STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 15-4429TTS

ANA BALMOND,

Respondent.

/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

1. Bruce Culpepper, Administrative Law Judge of the Division of Administrative Hearings, pursuant to sections 120.569 and 120.57(1), Florida Statutes (2016),1/ on March 9, 2016, by video- teleconference sites in Tallahassee and Lakeland, Florida.

   APPEARANCES

   
   

   For Petitioner: Donald H. Wilson, Esquire

   Boswell & Dunlap, LLP

   245 South Central Avenue Bartow, Florida 33830

   
   

   For Respondent: Melissa C. Mihok, Esquire

   Melissa C. Mihok, P.A. 1718 East Seventh Avenue Suite 301

   Tampa, Florida 33605 STATEMENT OF THE ISSUE

   Whether just cause exists for Petitioner, Polk County School Board, to terminate Respondent’s employment as a teacher.

   
   

   PRELIMINARY STATEMENT

   
   

   By letter, dated June 9, 2015, the Superintendent for Petitioner, Polk County School Board (“School Board”), notified Respondent, Ana Balmond (“Respondent”), of her intent to recommend to the School Board that Respondent be suspended with pay and terminated from her employment as a teacher.

   Subsequently, at a meeting on July 28, 2015, the School Board adopted the Superintendent’s recommendation to terminate Respondent.

   On June 22, 2015, Respondent timely requested an administrative hearing to challenge her termination. On August 3, 2015, the School Board referred the matter to the Division of Administrative Hearings (“DOAH”) and requested the assignment of an Administrative Law Judge to conduct an evidentiary hearing.

   The final hearing was initially set for October 6, 2015. Following Respondent’s unopposed motion for continuance, the final hearing was rescheduled for December 8, 2015. Respondent filed a second motion for continuance on December 4, 2015, and the final hearing was rescheduled for January 29, 2016.

   Respondent filed a third unopposed motion for continuance, which was granted. The final hearing was held on March 9, 2016.

   At the final hearing, the School Board presented the testimony of Gina Williams, Principal of Winter Haven High

   
   

   School; Paula Northern, Dean of Students; Jose Perez, the Winter Haven High School resource officer; and Juan Seda, the School Board’s Director of ESOL.2/ School Board Exhibits 1 through 10 were received into evidence.3/ Respondent testified on her own behalf. Respondent Exhibits 1 through 3 and 5 through 12 were received into evidence.

   A one-volume Transcript of the final hearing was filed with DOAH on March 21, 2016. At the close of the hearing, the parties were advised of the ten-day timeframe following DOAH’s receipt of the hearing Transcript to file post-hearing submittals. On March 25, 2016, following the School Board’s Motion to Retake Depositions or to Continue Final Hearing (which was denied), the

   undersigned extended the deadline to file post-hearing submittals until April 18, 2016. On April 19, 2016, Respondent moved for an additional five-day extension of time to file its proposed recommended order, which was granted. Both parties filed proposed recommended orders which were duly-considered in preparing this Recommended Order.

   FINDINGS OF FACT

   
   

   1. The School Board is a duly-constituted governing body charged with the duty to operate, control, and supervise public schools within Polk County, Florida. See Art. IX, § 4(b), Fla. Const.; and §§ 1001.30 and 1001.33, Fla. Stat.

      
      

   2. At all times material to this case, Respondent was employed by the School Board as a teacher at Winter Haven High School. As a member of the School Board’s instructional staff, Respondent’s employment was governed by Florida law, as well as a Teacher Collective Bargaining Agreement (“Bargaining Agreement”), dated 2013-2016 and amended on April 18, 2015, in accordance with section 1012.33, Florida Statutes. The Bargaining Agreement was entered into between the School Board and the Polk Education Association, Inc., as representative of the teaching personnel employed by the School Board.

   3. Respondent was placed at Winter Haven High School as a Spanish teacher at the beginning of the 2014-2015 school year. Respondent was assigned six classes. She taught Spanish I, Spanish II, and AP Spanish. Several of Respondent’s classes were large, including over 35 students. Based on her limited supervision, Gina Williams, the Principal of Winter Haven High School, considered Respondent to be a very good AP Spanish teacher who did very well with those students. Prior to her employment at Winter Haven High School, Respondent taught for approximately 28 years.

   4. On June 9, 2015, then School Board Superintendent, Kathryn M. LeRoy, issued a letter (the “Termination Letter”) notifying Respondent that she was immediately suspended with pay from her teaching position. Superintendent LeRoy added that she

      
      

      would recommend Respondent’s termination at a School Board meeting to be held on June 23, 2015. The Termination Letter further stated that Superintendent LeRoy had determined that certain of Respondent’s actions constituted serious misconduct. Based on her findings, Superintendent LeRoy found “just cause” for Respondent’s termination as a School Board employee.4/

   5. In the Termination Letter, Superintendent LeRoy described three incidents that led to her decision. Superintendent LeRoy based her recommendation to terminate Respondent on two of these incidents. The factual basis for each incident as supported by the competent substantial evidence is set forth below:

      Respondent’s Prior Discipline

      
      

   6. The Termination Letter cited an incident that occurred on January 20, 2015, for which the School Board previously disciplined Respondent. At the final hearing, the School Board represented that it did not consider this incident as a ground for Respondent’s dismissal. The School Board referenced the prior discipline to show its progressive discipline steps in compliance with the Bargaining Agreement. (Termination is step four in the progressive discipline schedule listed in the Bargaining Agreement.) The facts regarding this prior disciplinary action are included in this Recommended Order simply

      
      

      to provide background information and context for the School Board’s ultimate decision to dismiss Respondent.

   7. On January 20, 2015, Respondent fell asleep at her desk during her last class of the day. Respondent was showing a movie to her Spanish I class. Eventually, her students noticed that she was asleep. They became loud and disorderly. Several students used their cell phones to photograph and video-record Respondent sleeping. Despite the commotion, Respondent remained asleep for approximately 30 to 45 minutes. Respondent explained that she fell asleep due to prescription pain medication that made her very drowsy.

   8. Principal Williams, determined that the seriousness of the situation supported a suspension without pay (step three in the Bargaining Agreement’s progressive discipline schedule). On January 26, 2015, Principal Williams sent a letter to Superintendent LeRoy recommending Respondent be suspended. By letter, dated February 5, 2015, Superintendent LeRoy suspended Respondent without pay for five days.5/ Respondent testified that she had never been disciplined in her teaching career prior to this incident.6/

      The First Basis for Dismissal7/

      
      

   9. On February 19, 2015, Paula Northern, the Winter Haven High School Dean of Students, was conducting her regular rounds of the school buildings assigned to her. Upon reaching

      
      

      Respondent’s classroom, Ms. Northern observed Respondent confronting one of her students outside her classroom.

      Respondent was questioning the student, J.I., about the school’s investigation of the sleeping incident on January 20, 2015.

      Respondent pressed J.I. to tell her what he told Principal Williams in the course of the investigation. J.I. recalled that Respondent’s questioning made him feel “uncomfortable.”

      Ms. Northern commented to Respondent that it was “unethical” for her to speak to a student in such a manner. Respondent retorted that what the school administrators were doing was unethical.

   10. Ms. Northern then stepped into the Respondent’s classroom to calm her students down. Ms. Northern feared that Respondent’s students would become “uncontrollable” in her absence. Respondent followed Ms. Northern, and, in a loud voice and in the presence of her students, demanded that she vacate the classroom. When Ms. Northern did not immediately leave, Respondent, in front of her students, called the teachers’ union. Respondent complained over the phone about

       Ms. Northern’s presence in the classroom.

       
       

   11. At the final hearing, Respondent explained that she was not “interrogating” J.I. on February 19, 2015. She believed that the situation was overblown.

   12. In addition to the above episode, during the school’s investigation into the sleeping incident, several of

       
       

       Respondent’s students reported that Respondent used profanity in her classroom. On other occasions, these students recalled Respondent making disrespectful comments about school administrators. Several students divulged that Respondent uttered unflattering remarks about Principal Williams. Students also complained that Respondent discussed her personal problems during class time. At the final hearing, Respondent conceded that she was frustrated with her seventh-period class because of her students’ disrespectful and unruly behavior. However, Respondent denied ever calling school administrators derogatory names in her students’ presence.

       The Second Basis for Dismissal

       
       

   13. Juan Seda was (and is currently) the Director of ESOL for the school district. At the request of Jacqueline Bowen, the school district’s Senior Director for reading and writing, Mr. Seda visited Respondent’s classroom to observe her teaching methods, performance, and student interaction. On March 11, 2015, Mr. Seda sat through portions of two of Respondent’s Spanish classes (AP Spanish and Spanish I). He watched approximately 20 minutes of each class.

   14. Mr. Seda reported that, upon first entering Respondent’s classroom, he found the students unattended. At her students’ beckoning, Respondent emerged from a classroom closet. During his brief observation, Mr. Seda witnessed

       
       

       Respondent leave the classroom to speak to someone in the hall thereby leaving her students unattended. He also observed Respondent request a student leave the classroom to retrieve some materials from Respondent’s car.

   15. Mr. Seda determined that Respondent was not using prepared lesson plans in either Spanish class. He also concluded that Respondent did not possess any instructional materials. Mr. Seda found that Respondent’s teaching method did not have any structure. Consequently, Respondent did not appear to be following proper state standards for her subject.

   16. Mr. Seda also observed that Respondent’s demeanor toward the students was “unpleasant.” Her students were not engaged in the lesson. Mr. Seda did not observe any positive interaction between Respondent and her students. In addition, Mr. Seda was concerned that the periods when Respondent left her classroom unattended posed student safety issues.

   17. Following his observations, Mr. Seda prepared a report for Ms. Bowen, dated March 11, 2015. Mr. Seda concluded that Respondent’s students were not receiving proper instruction in Spanish. Mr. Seda was concerned with Respondent’s instructional structure. Mr. Seda concluded that immediate action was needed to prepare Respondent’s students for their end-of-course Spanish examinations. (Mr. Seda conceded that he did not know the final pass rate of Respondent’s students following their 2015 end-of-

       
       

       course exams, or whether Respondent’s students experienced a higher failure rate than other Spanish classes in the school district.) Mr. Seda recommended that Respondent immediately be removed from the classroom and a bilingual substitute assigned in her place. Mr. Seda also urged after-school tutoring be made available for Respondent’s students to help them catch up with their Spanish lessons.

   18. At the final hearing, Respondent explained that she was feeling very sick the day Mr. Seda observed her class. Consequently, she forgot to bring in her lesson plans from her home. Regarding her students’ possible difficulties with their end-of-course exams, Respondent expressed that her students have always performed well.

   19. Based on the evidence and testimony presented during the final hearing, the School Board proved, by a preponderance of the evidence, that Respondent committed serious misconduct in violation of rule 6A-5.056. Accordingly, “just cause” exists, pursuant to section 1012.33, for the School Board to terminate Respondent’s employment.

       CONCLUSIONS OF LAW

       
       

   20. DOAH has jurisdiction over the subject matter and parties to this proceeding pursuant to sections 120.569, 120.57(1), and 1012.33(6)(a)2., Florida Statutes.

       
       

   21. Respondent is an “instructional personnel” as defined in section 1012.01(2). A district school board in Florida, such as the School Board, is authorized to suspend and dismiss instructional personnel pursuant to sections 1012.22(1)(f), 1012.33(1)(a), 1012.33(6)(a), and 1012.335(4).

   22. Pursuant to sections 1012.33(1)(a), 1012.33(6)(a), and 1012.335(4), the School Board may only terminate Respondent during the term of her employment contract for “just cause.” Section 1012.33(1)(a) defines “just cause” to include “the following instances, as defined by rule of the State Board of Education . . . misconduct in office.” See also § 1012.335(5), Fla. Stat.

   1. Section 1001.02(1), Florida Statutes, grants the State Board of Education authority to adopt rules pursuant to sections 120.536(1) and 120.54 to implement provisions of law conferring duties upon it. Consistent with this rulemaking authority, the State Board of Education adopted rule 6A-5.056 to establish instances of “just cause” to suspend and dismiss specified school personnel.

   2. Rule 6A-5.056 defines “just cause” as “cause that is legally sufficient.” Rule 6A-5.056 also provides the following definition:

      1. “Misconduct in Office” means one or more of the following:

         
         

         1. A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6A-10.080, F.A.C.;

            
            

         2. A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6A- 10.081, F.A.C.;

            
            

         3. A violation of the adopted school board rules;

            
            

         4. Behavior that disrupts the student’s learning environment; or

            
            

         5. Behavior that reduces the teacher’s ability or his or her colleagues’ ability to effectively perform duties.

            
            

   3. Rule 6A-5.056(2)(a) incorporates by reference rule 6A- 10.080, which is titled: “Code of Ethics of the Education Profession in Florida.” Rule 6A-10.0808/ provides:

      1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

         
         

      2. 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.

         
         

      3. 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.

      
      

   4. Rule 6A-5.056(2)(b) incorporates by reference rule 6A- 10.081, which is titled: “Principles of Professional Conduct for the Education Profession in Florida.” Rule 6A-10.081 provides in pertinent part:

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

         
         

      2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law.

         
         

      3. Obligation to the student requires that the individual:

      
      

      * * *

      
      

      (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

      
      

   5. The Bargaining Agreement provides in pertinent part:

      
      

      4.4 Just Cause: No teacher will be disciplined, reprimanded, suspended, terminated or otherwise deprived of fringe benefits or contractual rights during the term of his/her contract without just cause. No teacher shall be demoted from continuing contract/professional service contract to annual contract nor be deprived of his/her contractual salary for the remainder of the contract year without just cause. No teacher will be relieved from a supplemental position during the term of that supplemental contract without just cause. Refer to 14.4-1 for discipline concerning supplemental positions. Any teacher terminated during the term of

      
      

      his/her contract shall be entitled to a fair hearing based on due process.

      
      

      4.4-1 Progressive discipline shall be followed, except in cases where the course of conduct or the severity of the offense justifies otherwise. Unusual circumstances may justify suspension with pay. Progressive discipline shall be administered in the following steps: (1) verbal warning in a conference with the teacher. (A written confirmation of a verbal warning is not a written reprimand); (2) dated written reprimand following a conference;

      (3) suspension without pay for up to five days by the Superintendent and (4) termination. “Letters of Concern” are not a form of discipline.

      
      

   6. To terminate Respondent’s employment, the School Board has the burden of proving, by a preponderance of the evidence, that Respondent committed the alleged violations and that such violations constitute “just cause” for dismissal. § 1012.33, Fla. Stat.; Cropsey v. Sch. Bd., 19 So. 3d 351 (Fla. 2d DCA 2009); and Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883

      (Fla. 3d DCA 1990).

      
      

   7. Preponderance of the evidence is defined as “the greater weight of the evidence,” or evidence that “more likely than not” tends to prove a certain proposition. S. Fla. Water

      Mgmt. v. RLI Live Oak, LLC, 139 So. 3d 869, 872 (Fla. 2014); see

      
      

      also Dufour v. State, 69 So. 3d 235, 252 (Fla. 2011) (“Preponderance of evidence is defined as evidence ‘which as a

      
      

      whole shows that the fact sought to be proved is more probable than not.’”).

   8. Whether Respondent committed the alleged misconduct is a question of ultimate fact to be determined by the trier of fact in the context of each alleged violation. Holmes v. Turlington,

      480 So. 2d 150, 153 (Fla. 1985); McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d

      489, 491 (Fla. 1st DCA 1995).

      
      

   9. In determining the matter at hand, the undersigned finds that the School Board proved, by a preponderance of the evidence, legally sufficient grounds to terminate Respondent’s employment. The totality of the competent substantial evidence in the record establishes that Respondent committed “misconduct in office” in violation of rule 6A-5.056(2). Accordingly, “just cause” exists to dismiss Respondent from her teaching position at Winter Haven High School.

   10. The persuasive and credible evidence adduced at the final hearing establishes that Respondent committed “misconduct in office” in violation of rule 6A-5.056(2)(d) and (e). By challenging Ms. Northern in an aggressive and loud tone in the presence of her students, Respondent gave her students the marked impression that she disrespected the school’s administrators. Furthermore, Respondent’s students distinctly heard her make disparaging and inappropriate comments about school personnel,

       
       

       including the school’s principal, in her classroom. In addition, Mr. Seda, despite his limited exposure to Respondent’s teaching methods, persuasively testified that Respondent was not providing effective instruction in two of her Spanish classes. Mr. Seda also observed Respondent exit her classroom during a class period thereby leaving her students unattended. Based on these facts, combined with testimony from school staff members and Respondent’s students describing Respondent’s disagreeable attitude towards school administrators and students, the competent substantial evidence establishes that Respondent’s behavior directly caused a disruption in her “student’s learning environment” and “reduced her ability . . . to effectively perform duties” in violation of rule 6A-5.056(2)(d) and (e).

   11. Notwithstanding the above findings, the School Board failed to prove that Respondent “intentionally expose[d] a student to unnecessary embarrassment or disparagement” in violation of rule 6A-10.081(3)(e) as alleged in the Termination Letter. In asserting this charge, the School Board focused on the February 19, 2015, incident in which Respondent confronted

       1. regarding the school’s investigation. While Respondent’s actions may have been inappropriate, no evidence or testimony supports the School Board’s claim that Respondent embarrassed or disparaged the student. J.I. imparted that the confrontation made him “uncomfortable.” But, he did not disclose any further

negative impact from the encounter. The School Board did not produce any evidence that J.I.’s academic environment was otherwise affected by this incident. No competent substantial evidence shows that Respondent intentionally demeaned J.I. (or any other student) before other classmates, the administration, or in any other manner.

1. Further, the School Board did not prove its charge that Respondent allowed her students “to cuss” in class. In addition, the School Board did not present persuasive or credible evidence proving that Respondent called school staff members the specific derogatory names listed in the Termination Letter. (Although, as stated above, the persuasive testimony establishes that Respondent did make disrespectful statements about school administrators and staff to her students.)

2. Based on the totality of the competent substantial evidence produced at the final hearing, the School Board sufficiently established that Respondent’s actions constitute “misconduct in office” under rule 6A-5.056(2). Therefore, “just cause” exists under section 1012.33 to dismiss Respondent from her teaching position with the School Board.

3. Accordingly, the School Board proved, by a preponderance of the evidence, legally sufficient grounds to dismiss Respondent. By the definition set forth in rule 6A- 5.056(2), Respondent committed “misconduct in office.”

Therefore, pursuant to sections 1012.33 and 1012.335, “just cause” exists for the School Board to terminate Respondent’s employment as a teacher at Winter Haven High School.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order upholding its suspension of Respondent, Ana Balmond, and terminating her employment.

DONE AND ENTERED this 11th day of May, 2016, in Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER 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 11th day of May, 2016.

ENDNOTES

1/ All rule and statutory references are to the versions in effect at the time of the alleged violations unless otherwise indicated.

2/ “ESOL” is used in this Recommended Order as an acronym for “English for speakers of other languages.”

3/ At the final hearing, the School Board offered into evidence the deposition of J.M. (Petitioner’s Exhibit 2), deposition of

J.I. (Petitioner’s Exhibit 3), deposition of K.R. (Petitioner’s Exhibit 4), and deposition of N.C. (Petitioner’s Exhibit 5). The undersigned declined to accept these depositions into evidence at the final hearing. However, following consideration of the School Board’s post-hearing Motion to Retake Depositions or to Continue Final Hearing, the undersigned accepted these depositions into evidence.

4/ The School Board’s Termination Letter, dated June 9, 2015 (as confirmed by the School Board at the final hearing), specifically identifies the two incidents cited in paragraphs

9 through 17 as the bases for the Superintendent’s recommendation for Respondent’s termination. In the absence of an administrative complaint or other written notice of misconduct, the undersigned considers this letter to be the charging document by which the School Board notified Respondent of the grounds for dismissal pursuant to sections 1012.33(6)(a) and 1012.335(4).

The School Board, at the final hearing and in its proposed recommended order, introduced testimony regarding other alleged deficiencies by Respondent. Because these other, relatively minor acts of alleged misconduct are not set forth in the charging document, the undersigned did not consider them in formulating this Recommended Order. See Bridlewood Grp. Home v. Ag. for Pers. with Disab., 136 So. 3d 652, 658 (Fla. 2d DCA 2013); Trevisani v. Dep’t of Health, 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Smith v. Fla. Dep't of Bus. & Prof'l Reg., 182 So. 3d 767 (Fla. 1st DCA 2015) (holding that the administrative complaint did not afford proper notice to a licensee where the complaint failed to allege any act or omission in violation of the statutes the licensee allegedly violated.

Consequently, any disciplinary action could not be predicated on the additional alleged misconduct). (citing to Cottrill v. Dep’t of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996) (“Predicating disciplinary action against a licensee on conduct never alleged in an administrative complaint or some comparable pleading violates the Administrative Procedure Act . . . . While we base our decision on the Administrative Procedure Act, we are not unaware that both state and federal constitutions require adequate notice before a citizen's livelihood can be taken away.”).

Accordingly, the basis for the School Board’s termination action is restricted to those reasons specifically identified in

the Termination Letter, dated June 9, 2015. It would be improper for the undersigned to consider whether Petitioner should be terminated based on additional facts not referenced in the charging document.

5/ The Bargaining Agreement provides for progressive discipline in section 4.4-1. Section 4.4-1 specifically allows the School Board to deviate from the progressive discipline steps when “the severity of the offense justifies otherwise.” In disciplining Respondent for her sleeping incident on January 20, 2015, the School Board skipped step one and two and imposed a suspension without pay under step three. The School Board determined that sleeping during a class called for discipline beyond a verbal warning or letter of reprimand. Superintendent Williams was concerned that Respondent’s lack of supervision and attentiveness in her class created a student safety issue. Thereafter, in determining the appropriate discipline for Respondent based on the additional charges listed in the Termination Letter, the School Board progressed to the next disciplinary step (termination under step four).

6/ Respondent filed a grievance over her suspension. Her grievance is still pending as of the date of this Recommended Order.

7/ In the Termination Letter, the School Board alleged that Respondent violated “The Code of Ethics and The Principals [sic] of Professional Conduct of the Education Profession in Florida (3)(e) . . . ‘shall not intentionally expose a student to unnecessary embarrassment of [sic] disparagement.’” (emphasis in the Termination Letter) The School Board neglected to reference the complete cite for this violation which is Florida Administrative Code rule 6A-10.081(3)(e) (as incorporated in rule 6A-5.056(2)(b)) which was in effect at the time the School Board determined to dismiss Respondent. However, the undersigned finds that the Termination Letter contains sufficient specificity to provide Respondent a fair opportunity to prepare a defense for this alleged charge. See Davis v. Dep’t of Prof’l Reg., 457 So. 2d 1074 (Fla. 1st DCA 1984).

8/ The current version of rule 6A-5.056 was adopted on July 8, 2012. It was in effect at the time of Respondent's alleged misconduct, and, therefore, applies in this proceeding. The undersigned notes that rule 6A-5.056(2) expressly references and incorporates rule 6A-10.080, the Code of Ethics for the Education Profession in Florida, and rule 6A-10.081, the Principles of Professional Conduct for the Education Profession in Florida, as

those rules were numbered on July 8, 2012. On March 23, 2016, rule 6A-10.080 was repealed and appears to have been moved to rule 6A-10.081(1), which was amended on that same date.

The undersigned notes that the School Board’s proposed recommended order referenced older, now inapplicable, rules regarding the criteria for suspension and dismissal (Florida Administrative Code Rules 6B-4.009 and 6B-1.006). The School Board’s references were not considered in formulating this Recommended Order.

COPIES FURNISHED:

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

245 South Central Avenue Bartow, Florida 33830 (eServed)

Melissa C. Mihok, Esquire Melissa C. Mihok, P.A.

1718 East Seventh Avenue, Suite 301

Tampa, Florida 33605 (eServed)

Jacqueline Byrd, Superintendent Polk County School Board

1915 South Floral Avenue Bartow, Florida 33831

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

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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: 15-004429TTS

Orders for Case No: 15-004429TTS