. 3 was admitted into evidence. It is the deposition of Ruben Perez, who at the time of the hearing, was resident at Marine Corps Recruit Depot, Parris Island, South Carolina.

Petitioner's Exhibit No. A was marked. It is a letter addressed to Superintendent Parks dated March 23, 2000. It was not offered as an exhibit.

A Transcript was filed with the Division on November 15, 2000. Proposed Recommended Orders were timely filed on November 27, 2000, by both parties and duly considered by the Administrative Law Judge.

FINDINGS OF FACT

Background

1. Ms. Lee graduated from Florida State University in 1973 with a bachelors degree in art education. She received a masters degree in agriculture education from the University of Florida in 1984. She has served as an extension director for the Seminole Tribe and was a teacher in the Pahokee Junior Senior High School for about 14 years. She also held a position in the Ft. Pierce school system for a short time.

2. She was initially employed by the Hamilton County School Board as a substitute teacher in March of 1998. Subsequently she was hired on an annual contract as the agriculture teacher at Hamilton County High School for the 1998- 1999 school year.

3. Ms. Lee was issued a temporary-non-renewable certificate as a teacher, by the Florida Department of Education on October 17, 1998. This certificate covered the period

   July 1, 1998 through June 30, 2000.

   
   

4. Pursuant to a favorable recommendation by Superintendent Parks, Ms. Lee was hired as the agriculture teacher for the school year 1999-2000. This contract required that she complete required college semester hours by September

   1999, and receive a passing score on the Florida Teachers Certification Examination. This contract expired on May 31, 2000.

5. Ms. Lee bought a used recreational vehicle with her own funds so that she could transport her students to agricultural events. Ms. Lee invested a lot of her own time and money into trying to enhance the agriculture program. Her husband helped her in this regard.

6. During a time shortly before March 16, 2000, some of her students applied spray paint to Ms. Lee's recreational vehicle. Subsequently, when Ms. Lee learned that her vehicle had been vandalized, she used inappropriate language in front of an agriculture student, Ruben Perez, who was 18 years of age at the time. This occurred in her classroom and in the vicinity of her classroom. Ruben Perez surreptitiously tape-recorded this language. Ruben Perez stated that Ms. Lee had used inappropriate language prior to this incident which included vulgar language delivered in a loud voice.

7. The Superintendent of Schools, Ms. Patricia Parks suspended Ms. Lee, without pay, on March 16, 2000.

8. On March 24, 2000, Superintendent Parks, sent a letter to Ms. Lee advising that her suspension was reversed and that she would be reinstated with back pay and benefits. This action was taken subsequent to having been advised of the illegality of

   using the surreptitious tape-recording by Ms. Lee's attorney. The letter further advised Ms. Lee that there would be no record of the incident.

   Action by the Board

   
   

9. At the end of the school year, Ms. Cheri Landry recommended to Superintendent Parks, in an undated letter, that Ms. Lee be given a contract for a one-semester position as "agriculture instructor/FFA advisor," for the period August 8, 2000 to December 20, 2000. This appointment was to be a probationary appointment. This recommendation noted that

   Ms. Landry had talked with Ms. Lee regarding, "areas in which she needs to improve which include "Climate/Learning Environment and Administration/Management."

10. Superintendent Parks recommended to the Board that Ms. Lee be appointed to the position of agriculture teacher. A copy of a letter from Ms. Landry to Ms. Lee was appended to the recommendation. This letter summarized the areas in which

    Ms. Lee needed to improve. These documents represent the entirety of the information provided to the board with regard to Ms. Lee at the June 19, 2000, meeting.

11. On June 19, 2000, the Board decided by a three-to-two vote, not to appoint Ms. Lee as recommended by Superintendent Parks. No record of the discussion of the reason for the Board's rejection was given other than Board member Ottis M.

    Cercy's statement that the firing was for "just cause." Ms. Lee was not given prior notice that the Board had under consideration the rejection of Superintendent Parks' recommendation.

12. On June 19, 2000, Ms. Lee was in Texas with some of her agriculture students at a Future Farmers of America event. She was not under contract with the Board on that date and she was not paid by the Board for this activity.

13. At the hearing, Board members Larry Carver, Martha Butler, and Ottis M. Cercy, stated that they had voted against the motion to enter into a new contract with Ms. Lee because they had received information, prior to the meeting of the Board, that Ms. Lee had cursed in the presence of students, and had permitted tobacco use and card playing in the classroom.

14. Subsequently, Board Members Larry Carver, Martha Butler, and Otis M. Cercy sought additional information in an effort to ratify their action.

    Allegations of Misbehavior

    
    

15. Mr. Wendell Hill, a retired teacher, had seen agriculture students smoking and dipping in an area where

    Ms. Lee could have seen them. Despite the fact that Hamilton County High School was officially a tobacco-free campus, students, as well as teachers, smoked on campus, and used

    smokeless tobacco. Mr. Hill also heard Ms. Lee speaking in a loud voice while in class.

16. Jane Lowe, a history teacher and president of the teachers' union, observed that adults employed at Hamilton County High School occasionally smoked behind the boiler room.

17. Evidence of smokeless tobacco use in Ms. Lee's room had been observed by Mr. Pinello, assistant principal of the high school. This observation occurred when he was the dean of students. Mr. Pinello did not relay this information to the principal. Mr. Pinello received some complaints with regard to the cleanliness of Ms. Lee's "environment" and classroom. He checked on this and relayed information regarding his findings to the principal. He received oral complaints that Ms. Lee had used inappropriate language but took no steps to confirm the reports.

18. Allegations concerning Ms. Lee smoking, or permitting the use of tobacco products, were not presented to Ms. Landry prior to the June 19, 2000, Board meeting.

19. Ms. Lee does not smoke nor did she knowingly permit students to use tobacco products. Moreover, she taught her students about the evils of tobacco use and encouraged them to refrain from tobacco use.

20. The only witness who alleged vulgar conduct on the part of Ms. Lee during the incident precipitated by the

    vandalism of her recreational vehicle was Ruben Perez. He was also the only witness, with claimed personal knowledge, who alleged that Ms. Lee was vulgar at any time. The Board's minutes of May 22, 2000, revealed that Superintendent Parks had actively sought students as witnesses to the events described by Ruben Perez, but none could be found.

21. No evidence was adduced demonstrating that the School Board or Hamilton County High School had a policy addressing vulgar language for either students or teachers. One student was suspended for a year for using vulgar language subsequent to June 19, 2000.

22. The football coach has used vulgar language in front of school children but the Board has not fired him or taken any disciplinary action against him.

23. Ms. Lee was first appointed to the position of agriculture instructor for the school year 1997-1998. Subsequently, for the school year 1998-1999, her appointment was subject to passing the Florida Teacher Certification Examination and passing additional course work. She held a temporary, non- renewable certificate from the Florida Department of Education for the period October 17, 1998 through June 30, 2000. She submitted an application for a new certificate dated June 12, 2000. At the time of the June 19, 2000, meeting of the Board, she had not completed the required semester hours of continuing

    education or taken the required certification examination. She successfully completed the requirements prior to the beginning of the 2000-2001 school year.

24. The Board has often approved the appointment of teachers with temporary certificates. At the time of the hearing in this case, there were many teachers in the Hamilton County School system teaching under the authority of temporary certificates.

    Matters in Mitigation

    
    

25. The agriculture operation at Hamilton County High School had in previous years, "gotten out of hand." The agriculture class had been a problem for 20 years.

26. Ms. Lee improved the operation of the agriculture program by introducing new activities so that more students could be involved in the program. She promoted the Supervised Agricultural Experience Program and had winners in Future Farmers of America programs. She has involved the students in many projects including supporting the Farm Bureau in their annual dinner. The students provided a barbecue for the rodeo. She was heavily involved with her students and enhanced the agriculture program in many ways.

27. Ms. Landry, the principal of Hamilton County High School, believes that Ms. Lee did a very good job and wants her to resume her position.

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

29. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal, Florida Department of Transportation v. J.W.C. Company, Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981). To meet this burden, the Board must establish facts upon which its allegations of misconduct are proved by a preponderance of the evidence. Dileo v. School Board of Dade County, 569 So. 2d 8834 (Fla. 3rd DCA 1990) and Section 120.57(1)(j), Florida Statutes.

30. A teacher who has been teaching in a school district under an annual contract and who is recommended for a position by the district superintendent, may not be rejected for that position by the School Board unless the teacher is provided a fair hearing. To do otherwise is a denial of due process. Buckner v. School Board of Glades County, 718 So. 2d 862, (Fla. 2d DCA 1998).

31. The Administrative Law Judge's jurisdiction is not to review the action of the Board. It is the Administrative Law Judge's jurisdiction to conduct a de novo determination as to whether or not the facts and circumstances existing at the time

    the Board took action are such that Ms. Lee may lawfully be denied the contract she sought. Buckner, supra.

32. Section 231.36(1)(a), Florida Statutes, provides that, a refusal to enter into a subsequent contract with a teacher on an annual contract, when the superintendent has recommended that the teacher be hired, can only be lawful if there is just cause for the refusal.

33. Section 231.36(4), Florida Statutes, provides that Ms. Lee can be rejected for employment only if "just cause" exists. "Just cause" is defined as, ". . . immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude," as these terms are defined by rule

    of the State Board of Education. The only arguable "just cause" justifying the refusal to hire Ms. Lee, would be misconduct in office.

34. Department of Education Rule 6B-4.009(3), Florida Administrative Code, defines misconduct in office as follows:

    . . . a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, Florida Administrative Code, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B-1.006, Florida Administrative Code, which is so serious as to impair the individual's effectiveness in the school system.

35. Rules 6B-1.001 and 6B-1.006, Florida Administrative Code, do not address the use of vulgar language under the circumstances of this case. To the extent that the use of vulgar language in the presence of Ruben Perez may be considered misconduct, it was not so serious as to impair the individual's effectiveness in the school system.

36. At the time of the hearing, the contract which Ms. Lee had with the Board had expired. As a result, any obligations she had with regard to recertification were extinguished. The fact that she had not obtained recertification during the period of the prior contract is insufficient reason for rejecting the Superintendent's recommendation. Teachers at Hamilton County High School are routinely permitted to teach on temporary certificates.

37. The evidence presented is insufficient to demonstrate misconduct as contemplated by Section 231.36(4), Florida Statutes.

RECOMMENDATION

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

RECOMMENDED that the Board enter a final order appointing Ms. Lee, on probationary status, to a one-semester teaching position as agriculture teacher dating back to the beginning of

school year 2000-2001. The order should reflect that she is to be awarded full pay and benefits for the contract period for which she was recommended.

DONE AND ENTERED this 11th day of December, 2000, in Tallahassee, Leon County, Florida.

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2000.

COPIES FURNISHED:

Steven C. Bullock, Esquire

J. Rhett Bullard, Esquire Brannon, Brown, Haley, Robinson

& Bullock, P.A.

10 North Columbia Street Post Office Box 1029

Lake City, Florida 32056-1029

Donald K. Rudser, Esquire Post Office Box 1011 Jasper, Florida 32052

Robert J. Sniffen, Esquire Moyle, Flanigan, Katz, Kolins,

Raymond & Sheehan, P.A. The Perkins House

118 North Gadsden Street Tallahassee, Florida 32301

Patricia Parks, Superintendent Hamilton County School Board Post Office Box 1059

Jasper, Florida 32052-1059

Honorable Tom Gallagher Commissioner of Education Department of Education

The Capitol, Plaza Level 01 Tallahassee, Florida 32399-0400

Michael H. Olenick, General Counsel Department of Education

The Capitol, Suite 1701 Tallahassee, Florida 32399-0400

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.

Docket for Case No: 00-002977

Orders for Case No: 00-002977