STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DR. TONY BENNETT, AS COMMISSIONER OF EDUCATION,
Petitioner,
vs.
BEVERLY BOLTON,
Respondent.
/
Case No. 13-2361PL
RECOMMENDED ORDER
On October 9, 2013, a duly-noticed hearing was conducted pursuant to section 120.57(1), Florida Statutes, in Pensacola, Florida, before Suzanne Van Wyk, an administrative law judge assigned by the Division of Administrative Hearings.
APPEARANCES
For Petitioner: David Holder, Esquire
J. David Holder P.A.
387 Lakeside Drive
Defuniak Springs, Florida 32435
For Respondent: Beverly Bolton, pro se
10331 Wailuku Drive
Pensacola, Florida 32506 STATEMENT OF THE ISSUE
The issue to be determined is whether Respondent violated section 1012.795(1)(d),(g), or (j), Florida Statutes (2012), or Florida Administrative Code Rule 6A-10.081(5)(a). If any
violations are found, it must be determined what penalty should be imposed for the violation(s).
PRELIMINARY STATEMENT
On April 22, 2013, Petitioner, the Commissioner of Education for the State of Florida, filed an Administrative Complaint against Respondent, Beverly Bolton, alleging violations of section 1012.795(1)(d),(g) and (j), and Florida Administrative Code Rule 6A-10.081(5)(a). On May 15, 2013, Respondent filed an Election of Rights form disputing the allegations in the Administrative Complaint and requesting a hearing. On June 19, 2013, the case was referred to the Division of Administrative Hearings for assignment of an administrative law judge. Judge Nelson was originally assigned to hear the matter.
Petitioner filed a unilateral response to the Initial Order representing that three attempts to reach Respondent to coordinate a response had been unsuccessful. Judge Nelson set the matter for video hearing in Tallahassee and Pensacola, Florida, on August 29, 2013.
Petitioner served Respondent with Interrogatories and Requests for Production on June 24, 2013, to which Respondent did not timely respond. Judge Nelson granted, in part, Petitioner‟s Motion to Compel. On August 13, 2013, following receipt of Respondent‟s discovery responses, Petitioner filed a
Motion to Quash certain witness subpoenas and a Motion in Limine (Motions) to exclude as irrelevant certain evidence which Respondent apparently intended to offer at final hearing.
Respondent timely filed a Response to the Motions. On
August 19, 2013, Petitioner filed a Motion to Compel Discovery, a Motion to Continue Formal Hearing, and a Motion to Require Service of Pleadings and Papers Filed (Second Motions). In the Second Motions, Petitioner represented that Respondent had been uncooperative in scheduling her deposition, which was necessary for the preparation of Petitioner‟s case, and that Respondent had not served Petitioner with complete copies of her Response to his Motions. The Second Motions requested that (1) the final hearing be continued, (2) Respondent be compelled to cooperate in setting her deposition, and (3) Respondent be required to serve Petitioner‟s counsel with complete copies of all documents filed with the Division.
On August 20, 2013, Judge Nelson entered an Order (1) granting Petitioner‟s Motion in Limine, narrowing the issues upon which evidence would be taken at the final hearing; (2) granting Petitioner‟s Motion to Quash Subpoena; (3) canceling the final hearing scheduled for August 29, 2013; (4) requiring the parties to confer and identify a date to take Respondent‟s deposition no later than September 20, 2013; and (5) requiring the parties to file a status report by August 30, 2013,
notifying the Judge of the date of the deposition and mutually acceptable dates for rescheduling the hearing. The Order deferred ruling on Petitioner‟s Motion to Compel Discovery and Motion to Require Service of Pleadings and Papers, giving Respondent until August 26, 2013, to file a response to same.
Respondent filed her Response to Petitioner‟s Motion to Compel, along with a Motion to Terminate Deposition, on
August 24, 2013. Petitioner timely filed a Response, along with a Motion for Enforcement of August 20, 2013, Order and for an Award of Attorney‟s Fees. Judge Nelson granted the Motion for enforcement and denied the motion for fees at a telephonic hearing on August 27, 2013. The final hearing was rescheduled for October 9, 2013, in Pensacola, Florida. On October 2, 2013, the case was transferred to the undersigned.
The final hearing commenced as scheduled. Petitioner presented the testimony of Dr. Kylie Anderson, Confidential Human Resources Specialist for the Escambia County School District; and Dr. Alan Scott, Assistant Superintendent for Human Resources for the Escambia County School District. Petitioner introduced Exhibits P-1 through P-11, which were accepted into evidence. Respondent testified on her own behalf and introduced Exhibits R-1 through R-3 and R-7, which were admitted into evidence over objection, and R-4 through R-6, which were admitted without objection.
A one-volume Transcript was filed with the Division on October 29, 2013. The parties timely filed Proposed Recommended Orders (PROs), and Petitioner moved to strike portions of Respondent‟s PRO, which was denied. The parties‟ PROs have been taken into consideration in preparing this Recommended Order.
FINDINGS OF FACT
Respondent holds State of Florida Educator‟s Certificate number 944511, valid through June 30, 2014, authorizing her to provide instruction in both elementary education and exceptional student education.
Respondent is also licensed as a nurse by the State of Florida, although her license number was not introduced into evidence.
Respondent has resided in Pensacola, Florida, for approximately six years.
Respondent has never taught school full-time.
Between December 2011 and August 2013, Respondent was a substitute teacher at the United Cerebral Palsy “Capstone Academy” in Pensacola, a pre-kindergarten program where she worked with special needs children.
During that same time frame, Respondent also substituted at various schools in the Escambia County School District.
From approximately March 2013 through the present day, Respondent was also employed PRN (i.e., “as needed”) as a nurse with Consulate Health Care.
In January 2012, Respondent began working as a substitute teacher at Lincoln Park Elementary School (Lincoln Park) in the Escambia County School District.
In February 2012, Respondent was offered a position as a Long-Term Substitute (LTS) teacher with Lincoln Park.1/
On March 5, 2012, while working at Lincoln Park, Respondent was notified that she must submit to a pre-employment drug screening.2/ Respondent testified that she went to the lab for the drug screening the same day she was informed of the requirement while at work.
Respondent‟s urine specimen was collected at 3:15 p.m. on March 5, 2012, at LabCorp Patient Service Center, 3437 North 12th Avenue, Pensacola.
Respondent‟s urine tested positive for amphetamines.
On March 13, 2012, Lincoln Park Principal Christine Nixon notified Petitioner that her urine test was positive, that she needed to report to the Escambia School District Office, and that Petitioner would not be allowed to return to Lincoln Park until Petitioner heard further from Human Resources (HR).
Respondent reported to the District HR office at approximately 2:55 p.m. on March 13, 2012. At the HR reception
counter, Respondent requested to speak with someone regarding her drug test results. Dr. Kylie Henderson, Confidential Human Resources Administrative Specialist, invited Respondent into her office, and informed her that both Dr. Keith Leonard, Director of Human Resources, and Mr. Kevin Windham, Director of Risk Management, were unavailable. Dr. Henderson offered to take Respondent‟s information and leave a message for Dr. Leonard to contact Respondent.
Respondent‟s meeting with Dr. Henderson was brief, but Dr. Henderson clarified for Respondent that she could not return to Lincoln Park until she received clearance from either HR or Risk Management.
Respondent did not receive a call from Dr. Leonard or anyone else from either HR or Risk Management on either March 13 or 14, 2012. Respondent was anxious to speak with someone regarding her drug screen results.
Respondent contacted HR again on March 14, 2012, and spoke briefly with Dr. Scott, Assistant Superintendent for HR Services. Dr. Scott referred Respondent to Mr. Windham. Respondent was transferred to Mr. Windham‟s voicemail, where she left a message.
Respondent did not receive a return call from
Mr. Windham. On March 15, 2012, Respondent sent an email to Mr. Malcolm Thomas, Superintendent of Escambia County Schools,
complaining that his staff was not returning her calls and requesting a call from someone with his office.
On March 16, 2012, Dr. Scott answered Respondent‟s email on behalf of Mr. Thomas. He explained that unless Respondent produced a prescription for the medication for which she tested positive, or successfully contested the urine screen test, the School District would have to treat it as a positive result and withdraw the employment offer.3/
By letter dated March 15, 2012, from Bill Threadgill, Coordinator of Human Resources Management, Respondent was notified that based upon the results of her pre-employment drug screen she was not eligible for employment with Escambia County Schools.4/
Education Practices Commission
On or about April 13, 2012, the Escambia County School District reported Respondent to the Department of Education (DOE), Professional Practices Services, which prompted the instant action against Respondent‟s Educator Certificate.
Respondent responded to the allegations of misconduct brought by Professional Practices Services in a letter dated April 21, 2013, to Ms. Lambeth, Chief of Professional Practices Services for DOE‟s Bureau of Professional Practice.
On May 15, 2013, Respondent filed an Election of Rights requesting a formal hearing.
Meeting with Dr. Henderson
The dispute in this case centers on statements Respondent made during her meeting with Dr. Henderson on March 13, 2012, at the Escambia District HR Office.
Dr. Henderson took notes during the brief meeting with Respondent in order to pass on to Dr. Leonard an accurate account of Respondent‟s request for a meeting with him. On a message pad, Dr. Henderson noted that Respondent had come to see Dr. Leonard at the direction of Lincoln Park Principal Nixon following the results of her positive drug screen. The message asks Dr. Leonard to call Respondent to give her further direction.
After Respondent left her office, Dr. Henderson made a written account of the meeting. Dr. Henderson felt documentation was necessary as Respondent‟s behavior was indicative of someone under the influence of a substance.
In her written statement, which was corroborated by her testimony at final hearing, Dr. Henderson described Respondent as “extremely jittery and agitated” and noted that Respondent continually shifted in her seat, spoke very rapidly, stuttered and stammered, and repeatedly picked up and replaced her purse on the floor beside her. Dr. Henderson recounted that Respondent explained she knew what drug she had tested positive
for, and that she took her son‟s Adderall “every now and then” for weight loss, “to keep from eating.”
At final hearing, Respondent admitted telling
Dr. Henderson that she knew the identity of the drug for which she tested positive. However, Respondent denied that she identified the drug as Adderall or that she took the drug intentionally. Respondent further takes issue with
Dr. Henderson‟s account of her behavior, denying that she was jittery or agitated, that she spoke rapidly, shifted in her seat, or repeatedly moved her purse.
Credibility
Respondent‟s testimony that she did not identify the drug to Dr. Henderson is undermined in several ways.
First, in Respondent‟s letter to Ms. Lambeth, Respondent stated that she had admitted “to the District” that she took one of her son‟s Adderall. At hearing, Respondent authenticated the letter and the signature as her own.
In her Election of Rights, Respondent stated: “The Petitioner states on pg.2(5) that I admitted to the district‟s official that I told her that I took the Adderall. I told her that I took it by mistake on that day, and I reiterated it on the 21st of April when I addressed the office of professional practices services.”
Respondent‟s own testimony at final hearing conflicted on this point. On cross-examination, after repeatedly testifying that she did not recall telling Dr. Henderson the name of the medication she had taken, she testified as follows:
Q. That‟s what you said under oath in your direct testimony sitting in that chair. You didn‟t say what the drug was. You said, took one of my son‟s medications, right?
A. Yes, I said that.
Q. You didn‟t identify to her, accidentally to my son‟s Adderall?
A. Yes, I did. I did identify that to her.[5/]
Further, when Respondent was deposed on September 4, 2013, she denied having taken Adderall at all during the time she worked at Lincoln Park.6/
Dr. Henderson‟s testimony that Respondent identified Adderall as the drug for which she tested positive during her meeting with Respondent on March 13, 2012, is accepted as credible and reliable.
Respondent‟s position, at final hearing, is that she took her son‟s Adderall by mistake and that it was a one-time occurrence. She flatly denied that she has ever taken Adderall to curb her appetite or assist in weight loss.
Respondent represented on many occasions that she took the Adderall by mistake: in her March 15, 2012, email to
Superintendent Thomas when expressing her frustration with lack of response from his staff; in her March 16, 2012, email to Mr. Windham explaining that a split screen test would have the same results as her first urine screening; in her letter to
Ms. Lambeth, dated April 21, 2012, in response to the Commission‟s allegations of misconduct; in her Election of Rights dated May 13, 2013; and throughout her testimony at final hearing.
Incredulously, at final hearing Respondent made no effort to explain how she took the Adderall by mistake. Respondent was clearly incensed by the lack of communication from HR following her meeting with Dr. Henderson. She repeatedly stated that she just wanted a chance to explain herself and that she thought she would have a chance to “clear up” the mistake. However, when presented with an evidentiary hearing of her choosing, and the opportunity to present the facts as she wanted them found, she made no effort to explain the mistake. She did not offer any facts about where the Adderall was kept in relation to any medication she might have been taking, the time of day to be administered, or any other details to explain the “mistaken” ingestion of Adderall.
In fact, Respondent testified that her son, who did live with her in February and March 2012, was not even on any prescription medications at the time. Specifically, she
testified, “My son is not even on Adderall. He was on that a long time. And I was keeping them in case I thought he had to go back on the medication.”7/
Respondent‟s testimony that she was simply keeping the medication for her son does not support her theory that she took the Adderall by mistake.
More importantly, Dr. Henderson testified credibly that Respondent did not mention to her during the meeting with Respondent on March 13, 2012, anything about taking Adderall by mistake. Dr. Henderson‟s testimony and written statement were clear that Respondent told her she took the Adderall intentionally, and does so occasionally to lose weight and control her appetite. Dr. Henderson‟s testimony is accepted as credible and reliable.
Respondent accuses Dr. Henderson of fabricating her written account of her meeting with Respondent on March 13, 2012. No evidence was introduced to support that accusation. Dr. Henderson had never met, seen, or spoken to Respondent prior to the meeting at HR on March 13, 2012. Dr. Henderson had no information from any source regarding Respondent prior to
March 13, 2012, when Respondent presented at HR to discuss her test results with someone. Respondent offered no explanation for why Dr. Henderson would fabricate her written account of
their meeting. In short, there was no evidence of a motive for Dr. Henderson to make up the facts in her written statement.
Respondent argues that her theory that Dr. Henderson fabricated the account is supported by the fact that
Dr. Henderson‟s written message to Dr. Leonard is so short and includes none of the details about her behavior or the name of the medication taken. Respondent alleges that had Respondent admitted to abusing prescription medications and behaved erratically in her presence, Dr. Henderson would have included those details in the message to Dr. Leonard.
Respondent‟s theory is not supported by any evidence.
The message to Dr. Leonard was taken on a form message pad which includes space for identification of the caller or visitor, their phone number, and the reason for their call, followed by a series of boxes from which the message-taker may choose, such as “telephoned,” “returned your call,” “came to see you,” and “will call again.” The form includes only the briefest of lines for a message to the recipient.
In the limited space provided for a message,
Dr. Henderson wrote “Urine test 2 weeks ago came back positive. She was contacted by the lab and her principal sent her to HR. Can‟t return to LPES until cleared. Needs to know what to do.” The message does not include details about Respondent‟s behavior or statements concerning the drug for which she tested positive.
Contrary to Respondent‟s argument, the undersigned does not infer from the facts that Dr. Henderson fabricated the more detailed statements concerning Respondent made shortly after the meeting concluded.
Ultimate Facts
Petitioner proved by clear and convincing evidence that on March 5, 2012, Respondent tested positive for amphetamines, a controlled substance for which she did not have a prescription. In the heat of the moment when faced with her positive test results, Respondent admitted to Dr. Henderson that the medication belonged to her son, that she took the medication intentionally, and that she does so occasionally. Subsequent to her admission, Respondent misrepresented the facts to the School District, the State Education Practices Commission investigator, and while under oath in deposition and in this forum.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in accordance with sections 120.569 and 120.57(1), Florida Statutes (2013).
The Florida Education Commission is the state agency charged with the certification and regulation of Florida educators pursuant to the provisions of chapter 1012, Florida Statutes.
This is a proceeding in which Petitioner seeks to discipline Respondent's educator‟s certification. Because disciplinary proceedings are considered penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep't of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).
As stated by the Florida Supreme Court:
Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and lacking in confusion as to the facts in issue. The evidence must be of such a weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
In re Henson, 913 So. 2d 579, 590 (Fla. 2005)(quoting Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
The Administrative Complaint alleges the following facts as a basis for imposing discipline:
On or before March 5, 2012, the Respondent possessed and consumed an amphetamine which had been prescribed for someone other than herself.
On March 5, 2012, the Respondent submitted to a pre-employment drug screen test as a requirement for employment with the Escambia County School District. Analysis of Respondent‟s test panel
indicated that she tested positive for the presence of amphetamines.
After being advised of the positive test results the Respondent met with a district official to discuss the issue on March 13, 2012. The Respondent admitted that she took the drug Adderall, an amphetamine, which had been prescribed to treat her son, and that she took the drug to assist in her efforts to achieve weight loss. In her written response to the Office of Professional Practices Services on April 21, 2012, however, Respondent stated that she took the medication by mistake and that it was an accident.
As a result of her positive drug test the Escambia School District has not permitted the Respondent to return to work as a long-term substitute teacher.
Based upon these factual allegations, Respondent has charged Respondent with violating section 1012.795(1)(d),(g), and (j), and rule 6A-10.081(5)(a). Section 1012.795(1), which did not change during the pendency of this proceeding, provides in pertinent part:
(1) The Education Practices Commission may suspend the educator certificate of any person as defined in s. 1012.01(2) or (3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring
direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:
* * *
(d) Has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
* * *
(g) Upon investigation, has been found guilty of personal conduct that seriously reduces that person‟s effectiveness as an employee of the district school board.
* * *
(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.
Rule 6A-10.081(5)(a) provides in pertinent part:
* * *
Obligation to the profession of education requires that the individual:
Shall maintain honesty in all professional dealings.
Count 1 charges a violation of section 1012.795(1)(d), which requires a finding that Respondent is guilty of gross immorality or an act involving moral turpitude. Petitioner has not proven this count by clear and convincing evidence.
DOE has not adopted a rule defining “gross immorality,” as required by section 1012.795(1). That fact alone has been grounds for rejecting the Commission‟s allegation of gross immorality. See Arroyo v. Smith, Case No. 11-2799 (Fla. DOAH May 31, 2013; Fla. Educ. Practices Comm‟n Nov. 1, 2012).
The definition of “immorality” in Florida Administrative Code Rule 6B-4.009(2)8/ has been considered in determining whether the Commission‟s allegations of “gross immorality” are substantiated.
The rule defines “immorality” as “conduct that is inconsistent with the standards of public conscience and good morals. It is conduct that is sufficiently notorious to bring the individual concerned or the education profession into public disgrace or disrespect and impairs the individual‟s service in the community.”
“Gross immorality” has been defined to mean an act of misconduct that is serious, rather than minor in nature; it is a flagrant disregard of proper moral standards. See Educ.
Practices Comm‟n v. Knox, 3 FALR 1371-A (Fla. Dept. of Educ.
1981), and Brogan v. Mansfield, Case No. 96-0286 (Fla. DOAH Aug. 1, 1996; Fla. Educ. Practices Comm‟n Oct. 18, 1996).
Florida Administrative Code Rule 6B-4.009(6),9/ which was also in effect when the acts in question were committed, defines moral turpitude as follows:
. . . a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.
Dr. Scott testified that, in his opinion, Respondent committed “gross immorality” by violating the School District‟s drug-free workplace policy and by telling different versions of the facts to the School District and the Education Practices Commission.
While counsel for the Petitioner introduced into the record Dr. Scott‟s extensive history in education and administration, counsel did not proffer Dr. Scott as an expert in any particular field. Presumably, Dr. Scott‟s testimony was offered to establish the moral standard of the Escambia County educational community as evidenced by the drug-free workplace policy.
Dr. Scott testified that the policy requires all employees and certain volunteers of the School District to be
drug free at work and abstain from illegal drugs away from work as well. The policy was not introduced into evidence.
Dr. Scott testified that the School District‟s policy is “similar” to policies “that you would find in every school district throughout the State of Florida.”10/ As such, the Escambia County School District‟s moral standard regarding drug use is roughly the same as all other educational communities in the State of Florida.
The undersigned does not find Dr. Scott‟s opinion particularly persuasive.
More persuasive is the caselaw arising from the Education Practices Commission‟s findings of “gross immorality” when the facts involve prescription drug use and possession. The Commission has agreed with the Administrative Law Judge‟s (ALJ‟s) finding that an educator‟s possession of Oxycodone pills did not constitute “gross immorality,” where she testified she had a prescription for the medication, although she did not produce the prescription. See Smith v. Von Hagen, Case No. 11- 1154PL (Fla. DOAH June 21, 2011; Fla. Educ. Practices Comm‟n.
Oct. 19, 2011). The Commission has found “gross immorality” for an applicant who gave a controlled substance, for which he had a prescription, to a third party. See Therrien v. Horne, Case No. 03-1600 (Fla. DOAH Sept. 19, 2003; Fla. Educ. Practices Comm‟n Jan. 23, 2003). However, when the tables were turned,
and an educator solicited prescription drugs from his subordinate staff members, the Commission‟s, and the ALJ‟s, finding of “gross immorality” was overturned. See McKinney v.
Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995). McKinney was a high school principal who twice solicited prescription pain pills from subordinate employees, calling one at home to ask if she still had some of her medication and requesting her to bring some for him the following day. See Castor v. McKinney, Case No. 92-4799 (Fla. DOAH April 1, 1993; Educ. Practices Comm‟n Nov. 2, 1993). Upon review, the District Court found the evidence insufficient to support a charge of “gross immorality.” The court found the incidents were isolated, and were not “„sufficiently notorious‟ to bring McKinney and the education profession „into public disgrace or disrespect and impair [McKinney‟s] service in the community.‟” 667 So. 2d at 389.
The facts of the case at hand likewise fail to rise to the level of either “immorality” or “gross immorality.” Petitioner presented no evidence that either Respondent or the School District received any notoriety whatsoever as a result of Respondent‟s positive pre-employment drug screen, nor how the public might be made aware of her confidential test results. Respondent was not a long-term teacher at Lincoln Park who had formed relationships with faculty and students, but a substitute who would be expected to come and go with frequency. Further,
Respondent had only been substituting at Lincoln Park for a couple of weeks.
Although the evidence established that Respondent worked as a substitute teacher at Lincoln Park the same day as her pre-employment drug screen, Petitioner presented no evidence that Respondent‟s performance was impaired or that her behavior was questioned.
Petitioner did not prove by clear and convincing evidence that Respondent has taken her son‟s Adderall while employed by the District at any time other than the one isolated incident on March 5, 2012.
Dr. Henderson testified that Respondent behaved like someone “under the influence of a substance” when Respondent met with her on March 13, 2012. Based on Dr. Henderson‟s description of Respondent‟s rapid speech, shifting in her chair, etc., Petitioner implies that Respondent was likely under the influence of amphetamines on March 13, 2012, as well as March 5, 2012.
Respondent‟s behavior at the final hearing does not support such an inference. Respondent was relatively calm during cross-examination of Petitioner‟s witnesses, did not speak rapidly, and did not fidget or shift in her seat. However, during her direct testimony, Respondent‟s speech was very rapid and she had to be asked, both by the undersigned and
by the court reporter, to slow down and to repeat certain words or phrases. Respondent‟s behavior at final hearing was entirely consistent with the stress of directly addressing the court or other authority figure.
The undersigned does not infer from the evidence that Respondent was impaired when she met with Dr. Henderson. Respondent was just as likely nervous about facing a School District employee to explain her pre-employment drug screen results.
While Respondent admitted to Dr. Henderson that she occasionally takes her son‟s Adderall, Petitioner introduced no evidence from which the undersigned could conclude that she has taken the Adderall on any date other than March 5, 2012, while acting as a substitute teacher for the District.
Respondent did not give a prescription medication to a third party, as in Therrien, Case No. 03-1600 RO at 3. No evidence was introduced that Respondent possessed or ingested a controlled substance on campus. Respondent‟s behavior is not as serious as a principal soliciting prescription medication from his own staff. The undersigned finds that there is insufficient evidence to support the Commission‟s allegation that Respondent‟s actions constitute “gross immorality.”
Count 2 charges Respondent with violating section 1012.795(1)(g), by engaging in conduct which seriously reduces
her effectiveness as an employee of the School Board. Petitioner has proven this count by clear and convincing evidence.
The evidence shows that over a three-day period, Respondent contacted by telephone or electronic mail at least four members of the Escambia County School District, including the Superintendent, in an attempt to establish cover for her positive pre-employment drug screen. Respondent‟s lack of candor with School District employees, as well as her false accusations against Dr. Henderson, are certain to have impaired her trustworthiness with the District. Dr. Scott credibly testified that the District would be unable trust Respondent in a leadership position with students.
Count 3 charges Respondent with violating section 1012.795(1)(j) by violating the Principles of Professional Conduct for the Education Profession prescribed by the State Board of Education rules, and Count 4 charges Respondent with violation of rule 6A-10.081(5)(a), the principle requiring honesty in all professional dealings. Petitioner has proven both of these counts by clear and convincing evidence. When first informed of her positive pre-employment drug screen, Respondent candidly, although regrettably, shared with
Dr. Henderson the name of the drug, its source, and the reason she had taken it. When given an opportunity to explain her
behavior to the Education Practices Commission, Respondent changed her story, claimed she had taken the medication by accident, denied her earlier admissions, and then falsely accused a School District official of fabricating evidence against her.
The Commission has established Disciplinary Guidelines for the imposition of penalties authorized for disciplinary proceedings. Rule 6B-11.007(2) provides a range of penalties from probation to revocation for each of the violations charged in the Complaint.11/
The rule also delineates aggravating and mitigating factors to consider in determining the penalty and, particularly, in determining whether deviation from the guideline range is appropriate. Obvious mitigating factors are that this is Respondent‟s only discipline and that no actual physical or other damage occurred as a result of Respondent‟s violation.
Petitioner suggests that the undersigned should consider as an aggravating factor Respondent‟s motive, that she misrepresented the facts for her own pecuniary benefit or self- gain. Petitioner reasons that Respondent changed her explanation of the positive pre-employment drug screen in order to gain a job as a LTS with the District. However, Respondent clearly gained nothing from her false statements.12/
On balance, the evidence does not support departure from the guideline range.
While Respondent‟s behavior was clearly inappropriate, it does not warrant the two-year suspension of Respondent‟s educator‟s certificate requested by Petitioner. Petitioner cites two Commission cases13/ as support for the recommendation of a
two-year suspension for an educator‟s dishonesty in professional dealings. Having reviewed those cases, the undersigned concludes they are insufficient precedent on which to base the recommended penalty. First, the two-year suspensions ordered in those cases do not correspond directly with the finding of dishonesty in professional dealings, but rather are the penalty provided for an aggregate of violations. Second, the facts are completely distinguishable from the facts at hand. See Horne v.
Hammersly,14/ Case No. 03-1601PL (Fla. DOAH Oct. 1, 2003; Fla. Educ. Practices Comm‟n Jan. 13, 2004)(Respondent who fabricated test results for an exceptional education student, then lied about when the alleged tests were given, was guilty of gross immorality, personal conduct that seriously reduces effectiveness, failing to protect a student from harmful conditions, intentionally distorting subject matter relevant to a student‟s academic program, intentionally misrepresenting facts concerning an educational matter, failing to maintain honesty in professional dealings, and submitting fraudulent information in
connection with her professional dealings); and Gallagher v.
Desjarlais, Case No. 00-2767PL (Fla. DOAH Oct. 31, 2000; Fla. Educ. Practices Comm‟n Jan. 19, 2001)(Respondent, who deliberately set fire to his motor vehicle on school grounds then lied about it, was guilty of several charges, only one of which was dishonesty in professional dealings).
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Education Practices Commission enter a final order finding that Respondent has violated
section 102.795(1)(g) and (j), as well as rule 6A-10.081(5)(a), as alleged in the Administrative Complaint. It is further recommended that the Education Practices Commission suspend Respondent‟s certificate for a period of 12 months; and upon employment in any public or private position requiring an educator‟s certificate, place her on probation for a period of two years on such terms as the Commission deems advisable.
DONE AND ENTERED this 2nd day of December, 2013, in Tallahassee, Leon County, Florida.
S
SUZANNE VAN WYK
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 2nd day of December, 2013.
ENDNOTES
1/ The discovery disputes in this case result from Respondent‟s misperception, or misrepresentation, that she was hired by the Escambia County School District as a LTS for Lincoln Park in February 2012. The evidence does not support a finding that she was employed as a LTS in February 2012, but rather that she was offered a LTS position while acting as a regular substitute teacher at Lincoln Park.
2/ Escambia County Schools requires pre-employment drug screening of LTS teachers, but not regular substitute teachers.
3/ Escambia County Schools maintains a drug-free workplace policy, which precludes employment of anyone who tests positive on a pre-employment drug screen.
4/ Respondent separately appealed the denial of her employment application with Escambia County Schools.
5/ T.153:14-21.
6/ The undersigned has considered whether Respondent might have misunderstood the line of questioning during the deposition.
Upon review of the transcript, it is clear that where Respondent
did not understand questions, she did ask that they be rephrased or repeated. The undersigned concludes that Respondent‟s denial that she ever took Adderall during the timeframe in question is inconsistent with her prior statements that she did take Adderall on March 5, 2012, although by mistake. The deposition testimony is further evidence of Respondent‟s lack of credibility.
7/ T.155:17-19.
8/ The Rule was transferred without substantive change to Florida Administrative Code Rule 6A-5.056(1), although the Florida Administrative Code does not include the transfer date. The rule was amended again on July 8, 2012.
9/ The rule was transferred without substantive change to Florida Administrative Code Rule 6A-5.056(6), although the Florida Administrative Code does not include the transfer date.
10/ T.74:7-8.
11/ The rule in effect at the time of the violation refers to violations of section 1012.795(1)(c),(f), and (i), respectively.
The statutory references have since been renumbered as section 1012.795(1)(d), (g), and (j), respectively.
12/ There was no evidence to support a finding that Respondent achieved the self-gain (i.e., weight-loss) she sought from the taking the Adderall, which was the underlying violation.
13/ Petitioner‟s counsel cited a third case, DOAH Case No. 10- 10515, which does not exist. The undersigned‟s reasonable efforts to locate the cited case were not fruitful.
14/ This was incorrectly cited in Petitioner‟s PRO as Crist v. Hammersley, DOAH Case No. 03-1610PL.
COPIES FURNISHED:
David Holder, Esquire
J. David Holder P.A.
387 Lakeside Drive
Defuniak Springs, Florida 32435
Beverly Jean Bolton 10331 Wailuku Drive
Pensacola, Florida 32506
Gretchen Kelley Brantley, Executive Director Education Practices Commission
Department of Education Turlington Building, Suite 224
325 West Gaines Street Tallahassee, Florida 32399-0400
Marian Lambeth, Bureau Chief
Bureau of Professional Practices Services Department of Education
Turlington Building, Suite 224-E
325 West Gaines Street Tallahassee, Florida 32399-0400
Matthew Carson, 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 |
|---|---|---|
| Mar. 28, 2014 | Agency Final Order | |
| Dec. 02, 2013 | Recommended Order | Commission failed to prove by clear and convincing evidence that Respondent who tested positive for amphetamines was guilty of gross immorality or an act involving moral turpitude. Commission proved other allegations. Recommend one-year probation. |
