STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 13-0466TTS

STEPHEN BROWN,

Respondent.

/

RECOMMENDED ORDER

Administrative Law Judge John D. C. Newton, II, of the Division of Administrative Hearings (Division), conducted the formal hearing in this cause on May 14, 2013, by video teleconference, with the parties appearing in Lakeland and

Tallahassee, Florida.

APPEARANCES

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

Boswell and Dunlap, LLP

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

For Respondent: Branden M. Vicari, Esquire

Mark S. Herdman, Esquire Herdman and Sakellarides, P.A. 29605 US Highway 19, North

Clearwater, Florida 33761-1538 STATEMENT OF THE ISSUE

May Petitioner, Polk County School Board (Board), terminate the employment of Respondent, Stephen Brown, as an instructional

employee based upon the conduct alleged in the letter from Assistant Superintendent Dennis F. Dunn, dated January 24, 2013, asserting that Mr. Brown engaged in serious misconduct, providing just cause to terminate his employment.

PRELIMINARY STATEMENT

In a letter dated January 24, 2013, the Board advised Mr. Brown that the superintendent intended to recommend his

termination to the Board. The letter charged specifically that:

After examination, it was discovered that there were over two hundred (200) images and several videos depicting graphic pornography and sexually inappropriate images [on

Mr. Brown's school laptop computer]. These images were accessed on July 17, 2012 and November 29, 2012. The videos were accessed on July 17, 2012, August 20, 2012 [sic] and

November 29, 2012.

Based on these findings, the Superintendent has determined that you have engaged in serious misconduct and that there is 'just cause" for your termination as a School Board employee.

Mr. Brown requested a formal administrative hearing to challenge that decision. The Board referred the matter to the Division on February 6, 2013. On February 21, 2013, the Division set the matter for final hearing to be held May 1, 2013. During the pre-hearing conference held April 22, 2013, Mr. Brown made an ore tenus motion for a brief continuance. The Board did not oppose the motion, and it was granted. The hearing was rescheduled to May 14, 2013, and held as scheduled.

The Board presented testimony from Penny Humphrey, Marilyn Layton, Joseph Lee, Demian McKibben, Barry Marbutt, and Amy Heiser-Myers. Petitioner's Exhibits 1 through 9 were admitted.

Mr. Brown testified and presented testimony from Bobby Kuzma. Respondent's Exhibit 1 was admitted into evidence.

The parties ordered a Transcript of the hearing, which was filed on June 4, 2013. The parties moved for and were granted an extension of the time period during which they could file proposed recommended orders. The parties timely filed proposed recommended orders. They have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made:

1. The Board employed Mr. Brown as a classroom teacher through a Professional Services Contract.

2. By letter dated January 24, 2013, Assistant Superintendent Dennis Dunn advised Mr. Brown that Polk County School Superintendent John Stewart intended to recommend his termination to the Board for improper use of the "Board issued laptop computer due to pornography and sexually inappropriate images" found on the computer.

   
   

3. Mr. Brown has been a teacher for 18 years. Ten of those years, including 2012, Mr. Brown taught at the Board's Inwood Elementary School (Inwood). This was not the first time the school took action against Mr. Brown.

4. On March 31, 2011, Inwood Principal Amy Heiser-Meyers gave Mr. Brown a letter confirming a verbal warning that she gave him during a conference that day. The letter stated:

   When redirecting or addressing a student's behavior, refrain from getting into their face and also refrain from making inappropriate comments and actions that are disparaging and harmful to the student's mental health. As the authority figure in the classroom, it is not appropriate to use your body and physical proximity to intimidate the student. Your actions towards the student violated the Code of Ethics and The Principles of Professional Conduct of The Education Profession in Florida: State Board of Education Rule

   6B-1.006 FAC (a)(e)[sic].

   
   

5. The letter also advised that the conference was a first step of the progressive discipline outlined in the Teacher Collective Bargaining Agreement and cautioned that further discipline, up to and including termination, might be imposed for additional "unacceptable behaviors."

6. On April 23, 2012, Principal Heiser-Meyers delivered Mr.

   
   

   Brown a letter confirming a discussion during a conference that day. This letter was "not to be construed as disciplinary in nature, but rather as a letter of concern." It addressed the

   
   

   importance of meeting deadlines and processing paperwork, specifically not having student award certificates ready in time for a scheduled lunch awards presentation.

7. In a June 6, 2012, letter, Ms. Heiser-Meyers confirmed a verbal warning that Mr. Brown violated "The Principles of Professional Conduct of the Education Profession in Florida [sic]

   (a) Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety. AND (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement."

8. Principal Heiser-Meyers' letter stated that she conducted the conference "pursuant to Section 4.4-1 of the Teacher Collective Bargaining Agreement" and that it was the first step of progressive discipline outlined in that section. It also cautioned that continued "unacceptable behaviors" could result in disciplinary action up to and including termination.

9. On June 4, 2012, and on August 31, 2012, Mr. Brown signed the Board's Employee Equipment Use Contract for a laptop computer assigned to him. The contract included these conditions:

   I AGREE TO RETURN THE ABOVE EQUIPMENT IN THE SAME CONDITION IT WAS IN UPON CHECKOUT AND AGREE TO PAY FOR REPLACEMENT DUE TO LOSS OR DAMAGE BEYOND REPAIR THAT MAY OCCUR WHILE IT IS ASSIGNED TO ME. REPLACEMENT COST IS CONSIDERED THE COST TO PURCHASE NEW EQUIPMENT.

   
   

   I AGREE TO USE THE EQUIPMENT FOR SCHOOL BOARD PURPOSES ONLY, AND UNDERSTAND THAT I WILL BE RESPONSIBLE FOR INJURY OR DAMAGES CAUSED BY ANY INAPPROPRIATE OR UNAUTHORIZED USE OF THIS EQUIPMENT.

   I WILL NOT BE HELD RESPONSIBLE FOR ANY REPAIRS RESULTING FROM NORMAL AND ORDINARY USE OF SUCH EQUIPMENT.

10. Mr. Brown took his school-issued laptop computer home around November 30, 2012. He used it to search for information about cash advance loans he could obtain to repair his automobile.

11. While Mr. Brown was searching for loan information, a red screen displaying the title "FBI Federal Bureau of Investigation" appeared. The screen advised that the computer had been locked and stated that Mr. Brown was subject to several federal criminal charges, including possession of child pornography and gambling, unless he paid $200.00 within 48 hours to a designated account.

12. Mr. Brown shut down his computer. He tried restarting and shutting down the computer a few times to see if the message would go away and the computer would operate.

13. Mr. Brown then called the FBI office to report the incident. The individual to whom Mr. Brown spoke told Mr. Brown that he was describing a frequently reported virus and that he would need professional help removing it.

    
    

14. Mr. Brown took the laptop to the office supply store, Staples, the following day to obtain its virus removal service. He paid for the service and purchased an extended warranty for

    $199.00.

    
    

15. Mr. Brown took the computer to Staples, instead of to the school's information technology office, because he thought that, since the virus appeared while he was using the computer for personal purposes, the terms of equipment-use contract made him responsible for repairs. Mr. Brown did not report the problem to the school's technology office.

16. Staples was unable to service the computer for three days. When Staples did service the computer, it removed the virus. But the Staples technicians could not repair damage to the hard drive and replaced it. The technicians also re- configured the laptop's original hard drive as an external hard drive with Mr. Brown's documents and other files on it.

17. While Mr. Brown's laptop awaited service at Staples, he tried to use the school computer of his colleague, Penny Humphrey.

18. Ms. Humphrey reported his efforts to the school's computer network manager, Marilyn Layton. Ms. Layton reported the issue to the principal, who advised school board investigator Barry Marbutt that he was concerned Mr. Brown might have inappropriate material on his laptop.

    
    

19. Mr. Marbutt interviewed Mr. Brown, who told him of the FBI virus and the repairs by Staples. Mr. Marbutt took

    Mr. Brown's laptop. Mr. Marbutt later learned from a Staples representative about the old hard drive being reconfigured as an external drive. He then obtained the external drive from Mr.

    Brown.

    
    

20. Sid Lee, senior manager of the Board's electronic equipment repair and support department, examined Mr. Brown's laptop and software to determine if the computer held any inappropriate material. Mr. Lee did not conduct any tests or analyses to determine if Mr. Brown's report of a virus was accurate.

21. The computer and associated external hard drive contained over 200 pornographic images, admitted as Exhibit 6. They were located at the address “D/Documents and Settings\stephen.brown\Local Settings/Temporary Internet Files\content.IE5," which is also referred to as the browser cache. The parties stipulate that the images are pornographic.

22. Many of the images depict sexual violence. Many depict scenes with several participants, bound females, or hooded or masked participants.

23. None of the images, or the identifiable sources for them, match data sets of known or suspected child pornography,

    
    

    including the DHS-ICE Child Exploitation Hash set and data sets obtained from the FBI, state, and local law enforcement agencies.

24. All of the images are generated by small files. The size of the files is consistent with the images being either "popup" or "thumbnail" images. A "pop-up" is a pop-up window on a computer screen.1/ A "thumbnail" is "a miniature computer graphic sometimes hyperlinked to a full-size version" of an image.2/

25. The files occur in a few clusters in the Internet browser cache of the laptop.

26. On July 19, 2012, approximately 113 of the pornographic images were among 171 images downloaded into the laptop's browser cache between 1:54:06 p.m. and 1:57:11 p.m., a period of three minutes and five seconds. This means that they downloaded extremely quickly. For instance, Exhibit 6 shows that at

    1:56:23 p.m., four images downloaded. At 1:56:24 p.m., six images downloaded. The average download rate for the time period was 1.08 seconds per image. This rate is not consistent with a person manually browsing the Internet.

27. Seven of the images are plainly advertisements for pornographic websites or DVDs. Twenty have watermarks on them depicting several different website addresses.

28. During the July 19, 2012, time period, when the files were downloaded, there were no contemporaneous log-ins to other

    
    

    websites, such as to an email service, Facebook, bank accounts, or news sites. During the July 19, 2012, time period one or more pop-ups attempted unsuccessfully to download malicious software.

29. The analysis of the computer, however, showed frequent log-ins to Facebook at other times and days.

30. The typical pattern of computer users is to perform more than one function or go to more than one website when logging on to the internet.

31. On August 20, 2013, a single pornographic video was downloaded. There were no contemporaneous log-ins to other websites, such as to an email service, Facebook, bank accounts, or news sites at the same time.

32. On November 29, 2012, 225 image files were downloaded between 3:59:44 p.m. and 4:12:26 p.m., a period of 12 minutes and

    42 seconds. This indicates that the images downloaded quickly, at an average rate of one image per 3.4 seconds. This rate is not consistent with a person manually browsing the internet.

33. At least 101 of the images were pornographic. As with the July 19, 2012, time period, there were no contemporaneous log-ins to other websites at the same time.

34. The images included 12 advertisements for penis enlargement techniques or substances and 14 advertisements for services facilitating sexual encounters with local females.

    
    

    There were also images with website address watermarks; but the watermarks are not legible.

35. Staples technicians determined the laptop was infected with the malware virus, “Reveton," also known as the "FBI virus." The virus has the ability to start a computer, access the Internet, visit websites, and download images without the computer owner's knowledge or participation.

36. Using these abilities, the virus's masters can and do remotely operate enterprises that include "click jacking" and "ransoms."

37. In "click jacking," the virus causes the host computer to activate, log on to the Internet and quickly visit websites to click on advertisements, including pop-ups. This generates revenue for the site hosting the advertisement or pop-up, since compensation is by "click."

38. In "ransoms" the virus locks up the computer and displays a message like the one Mr. Brown's laptop received demanding payment and threatening law enforcement action, unless the computer operator sends a payment in a manner and to a recipient described in the "ransom note."

39. Several indicators make it as likely as not that the pornographic images found in the laptop's cache were downloaded as the result of the FBI virus, rather than any action by

    Mr. Brown. Those indicators are: (a) there were no

    
    

    contemporaneous log-ons to any other websites; (b) the rapid speed at which the images downloaded; c) the fact that all of the images were small "thumbnail" or "popup" sized files; (d) there was no evidence of full-sized image files; and (e) Mr. Brown in his testimony and during the investigation has consistently denied using the computer to access pornographic images.

40. In addition, the fact that Mr. Brown contacted the FBI indicates lack of apprehension about the consequences of contacting law enforcement authorities.

41. Mr. Brown's decision to seek assistance from Staples was reasonable in light of the District's strict equipment use policies and the fact that the problem occurred when Mr. Brown was using the computer for personal reasons.

    CONCLUSIONS OF LAW

    
    

42. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties pursuant to sections 120.569 and 120.57(1), Florida Statutes (2013).

43. The parties agree that the Board bears the burden of proving the allegations against Mr. Brown by a preponderance of the evidence. See McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d

    476 (Fla. 2d DCA 1979); Sublett v. Sumter Cnty Sch. Bd., 664 So. 2d 1178 (Fla. 5th DCA 1995).

    
    

44. "Preponderance of evidence is defined as evidence 'which as a whole shows that the fact sought to be proved is more probable than not.' State v. Edwards, 536 So. 2d 288, 292 n.3 (Fla. 1st DCA 1988)." Dufour v. State, 69 So. 3d 235, 252 (Fla. 2011); see also, Escambia Cnty. Elec. Light & Power Co. v.

    Sutherland, 61 Fla. 167, 193; 55 So. 83, 92 (1911).

    
    

45. The Board asserts that section 1012.33(1)(a), Florida Statutes (2012), empowers it to discharge Mr. Brown for just cause.

46. Section 1012.33(1)(a) provides:

    
    

    Just cause includes, but is not 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.

    
    

47. The Board also relies upon various sections of the Teachers Collective Bargaining Agreement between the Board and the Polk County Education Association for authority to terminate a teacher for just cause and for authority to impose progressive discipline. The agreement, however, was not offered into evidence.3/

48. If Mr. Brown downloaded the pornographic images to his school-issued laptop, that could constitute just cause for his termination, given his disciplinary history.

    
    

    See e.g., Duval Cnty. Sch. Bd. v. Makowski, Case No.

    
    

    11-0638TTS (Fla. DOAH November 21, 2011)(accepting findings that teacher used school computer to search for and access obscene material, but imposing termination rather than the recommended suspension and remedial training (Fla. School Bd. Duval Cnty., February 28, 2012)).

49. But the weight of the persuasive evidence, including the unchallenged, expert testimony of forensic computer expert, Bobby Kuzma, CISSP, is not sufficient to support a finding that it is more likely than not that Mr. Brown caused the images to be on his computer.4/

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, rescind the termination of Respondent, Stephen Brown, and award him back pay and full benefits for the period during which he was suspended, which began January 20, 2013, when Mr. Brown requested a hearing.

DONE AND ENTERED this 21st day of August, 2013, in Tallahassee, Leon County, Florida.

S

JOHN D. C. NEWTON, II

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 21st day of August, 2013.

ENDNOTES

1/ Merriam-Webster.com. Web. 6 Aug. 2013, <http://www.merriam- webster.com/dictionary/pop-up>.

2/ Merriam-Webster.com. Web. 6 Aug. 2013, <http://www.merriam- webster.com/dictionary/thumbnail>.

3/ The Board cites Petitioner's Exhibit 3 to support its statements about the provisions of the agreement. Exhibit 3 is the principal's April 23, 2012, letter.

4/ For instance, the record contains no evidence disputing

Mr. Kuzma’s testimony about the “FBI virus,” or the typical log- on habits of computer users.

COPIES FURNISHED:

Pam Stewart, Commissioner Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Kathryn LeRoy, Superintendent Polk County School Board

1915 South Floral Avenue Post Office Box 391

Bartow, Florida 33831-0391

Matthew Carson, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Donald H. Wilson, Jr., Esquire Boswell and Dunlap, LLP

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

Branden M. Vicari, Esquire Mark S. Herdman, Esquire Herdman and Sakellarides, P.A. 29605 US Highway 19, North

Clearwater, Florida 33761-1538

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: 13-000466TTS

Orders for Case No: 13-000466TTS