STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BROWARD COUNTY SCHOOL BOARD, )
)
Petitioner, )
)
vs. ) Case No. 08-2655
)
JEREMY SHAMASH, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH), on August 8, 2008, and January 7, 2009, by video teleconference at sites in Miami and Tallahassee, Florida, and on January 21, 2009, by telephone conference call.
APPEARANCES
For Petitioner: Mark A. Emanuele, Esquire
James H. Horton IV, Esquire Panza, Maurer and Maynard, P.A.
Bank of America Building, Third Floor 3600 North Federal Highway
Fort Lauderdale, Florida 33308
For Respondent: Melissa C. Mihok, Esquire
Kelly and McKee, P.A.
1718 East 7th Avenue, Suite 301
P.O. Box 75638
Tampa, Florida 33605
STATEMENT OF THE ISSUE
Whether Respondent committed the violations alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
PRELIMINARY STATEMENT
In May 2008, the Superintendent of Schools of Broward County (Superintendent) issued and served on Respondent an Administrative Complaint, in which he "recommend[ed] immediate termination of Respondent, without further pay or benefits." The Superintendent alleged in the Administrative Complaint that "Respondent engaged in the following conduct, which constitutes a violation of Florida Statute, Section 1012.33":
At all times relative to this Administrative Complaint, Respondent was employed at Fort Lauderdale High School as a social studies teacher. Respondent also served as the advisor of the school's student government association (SGA). SGA, under the direction of Respondent, was in charge of selling tickets to the school's homecoming dance.
In his capacity as SGA advisor, Respondent stole money from the School Board of Broward County. Specifically, Respondent, without authorization or approval, sold unregistered tickets to the 2007-2008 homecoming dance and retained the monies for himself. Specifically, Respondent, without authorization or knowledge of Administration, secured tickets in excess of those registered with Administration and sold those tickets to (cash paying) students without following distribution procedures set up by
Administration and retained the proceeds of the sale.
According to the Administrative Complaint, this conduct provides "just cause" for his termination because it constituted:
IMMORALITY
Respondent violated Rule 6B-4.009(2) of the Florida Administrative Code by the commission of the above described acts which constitute acts of immorality; that is conduct that is inconsistent with the standards of public conscience and good morals. Respondent's conduct, as factually set forth herein, is sufficiently notorious to bring Respondent and/or the educational profession into public disgrace or disrespect, and impair Respondent's service in the community.
MISCONDUCT IN OFFICE
Respondent's conduct, as described herein, violates Rule 6B-1.001, in that Respondent, inter alia, failed to exercise his "best professional judgment and integrity" and did not put forth the student as his primary concern. Additionally, Respondent's conduct, as described herein, violates Rule 6B-1.006 in a series of egregious acts against the students, the public, and the profession of education. Respondent's violations of the above-referenced Rules as so serious as to impair Respondent's effectiveness in the school system, pursuant to Rule 6B-4.009(3).
GROSS INSUBORDINATION AND WILLFUL NEGLECT OF DUTIES
Respondent's conduct, as described herein, violates Rule 6B-4.009(4) in that Respondent engaged in a constant and continuing
intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority.
Respondent subsequently requested "an evidentiary hearing pursuant to Chapter 120, Florida [Statutes]," on the matter.
Respondent's hearing request was referred to DOAH on June 4, 2008.
The final hearing in the instant case was originally scheduled for August 8, 2008. On August 4, 2008, Respondent filed a motion requesting that the final hearing be continued. A hearing on the motion was held by telephone conference call that same day. During the motion hearing, counsel for Petitioner expressed concerns that two of Petitioner's witnesses, K. E. and N. R., would not be available to testify if the hearing was continued, and he therefore requested that these two witnesses (at least) be allowed to testify, as scheduled, on August 8, 2008. On August 5, 2008, the undersigned issued an Order on Respondent's Motion for Continuance, which provided as follows:
The final hearing in this case will be held on August 8, 2008, as previously scheduled, for the sole purpose of taking the testimony of [K. E.] and [N. R.]
Following the taking of these two witnesses' testimony, the proceedings will be adjourned. The hearing will resume on a yet-to-be determined later date. Before determining when the hearing will resume, the undersigned will seek the input of the
parties regarding their availability and the availability of their witnesses. The parties will thereafter be provided adequate advance written notice of the date, time, and location of the resumed hearing.
Proceedings were held on August 8, 2008, in accordance with the undersigned's August 5, 2008, Order on Respondent's Motion for Continuance.
On August 15, 2008, the parties filed a Joint Status Report, in which they gave their "[d]ates of [u]navailability" for hearing and, in addition, among other things, set forth the following "[j]oint [s]tipulations":
The Student Government Association is referred to as "SGA."
Jeremy Shamash was the faculty advisor for SGA during the 2005-2006, 2006-2007, and 2007-2008 school years.
3. During the 2005-2006, 2006-2007, and 2007-2008 school years, all SGA officers were required to be enrolled in a leadership class taught by Jeremy Shamash, while they were officers.
The leadership class lasted for two blocks, beginning at A lunch and continuing through the block between A and B lunch, and then ending before B lunch in 2007-2008.
Students enrolled in the leadership class were assigned to B lunch in 2007-2008.
Randy Smith Enterprises supplied the tickets for the 2007 homecoming dance.
[R. M.] was SGA president from approximately January 2005 through December 2005.
[J. S.] was SGA president from approximately January 2006 through December 2006.
[N. R.] was SGA president from approximately January 2007 through December 2007.
[S. S.] was SGA treasurer from approximately January 2007 through December 2007.
[K. E.] was appointed as SGA chief of staff by Jeremy Shamash during the time of the 2007 homecoming dance.
Tickets to the 2007 homecoming dance were sold for $55.00 a piece for the first week of sales, and then $60.00 a piece for the duration of ticket sales.
Petitioner and Respondent agree to the authenticity of the receipt books used for the 2007 homecoming dance.
Petitioner and Respondent agree to the authenticity of the 2006-2007 receipt book found in Jeremy Shamash's desk.
Petitioner and Respondent agree to the authenticity of the 2007 homecoming dance tickets found in Jeremy Shamash's desk.
Petitioner and Respondent agree to the authenticity of the 2007 homecoming dance ticket list.
Petitioner and Respondent agree to the authenticity of the ticket order form filled out by [K. E.] and Jeremy Shamash, and subsequently supplied to Randy Smith Enterprises, for the 2007 homecoming dance.
The final hearing was subsequently scheduled to resume on September 5, 2008. On August 27, 2008, Respondent filed a
motion requesting a continuance. The motion was granted, and the resumption of the hearing was rescheduled for September 29, 2008.
On September 25, 2008, the parties filed a motion jointly requesting that the resumption of the final hearing be further delayed to give them additional time to attempt to reach a settlement of the instant controversy, which, according to the motion, they anticipated they would likely be able to do. The motion was granted, and the parties were directed to file a status report on or before October 16, 2008.
The parties filed a status report on October 21, 2008, in which they advised that they had been unable to resolve their differences. The undersigned thereafter notified the parties that the final hearing would resume on January 7, 2009.
The final hearing resumed on January 7, 2009, as scheduled, but was not completed. A third day of hearing, held on
January 21, 2009, was necessary to allow Respondent to finish his evidentiary presentation.
During the three days of final hearing in the instant case, the following witnesses testified: N. R., K. E., Denise Nonamaker, Joseph Melita, Gina Eyerman, S. S., Brian O'Toole, Jarrod Neil, and Respondent. In addition to the testimony of these witnesses, the following exhibits were offered and received into evidence: Petitioner's Exhibits 1, 3 through 13,
18 through 20, 26A, 27 through 29, 31 through 34, 36, 40, 42, and 43; and Respondent's Exhibit 5. (These exhibits included the depositions of G. G., Roland Smith, Jr., and Respondent). There were three exhibits that were offered into evidence, but rejected: Petitioner's Exhibits 14, 39, and 41.
By order issued January 30, 2009, the undersigned notified the parties "that proposed recommended orders in this case [had to] be filed no later than 30 days from the date of the filing with [DOAH] of the complete transcript of the final hearing."
The complete Transcript of the final hearing (consisting of five volumes) was filed with DOAH on March 2, 2009.
On March 31, 2009, Respondent filed a motion requesting an extension of the proposed recommended order filing deadline. On April 1, 2009, the undersigned issued an order granting the request and extending the deadline to April 8, 2009.
Petitioner and Respondent timely filed their Proposed Recommended Orders on April 8, 2009.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations set forth in the parties' August 15, 2008, Joint Status Report:2
The Broward County School Board (School Board) is responsible for the operation, control and supervision of all
public schools (grades K through 12) in Broward County, Florida (including, among others, Fort Lauderdale High School (FLHS)), and for otherwise providing public instruction to school-aged children in the county.
Respondent is now, and has been since the late 1990s, employed as a classroom teacher by the School Board. He holds a professional services contract.
Respondent is currently under suspension pending the outcome of these disciplinary proceedings.
At all times material to the instant case, Respondent taught at FLHS and was the SGA (Student Government Association) advisor at the school. Among the classes he taught was an SGA leadership class.
As the SGA advisor, Respondent oversaw the SGA's sale of tickets for the FLHS homecoming dance that was held every year, the proceeds of which were to go to the SGA.
In 2007, the annual homecoming dance was held at the Bahia Mar Beach Resort on November 10, 2007.
FLHS contracted with Randy Smith Enterprises, Inc. (RSE) to take photographs at the 2007 homecoming dance. As part of its contractual responsibilities, RSE provided to FLHS, free of charge, printed, consecutively numbered, homecoming dance tickets.
The tickets arrived at FLHS on Friday, October 12, 2007. They were delivered in a sealed box to the office of Denise Nonamaker, who has been the school's bookkeeper for the past 13 years. The box contained two shrink-wrapped packages of tickets and an "invoice." The "invoice" was in the form of a letter, dated October 10, 2007, from Roland Smith, Jr., the president of RSE. The letter, which was addressed to Respondent, read as follows:
Enclosed are the tickets numbered 001-550 for your 2007 homecoming dance.
These tickets are supplied to you at NO CHARGE.
I want you to know that I truly appreciate your patronage. Please feel free to call on me whenever I can be of assistance to you.
As the school's bookkeeper, Ms. Nonamaker was responsible for ensuring that the tickets were handled in accordance with the School Board's "audit rules." This required that she first determine and document the number of tickets that had been received and were in the school's official "inventory."
Respondent was in his classroom, waiting for his SGA leadership class to start, when he found out that Ms. Nonamaker had received the homecoming dance tickets. He immediately went to Ms. Nonamaker's office. When he arrived, Ms. Nonamaker was in the "walk-in safe" adjacent to her office "counting money."
She had not yet opened the box containing the homecoming dance tickets and the "invoice."
After letting himself into Ms. Nonamaker's office (by "reach[ing] over" and unlocking the lock on the office's "half- door"), Respondent took it upon himself to open the box while Ms. Nonamaker was still in the "walk-in safe" and could not see him.
One of the students in Respondent's SGA leadership class, S. S., the SGA treasurer, had followed Respondent to Ms. Nonamaker's office.
When S. S. entered the office, the "box of tickets was open," and S. S. saw Respondent "going through" the tickets.
After Ms. Nonamaker had finished "counting [the] money" in the "walk-in safe" and returned to her office, she prepared two "audit rules"-required "inventory sheets" for the homecoming dance tickets.
The first "inventory sheet" (Official Inventory Sheet) was intended to show, among other things, what numbered tickets Ms. Nonamaker had received from RSE (or, as she put it in her testimony at hearing, the "total amount of tickets that [she had] for sale"). Ms. Nonamaker enlisted Respondent's assistance in preparing this document. She asked Respondent to give her the last numbered ticket, which, according to the "invoice" that had come with the tickets, was ticket numbered 550.
In response to Ms. Nonamaker's request, Respondent handed her ticket numbered 550. Ms. Nonamaker made a photocopy of the ticket, which, in accordance with the School Board's "audit rules," she attached to the Official Inventory Sheet. Consistent with what had been represented in the "invoice,"
Ms. Nonamaker wrote on the Official Inventory Sheet that she had received tickets numbered 001 through 550. In fact, although she did not realize it at the time,3 RSE had actually sent more tickets than just these 550 to the school, as Mr. Smith subsequently "confirm[ed]" in an October 16, 2007, letter he wrote to Respondent, wherein he indicated that RSE had "sent
Ft. Lauderdale High 700 Homecoming tickets" in response to two separate orders, the first for 550 tickets (which order was filled by sending the school tickets numbered 001 through 550) and the second for an additional 150 tickets (which order was filled by sending the school tickets numbered 551 through 700). Ms. Nonamaker first became aware of this October 16, 2007, letter only after the dance had been held and the investigation that led to Respondent's suspension had commenced.
The second "inventory sheet" Ms. Nonamaker prepared was a Perpetual Ticket Inventory Sheet used to document what numbered tickets were "issued" (that is, released by
Ms. Nonamaker for sale) to whom and when.
Before he left Ms. Nonamaker's office, Respondent signed the Perpetual Ticket Inventory Sheet that Ms. Nonamaker had prepared, acknowledging that Ms. Nonamaker had "issued" him tickets numbered 001 through 070.
Ms. Nonamaker placed these tickets (numbered 001 through 070), along with "petty cash" and a receipt book signed out to Respondent, in a "cash box" that was to be picked up when ticket sales started on Monday, October 15, 2007.4 The "cash box" was to be used to store the money collected from ticket sales, and it was to be returned to Ms. Nonamaker's office (containing the money collected, plus the "petty cash," the receipt book, and any unsold tickets) after the completion of sales each day.
After signing the Perpetual Ticket Inventory Sheet, Respondent left Ms. Nonamaker's office.
Although he did not leave with the "cash box," Respondent did take 2007 homecoming dance tickets with him. Unbeknownst to Ms. Nonamaker, Respondent had taken a "stack" of tickets from one of the shrink-wrapped packages, put them in an envelope, and placed the envelope in his back pocket. This ticket-filled envelope was still in his pocket when he left
Ms. Nonamaker's office.
Homecoming dance tickets numbered 551 through 700 were found sometime the following week in an envelope in an unlocked
drawer in Respondent's classroom desk by a student, N. R., the SGA president, who discovered them while "looking for Wite-Out." These tickets were not in the school's official "inventory," although they should have been.
While Ms. Nonamaker had not seen Respondent take these tickets, S. S. had. After Respondent had left Ms. Nonamaker's office, S. S. told Ms. Nonamaker what she had seen Respondent do with these tickets and asked Ms. Nonamaker if she had seen the same thing. Ms. Nonamaker responded to S. S. that she had "not see[n] anything."
Ms. Nonamaker reported to FLHS's head of security, David Martin, what S. S. had told her about Respondent's furtively pocketing a "stack" of homecoming dance tickets.
Mr. Martin advised Ms. Nonamaker to telephone RSE to verify how many tickets RSE had actually sent the school.
Ms. Nonamaker followed Mr. Martin's advice and telephoned RSE. During her telephone conversation, Ms. Nonamaker requested, and the RSE representative with whom she spoke promised to send her, a copy of the "invoice" for the tickets that RSE had sent FLHS. Four days later, Mr. Smith, RSE's president, wrote the October 16, 2007, letter (referred to above) indicating that 700 tickets had been sent to the school.
A "few minutes" after Ms. Nonamaker had gotten off the telephone with the RSE representative, Respondent came into
Ms. Nonamaker's office and demanded to know why she had called RSE.5 Ms. Nonamaker was taken aback by Respondent's "aggressive[ness] toward[s] [her]." She had "never" seen him be "that way" before. In response to his inquiry, she told him that she had merely "lost" the "invoice" for the tickets (which was not true) and therefore had asked RSE for a "duplicate copy." This seemed to satisfy Respondent. He left without pressing the matter any further.
Before the start of homecoming dance ticket sales, Ms. Nonamaker, as she had done in previous years, went to Respondent's SGA leadership class and made a presentation to Respondent and the students in the class about the "whole" ticket-selling process, including the need for a receipt to be written for each ticket sold and for the proceeds of each sale to be turned in to her. In her presentation, Ms. Nonamaker emphasized that "everything ha[d] to go through [her] office." She also mentioned that this year the principal of the school was "under a special ticket audit."
Homecoming dance tickets in the school's official "inventory" were sold each school day in the school auditorium during the A and B lunch periods starting on Monday, October 15, 2007, and ending on Friday, November 2, 2007. The tickets sold for $55.00 each the first week of ticket sales and for $60.00 each there afterwards.
Tickets numbered 001 through 450 were released for sale by Ms. Nonamaker,6 but not all of these released tickets were sold.
The tickets were sold in sequential numeric order.
Ticket sales activity took place at two windows in the auditorium. Behind each window were two students from Respondent's SGA leadership class. S. S. and K. E., Respondent's chief of staff, were behind the first window (Window One).7 They had with them the "cashbox" that was picked up from Ms. Nonamaker's office each day. D. H. and A. H. were behind the second window (Window Two).
Students wanting to purchase a ticket or tickets to the homecoming dance walked up to Window One and gave their money to one of the students behind the window (S. S. or K. E.), who placed the money in the "cash box." The other student behind the window wrote out a receipt in the receipt book8 (that was signed out for that purpose) and gave the white, student copy of the receipt to the purchasing student.9 The number (001, 002, etc.) of the ticket(s) the student purchased was written on the receipt.
To obtain the actual ticket(s), the purchasing student had to go to Window Two and show the copy of the receipt obtained at Window One. Along with the ticket(s), at Window Two the purchasing student also received a "picture packet"
(containing forms to order photographs taken at the dance), written directions to the Bahia Mar Beach Resort, and a set of homecoming dance rules (for which the student had to sign).
The students behind Window Two (D. H. and A. H.) asked each purchasing student for the name of the person, if any, who would be coming to the dance as his or her "date." From the information that they obtained from the purchasing students,
D. H. and A. H. compiled a list containing the names of those persons who would be attending the dance, their ticket numbers, and the names of their dates, if any.
S. S. and/or K. E. relinquished control of the "cash box" each day after B Lunch, but not before counting the money in the "cash box" that had been collected that day and comparing it to receipts that had been written to make sure there was no shortage or overage. At no time (including on November 1 or 2, 2007) did either of them discover that the money and receipts did not "match."
When the "cash box" was returned to her office, Ms. Nonamaker "would [also] count the money" and check it against the receipts. The money and receipts "always balance[d]."
After verifying that the money and receipts "balance[d]," Ms. Nonamaker deposited the money in the SGA's bank account.
Ms. Nonamaker was absent from school on the last two days of ticket sales, Thursday, November 1, 2007, and Friday, November 2, 2007, due to a death in the family. When she returned to school from leave on Tuesday, November 6, 2007, "the cash box and the receipt books were locked in the safe right where they should have been." She "counted all the money" and examined the receipt books. "[E]verything balanced perfectly."
In the end, all of the money paid for the tickets sold by the students in the school auditorium from October 15, 2007, to November 2, 2007, wound up in the SGA's bank account, and all unsold tickets in the school's official "inventory" were accounted for.
These ticket sales that took place in the school auditorium, however, were not the only 2007 homecoming dance ticket sales that were consummated from October 15, 2007, to November 2, 2007.
Respondent also sold 2007 homecoming dance tickets during this period (and continued to do so up until the day before the dance), but the tickets he sold were not in the school's official "inventory" and he did not voluntarily turn in to Ms. Nonamaker (for deposit in the SGA's bank account) the proceeds from these sales.
During the first week that tickets were on sale in the auditorium, Respondent sold (in his classroom) two tickets to
G. G., a student in one of his classes. G. G. made the purchase after Respondent had announced to the class that students who purchased tickets from him would receive "ten points extra credit towards [their] grade[s]."
G. G. paid Respondent $55.00 each for the two tickets, money which Respondent kept for himself. He did not give G. G. a receipt or anything else other than the two tickets she purchased from him.
The tickets Respondent gave G. G. were tickets numbered 606 and 607.
On or about October 22, 2007,10 at a time during the school day when tickets in the school's official "inventory" were on sale in the auditorium, G. G. walked up to Window One and asked for a receipt for her tickets. She explained that she had purchased the tickets from Respondent, who had not given her a receipt, and that she understood, from her friends, she needed a receipt to get a "picture packet."
Instead of being given a receipt, G. G. was told to go see Ms. Nonamaker.
G. G. immediately went to Ms. Nonamaker, who asked to see the tickets G. G. had purchased. G. G. did not have the tickets with her.
G. G. brought the tickets to Ms. Nonamaker the following day.
Ms. Nonamaker could see that these tickets "were not in [her] inventory." She therefore made photocopies of the tickets before returning them to G. G.
G. G. was not the only student claiming to have purchased a ticket from Respondent who went to Window One during ticket sales in the auditorium to request a receipt. T. H. also did so. She walked up to the window on November 2, 2007, the last day of ticket sales, when K. E. was by herself behind the window. During her conversation with K. E., T. H. showed K. E. the ticket she had bought from Respondent, which was ticket numbered 611. Not wanting "to get in trouble," K. E. refused to give T. H. the receipt she had requested.
As K. E. and T. H. were talking, Respondent came by the window, and he and T. H. began "arguing about [T. H.'s] getting a receipt." The dispute was ultimately resolved when Respondent wrote a receipt for the ticket "on a newspaper" and gave it to T. H., telling her, "If you really need a receipt, this is my receipt to you."
Friday, November 9, 2007, was a "very busy day" at FLHS, particularly for the SGA. It was the day of the SGA- hosted pep rally and the day before the homecoming dance.
Shortly before the pep rally was to begin, S. S. and
N. R. went to Respondent's classroom to retrieve a print-out of
a list, "saved on [Respondent's] computer," of those who would be attending the dance. Respondent was not there.
While in the classroom, S. S. looked in an unlocked drawer in Respondent's desk, where she found a "lost" receipt book that had been signed out to Respondent during the 2005-2006 school year and subsequently reported missing, as well as a white envelope containing 2007 homecoming dance tickets. The envelope contained some, but not all, of the tickets (numbered
551 through 700) that were in the envelope that N. R. had found in Respondent's desk several weeks previous.
S. S. informed Ms. Nonamaker of what she had found in Respondent's desk. Ms. Nonamaker contacted Bennie Brown, an assistant principal at the school, who, in turn, notified the school principal, Dr. Gina Eyerman, that homecoming dance tickets had been "stolen or [were] missing."
After hearing from Mr. Brown, Dr. Eyerman went to Ms. Nonamaker's office and "asked her what was going on."
While Dr. Eyerman was in Ms. Nonamaker's office, S. S. and N. R. telephoned Ms. Nonamaker from Respondent's classroom.
Ms. Nonamaker handed the phone to Dr. Eyerman, who instructed S. S. and N. R. to bring the lost" receipt book and the tickets S. S. had found, as well as the list they had printed out, to Ms. Nonamaker's office immediately. S. S. and
N. R. complied with Dr. Eyerman's request.
Dr. Eyerman examined the tickets S. S. and N. R. had brought her and determined which tickets (from tickets numbered
551 through 700) were missing. (It was not until later on that she would become aware that tickets numbered 551 through 700 were not in the school's official "inventory.")
Dr. Eyerman called Respondent to Ms. Nonamaker's office in the hopes that he would be able to shed some light on the matter. She also summoned Brian O'Toole, another assistant principal at the school.
When asked about the tickets Dr. Eyerman had determined to be missing, Respondent told Dr. Eyerman that a student must have stolen them, a representation that Respondent knew was not true. He made no mention at this time of his selling these tickets.
Dr. Eyerman next turned her attention to the "lost" receipt book that had been retrieved from Respondent's desk. Among the receipts written by Respondent that were in this receipt book were five receipts for 2007 homecoming dance tickets, each indicating that $60.00 had been paid for the ticket that had been purchased. Two were dated November 2, 2007: receipt numbers 1909974 and 1909975. The former had no student/purchaser name nor ticket number on it. The latter indicated the T. M. R. had purchased the ticket and that 610 was the number of the ticket she had been given. The remaining
three receipts were dated November 9, 2007: receipt number 1909978, issued to B. P. for having purchased ticket numbered 624; receipt number 1909979, issued to J. S. P., for having purchased ticket numbered 625; and receipt number 1909980, issued to S. H. for having purchased ticket numbered 626.
When asked by Dr. Eyerman about the tickets referenced in receipt numbers 1909974 and 1909975, Respondent told
Dr. Eyerman that these two tickets "were complimentary" and he had not collected any money for them (which was inconsistent with the representations he had made in the receipts themselves that he had received $60.00 for each ticket).
With respect to the receipts for tickets numbered 624, 625, and 626, Respondent said to Dr. Eyerman, "I just must have picked up the wrong receipt book and wrote the receipts in the wrong book." Dr. Eyerman informed Respondent that he "need[ed] to pay for those tickets now."
Respondent took out from his pocket $180.00 (the amount he had received for these three tickets) and gave the money to Ms. Nonamaker for deposit in the SGA's bank account.
Ms. Nonamaker had Respondent re-write the receipts for these three tickets in the correct receipt book.
Although Respondent sold other tickets (numbered above
550) to the 2007 homecoming dance, the $180.00 that he gave to Ms. Nonamaker for these three tickets (only after he had been
directed to so by Dr Eyerman) was the only ticket sales money that he turned in. He kept the rest.
A plan was devised at this impromptu November 9, 2007, meeting Dr. Eyerman had convened in Ms. Nonamaker's office to find out who had taken the tickets that Respondent had reported (at the meeting) as stolen. Respondent and Mr. O'Toole were "directed by Dr. Eyerman to check in individuals at the dance." Anyone checking in with a ticket numbered 551 or above was to be questioned by Mr. O'Toole and asked, among other things, from whom he or she had purchased the ticket. Mr. O'Toole was to record the information provided by the ticket holder on a pre- printed form that he would prepare for that purpose.
Respondent was present when this plan was formulated.
He knew that, pursuant to the plan, it would be his responsibility, when checking in students at the dance, to direct those with tickets numbered 551 or above to Mr. O'Toole.
After thinking about the matter overnight (and evidently realizing that the truth concerning the tickets he had sold would be discovered when the purchasers of those tickets were questioned by Mr. O'Toole), the following morning (Saturday, November 10, 2007, the day of the dance), at
8:00 a.m., Respondent telephoned Dr. Eyerman on her personal cell phone and acknowledged that he had not been truthful with her the day before when he had told her that the missing tickets
had been stolen. He informed her that he had actually sold these tickets, which was the truth. He went on, however, to offer a fabricated excuse for his conduct. He falsely claimed that he had sold the tickets in order to replace the money "the students had stolen" from the "cash box" the first day of
Ms. Nonamaker's absence (on November 1, 2007),11 nine days earlier.12 According to what Respondent told Dr. Eyerman, he had sold the tickets, rather than report the alleged theft of the money, because he "didn't want the get the kids in trouble."13 There was no credible evidence presented at hearing, however, that S. S., K. E.,14 or anyone else stole money from the "cash box."15
Dr. Eyerman decided that, notwithstanding that Respondent had changed his story about what had happened to the missing tickets, it would be best "to follow the [dance check in] procedures that [she] had already put into place" and have Mr. O'Toole question the students who had tickets numbered 551 or above. Mr. O'Toole and Respondent were both informed of
Dr. Eyerman's decision.
That evening at the dance, Mr. O'Toole and Respondent stationed themselves at a table in front of the Commodore Ballroom in the Bahia Mar Beach Resort and checked in students as they arrived.
Twelve students with tickets numbered 551 or above were questioned by Mr. O'Toole in accordance with the plan that had been devised the previous day,16 and Mr. O'Toole filled out a form for each student that he questioned.
T. M. R. was one of these students. She told
Mr. O'Toole that she had purchased her ticket (numbered 610) for "cash" from Respondent (which was inconsistent with the representation that Respondent had made the day before to
Dr. Eyerman about the ticket's being "complimentary").
The total number of tickets held by the students questioned by Mr. O'Toole was less than half the number of tickets that had been determined to be missing from the "stack" found in Respondent's desk.
G. G. was among the students with a ticket numbered
551 or above who attended the dance. Respondent checked her in, but did not direct her to Mr. O'Toole, contrary to the instructions he had been given.
The "first day back to school after the dance," Tuesday, November 13, 2007,17 a meeting was held at which
Dr. Eyerman, Mr. O'Toole, and Ms. Nonamaker reviewed the forms containing the information Mr. O'Toole had obtained from the students he questioned at the dance.
When Ms. Nonamaker looked at the forms, she noticed that G. G. was not among the students from whom Mr. O'Toole had
obtained information. Ms. Nonamaker knew that G. G. had two tickets numbered above 551,18 and brought the matter to the attention of Mr. O'Toole, who "called [G. G.] down to the office" and "spoke with her."
In response to Mr. O'Toole's questions, G. G. told Mr. O'Toole that Respondent had "waived [her] in" to the dance.
Mr. O'Toole proceeded to get additional information from G. G. so that he could fill out a form for her like he did for the students he interviewed the evening of the dance.
Among the things that G. G. related to Mr. O'Toole and that Mr. O'Toole wrote down on the form was that G. G. had purchased her tickets (numbered 606 and 607) "for $55 each" from Respondent "during class" the "1st week of sales" (which was the week of October 15, 2007). This contradicted the story Respondent had told Dr. Eyerman on the morning of November 10, 2007, that he had sold tickets only to recoup the money that had been stolen from the "cash box" on November 1, 2007 (which was a different story than the one he had told Dr. Eyerman at the November 9, 2007, meeting in Ms. Nonamaker's office).
Upon learning of the information Mr. O'Toole had obtained from the students, particularly from G. G., it became "clear" to Dr. Eyerman that Respondent, once again, had not been "truthful with [her]."
Consequently, Dr. Eyerman immediately requested in writing that the School Board's Special Investigations Unit (SIU) investigate the matter. Robert Spence was the SIU investigator assigned the case. On February 21, 2008, after completing his investigation, Mr. Spence issued his Investigative Report.
The Professional Standards Committee (made up of 14 members appointed by the Superintendent) reviewed Mr. Spence's report and determined that there was probable cause to take disciplinary action against Respondent. The committee recommended that Respondent be terminated.
The Superintendent concurred that Respondent's employment should be terminated, and he subsequently issued the Administrative Complaint that is the subject of this disciplinary proceeding.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to Chapter 120, Florida Statutes.
"In accordance with the provisions of s. 4(b) of Art.
IX of the State Constitution, district school boards [have the authority to] operate, control, and supervise all free public schools in their respective districts and may exercise any power
except as expressly prohibited by the State Constitution or general law." § 1001.32(2), Fla. Stat.
Such authority extends to personnel matters and includes the power to suspend and dismiss employees. See §§ 1001.42(5), 1012.22(1)(f), and 1012.23(1), Fla. Stat.
A district school board is deemed to be the "public employer," as that term is used in Chapter 447, Part II, Florida Statutes, "with respect to all employees of the school district." § 447.203(2), Fla. Stat. As such, it has the right "to direct its employees, take disciplinary action for proper cause, and relieve its employees from duty because of lack of work or for other legitimate reasons," provided it exercises these powers in a manner that is consistent with the requirements of law. § 447.209, Fla. Stat.
At all times material to the instant case, district school boards have had the right, under Section 1012.33(6)(a), Florida Statutes, to dismiss professional service contract teachers for "just cause."
At all times material to the instant case, "just cause," as used Section 1012.33, Florida Statutes, has been legislatively defined (in Subsection (1)(a) of the statute) to include, "but . . . not [be] limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross
insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude." The "but . . . not limited to" language in the statute makes abundantly clear that the list of things constituting "just cause" was intended by the Legislature to be non-exclusive and that other wrongdoing may also constitute "just cause" for dismissal. See Dietz v. Lee County School Board, 647 So. 2d 217, 218-19 (Fla. 2d DCA 1994)(Blue, J., specially concurring)("We assume that drunkenness and immorality, which
are not included in the non-exclusive list of sins [set forth in Section 231.36(1)(a), Florida Statutes (2001), the predecessor of Section 1012.33(1)(a), Florida Statutes] constituting just cause,[19] would also be grounds for
dismissal. . . . In amending section 231.36 and creating a new contract status for teachers (professional service) and by failing to further define just cause, the legislature gave school boards broad discretion to determine when a teacher may be dismissed during the contract term. . . . I agree with the majority--that the legislature left that determination to the respective wisdom of each school board by providing no definite parameters to the term 'just cause.'").
At all times material to the instant case, "immorality" has been defined by rule of the State Board of
Education (specifically Florida Administrative Code Rule 6B- 4.009(2)20) as follows:
Immorality is defined 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.
At all times material to the instant case, "misconduct in office" has been defined by Florida Administrative Code Rule 6B-4.009(3) as follows:
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.
The Code of Ethics of the Education Profession (set forth in Florida Administrative Code Rule 6B-1.001), at all times material to the instant case, has provided as follows:
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.
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.
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.
The Principles of Professional Conduct for the Education Profession in Florida (set forth in Florida Administrative Code Rule 6B-1.006), at all times material to the instant case, have required a teacher to, among other things, "maintain honesty in all professional dealings" and "not use institutional privileges for personal gain or advantage."
"Immorality and "misconduct in office" may be established, even in the absence of "specific" or "independent" evidence of impairment, where the conduct engaged in by the teacher is of such a nature that it "speaks for itself" in terms of its seriousness and its adverse impact on the teacher's service and effectiveness. In such cases, proof that the teacher engaged in the conduct is also proof of impaired effectiveness. See Purvis v. Marion County School Board, 766 So. 2d 492, 498 (Fla. 5th DCA 2000); Walker v. Highlands County School Board, 752 So. 2d 127, 128-29 (Fla. 2d DCA 2000); Summers v. School Board of Marion County, 666 So. 2d 175, 175-76 (Fla. 5th DCA 1995); Brevard County School Board v. Jones, No. 06-
1033, 2006 Fla. Div. Adm. Hear. LEXIS 287 *17 (Fla. DOAH
June 30, 2006)(Recommended Order)("[T]he need to demonstrate 'impaired effectiveness' is not necessary in instances where the misconduct by a teacher speaks for itself, or it can be inferred from the conduct in question."); and Miami-Dade County School Board v. Lefkowitz, No. 03-0186, 2003 Fla. Div. Adm. Hear. LEXIS 675 *23-24 (Fla. DOAH July 31, 2003)(Recommended Order)("The School Board failed to prove by a preponderance of the direct evidence that Mr. Lefkowitz's actions were so serious that they impaired his effectiveness as a teacher. Nonetheless, based on the findings of fact herein, it may be inferred that
Mr. Lefkowitz's conduct impaired his effectiveness as a teacher in the Miami-Dade County public school system.")(citation omitted).
A teacher's misappropriating property or money rightfully belonging to a student organization he or she advises is an example of such conduct that "speaks for itself" and constitutes "immorality" and "misconduct in office," as those terms are used in Section 1012.33, Florida Statutes. See Polk County School Board v. Ortiz, No. 08-2635, slip op. at 14 (Fla. DOAH December 31, 2008)(Recommended Order)("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. 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.")(citation omitted); Broward County
School Board v. Sapp, No. 01-3803, 2002 Fla. Div. Adm. Hear. LEXIS 1574 *16 (Fla. DOAH September 24, 2002)(Recommended Order)("[A]s a teacher and coach, Sapp was required to be a role model for his students. To be effective in this position of trust and confidence, he needed to maintain a high degree of trustworthiness, honesty, judgment, and discretion. Yet, as Sapp admitted at hearing, if a student athlete had engaged in conduct similar to his own [stealing a laptop computer from the media center at the school at which he taught] that student would be dismissed from the athletic program and probably expelled from school. Obviously, having committed acts that would subject a student to severe repercussions, Sapp's effectiveness as a role model has been seriously compromised-- perhaps (and hopefully) not irreparably, but grievously nonetheless. Based on the above findings, it is determined that Sapp is guilty of the offense of misconduct in office."); and Morgan v. Latcham, No. 93-0019, 1993 Fla. Div. Adm. Hear. LEXIS 5509 *16-17 (Fla. DOAH September 2, 1993)(Recommended Order)("[A]pplying the foregoing provisions of law to the facts of this case compels the conclusion that respondent has violated
the provisions of Section 231.36(4)(c) and (6)(b), Florida Statutes, by committing an act of "immorality," as defined by Rule 6B-4.009(2), Florida Administrative Code by attempting to remove, without benefit of payment, the generator from the premises of Builders Square. The proof further supports the conclusion that such conduct constitutes "misconduct in office," as that term is defined by Rules 6B-4.009(3) and 6B-1.001(3), Florida Administrative Code, since respondent has failed to sustain the highest degree of ethical conduct."); see also Kimble v. Worth County R-III Board of Education, 669 S.W.2d 949, 953 (Mo. App 1984)("The taking of property belonging to another without consent, notwithstanding its return when confronted with such wrongdoing, breaches even the most relaxed standards of acceptable human behavior, particularly so with regard to those who occupy positions which bring them in close, daily contact with young persons of an impressionable age".).
At all times material to the instant case, "gross insubordination or willful neglect of duty" has been defined by Florida Administrative Code Rule 6B-4.009(4) as "a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority." An isolated act of defiance does not fall within this definition. See Smith v. School Board of Leon County, 405 So. 2d 183, 185 (Fla. 1st DCA 1981)("As to the latter charge, her
actions did not meet the definition of 'gross insubordination' since they were an isolated outburst and could not have been deemed 'constant or continuing.'").
"Under Florida law, a [district] school board's decision to terminate an employee is one affecting the employee's substantial interests; therefore, the employee is entitled to a formal hearing under section 120.57(1) if material issues of fact are in dispute."21 Sublett, 617 So. 2d at 377.
Where the employee is a professional service contract teacher, the hearing may be conducted, pursuant to Section 1012.33, Florida Statutes, either by the district school board itself or by a DOAH administrative law judge (who, following the hearing, makes a recommendation to the district school board).
The teacher must be given written notice of the specific charges prior to the hearing. Although the notice "need not be set forth with the technical nicety or formal exactness required of pleadings in court," it should "specify the [statute,] rule, [regulation, or policy] the [district school board] alleges has been violated and the conduct which occasioned [said] violation." Jacker v. School Board of Dade
County, 426 So. 2d 1149, 1151 (Fla. 3d DCA 1983)(Jorgenson, J., concurring).
The teacher may be suspended without pay pending the outcome of the termination proceeding; "but, if the charges are
not sustained, the [teacher] shall be immediately reinstated, and his or her back salary shall be paid." § 1012.33(6)(a), Fla. Stat.
At the termination hearing, the burden is on the district school board to prove the allegations contained in the notice. Unless there is a collective bargaining agreement covering the bargaining unit of which the teacher is a member that provides otherwise22 (and there is no evidence that there exists such a controlling collective bargaining agreement provision in the instant case), the district school board's proof need only meet the preponderance of the evidence standard. See Cisneros v. School Board of Miami-Dade County, 990 So. 2d 1179, 1183 (Fla. 3d DCA 2008)("As the ALJ properly found, the School Board had the burden of proving the allegations of moral turpitude by a preponderance of the evidence."); McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996)("The School Board bears the burden of proving, by a preponderance of the evidence, each element of the charged offense which may warrant dismissal."); Sublett v. Sumter County School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995)("We agree with the hearing officer that for the School Board to demonstrate just cause for termination, it must prove by a preponderance of the evidence, as required by law, that the allegations of sexual misconduct were true . . . ."); Allen v.
School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990)("We . . . find that the hearing officer and the School Board correctly determined that the appropriate standard of proof in dismissal proceedings was a preponderance of the evidence. . . . The instant case does not involve the loss of a license and, therefore, Allen's losses are adequately protected by the preponderance of the evidence standard."); and Dileo v.
School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990)("We disagree that the required quantum of proof in a teacher dismissal case is clear and convincing evidence, and hold that the record contains competent and substantial evidence to support both charges by a preponderance of the evidence standard.").
In determining whether the district school board has met its burden of proof, it is necessary to evaluate the district school board's evidentiary presentation in light of the specific allegation(s) made in the written notice of charges. Due process prohibits a district school board from terminating a professional service contract teacher based on matters not specifically alleged in the notice of charges, unless those matters have been tried by consent. See Shore Village Property Owners' Association, Inc. v. Department of Environmental Protection, 824 So. 2d 208, 210 (Fla. 4th DCA 2002); Lusskin v. Agency for Health Care Administration, 731 So. 2d 67, 69 (Fla.
4th DCA 1999); and Pilla v. School Board of Dade County, 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995)("The pending proceeding was brought against the teacher by the School Board to discharge him from employment. Plainly, in such circumstances the teacher must have fair notice and an opportunity to be heard on each of the charges against him. Here, after the School Board had already completed its case-in-chief, it sought leave to amend to add two additional charges to its administrative complaint. We agree with the hearing officer that this request for amendment came too late.").
In the instant case, the Administrative Complaint alleges that there is "just cause" to terminate Respondent's employment as a professional service contract teacher with the School Board because Respondent, "without authorization or knowledge of [the FLHS] Administration, secured tickets [to the 2007 homecoming dance] in excess of those registered with Administration and sold those tickets to (cash paying) students without following distribution procedures set up by Administration and retained the proceeds of the sale." According to the Administrative Complaint, this conduct constituted "immorality," as defined in Florida Administrative Code Rule 6B-4.009(2); "misconduct in office," as defined in Florida Administrative Code Rule 6B-4.009(3); and "gross
insubordination or willful neglect of duty," as defined in Florida Administrative Code Rule 6B-4.009(4).
The preponderance of the record evidence establishes that Respondent engaged in the conduct alleged in the Administrative Complaint.
As a result of his having engaged in this conduct, he is guilty of "immorality," as defined in Florida Administrative Code Rule 6B-4.009(2), and "misconduct in office," as defined in Florida Administrative Code Rule 6B-4.009(3),23 and the School Board therefore has "just cause," as defined in Section 1012.33(1)(a), Florida Statutes, to dismiss Respondent pursuant to Subsection (6)(a) of the statute.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED that the School Board issue a final order terminating Respondent's employment as a professional service contract teacher with the School Board for the reasons set forth above.
DONE AND ENTERED this 5th day of May, 2009, in Tallahassee, Leon County, Florida.
S
STUART M. LERNER
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 5th day of May, 2009.
ENDNOTES
1 Unless otherwise noted, all references in this Recommended Order to Florida Statutes are to Florida Statutes (2008).
2 The undersigned has accepted these factual stipulations and incorporated them in this Recommended Order. See Columbia Bank for Cooperatives v. Okeelanta Sugar Cooperative, 52 So. 2d 670, 673 (Fla. 1951)("When a case is tried upon stipulated facts the stipulation is conclusive upon both the trial and appellate courts in respect to matters which may validly be made the subject of stipulation."); Schrimsher v. School Board of Palm Beach County, 694 So. 2d 856, 863 (Fla. 4th DCA 1997)("The hearing officer is bound by the parties' stipulations."); and Palm Beach Community College v. Department of Administration, Division of Retirement, 579 So. 2d 300, 302 (Fla. 4th DCA 1991)("When the parties agree that a case is to be tried upon stipulated facts, the stipulation is binding not only upon the parties but also upon the trial and reviewing courts. In addition, no other or different facts will be presumed to exist.").
3 Ms. Nonamaker did not "check the tickets" herself to ascertain how many there were.
4 Tickets numbered 071 through 550 remained in the shrink- wrapped packages in which they came.
5 Apparently, someone from RSE had informed Respondent about the telephone call.
6 Tickets numbered 071 through 100 were released on October 18, 2007; tickets numbered 101 through 150 were released October 19, 2007; tickets numbered 151 through 250 were released on October 22, 2007; tickets numbered 251 through 300 were released on October 25, 2007; tickets numbered 301 through 350 were released on October 29, 2007; and tickets numbered 351 through 450 were released on October 31, 2007.
7 Both S. S. and K. E. were behind Window One every day it was open except for the last day of ticket sales, November 2, 2007, when S. S. was absent and K. E. was behind the window by herself.
8 As noted above, on the last day of ticket sales, there was only one student behind the window (K. E.), and she both took the money and wrote the receipt on that day.
9 The two other copies of the receipt, a green one and a yellow one, remained in the receipt book.
10 Respondent was absent from school this day.
11 As noted above, when Ms. Nonamaker returned to work on November 6, 2007, she found that there was no money missing from the "cash box." Therefore, even assuming money had been stolen from the "cash box" during Ms. Nonamaker's absence (an assumption not supported by the evidentiary record), it had already been replaced by November 6, 2007, and thus there was no need for Respondent to sell any tickets after that date for the purpose of making the "cash box" whole and the post-November 6, 2007, ticket sales Respondent made (including those that occurred on November 9, 2007) must have been undertaken by him for another purpose.
12 Respondent had not previously said anything about money having been stolen from the "cash box."
13 The only person that Respondent had actually been trying to protect by lying to Dr. Eyerman about the tickets' having been stolen was Respondent himself. But even assuming he was telling
the truth this time and the "kids" really had stolen money from the "cash box" and he really had been trying to help them avoid getting caught by selling tickets he had had in his desk and using the proceeds from these ticket sales to replace the money that had been stolen so that the theft would go undetected (which the undersigned is convinced was not the case), Respondent would still be guilty of opprobrious conduct, to wit: engaging in a fraudulent scheme designed to cover-up the theft of SGA funds.
14 S. S.'s and K. E.'s testimony, which the undersigned has credited, affirmatively establishes that at no time did they misappropriate any ticket sales money. Rather, they faithfully and honestly performed their ticket sales duties.
15 Respondent testified that there was such a theft, but he simply was not a credible witness and his self-serving testimony on the matter has been rejected as unworthy of belief. See Walker v. Florida Department of Business and Professional Regulation, 705 So. 2d 652, 655 (Fla. 5th DCA 1998)(Dauksch, J., specially concurring)("[T]he trier of fact is never bound to believe any witness, even a witness who is uncontradicted."); Myron v. South Broward Hospital District, 703 So. 2d 527, 531 (Fla. 4th DCA 1997)("A jury is free to believe parts of a witness' testimony and disbelieve other parts."); Maurer v. State, 668 So. 2d 1077, 1079 (Fla. 5th DCA 1996)("A judge acting as fact-finder is not required to believe the testimony of police officers in a suppression hearing, even when that is the only evidence presented; just as a jury may disbelieve evidence presented by the state even if it is uncontradicted, so too the judge may disbelieve the only evidence offered in a suppression hearing."); and Martuccio v. Department of Professional Regulation, 622 So. 2d 607, 609 (Fla. 1st DCA 1993)(although self-serving nature of testimony given by "[p]ersons having a pecuniary or proprietary interest in the outcome of litigation" does not render testimony inadmissible, interest of person in outcome of case may be considered in evaluating credibility of testimony).
16 T. H. was not among the students questioned by Mr. O'Toole.
17 There was no school on Monday, November 12, 2007.
18 Ms. Nonamaker even had photocopies of these tickets.
19 "Immorality" was added to the "non-exclusive list of sins" in Section 1012.33(1)(a), Florida Statutes, by Section 28 of Chapter 2008-108, Laws of Florida, effective July 1, 2008.
20 Florida Administrative Code Rule 6B-4.009 "define[s]" the "basis for charges upon which dismissal action against instructional personnel may be pursued."
21 "A county school board is a state agency falling within Chapter 120 for purposes of quasi-judicial administrative orders." Sublett v. District School Board of Sumter County, 617 So. 2d 374, 377 (Fla. 5th DCA 1993); see also School Board of Palm Beach County v. Survivors Charter Schools, Inc., No. SC07- 2402, slip op. at 16 (Fla. February 27, 2009)("No one disputes that a school board is an 'agency' as that term is defined in the APA.").
22 Where the district school board, through the collective bargaining process, has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. See Chiles v. United Faculty of Florida, 615 So. 2d 671, 672-73 (Fla. 1993)("Once the executive has negotiated and the legislature has accepted and funded an agreement [with its employees' collective bargaining representative], the state and all its organs are bound by that [collective bargaining agreement] under the principles of contract law."); Hillsborough County Governmental Employees Association v. Hillsborough County Aviation Authority, 522 So. 2d 358, 363 (Fla. 1988)("[W]e hold that a public employer must implement a ratified collective bargaining agreement with respect to wages, hours, or terms or conditions of employment . . . ."); and Palm Beach County School Board v. Auerbach, No. 96-3683, 1997 Fla. Div. Adm. Hear. LEXIS 5185 *13-14 (Fla. DOAH February 20, 1997)(Recommended Order)("Long-standing case law establishes that in a teacher employment discipline case, the school district has the burden of proving its charges by a preponderance of the evidence. . . .
However, in this case, the district must comply with the terms of the collective bargaining agreement, which, as found in paragraph 27, above, requires the more stringent standard of proof: clear and convincing evidence.").
23 An inadequate showing was made that Respondent's conduct also amounted to "gross insubordination or willful neglect of duty," as defined in Florida Administrative Code Rule 6B- 4.009(4).
COPIES FURNISHED:
Mark A. Emanuele, Esquire James H. Horton IV, Esquire
Panza, Maurer and Maynard, P.A.
Bank of America Building, Third Floor 3600 North Federal Highway
Fort Lauderdale, Florida 33308
Melissa C. Mihok, Esquire Kelly and McKee, P.A.
P. O Box 75638
Tampa, Florida 33605
James F. Notter, Superintendent Broward County Public Schools 600 Southeast Third Ave
Fort Lauderdale, Florida 33301
Honorable 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
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.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 06, 2009 | Agency Final Order | |
| May 05, 2009 | Recommended Order | Just cause existed to terminate Respondent for misappropriating money he collected from selling tickets to the school`s homecoming dance that was sponsored by the student government organization he advised. |
