STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case before Carolyn S. Holifield, Administrative Law Judge of the Division of Administrative Hearings, on October 30, 2008, in

Bartow, Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

David Carmichael, Esquire Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-0030

For Respondent: Blanca R. Ortiz, pro se

821 Castle Way

Lakeland, Florida 33803 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner, Polk County School Board ("School Board"), had just cause to terminate

Respondent, Blanca R. Ortiz' ("Respondent"), employment as a teacher.

PRELIMINARY STATEMENT

By letter dated March 11, 2008, Respondent was notified that the superintendent of the Polk County School District ("School District") was recommending to the School Board that she be terminated from her position as a teacher. The letter alleged that: (1) an iPod Touch belonging to one of Respondent's students was reported as stolen from the student's backpack; (2) during a search of Respondent's classroom, the student's iPod was found in a bag belonging to Respondent;

1. Respondent was observed putting the iPod in her bag; and

   
   

2. during an investigation of the matter, Respondent told police officers/school resource officers that she did not know how the iPod got in her bag. Based on the foregoing facts, the superintendent determined that there was just cause for Respondent's termination as an employee of the School Board. According to the letter, the superintendent also determined that Respondent's actions violated the Principles of Professional Conduct of the Education Profession in Florida (Florida Administrative Code Rule 6B-1.006) by failing to maintain honesty in her professional dealings. Respondent challenged the proposed termination and requested a formal hearing.

The matter was forwarded to the Division of Administrative Hearings on June 3, 2008, for assignment of an Administrative Law Judge to conduct the hearing and prepare a Recommended Order. In a notice issued on July 7, 2008, the hearing was scheduled for August 8, 2008. Prior to the scheduled hearing date, the parties filed a Joint Motion to Continue Hearing. The motion was granted, and the hearing was rescheduled for

October 30, 2008.

At hearing, the School Board presented the testimony of seven witnesses and the School Board's Exhibits lettered

A through E were admitted into evidence. Respondent testified on her own behalf and called one witness. Respondent offered no exhibits into evidence at the hearing. The record was left open until November 6, 2008, to allow Respondent additional time to file her exhibits. As of the date of this Recommended Order, Respondent had not late-filed any exhibits.

On November 18, 2008, the School Board filed a Request to Keep the Record Open to allow it time to obtain and file a certified copy of the disposition of the criminal case against Respondent. The undersigned granted the unopposed Request to Keep the Record Open in an Order issued December 23, 2008. On November 20, 2008, the School Board filed a certified copy of the disposition of criminal charges filed against Respondent, arising out of the same circumstances that are the basis for the

superintendent's recommendation for termination. The above- referenced disposition of the criminal case is received into evidence as School Board Exhibit lettered F and deemed a part of the record in this proceeding.

At the conclusion of the hearing, the parties agreed to file proposed recommended orders ten days after the transcript was filed. The Transcript of the final hearing was filed on November 12, 2008. The School Board timely filed its Proposed Recommended Order. Respondent did not file a proposed recommended order.

FINDINGS OF FACT

1. At all times relevant to this proceeding, Respondent was employed by the School Board as a teacher at Lakeland High School, where she taught spanish. Respondent currently holds a professional services contract pursuant to Section 1012.33, Florida Statutes (2007).1

2. On February 6, 2008, Chelsey Etgen, a Lakeland High School student in Respondent's fourth-period class, left her packback in Respondent's classroom during the lunch period. The backpack contained Ms. Etgen's iPod Touch ("iPod").

3. When Ms. Etgen returned to the classroom from lunch, an unidentified male student, who was sitting near her, handed her (Etgen) a graph and a calculator and asked if those were her items. Ms. Etgen recognized both the graph and calculator as

   items that belonged to her and that had been in the same "pocket" of her backpack as her iPod. Ms. Etgen immediately checked her backpack and, upon doing so, discovered that her iPod was missing.

4. Immediately after Ms. Etgen discovered that her iPod was missing, she notified Respondent. Respondent had the students in the class empty their pockets, but the iPod was not found. Respondent then instructed Ms. Etgen to notify appropriate school officials that the iPod had been taken from her backpack.

5. On February 7, 2008, Ms. Etgen reported to the school resource officer ("resource officer" or "officer") that the iPod was missing from her backpack.

6. Ms. Etgen's iPod was black with a silver face/screen.

   
   

7. About a week after Ms. Etgen reported that her iPod was stolen, Respondent asked Ben Brown and another student in Respondent's third-period Spanish I class if they could unlock her iPod. Respondent told Mr. Brown and the other student that her daughter had taken the iPod to school and tried the password so many times that it (the iPod) had "locked up." Mr. Brown and several other students attempted to "unlock" the computer, but were unsuccessful in doing so.

8. Almost two weeks after Ms. Etgen's iPod was reported as missing, Ms. Etgen told Mr. Brown that she thought Respondent

   had her (Etgen's) iPod. The two students then arranged for

   
   

   Mr. Brown to check the serial number on the iPod that Respondent stated was hers with the serial number of Ms. Etgen's stolen iPod. Mr. Brown agreed to get the serial number off the iPod.

   As a security measure, Mr. Brown told Ms. Etgen that after he obtained the serial number from the iPod, he would e-mail half of the serial number to her and indicated that she should provide the other half of the serial number to him.

9. On or about February 20, 2008, and after the conversation described in paragraph 8, Mr. Brown went to Respondent's third-period class. The iPod, which Mr. Brown had been trying to "unlock" for Respondent, was still in Respondent's classroom. That day, Mr. Brown was able to hold and look at the iPod and to obtain the serial number of the iPod.

10. Ms. Etgen obtained the serial number of her stolen iPod from the box in which the iPod had come.

11. On February 20, 2008, Mr. Brown and Ms. Etgen exchanged a series of text messages in which each of them provided parts of the serial number of the iPod that was in Respondent's classroom. After doing so, Mr. Brown and Ms. Etgen confirmed that the serial number of the iPod that Respondent had said was hers matched the serial number of Ms. Etgen's stolen iPod.

12. The iPod from which Mr. Brown obtained the serial number discussed above, looked identical to the one that he had been trying to "unlock" for Respondent.

13. After confirming that the iPod in Respondent's classroom matched her iPod serial number, Ms. Etgen told school officials that she believed Respondent had her (Etgen's) iPod. Ms. Etgen also delivered to resource officers, Stacy Pough and Steve Sherman, the box for her iPod that had the serial number which Ms. Etgen believed matched the iPod in the possession of Respondent.

14. On February 20, 2008, soon after receiving information from Ms. Etgen about the matching iPod serial numbers, Officers Pough and Sherman went to Respondent's classroom to ask her about the missing/stolen iPod. Upon entering the classroom, the officers approached Respondent and Officer Sherman asked Respondent about Ms. Etgen's missing iPod and asked if she had the iPod. In response, Respondent told the officers that she did not have the iPod. The resource officers then left the classroom and went into the hall and reported what they had been told to Lakeland High School administrators, Mr. Thomas, then principal, and Tracie Collins, then assistant principal of curriculum.

15. When the resource officers made the initial contact with Respondent, Lakeland High School students, Tyler Qualls and

    Barbara Duckstein, were among the students in Respondent's classroom. Both Mr. Qualls and Ms. Duckstein overheard the conversation between the resource officers and Respondent described in paragraph 14.

16. Although Respondent told the officers that her iPod was at home, both Mr. Qualls and Ms. Duckstein had seen Respondent with an iPod earlier that day. In fact, that same day and before the officers came to Respondent's classroom, Respondent had asked Ms. Duckstein to see if she could unlock Respondent's iPod. Ms. Duckstein then attempted to "unlock" what she believed to be Respondent's iPod,2 but was unsuccessful in doing so.

17. Soon after the resource officers left Respondent's classroom, Ms. Duckstein left the classroom and told the officers that Respondent had an iPod in the classroom.

18. After Officers Pough and Stewart completed their initial interview with Respondent and left her classroom, Mr. Quall observed Respondent remove the iPod from her desk drawer and put it in her black tote bag.

19. After the resource officers' initial interview with Respondent, the students in Respondent's classroom were released early for lunch. Ms. Collins told Respondent that a student had "something" missing and asked her if the officers could come in and look around the classroom. Respondent agreed to allow the

    officers to search the classroom. Ms. Collins then authorized the resource officers to search Respondent's classroom.

20. During the search, Ms. Collins observed Respondent move a stack of papers and folders from her desk into a bag. The manner in which Respondent moved the items made Ms. Collins suspicious, so she asked Officer Pough if he had looked in the

    bag. Officer Pough told Ms. Collins that he thought he had, but would look again. While looking through the bag, Officer Pough found the iPod that belonged to Ms. Etgen.

21. At the hearing, Respondent testified that she did not take Ms. Etgen's iPod and that she did not know how the iPod got in her tote bag. Respondent also testified that she had received an iPod for Christmas and that she had asked the students to "unlock" the iPod that she believed was hers. Respondent's testimony implied that her iPod was identical to Ms. Etgen's iPod and that this may have been a source of confusion as to which iPod she had asked the students to "unlock." However, Respondent provided no evidence to support her claim that she had an iPod.3

22. In attempting to explain how Ms. Etgen's iPod came into her possession, Respondent then testified that on February 20, 2008, she confiscated several electronic devices, including an iPod, from students who were using them in class

    and placed the items on her desk. Respondent testified that at

    the end of the class, the students were allowed to come and retrieve the items, but apparently one unidentified student did not retrieve the iPod, but left it on Respondent's desk.

    Respondent suggested that perhaps it was that unidentified student who brought Ms. Etgen's iPod into Respondent's classroom on August 20, 2008.4

23. Respondent's testimony was confusing, vague, and unpersuasive.

24. Ms. Collins, now principal of Lakeland High School, testified that the success of a teacher is tied to his or her credibility (character and integrity) with the students. The evidence supports the allegation that Respondent stole a student's iPod. Moreover, the evidence established that the incident occurred at school and that students at the school, as well as administrators, knew about the incident. Given the foregoing, Respondent is no longer an effective teacher.

25. As a result of the subject incident on or about November 5, 2008, Respondent was convicted of petit theft in a criminal proceeding in Polk County, Florida.5

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. §§ 120.569, 120.57 and 1012.33(6), Fla. Stat. (2008).

27. The superintendent of the School Board has the authority to make recommendations for dismissal regarding school employees pursuant to Subsection 1012.27(5), Florida Statutes.

28. The School Board has the authority to dismiss school board employees pursuant to Subsections 1001.42(5) and 1012.22(1)(f), Florida Statutes. Moreover, the School Board is authorized to dismiss instructional staff with professional service contracts at any time if such dismissal is based on "just cause." See § 1012.33(1), Fla. Stat.

29. The School Board, as Petitioner, has the burden of proof in this employee dismissal hearing and must meet that burden by a preponderance of the evidence. See McNeill v.

    Pinellas County School Board, 678 So. 2d 476 (Fla. 2d DCA 1996); and Dileo v. School Board of Dade County, 569 So. 2d 883 (Fla.

    3rd DCA 1990).

    
    

30. Pursuant to Subsection 1012.33(1)(a), Florida Statutes, "just cause" is defined as follows:

    Just cause includes, but is not limited to, the following instances as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    
    

31. Florida Administrative Code Rule 6B-4.009, which defines the charges listed in Section 1012.33, Florida Statutes,

    and upon which dismissal action against teachers may be pursued, provides in pertinent part the following:

    The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36 [currently 1012.33], Florida Statutes. The basis for each of such charges is hereby defined:

    
    

    * * *

    
    

    (3) Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule

    6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule

    6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

    
    

32. The Principles of Professional Conduct for the Education Profession in Florida is set forth in Florida Administrative Code Rule 6B-1.006, and provides in relevant part the following:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       
       

       * * *

       
       

       1. Obligation to the profession of education requires that the individual:

          
          

          1. Shall maintain honesty in all professional dealings.

       
       

33. The School Board met its burden of proof in this case.

34. The School Board established by a preponderance of evidence that the iPod of a student in Respondent's class was stolen from the student's backpack while the backpack was in Respondent's classroom. The School Board also established by a preponderance of evidence that several days after the iPod was reported stolen, Respondent had the student's iPod in her possession and that the iPod was later found in Respondent's tote bag. Finally, the School Board established by a preponderance of evidence that at least one student observed Respondent putting the iPod in her (Respondent's) tote bag, after Respondent told the resource officers that she did not have the iPod.

35. The evidence established that Respondent's actions involving the student's iPod are so serious as to impair her effectiveness as a teacher.

36. Respondent did not refute the evidence presented by the School Board. Moreover, Respondent offered no credible evidence of how she came into possession of the student's stolen iPod. Absent such evidence from Respondent, it is reasonable to conclude that Respondent stole the student's iPod.

37. A teacher's stealing from a student in her class is an act involving dishonesty, and such conduct clearly violates the teacher's obligation to maintain honesty in all professional dealings. See Fla. Adm. Code R. 6B-1.006(5)(a). Accordingly,

    in the instant case, Respondent's action, stealing a student's iPod, constitutes just cause within the meaning of Subsection 1012.33(1)(a), Florida Statutes, and is grounds for her termination as a teacher.

38. The undisputed evidence established that Respondent was convicted of petit theft on November 5, 2008, in Polk County, Florida, and that the conviction arose from the same incident and circumstances at issue in this proceeding.6

RECOMMENDATION

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

RECOMMENDED that Petitioner, Polk County School Board, enter a final order dismissing Respondent, Blanca Ortiz, from her position as a teacher.

DONE AND ENTERED this 31st day of December, 2008, in Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2008.

ENDNOTES

1/ All references are to 2007 Florida Statutes, unless otherwise indicated.

2/ Ms. Duckstein's belief was based on Respondent's telling her that the iPod was a Christmas gift from her (Respondent's) husband or boyfriend.

3/ At hearing, Respondent testified that she could not produce the iPod, because it had been stolen from her house; she also testified that she had no police report of the alleged burglary. Without objection, the record was left open so that Respondent could late-file any documents that could establish that she had an iPod. As of the date of this Recommended Order, Respondent has not late-filed any exhibits to support her claim that she had an iPod.

4/ Respondent testified that the school policy required that teachers make written reports of confiscated electronic devices, including the names of students who had the devices, and to send the reports and electronic devices to the office. According to Respondent, she did not follow this procedure in this instance.

5/ The documentation related to the criminal proceeding was accepted as a late-filed exhibit.

6/ This conviction also constitutes just cause for termination under Subsection 1012.33(1)(a), Florida Statutes.

COPIES FURNISHED:

Dr. Eric J. Smith Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Gail McKinzie Superintendent of Schools Polk County School Board 1915 South Floral Avenue Bartow, Florida 33831-0391

Donald H. Wilson, Jr., Esquire David Carmichael, Esquire Boswell & Dunlap, LLP

245 South Central Avenue Post Office Drawer 30 Bartow, Florida 33831-0030

Blanca Ortiz 821 Castle Way

Lakeland, Florida 33803

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: 08-002635TTS

Orders for Case No: 08-002635TTS