STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

ELIZABETH A. SILVEUS,

Respondent.

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) Case No. 04-4096

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AMENDED RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the administrative hearing in this proceeding on January 12, 2005, in Fort Myers, Florida, on behalf of the Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: J. Paul Carland, II, Esquire

Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902-2089

STATEMENT OF THE ISSUES

The issues are whether Petitioner has just cause to terminate the annual contract of a teacher for alleged immorality pursuant to Subsection 1012.33(1)(a), Florida

Statutes (2003), and Florida Administrative Code

Rule 6B-4.009(2); and whether the conduct violates ethical requirements in Florida Administrative Code Rule 6B-1.001.

PRELIMINARY STATEMENT

On November 4, 2004, Petitioner suspended Respondent without pay and notified Respondent that Petitioner intended to terminate Respondent's employment contract. Respondent requested an administrative hearing, and Petitioner referred the matter to DOAH to conduct the hearing.

At the hearing, Petitioner presented the testimony of one witness and submitted 15 exhibits for admission into evidence. Respondent called no witnesses and submitted nine exhibits.

The identity of the witnesses and exhibits, and the rulings regarding each, are reported in the one-volume Transcript of the hearing filed with DOAH on February 4, 2005. Petitioner and Respondent timely filed their respective proposed recommended orders (PROs) on February 7 and 10, 2005.

FINDINGS OF FACT

1. Petitioner is the agency1 responsible for the employment and dismissal of instructional staff in Lee County, Florida (teachers). Petitioner employed Respondent as a teacher from December 11, 2001, until November 4, 2004.

2. On November 4, 2004, Petitioner suspended Respondent without pay from her teaching position at J. Colin English

   Elementary School (English Elementary). The suspension occurred during the last year of three-year probationary service required for a professional service contract, pursuant to Subsection 1012.33(3)(a)2., Florida Statutes (2003).

3. At the time of suspension, Respondent held an annual contract. Petitioner proposes to terminate the annual contract on November 4, 2004, for the rest of the 2004-2005 school year.

4. The grounds for termination of an annual contract must satisfy the statutory definition of "just cause." The terms of a binding collective bargaining agreement (CBA) also require termination to be based upon "just cause."2

5. The allegations against Respondent are set forth in the Petition for Termination of Employment dated November 6, 2004 (the petition). The petition alleges Respondent engaged in conduct that satisfies the definition of immorality and that the conduct violates rules of ethics cited in the petition.3

6. The essential facts are undisputed. Sometime in October 2003, Respondent had sex with a man other than her husband while her husband recorded it on videotape (the offending conduct). The offending conduct occurred with the knowledge and consent of the participants.

7. Sometime in April 2004, Respondent divorced her husband. Her ex-husband disclosed the video to Ms. Lisa Mantle, the ex-wife of the man in the video with Respondent. Ms. Mantle

   filed a complaint with Petitioner on August 24, 2004, and Petitioner initiated this proceeding.

8. Conduct satisfies the definition of immorality in Florida Administrative Code Rule 6B-4.009(2) if the conduct meets three conjunctive requirements. The conduct must be inconsistent with standards of public conscience and good morals (the community standard). The conduct must be sufficiently notorious to disgrace the teaching profession and must impair the teacher's service in the community.

9. Judicial decisions, discussed hereinafter, measure service in the community by a teacher's effectiveness in the classroom. There is no direct evidence that Respondent's conduct impaired her classroom effectiveness.

10. Petitioner urges the trier of fact to infer impaired classroom effectiveness from the offending conduct. Judicial decisions, discussed hereinafter, prohibit such an inference from private, off-campus conduct and require direct evidence of impaired effectiveness.

11. Employer Evaluations show Respondent was effective in the classroom before and after the offending conduct. Petitioner employed Respondent for almost three years before suspending her from her employment. A principal and an assistant principal recommended Respondent for employment at English Elementary by letters dated May 5 and 6, 2003. At

    English Elementary, Respondent consistently satisfied relevant performance criteria.

12. Respondent received her last performance assessment on February 4, 2004, approximately three months after the incident occurred in October 2003. The principal of English Elementary conducted a formal classroom observation on February 9, 2004. The principal determined that Respondent demonstrated an effective level of performance. On March 8, 2004, the principal recommended renewal of the annual contract for the 2004-2005 school year. Respondent completed the 2003-2004 school year without complaint from supervisors, teachers, students, parents, or others.

13. Ms. Mantel is a parent of school-age children in Lee County, Florida, but her children are not and never were enrolled in Respondent's classroom or in English Elementary. Ms. Mantle's only involvement with faculty or students at English Elementary is limited to the complaint.

14. The offending conduct did not occur in the classroom, on campus, during normal working hours, and did not involve a child. The offending conduct did not result in any adverse impact on students, parents of those students, or fellow teachers. Respondent did not inject any opinion regarding sexual morality into the classroom or into private conversations with teachers, students, parents, or others.

15. The offending conduct was private rather than public.

    
    

    The video was filmed in the privacy of Respondent's home. The evidence does not indicate that Respondent, or the other participants, made the video with the intent to show the video to anyone else or to pander it in the community.

16. The offending conduct was not sufficiently notorious to disgrace the teaching profession. There is no evidence of any publicity or a public arrest record. There is no evidence that a teacher, student, parent, or member of the community, other than those previously noted and Petitioner's employees, had knowledge of the incident or viewed the video.

17. Ms. Mantle was the only member of the public to complain to Petitioner about the offending conduct. Any wider knowledge or further notoriety of the offending conduct resulted after-the-fact from Petitioner's activities.

18. Between August 23 and November 4, 2004, Petitioner made the offending conduct known to ten of Petitioner's employees identified in the record. Petitioner made the conduct known to other employees who are not identified in the record but were involved in the investigation, predetermination conference, and petition hearing on November 4, 2004.

19. On August 23, 2004, Ms. Mantle telephoned the principal of English Elementary and advised him of the offending

    conduct. Ms. Mantle expressed her opinion that Respondent should not be around children.

20. The principal transferred the telephone call to the secretary for the Director of Personnel Services. Ms. Mantle insisted on filing a written complaint. She indicated she would disclose the conduct to the "media" if the Director did not assist Ms. Mantle with her complaint. The principal memorialized the telephone conversation in a written communication to the Executive Director of Human Resources and Employee Relations (Executive Director).

21. On August 25, 2004, Ms. Mantle filed a written complaint with the Department of Professional Standards. In relevant part, the complaint described the offending conduct and repeated that Respondent should not be around young children.

22. On August 27, 2004, the Director of the Department of Professional Standards met with Respondent to review the written complaint. Respondent admitted she was in the video, stated it was recorded in the privacy of her home, explained it was the result of her ex-husband's physical and sexual abuse, and disclosed the divorce that was final in April 2004.

23. Petitioner initiated a formal investigation on August 27, 2004, and then suspended Respondent with pay and benefits on August 30, 2004. On September 3, 2004, the

    Coordinator of Professional Standards, Equity and Recruitment, met with Respondent to discuss the written complaint.

24. Petitioner concluded the formal investigation on September 21, 2004, and prepared an investigative summary. Respondent attended a predetermination conference with a union representative on September 22, 2004. Respondent and the union representative reviewed the investigative summary and certain supplemental information from Petitioner. Petitioner determined probable cause existed to discipline Respondent for her conduct and, by certified letter dated October 1, 2004, advised Respondent that Petitioner would seek termination of Respondent's annual contract.

25. Respondent, through counsel, requested an administrative hearing by letter dated October 11, 2004. Petitioner referred the matter to DOAH, heard the petition on November 4, 2004, and suspended Respondent without pay.

26. Prior to the administrative hearing, Ms. Mantle filed a motion to quash a subpoena that Petitioner had served to ensure her appearance as a witness at the hearing. The motion to quash was based, in relevant part, on Ms. Mantle's stated desire to abandon her complaint against Respondent. Although the ALJ denied the motion to quash, Ms. Mantle did not testify at the hearing because the parties entered into factual stipulations that obviated the need for her testimony.

27. At the administrative hearing, Petitioner stipulated that the alleged immoral conduct in the video is the factual basis for the alleged violation of Subsection 1012.33(1)(a), Florida Statutes (2003). Petitioner also stipulated that the same conduct is the factual predicate for the alleged violation of Florida Administrative Code Rule 6B-1.001.

28. The Executive Director was the only witness for Petitioner. Petitioner has employed the witness for 16 years; including six years as a teacher, seven as an assistant principal or principal, and three in his current position.

29. The testimony of the witness consisted of conclusions based on his professional experience, his personal opinion as a parent of students not enrolled in English Elementary, and his personal opinion as one member of the community. The conclusions and opinions of the witness are not supported by specific detail or other evidence. Some of the testimony is based on hearsay statements by Ms. Mantle and hearsay conversations with unidentified members of the community.

30. The witness opined that Respondent's conduct violated "the community standard," but was unable to articulate an objective standard for the trier of fact to apply in this case. The witness testified that he would "challenge anyone to clearly articulate" a community standard.

31. This case is a case of first impression for the witness. Petitioner has not previously terminated a teaching contract for immorality that occurred off campus. The witness provided no factual precedent from previous cases or survey data to explicate an objective community standard. Nor did the witness base his opinions and conclusions on testimony from other witnesses, including teachers, students, parents, or other members of the community.

32. The witness based his opinion, in part, on alleged adultery. For example, the witness testified, inter alia, that this case was not "just about two consenting adults in a bedroom," but was about a teacher "engaging in sexual intercourse with a man to whom she was not married." However, the witness conceded Petitioner does not, in practice, dismiss teachers for adultery, notwithstanding the allegation of adultery in the petition; and does not define adultery.

33. The attempt by the witness to define adultery elucidates the ambiguity in a community standard based on one person's judgment. The witness defined adultery as an act of sexual intercourse by a legally married person with someone other than the person's lawful spouse. The witness acknowledged some teachers live out of wedlock with their partners in what is described for ease of reference as a civil union. Teachers

    living in a civil union are immune from dismissal for adultery because the policy requires an adulterer to be legally married.

34. It is undisputed that the man in the video was not married to Ms. Mantle or anyone else at the time the video was recorded. If he were to have been an unmarried teacher at the time, it is unclear whether sex with a married woman would have rendered him guilty of adultery. It is clear that the witness considers the consent of Respondent's husband at the time of the incident, as well as the husband's alleged coercive abuse, to be irrelevant in defining the alleged adultery of Respondent.

35. The witness provided no factual examples of how the offending conduct impacted students in the classroom. The evidence shows Respondent remained effective in the classroom until her suspension on August 30, 2004.

36. Other parts of the testimony either are not legally probative or do not relate to evidence of record. For example, the witness testified, inter alia:

    . . . this is not just . . . a couple of consenting adults in a bedroom, it's a production of a videotape that is public. This is a public -- the district is aware of this videotape, as are other individuals in the community.

    
    

    Transcript at 52.

    
    

37. The testimony that members of the community, other than Petitioner's employees and Ms. Mantel, knew of the

    offending conduct is not supported by specific detail or other evidence. The media did not publicize the conduct, and the conduct did not result in a public record of arrest. Judicial decisions, discussed hereinafter, do not permit knowledge of the conduct resulting from Petitioner's activities to form the basis of a finding that the conduct is public.

38. For reasons explained in the Conclusions of Law, Petitioner has no legal authority to discipline Respondent pursuant to Florida Administrative Code 6B-1.001. Assuming arguendo Petitioner has the authority to do so, the testimony that Respondent's conduct violated ethical standards in Florida Administrative Code Rule 6B-1.001 lacks the factual predicate needed to support the conclusion.

39. In relevant part, Florida Administrative Code Rule 6B-

    
    

    1. provides:

       
       

       . . . (1) 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.

       
       

       1. The educator'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.

       2. Aware of the importance of maintaining the 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.

    
    

40. The testimony of the witness did not relate the offending conduct to any requirement in Florida Administrative Code Rule 6B-1.001(1). No evidence impugns the integrity of Respondent, within the meaning of Florida Administrative Code Rule 6B-1.001(2), and the witness did not question Respondent's professional judgment. TR at 43-93.

41. The witness opined that Respondent's conduct undermined her "respect in the community" and her "ability to teach in the classroom" within the meaning of Florida Administrative Code Rule 6B-1.001(3). The evidence does not support that opinion.

42. No teachers, students, parents of students, or other members of the community testified that Respondent had lost respect in the community or had lost the confidence of the community. No evidence shows that the offending conduct impaired Respondent's ability to teach in the classroom.

43. The witness agreed with early hearsay statements of Ms. Mantle that no students would be left in Respondent's classroom to teach if parents in the community were aware of the video. The trier of fact does not question the hypothetical.

    However, there is no evidence that parents in the community other than Ms. Mantle, the witness, and parents employed by Petitioner had actual knowledge of the video or, if so, they withdrew their students from the classroom.

44. Petitioner employed Respondent for almost three years, recommended Respondent for an annual contract after the incident, and then sought to terminate the contract after learning of the incident. As discussed hereinafter, a court viewed similar actions of another school board as strong evidence that the school board was concerned with what the school board considered to be an affront to the personal standards of its members rather than the impact on students.

    CONCLUSIONS OF LAW

    
    

45. DOAH has in personam jurisdiction over the parties and subject matter jurisdiction over of the proposed contract termination for immorality in violation of Subsection 1012.33(1)(a), Florida Statutes (2003), and Florida Administrative Code Rule 6B-4.009(2). The parties received adequate notice of the administrative hearing. § 120.57(1), Fla. Stat. (2003).

46. DOAH and Petitioner have no authority to determine whether the alleged immorality of Respondent violates Florida Administrative Code Rule 6B-1.001. The Rule was expressly adopted to implement the law authorizing the Education Standards

    Commission (Commission) to issue ethical standards for teachers. See, e.g., former § 231.546(2)(b), Fla. Stat. (1999). The Rule does not implement the statute that is the basis of the alleged violation in this proceeding.

47. The law implemented in Florida Administrative Code Rule 6B-1.001 does not authorize the Commission to promulgate ethical standards for the discipline of teachers, and the statute does not authorize the discipline of teachers. Nor does the Rule authorize the discipline of teachers for a violation of the ethical standards prescribed in the Rule.

48. Florida Administrative Code Rule 6B-1.006 authorizes discipline of teachers for the violation of the requirements contained therein (the disciplinary rule). The petition does not charge Respondent with a violation of the disciplinary rule.

49. The burden of proving the remaining issues is on Petitioner. Petitioner must show by a preponderance of the evidence that Respondent engaged in conduct that satisfies the definition of immorality and that immorality is "just cause" for Petitioner to terminate Respondent's contract. § 1012.33(1)(a), Fla. Stat. (2003); Art. 6 CBA § 6.024; McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla. 3d DCA 1990).

50. Petitioner is statutorily authorized to utilize one of three types of written contracts to employ a teacher. Each

    contract must be either a continuing contract, a professional service contract, or an annual contract. § 1012.33(3)(a), Fla. Stat. (2003); Dietz v. Lee County School Board, 647 So. 2d 217 (Fla. 2d DCA 1994)(per curiam)(Blue, J., concurring)(construing former § 231.36(4)(c), Fla. Stat. (1994)).

51. A teacher who completes statutory prerequisites prior to July 1, 1984, is entitled to a continuing contract.

    § 1012.33(3)(a), Fla. Stat. (2003). A teacher who completes the prerequisites on or after July 1, 1984, is entitled to a professional service contract. Id. The prerequisites include three years of probationary service. § 1012.33(3)(a)2., Fla.

    Stat. (2003). A teacher employed during probationary service is entitled to an annual contract. § 1012.33(3)(a)2. and (4)(b) Fla. Stat. (2003); Dietz, 647 So. 2d at 218.

52. Continuing and professional service contracts include the right to continuing employment, but annual contracts do not.

    § 1012.34(6), Fla. Stat. (2003); Dietz, 647 So. 2d at 218. The issue of whether Respondent is entitled to contract renewal for the 2005-2006 school year is not ripe for determination. The sole issues presented are whether Petitioner has "just cause" to terminate Respondent's annual contract for the 2004-2005 school year, and, if not, whether Respondent is entitled to reinstatement for the remainder of the school year with back pay from November 4, 2004, to the date of reinstatement. Cf. Davis

    v. School Board of Gadsden County, 646 So. 2d 766, 769 (Fla. 1st DCA 1994)(non-instructional employee on annual contract is entitled to renewal based on findings school board would have renewed contract but for false allegations).

53. The statutory standard for terminating annual and professional service contracts is different from that for terminating continuing contracts. Annual and professional service contracts must be terminated for "just cause" in Subsection 1012.33(1)(a), Florida Statutes (2003)(just-cause contracts). Continuing contracts must be terminated for grounds enumerated in Subsection 1012.33(4)(c), Florida Statutes (2003).

54. The enumerated statutory grounds for terminating continuing and just-cause contracts have been described, respectively, as the "seven deadly sins" and the "five deadly sins." See, e.g., Spurlin v. School Board of Sarasota County, 520 So. 2d 294, 296 (Fla. 2d DCA 1988); Dietz, 647 So. 2d at

218. The seven deadly sins for terminating continuing contracts are:

immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of a crime involving moral turpitude."

§ 1012.33(4)(c), Fla. Stat. (2003).

The five deadly sins for terminating just-cause contracts exclude immorality and drunkenness, but are otherwise identical to the seven deadly sins. § 1012.33(1)(a), Fla. Stat. (2003).4

1. Immorality is not enumerated as one of the five deadly sins for terminating a just-cause contract. Neither the CBA nor Chapter 1012, Florida Statutes (2003), defines the term "immorality." The rule defining immorality was adopted on April 5, 1983, in relevant part, to implement the law authorizing termination of continuing contracts rather than the law authorizing termination of just-cause contracts such as Respondent's. Compare former § 231.46(4)(c), Fla. Stat. (1981) with § 1012.33(4)(c), Fla. Stat. (2003), and Fla. Admin. Code R. 6B-4.009(2).

2. Petitioner does not rely on express authority in a statute or rule for the proposed termination of Respondent's annual contract. Nor does the proposed agency action rely on any controlling judicial decisions of an appellate court.

3. None of the appellate court decisions cited by the parties in their respective PROs affirm a final order terminating a just-cause contract for immorality. Nor do the decisions affirm a final order interpreting Florida Administrative Code Rule 6B-4.009(2) to terminate a just-cause contract. See Purvis v. Marion County School Board, 766 So. 2d

   492 (Fla. 5th DCA 2000)(affirming termination of continuing

   contract for misconduct in office rather than immorality); Walker v. Highlands County School Board, 752 So. 2d 127 (Fla. 2d DCA 2000)(affirming termination of professional service contract for misconduct in office rather than immorality); Summers v.

   School Board of Marion County, 666 So. 2d 175 (Fla. 5th DCA 1996)(affirming suspension of right to teach for misconduct in office); McNeill, 678 So. 2d at 477 (reversing termination of continuing contract for immorality), (see Pinellas County School Board v. McNeill, Case No. 95-1244 (DOAH March 13, 1995)(Finding of Facts, para. 1, continuing contract)(Final Order (October 11, 1995)); McKinney v. Castor, 667 So. 2d 387 (Fla. 1st DCA 1995)(reversing suspension of teaching certificate for immorality (see Castor v. McKinney, Case No. 92-4799 (DOAH April 1, 1993)(Finding of Facts, para. 3 (continuing contract), (Final Order October 20, 1993)); MacMillan v. Nassau County School Board, 629 So. 2d 226 (Fla. 1st DCA 1993)(reversing termination of professional service contract for misconduct in office; charge of immorality dropped); Sherburne v. School Board

   of Suwanee County, 455 So. 2d 1057, 1058 (Fla. 1st DCA 1984)(refusal to grant continuing contract for immorality); Baker v. School Board of Marion County, 450 So. 2d 1194, n. 1 (Fla. 5th DCA 1984)(reversing termination of contract for immorality pursuant to § 231.36(6), Fla. Stat. (1981), re-

   codified in § 1012.33(4)(c), Fla. Stat. (2003)(pertaining to continuing contracts)).

4. Independent research did not identify an appellate court decision affirming the termination of a just-cause contract for immorality. Nor did the research uncover an appellate court decision applying the definition of immorality in Florida Administrative Code Rule 6B-4.009(2) to terminate a just-cause contract. See Buckner v. School Board of Glades County, 718 So. 2d 862 (Fla. 2d DCA 1998)(rejection for "good cause" of recommendation to award professional service contract to teacher must include showing of "good cause" in former

   § 230.23(5), Fla. Stat. (1995)); Tieger v. School Board of Palm Beach County, 717 So. 2d 172 (Fla. 4th DCA 1998)(reversing school board denial of request for hearing on termination of professional service contract during 97-day initial probation); Dietz, 647 So. 2d at 218 (affirming termination of professional service contract for conduct other than immorality); Tenbroeck v. Castor, 640 So. 2d 164 (Fla. 1st DCA 1994) (reversing suspension of teaching certificate for immorality); Clark v.

   School Board of Lake County, Florida, 596 So. 2d 735 (Fla. 5th DCA 1992)(reversing termination of continuing contract for immorality); Krueger v. School District of Hernando County, 540 So. 2d 180 (Fla. 5th DCA 1989)(teacher on continuing contract entitled to back pay after improper dismissal for grounds other

   than immorality); Spurlin, 520 So. 2d at 295 ("good cause" to refuse recommendation of continuing contract not limited to grounds for termination of continuing contract); Forehand v. School Board of Washington County, 481 So. 2d 953 (Fla. 1st DCA 1986)(reversing termination of continuing contract for immorality); Tomerlin v. Dade County School Board, 318 So. 2d

   159 (Fla. 1st DCA 1975)(affirming termination of continuing contract for immorality).

5. One appellate court decision affirmed the termination of a just-cause contract on a ground that was not one of the five deadly sins. The ground was neither immorality nor drunkenness. However, the concurring opinion assumed, but did not hold, that immorality and drunkenness are implied grounds to terminate a just-cause contract. In dicta, the court reasoned:

   Just cause . . . includes but is not limited to five of the seven deadly sins. We assume that drunkenness and immorality . . . would also be grounds for dismissal.

   
   

   Dietz, 647 So. 2d at 218 (Blue, J., concurring).

   
   

6. If the dicta in the concurring opinion in Dietz were controlling precedent in subsequent cases, the charges and facts in Dietz are distinguishable from those in this proceeding.

   In Dietz, the school board charged the teacher with misconduct in office rather than immorality. The evidence was insufficient to prove misconduct in office. However, inappropriate language

   at school and a loaded gun locked in the teacher's car constituted "just cause" to terminate the contract. The offending conduct in this proceeding occurred off-campus, in private, and did not involve students or a minor.

7. The proposed agency action does not rely on controlling judicial decisions; or the judicial doctrine of longstanding legislative reenactment to interpret either the statute or the Rule. The judicial doctrine holds that subsequent reenactment of statutory provisions that have received a definite judicial construction is presumed to constitute legislative approval of the judicial construction. State ex rel. Szabo Food Service, Inc. v. Dickinson, 286 So. 2d

   529 (Fla. 1973); Walsingham v. State, 250 So. 2d 857 (Fla.

   
   

   1971); Davies v. Bossert, 449 So. 2d 418 (Fla. 3d DCA 1984).

   
   

8. The proposed termination relies on incipient agency policy to interpret: the statute authorizing termination of just-cause contracts; and the Rule defining immorality (incipient policy). The final order of the agency must explicate the incipient policy in a manner that is sufficient

   for judicial review. § 120.68(7)(e)2. and 4., Fla. Stat. (2003); McDonald v. Department of Banking and Finance, 346 So. 2d 569,

   582 (Fla. 1st DCA 1977). This Recommended Order must critique agency policy as it is revealed in the record of the

   administrative hearing. As the First District Court of Appeal explained in 1977:

   . . . the APA infuses Section 120.57(1) proceedings with concern for agency policy as well as for facts and law. The hearing officer . . . is . . . charged to record, recommend and critique agency policy as it is revealed in the record. [T]he

   hearing officer's duty to respond to evidence in that way cannot fail to promote responsible agency policymaking.

   
   

   McDonald, 346 So. 2d at 582-583.

   
   

9. The incipient policy developed in the record must be consistent with legislative intent for the statute authorizing termination of just-cause contracts. The incipient policy must construe the terms of the statute in a manner that is consistent with constitutional constraints, relevant judicial decisions, and legislative spirit and policy for the statute as a whole.

10. The plain meaning of statutory language is the first consideration of statutory construction. Capers v. State, 678 So. 2d 330, 332 (Fla. 1996); St.Petersburg Bank & Trust Co. v. Hamm, 414 So. 2d 1071 (Fla. 1982). The reference to "moral turpitude" in the five deadly sins does not subsume immorality as a ground for dismissal. Moral turpitude and immorality are distinct terms defined differently by rule. Fla. Admin. Code R. 6B-4.009(2) and (6).

11. The legislature enumerates immorality and moral turpitude as separate grounds for terminating continuing

    contracts. § 1012.33(4)(c), Fla. Stat. (2003). The legislature does not intend distinct statutory terms to be redundant or superfluous. See, e.g., City of Indian Harbor Beach v. City of Melbourne, 265 So. 2d 422, 424 (Fla. 4th DCA 1972) (interpretation that renders legislatively created provision ineffective or purposeless should be avoided). By analogy, the "lack of good moral character" is not judicially restricted to "moral turpitude." The Florida Bar re Jahn, 559 So. 2d 1089 (Fla. 1990); Florida Board of Bar Examiners re G.W.L., 364 So.

    2d 454, 458 (Fla. 1978); In Re Florida Board of Bar Examiners, 358 So. 2d 7, 8-9 (Fla. 1978).

12. The statute authorizing termination of just-cause contracts expressly provides that "just cause includes but is not limited to" the five deadly sins (the inclusive language). Petitioner presumes that the inclusive language amends the five deadly sins, by implication, to add immorality as a ground for termination of a just-cause contract.

13. Implied amendment would effectively transform the statute enumerating the five deadly sins into a "reference statute" that wholly adopts the seven deadly sins. Implied amendment occurs when the statute referred to in the reference statute is treated as if it were incorporated into and formed part of the reference statute. Implied amendment of a statute

    is not favored and generally not upheld in doubtful cases. State v. J.R.M., 388 So. 2d 1227, 1229 (Fla. 1980).

14. A literal interpretation of the inclusive language for terminating just-cause contracts invites unbridled agency discretion. As the court in Dietz observed:

    . . . the school board . . . determined there was just cause to terminate . . . [the] contract. . . . [T]the legislature left that determination to . . . each school board by providing no definite parameters to the term "just cause."

    
    

    Dietz, 647 So. 2d at 218.

    
    

15. Unbridled agency discretion risks violation of the non-delegation doctrine in Florida. Fla. Const., Art. 2, § 3. The non-delegation doctrine requires the legislature to provide standards and guidelines in an enactment that are ascertainable by reference to the terms of the enactment. Bush v. Shiavo, 885 So. 2d 321 (Fla. 2004); B.H. v. State, 645 So. 2d 987, 992-994 (Fla. 1994); Askew v. Cross Key Waterways, 372 So. 2d 913, 925 (Fla. 1978). The incipient policy should construe the relevant statute in a manner that preserves its constitutionality. See, e.g., Spurlin, 520 So. 2d at 296-297 and Von Stephens, 338 So. 2d at 894 (avoiding construction that would permit unbridled agency discretion in statute with no express limits).

16. Legislative authority to terminate just-cause contracts for grounds other than the five deadly sins does not,

    a fortiori, subsume immorality and drunkenness. If it were the legislature's intent to authorize immorality and drunkenness as grounds to terminate just-cause contracts, the legislature could have made that intent unambiguous by enumerating the seven deadly sins as grounds for terminating both continuing contracts and just-cause contracts. That option would have made it unambiguous that the legislature intended the grounds for terminating just-cause contracts to include, but not be limited to, the seven deadly sins enumerated for continuing contracts.

17. The legislature did not choose an unambiguous option to express the legislative intent assumed in the Agency's incipient policy. Rather, the legislature excluded immorality and drunkenness, and the Agency seeks to reinstate immorality.

18. Separate statutes authorizing termination of just- cause and continuing contracts are properly construed as distinct parts of the whole statute. Each part operates on a separate type of contract, but the two parts together regulate the termination of all contracts that fall within the legislative purpose for the statute as a whole. Coalition for Adequacy and Fairness in School Funding, Inc., et al. v. Chiles, 680 So. 2d 400, 406 (Fla. 1996)(construing constitutional requirement for uniform system of education to mean a system in which distinct constituent parts operate to serve a common purpose). When the statute is construed as a whole, the maxim

    expressio unius est exclusio alterius suggests the enumeration of the five deadly excludes those grounds not adopted from the seven deadly sins. McFadden v. State, 737 So. 2d 1073 (Fla.

    1999); Thayer v. State, 335 So. 2d 815 (Fla. 1976).

    
    

19. Statutory provisions enacted in the same act and related to the same subject matter, i.e., the termination of contracts, should be construed in pari materia in a manner that harmonizes them and gives effect to legislative intent for the statute as a whole. Such provisions are imbued with the same legislative spirit and actuated by the same legislative policy. Forsythe v. Longboat Key Beach Erosion Control District, 604 So. 2d 452 (Fla. 1992); Singleton v. State, 554 So. 2d 1162 (Fla. 1990); Major v. State, 180 So. 2d 335, 337 (Fla. 1965); Abood v. City of Jacksonville, 80 So. 2d 443, 444-445 (Fla. 1955); McGraw v. R and R Investments, Ltd., 877 So. 2d 886, 890 (Fla. 1st DCA 2004).

20. Legislative distinctions between the grounds for terminating continuing and just-cause contracts are consistent with judicial distinctions between private, off-campus acts and acts that occur on campus. Immorality and drunkenness, unlike the five deadly sins, are not intrinsically job-related.5 Acts of immorality and drunkenness can be wholly private acts that, without more, do not involve a crime, do not impair classroom effectiveness, and do not disgrace the teaching profession.

    Termination of a just-cause contract for immorality or drunkenness, either of which is not job-related, would not effectuate the legislative spirit and policy exemplified by the five deadly sins. See Walker, 752 So. 2d at 128 (impaired classroom effectiveness inferred from misconduct in school, but not from private acts of immorality).

21. Termination of a just-cause contract for job-related deficiencies stemming from acts of immorality or drunkenness, whether the acts occur in school or off-campus, effectuates the legislative spirit and policy expressed in the five deadly sins. It is sufficient, however, for a school board to prove conduct is job-related. Cf. Dietz, 647 So. at 218 (on-campus conduct that is just cause for termination does not require proof of misconduct). A requirement for a school board to undertake the additional burden of proving that job-related deficiencies also satisfy elements in a definition of immorality or drunkenness would be a useless legislative requirement. The legislature should never be presumed to enact a purposeless or useless provision. Sharer v. Hotel Corporation of America, 144 So. 2d 813, 817 (Fla. 1962); Indian Harbor, 265 So. 2d at 424; compare Walker, 752 So. 2d 127 (impaired effectiveness inferred from school conduct) with Purvis, 766 So. 2d 492 (inferring impaired effectiveness from school conduct and in dicta from other conduct) and Tomerlin, 318 So. 2d at 160(immoral conduct at home

    and after hours found to be job-related because conduct involved teacher's nine-year-old stepdaughter of same age as teacher's students); accord Smith v. School Board of Leon County, 405 So. 2d 183 (Fla. 1st DCA 1981)(citing Tomerlin as related to job performance).

22. Professional service and continuing contracts have been judicially described as tenured contracts. See, e.g., Clark v. School Board of Glades County, 716 So. 2d 330 (Fla. 2d DCA 1998)(tenured professional contract); Slater v. Smith, 142 So. 2d 767, 769 (Fla. 1st DCA 1962)(holder of continuing contract acquires rights known as tenure). Each contract is renewed without the necessity for annual nomination or reappointment unless a school board invokes the applicable statutory standard for non-renewal. § 1012.33(3)(e) and (4)(b), Fla. Stat. (2003); Slater, 142 So. 2d at 769.

23. The statutory standards for non-renewal of professional service and continuing contracts comprise a primary distinction in tenured contracts. A professional service contract must be renewed each year unless performance is unsatisfactory (unsatisfactory performance). §§ 1012.33(3)(e) and 1012.34, Fla. Stat. (2003). A continuing contract must be renewed each year unless a school board has "good and sufficient reasons" (good cause) to either dismiss the holder of the

    contract or return the teacher to annual contract status for another three years. § 1012.33(4)(b), Fla. Stat. (2003).

24. Respective standards for the termination and non- renewal of just-cause contracts are expressly related to job performance (job-related). Compare §§ 1012.33(a)(e) and 1012.34 with § 1012.33(1)(a), Fla. Stat. (2003). Respective standards for the termination and non-renewal of continuing contracts are not limited to either the five deadly sins or unsatisfactory performance. Compare Buckner, 718 So. 2d at 865 (suggesting in dicta that legislature did not intend rejection of public service contract to be based on grounds other than assessment procedures showing unsatisfactory performance) with Spurlin, 520 So. 2d at 296-297 and Von Stephens, 338 So. 2d at 894 (construing "good cause" for denying a nomination for employment to include moral fitness and other objective grounds that are not pretextual or invidious).

25. Legislative intent to exclude immorality and drunkenness from the statutory standard for terminating

    just-cause contracts is consistent with legislative intent to limit non-renewal of professional service contracts to unsatisfactory performance. Statutory standards for the termination and non-renewal of professional service contracts are imbued with the same legislative spirit and actuated by the same legislative policy.

26. Inclusion of immorality and drunkenness in the statutory standard for terminating a continuing contract is consistent with inclusion of the lack of moral fitness as a good and sufficient ground for non-renewal of continuing contracts. The enumerated grounds for the termination and non- renewal of continuing contracts are imbued with and actuated by the same legislative spirit and policy.

27. Differences in statutory standards for terminating continuing and just-cause contracts are consistent with differences in statutory standards for their non-renewal. Grafting immorality onto the five deadly sins through implied amendment would exacerbate legislative intent for different treatment of different contracts in the statute as a whole. It would nullify differences in statutory standards for termination of the two tenured contracts and indirectly emasculate the requirement that non-renewal of professional service contracts be limited to unsatisfactory performance.6 When the literal interpretation of statutory terms frustrates legislative intent, the literal meaning must yield to legislative intent for the statute as a whole. Vildibill v. Johnson, 492 So. 2d 1047, 1049 (Fla. 1986); Department of Professional Regulation, Board of Dentistry v. Florida Dental Hygienist Association, Inc., 612 So. 2d 646, 654 (Fla. 1st DCA 1993); cf. State v. Perez, 531 So. 2d

    961, 963 (Fla. 1988)(rejecting literal meaning leading to illogical result).

28. The incipient policy cannot rely on a rule to interpret legislative intent for a statute. A rule defining immorality for a statute authorizing termination of continuing contracts does not imply that a different statute includes immorality as a ground for terminating different contracts. A statute controls any conflict or ambiguity between the terms of the statute and the interpretation of the rule. Johnson v. State, Department of Highway Safety & Motor Vehicles, 709 So. 2d 623, 624 (Fla. 4th DCA 1998). Any conflict between a subsequent statute and a preexisting rule does not create ambiguity in the statute. Id.

29. Incipient policy interpreting the five deadly sins to include immorality is invalid. The policy is inconsistent with the non-delegation doctrine and results in the implied amendment of a statute. The policy conflicts with judicial decisions recognizing distinctions between private acts of immorality and job-related acts. The policy is inconsistent with the legislative spirit and policy for the statute as a whole.

30. Just as incipient policy must not interpret a statute in a manner that is unconstitutional, incipient policy must not interpret a rule in a manner that satisfies the statutory definition of an invalid rule. § 120.52(8), Fla. Stat. (2003).

    The validity of the Agency's interpretation of the Rule defining immorality is properly tested by the specific provisions of the law implemented by the Rule. § 120.52(8)(c), Fla. Stat. (2003).

31. The Rule defining immorality was adopted on April 5, 1983, in relevant part, to implement the law

    authorizing termination of continuing contracts. See former

    
    

    § 231.46(4)(c), Fla. Stat. (1982 Supp.), i.e., the law expressly implemented, later codified in § 1012.33(4)(c), Fla. Stat. (2003)(authorizing termination of continuing contracts). The Rule was not adopted to implement the law authorizing termination of just-cause contracts. Compare former

    § 231.36(1)(a), Fla. Stat. (1983), with § 1012.33(1)(a), Fla.

    
    

    Stat. (2003)(each authorizing termination of just-cause contracts).

32. The incipient policy in this proceeding does not interpret the Rule defining immorality to regulate the termination of continuing contracts in accordance with the specific provisions of the law implemented by the Rule. Rather, the incipient policy interprets the Rule to regulate contracts that are beyond the scope of the law implemented by the Rule.

33. Incipient policy cannot enlarge the specific provisions of the law implemented in Florida Administrative Code Rule 6B-4.009(2) to reach just-cause contracts. Such an interpretation would be an invalid exercise of delegated

    legislative authority in Subsection 120.52(8)(c), Florida Statutes (2003). A valid interpretation of a rule must regulate a matter directly within the class of powers and duties identified in the specific provisions of the law implemented.

    Department of Businesss and Professional Regulation v. Calder Race Course, 724 So. 2d 100, 101 (Fla. 1st DCA 1998); St. Johns

    River Water Management District v. Consolidated-Tomoka Land Co., 717 So. 2d 72, 76 (Fla. 1st DCA 1998)(range of powers test replaces reasonably related test).

34. Agency policy that amends a rule is itself a rule.

    
    

    § 120.52(15), Fla. Stat. (2003)(defining a rule to include an interpretation of agency policy that amends a rule). Agency action that does not follow its own rules is itself a rule.

    Vantage Healthcare Corporation v. Agency for Health Care

    
    

    Association, 687 So. 2d 306, 307 (Fla. 1st DCA 1997). An agency interpretation imposing different requirements from those in a rule is an invalid rule. Decarion v. Martinez, 537 So. 2d 1083, 1084 (Fla. 1st DCA 1989). An agency deviation from a rule is itself a rule. Williams v. Department of Transportation, 531 So. 2d 994, 996 (Fla. 1st DCA 1988). An agency's enforcement of its interpretation of a rule may be a rule. Department of Revenue of State of Florida v. Vanjaria Enterprises, Inc., 675 So. 2d 252, 255 (Fla. 5th DCA 1996). An administrative order

    may be a rule. Florida Public Service Commission v. Central Corporation, 551 So. 2d 568, 570 (Fla. 1st DCA 1989).

35. The Agency's proposed interpretation of Florida Administrative Code Rule 6B-4.009(2) would be inconsistent with the Rule and the specific provisions of the law implemented by the Rule. An exercise of agency discretion is subject to remand when it is inconsistent with an existing rule or the statute implemented by the Rule. §§ 120.68(7)(e)2. and 4., Fla. Stat. (2003).

36. The Agency has not promulgated an objective definition of immorality in a rule that regulates just-cause contracts. Nor does the record evidence explicate an objective definition of immorality to regulate the termination of a just-cause contract.

37. Immorality, in the absence of an objective definition, is unusually ambiguous and can be defined in an almost unlimited number of ways, depending on the personal views of the definer. As the Florida Supreme Court has explained:

    The term "good moral character". . . by itself, is unusually ambiguous. It can be defined in an almost unlimited number of ways for any definition will necessarily reflect the attitudes, experiences, and prejudices of the definer. Such a vague qualification, which is easily adapted to fit personal views and predilections, can be a dangerous instrument for arbitrary and discriminatory [agency action]. Konigsberg v. State Bar of California, 353 U.S. 252,

    262-263, 77 S. Ct. 722, 728, 1 L. Ed. 2d 810

    (1957).

    
    

    Board of Bar Examiners, 358 So. 2d 7, 8-9 (Fla. 1978).

    
    

38. The incipient policy peddles a conclusion on two analytical circularities. First, immorality is a ground for terminating just-cause contracts because immorality is a ground for terminating continuing contracts. Second, the definition of immorality in the Rule regulates just-cause contracts because the definition regulates continuing contracts. Each treadle is invalid, but both are required to proceed to a conclusion concerning the definition of immorality in the Rule.

39. A determination of whether a teacher deviates from a standard of conduct requires findings of fact that are the exclusive province of the trier of fact. Such a determination is not infused with agency expertise. See Bush v. Brogan, 725 So. 2d 1237, 1239-1240 (Fla. 2d DCA 1999)(finding that conduct was not gross immorality is a finding of fact that is not infused with agency policy); accord Dunham v. Highlands County School Board, 652 So. 2d 894, 896 (Fla. 2d DCA 1995).

40. The offending conduct does not satisfy the definition of immorality in the rule adopted to regulate continuing contracts. Florida Administrative Code Rule 6B-4.009(2) defines the term "immorality" as:

    . . . conduct that is inconsistent with the standards of public conscience and good

    morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impair the individual's service in the community.

    
    

    Florida courts have construed the foregoing definition of immorality as follows:

    . . . in order to dismiss a teacher for immoral conduct the fact finder must conclude: a) that the teacher engaged in conduct inconsistent with the standards of public conscience and good morals, and b) that the conduct was sufficiently notorious so as to disgrace the teaching profession and impair the teacher's service in the community." (emphasis the court's).

    
    

    McNeill, 678 So. 2d at 477 (citing McKinney, 667 So. 2d 387 and

    
    

    Sherburne, 455 So. 2d 1057).

    
    

41. The public conscience and good morals of a community is properly defined by an objective standard. A personal standard invites an arbitrary and discriminatory exercise of agency discretion. Board of Bar Examiners, 358 So. 2d at 8-9; see Perez-Swinney v. Jamerson, 1995 WL 1052590 Case No. 94-2877 (DOAH January 13, 1995) (Final Order October 6, 1995). The insufficiency of record evidence of a community standard in this proceeding is similar to that in Sherburne, 455 So. 2d at 1061. In Sherburne a female teacher was accused of immorality for engaging in premarital sex. The court stated:

    . . . while we recognize that the immorality of pre-marital sex is not considered open to debate in some quarters, and this opinion

    should not be read as condoning such activity, we can find no substantial evidence satisfying the requirements of

    . . . rule [6B-4.009(2)]. . . .

    
    

    A finding that Respondent's conduct was inconsistent with the community standard, without competent and substantial evidence of an objective standard, would subvert evidentiary requirements to the attitudes, experiences, prejudices, and personal views of one person. Konigsberg, 353 U.S. at 262-263, 77 S. Ct. at 728;

    Sherburne, 455 So. 2d at 1061.

    
    

42. Private, off-campus conduct involving a consensual sexual relationship between adults of the opposite sex, by itself, is not "just cause" to terminate the contract of a teacher. Sherburne, 455 So. 2d at 1062. Petitioner must also show, in relevant part, that the conduct impaired classroom effectiveness and was so notorious that it disgraced the teaching profession.

43. The offending conduct was not sufficiently notorious to disgrace the teaching profession. Petitioner cannot rely on its own activities to prove the conduct was widely known. Sherburne, 455 So. 2d at 1061; Baker, 450 So. 2d at 1194.

44. A teacher's service in the community is measured by the teacher's effectiveness in the classroom. McNeill, 678 So. 2d at 477-478, citing McKinney, 667 So. 2d at 387 and Sherburne,

    455 So. 2d at 1062. Respondent remained effective in the

    classroom up to the date of her suspension. The summary opinions and conclusions of the witness were neither credible, persuasive, nor legally probative. See MacMillan, 629 So. 2d at 229-230 (summary opinions do not evidence lost effectiveness).

45. Petitioner's favorable evaluation of Respondent after the incident and subsequent re-employment is strong evidence of Respondent's effectiveness in the classroom. The decision of a court faced with similar evidence is instructive:

    The Board's action in favoring appellant with a teaching contract for three years, and its tender of an annual contract for the fourth year (subsequent to the events which it now advances as disqualifying her to teach), strongly suggests that in later denying appellant a continuing contract, or even employment on an annual contract, the Board was concerned more with what it considered to be an affront to its members' own personal moral standards, than with appellant's possible adverse effects on the students.

    
    

    Sherburne, 455 So. 2d at 1061-1062.

    
    

46. Petitioner argues that a finding of impaired effectiveness does not require specific evidence but may be inferred from conduct. Petitioner cites three cases in support of its argument. Purvis, 766 So. 2d 492; Walker, 752 So. 2d 127; Summers, 666 So. 2d 175 (Fla. 5th DCA 1996).

47. The three judicial decisions held, inter alia, that impaired classroom effectiveness may be inferred from the

    teacher's conduct. The decision in Summers does not describe the teacher's conduct and provides little factual precedent.

48. The facts in Purvis and Walker are factually distinguishable from those in this proceeding in two respects. The charges in Purvis and Walker involved misconduct in office, rather than immorality, and the facts involved public rather than private acts. Purvis, 766 So. 2d at 493; Walker, 752 So. 2d at 128.

49. In Purvis, the court distinguished the holding in McNeill on the grounds that McNeill "involved a charge of immorality, rather than misconduct in office." Purvis, 766 So. 2d at 497. This proceeding involves a charge of immorality rather than misconduct in office.

50. In Purvis, the teacher engaged in an altercation with his fiancée outside of a nightclub, was arrested at the nightclub, and was tried and acquitted by a jury on charges of resisting arrest without violence; and battery of a law enforcement officer. However, the decision affirming the dismissal of the teacher turned on the teacher's willingness to lie under oath rather than the teacher's classroom performance. As the court explained:

    The fact that Purvis was willing to lie under oath is particularly damaging to Purvis' effectiveness as a teacher and coach, since it harms his credibility in his

    dealings with others. The hearing officer's reliance on his teaching and coaching skills and the lack of public scandal are irrelevant to the trust issues. . . .

    
    

    Purvis, 766 So. 2d at 498.

    
    

    Unlike the facts in Purvis, Respondent was honest and forthcoming during Petitioner's investigation.

51. In Purvis, the court suggested in dicta that impaired effectiveness may be a standard of severity rather than an issue of proof. Even if it were an issue of proof, the court reasoned that impaired effectiveness does not turn on whether misconduct occurred on school grounds. The court suggested that impaired effectiveness may be inferred from off-campus conduct. Id.

52. The decision of the Fifth District Court of Appeal in Purvis conflicts with that of the Second District Court of Appeal in Walker. In Walker, the court held that ineffectiveness could be inferred from classroom chaos. However, the court expressly limited it's holding to facts involving conduct in the classroom. As the court explained:

    This case must be distinguished from McNeill, where the teacher's misconduct was of a private immoral nature. In such a case, the teacher's ineffectiveness cannot be inferred due to the private nature of the misconduct. By contrast, the misconduct here occurred in the classroom. The very existence of the described chaos in appellant's classroom speaks for itself.

    Appellant's misconduct, which consisted of his unwillingness to follow established school board policy, led to a loss of

    control in the classroom, which, by its very nature, demonstrates his ineffectiveness in the school system. In such a case, independent evidence of the teacher's ineffectiveness would be superfluous.

    
    

    Walker, 752 So. 2d at 128.

    
    

    The ruling in Walker is controlling in this proceeding.

    
    

53. The offending conduct in this proceeding was private and off-campus. Compare Walker, 752 So. 2d at 128 (touching an undercover officer in McNeill in a sexually suggestive manner, is misconduct of a private nature even though it created a public arrest record) and Sherburne, 455 So. 2d at 1062 (private, off-campus conduct involving conduct between adults is not good cause for refusal of employment unless conduct impairs ability to teach). Classroom ineffectiveness cannot be inferred in this jurisdiction from a private, off-campus act of alleged immorality. The absence of any evidence of impaired classroom effectiveness deprives the record of a factual predicate essential to the definition of immorality.

54. The remaining issue is whether conduct that does not satisfy the definition of immorality is nevertheless an implied ground for termination of a just-cause contract. See, e.g., Dietz, 647 So. 2d at 218. The record does not develop facts analogous to those in Dietz in which the offending conduct was job-related and consistent with the legislative policy actuated in the five deadly sins.

55. The incipient policy evidenced in the record identifies three factors for the proposed termination of a just-cause contract. One factor is job performance. Another is adultery, and the other is public knowledge.

56. The record evidence does not formulate intelligible standards for defining impaired job performance in a manner that supports the proposed agency action. Petitioner gave Respondent satisfactory job performance evaluations after the offending conduct, and the conduct did not cause any adverse impact on students, parents, teachers, or the community.

57. The record evidence does not explicate intelligible standards for the exercise of agency discretion based on adultery. Teachers living in civil unions, by definition, would be immune from dismissal for adultery. An unmarried teacher who engages in sex with a married person may not be guilty of adultery. The policy does not weigh aggravating and mitigating factors, including coercion from allegedly abusive spouses.

58. The evidence failed to explicate definite parameters for determining when a video becomes public. The incipient policy apparently deems a video to be public when the video is disclosed to the Agency. The policy disregards evidence showing the video has no impact in the school or elsewhere beyond the administrative offices of the Agency.

59. The record shows that Respondent is entitled to reinstatement and back pay from the date of suspension on November 4, 2004, through the date of reinstatement (contested period). Davis, 646 So. 2d, n. 1, at 767. Neither party cited any provisions in the CBA to determine the amount of back pay. See generally Sickon v. School Board of Alachua County Florida, 719 So. 2d 360, 364-365 (Fla. 1st DCA 360)(terms of CBA control rights of parties). The amount of back pay for the contested period is equal to the amount of wages Respondent would have earned less any sums Respondent earned or reasonably could have earned. Davis, 646 So. 2d, n. 1, at 767.

RECOMMENDATION

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

RECOMMENDED that Petitioner enter a final order finding Respondent not guilty of immorality or other just-cause for termination, reinstating Respondent for the remainder of the 2004-2005 school year, and awarding back pay and benefits as prescribed in this Recommended Order.

DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida.

S

DANIEL MANRY

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 16th day of March, 2005.

ENDNOTES

1/ § 120.52(1), Fla. Stat. (2003); Board of Public Instruction v. State ex rel. Allen, 219 So. 2d 430 (Fla. 1969)(county school board is a state agency); accord Sublett v. District School Board of Sumter County, 617 So. 2d 374 (Fla. 5th DCA 1993); Canney v. Board of Public Instruction of Alachua County, 222 So. 2d 803 (Fla. 1st DCA 1969).

2/ The CBA is entitled the Agreement between The School Board of Lee County and the Teachers Association of Lee County TALC 2003-2005.

3/ Petitioner has not charged Respondent with violating disciplinary rules related to the principles of professional conduct in Florida Administrative Code Rule 6B-1.006.

4/ The CBA limits the grounds upon which Petitioner may dismiss Respondent to those grounds that satisfy the definition of "just cause" in Chapter 1012, Florida Statutes (2003).

Art. 6 CBA, § 6.024. Similarly, the petition proposes to dismiss Respondent pursuant to Section 6.024 of the CBA and

§ 1012.33(1)(a), Fla. Stat. (2003).

5/ Legislative policy treating a crime of moral turpitude as job-related is endemic in Florida law and applies to numerous occupations including licensees of the Florida Real Estate Commission, Department of Health, and Florida Bar Association. The policy is well established through the judicial doctrine of longstanding legislative reenactment. The legislature has not reenacted immorality as a job-related offense in the statute sub judice because no appellate decisions have rendered a definite construction of the statute to terminate a just-cause contract for immorality. Moral turpitude has been judicially defined to include the elements of culpable intent and a lack of integrity or trustworthiness that arguably make moral turpitude job- related. The term excludes acts committed through error of judgment when a wrong is not contemplated. See, e.g., Pearl v. Florida Board of Real Estate, 394 So. 2d 189, 191 (Fla. 3d DCA 1981). There is no evidence of dishonesty or culpable intent to pander the video or to use it for any depraved purpose. Rather, Respondent alleges, but did not testify, that her abusive ex- husband coerced her into the offending conduct. Compare Pearl,

394 So. 2d at 191(possession of controlled substance without intent to distribute is not moral turpitude) with Milliken v. Department of Business and Professional Regulation, 709 So. 2d

595 (Fla. 5th DCA 1998)(possession of controlled substance with intent to distribute is moral turpitude) and Tullidge v. Hollingsworth, 146 So. 660 (Fla. 1933)(in dicta suggesting false oath, if proved, would be moral turpitude) with Purvis, 766 So. 2d at 498 (willingness to lie under oath demonstrates lack of trustworthiness that impairs job performance).

6/ In a specific situation, the absence of unsatisfactory performance would require renewal of a professional service contract and thereafter authorize termination of the contract on grounds that are not job-related; but fall within the ambit of "immorality" or other "good and sufficient reasons" in

§§ 1012.33(4)(b) or (c), Fla. Stat. (2003).

COPIES FURNISHED:

J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue

Fort Myers, Florida 33901-3916

Robert J. Coleman, Esquire Coleman & Coleman

2300 McGregor Boulevard Post Office Box 2089

Fort Myers, Florida 33902-2089

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400

Honorable John Winn, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. James W. Browder, III, Superintendent Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901-3916

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: 04-004096TTS

Orders for Case No: 04-004096TTS