STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEMINOLE COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 02-3465

)

DOUGLAS REEDER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on May 1, 2003, in Sanford, Florida, before T. Kent Wetherell, II, the designated administrative law judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Ned N. Julian, Jr., Esquire

Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

For Respondent: Thomas L. Johnson, Esquire

Chamblee, Johnson & Haynes, P.A.

215 West Verne Street, Suite D Tampa, Florida 33606

STATEMENT OF THE ISSUE

The issue is whether the Seminole County School Board has just cause to terminate Respondent's employment or to otherwise discipline him based upon the conduct alleged in the Petition for Termination.

PRELIMINARY STATEMENT

By letter dated July 26, 2002, the Superintendent of the Seminole County School Board (School Board) informed Respondent that he was recommending that the School Board terminate Respondent's employment for misconduct in office and conduct unbecoming a School Board employee. By letter dated August 14, 2002, Respondent timely requested a formal hearing on that recommendation.

Thereafter, on September 5, 2002, the School Board filed a Petition for Termination (Petition) with the Division of Administrative Hearings (Division). The Petition requested that the Division assign an administrative law judge to conduct the hearing requested by Respondent.

The hearing was initially scheduled for January 22-24, 2003, but was subsequently continued based upon the School Board's unopposed motion. The hearing was ultimately held on May 1, 2003.

At the hearing, the School Board presented the testimony of Karen Coleman, Nichole Combee, Natalie Cotto-Caraballo,

John Byerly, and John Reichert. The School Board's Exhibits P1 through P8 were received into evidence. Respondent testified in his own behalf, and Respondent's Exhibits R1 and R2 were received into evidence. Joint Exhibits J1 and J2 were also received into evidence.

The one-volume Transcript of the hearing was filed with the Division on May 27, 2003. The parties requested and were given until June 16, 2003, to file their proposed recommended orders (PROs). Subsequently, that deadline was extended to June 30, 2003, based upon Respondent's unopposed motion. The parties' PROs were timely filed and were given due consideration by the undersigned in preparing this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings

are made:

1. Parties

   
   

   1. The School Board is the governing body of the local school district in and for Seminole County, Florida.

   2. Respondent is a 48-year-old male. He has been employed as an educational support employee of the School Board for approximately five years.

   3. During the 2001-02 school year, Respondent worked at Seminole High School (SHS) as a computer specialist.

2. Collective Bargaining Agreement and SHS Handbook

   
   

   1. Respondent's employment with the School Board is governed by the collective bargaining agreement between the Seminole Educational Clerical Association, Inc., and the School Board (SECA Agreement).

   2. Article VII, Section 5 of the SECA Agreement provides in pertinent part:

      1. Regular employees who have been hired for a minimum of three (3) continuous years

         . . . shall not be disciplined (which shall include reprimands), suspended, or terminated except for just cause.

         
         

         * * *

         
         

         C. An employee may be suspended without pay or discharged for reasons including, but not limited to, the following providing just cause is present:

         
         

         1. Violation of School Board Policy.

            
            

         2. Violation of work rules.

         
         

         * * *

         
         

   3. Article VIII, Section 1 of the SECA Agreement provides in relevant part that "[e]mployees may be immediately disciplined including termination for serious violation of the following: misconduct; "

   4. Respondent's employment is also governed by the SHS Faculty Handbook (SHS Handbook).

   5. The SHS Handbook is provided to SHS employees at an orientation session prior to the beginning of each school year. Respondent acknowledged receipt of the SHS Handbook prior to the 2001-02 school year.

   6. The SHS Handbook includes a sexual harassment policy which states that the School Board "will not tolerate sexual/racial harassment activity by any of its employees."

   7. As it relates to the circumstances of this case, the policy defines sexual harassment as follows:

      1. Sexual harassment consists of unwelcome sexual advances, requests for sexual favors and other inappropriate verbal, nonverbal, graphic, written or physical conduct of a sexual nature when:

         
         

         * * *

         
         

         (c) such conduct substantially interferes with . . . [a] student’s academic performance, or creates an intimidating, hostile, or offensive . . . school environment.

         
         

      2. Sexual harassment, as defined above, may include but is not limited to the following:

         
         

         1. verbal, nonverbal, graphic, and written harassment or abuse;

      
      

      * * *

      
      

      (c) repeated remarks to a person with sexual or demeaning implications;

      
      

      * * *

      
      

      In determining whether alleged conduct constitutes sexual[] harassment, the totality of the circumstances, the nature of the conduct, and the context in which the alleged conduct occurred will be investigated. . . . .

   8. The sexual harassment policy in the SHS Handbook is virtually identical to the School Board's district-wide sexual harassment policy. Thus, a violation of the policy in the SHS Handbook is a violation of School Board policy.

3. Alleged Inappropriate Comments/Conduct by Respondent During the 2001-02 School Year

   
   

   1. Respondent had four "peer counselors" assigned to him during the 2001-02 school year, including eleventh-grader Nichole Combee.

   2. A peer counselor is a student who assists a teacher or other school staff member with designated tasks, such as filing or running errands on campus. The student provides that assistance for one class period per day.

   3. Nichole had approached Respondent at some point during the first semester of the 2001-02 school year and asked whether she could be a peer counselor for him. The record does not reflect the process by which that request was processed or approved by the administration at SHS, or even whether such approval is required.

   4. Nichole started as a peer counselor for Respondent in January 2002, which is the beginning of the second semester of the 2001-02 school year. Nichole continued in that position through May 23, 2002, when the regular school year ended.

   5. Nichole was Respondent's peer counselor during seventh period, which is the last period of the school day. Nichole's primary duty as Respondent's peer counselor was filing computer permission slips.

   6. During the time that Nichole was Respondent's peer counselor, she discussed her family troubles and school attendance problems with Respondent and his assistant,

      Mark Williams.

      
      

   7. Respondent tried to help Nichole with those problems.

      
      

      On several occasions, he talked to Nichole's mother on the phone in an attempt to help work things out between Nichole and her mother with respect to the "trouble" created at home by Nichole's academic and attendance problems.

   8. Nichole also discussed problems that she was having with male students and some male teachers at SHS looking at her large breasts rather than her eyes when they were speaking to her. She told Respondent at the time that he and Mr. Williams always looked her in the eye, and she reaffirmed that statement in her testimony at the hearing.

   9. Nichole discussed matters related to her breasts with Respondent on other occasions as well. On at least one occasion, she told Respondent that her breasts caused her back to hurt because of their size.

   10. On subsequent occasions when Nichole complained about her back hurting, Respondent replied by saying, "Well, you know why." That comment was intended by Respondent and understood by Nichole to be a reference to Nichole's prior comments that her large breasts were the cause of her back pain.

   11. Respondent never told Nichole that she should not discuss her breasts or other personal matters with him.

   12. Respondent acknowledged at the hearing that it would have been inappropriate for him to initiate a conversation with Nichole about her breasts (as a source of her back pain or otherwise), but that he did not see anything wrong with the discussions that he had with Nichole on that subject because she brought it up and because there was nothing sexual being implied.

   13. After classes had ended on the last day of the 2001-02 school year, a number of students engaged in a "water fight" using water balloons and "water bazookas." This conduct is apparently a "tradition" at SHS.

   14. The SHS administration had directed the school staff to try to prevent this conduct and/or to get the students off campus and onto their busses as quickly as possible.

   15. Respondent observed a group of students involved in a water fight near his office in the media center, and he went outside to break up the students. The group included Nichole

       and her friend Natalie Cotto-Caraballo, who was a tenth-grader at SHS.

   16. Nichole and Natalie were wearing white tank-top shirts that they had made for the last day of school. The shirts had gotten wet during the water fight and, as a result, the girls' bras were visible through the shirts.

   17. Respondent commented to Nichole and Natalie that he could see their bras through their shirts and that they needed to cover themselves up. He then directed the girls and the other students in the group to their buses.

   18. Nichole testified that the comment made her feel somewhat uncomfortable because "it's our bras and, you know, even though people see them, usually they don't say anything, you know."

   19. Respondent's comment regarding his ability to see the girls' bras was not inappropriate under the circumstances; it was a statement of fact and justified Respondent's direction to the girls to cover themselves up.

   20. Nichole did not immediately report the bra comment, either to her parent(s) or the SHS administration. Indeed, the comment did not even come to light until Nichole's second interview with the School Board's investigator in August 2002.

   21. Respondent gave Nichole a hug as she was leaving for her bus on the last day of school and told her to have a nice

       summer. Despite its close proximity in time to the bra comment, Nichole testified that the hug did not make her uncomfortable.

       She just considered it to be friendly "good bye" hug, which was all that was intended by Respondent.

   22. Nichole did not complain about Respondent to her parent(s) or anyone in the SHS administration during the time that she was his peer counselor.

4. Lunch Invitations During Summer School

   
   

   1. Nichole attended the first session of summer school, which began on June 3, 2002, less than two weeks after the end of the regular school year.

   2. The only class that Nichole took during summer school was an English class taught by "Ms. Morris." Nichole was not Respondent's peer counselor during summer school, nor was she working on any school-related project with Respondent during that time.

   3. On June 3, 2002, while Respondent and Mr. Williams were in Ms. Morris' class fixing a computer, Respondent asked Nichole if she wanted to go to lunch with him off-campus. Nichole declined the invitation because she was "grounded" and had to pick up her brother from school.

   4. Respondent was again in Ms. Morris' class on June 5, 2002, and he again invited Nichole to lunch. Nichole again declined.

   5. Respondent did not have permission from Nichole's parent(s) or the SHS administration to take Nichole off-campus.

   6. The reason that Respondent invited Nichole to lunch was to thank her for doing a good job as his peer counselor and to congratulate her on deciding to stay in school and attend summer school, which Respondent and Mr. Williams had both counseled her to do. Respondent had taken a former male student off-campus to lunch for the same reasons in the past.

   7. Respondent and Nichole were not alone at the time of either invitation. Both invitations occurred in Ms. Morris' classroom, and Ms. Morris and other students were "milling around" in the classroom at the time.

   8. At the hearing, Nichole testified that she didn't think anything of the lunch invitations at first since she considered Respondent a "friend." However, she also testified that it "it was a little uncomfortable because he is a teacher."

   9. Nichole did not report the lunch invitations to

      
      

      Ms. Morris or to anyone in the SHS administration. Nichole did, however, tell her mother about Respondent's lunch invitations because "she thought she should know."

   10. On June 5, 2003, Nichole's mother called the SHS principal, Karen Coleman, and complained about the lunch invitations.

   11. Ms. Coleman told Nichole’s mother that she would look into the matter, which she did. The resulting investigation led to this proceeding.

       1. Investigation and Preliminary Disciplinary Recommendation

          
          

   12. Ms. Coleman began the investigation by speaking to Nichole on June 5, 2002. That discussion focused only on the lunch invitations.

   13. Nichole provided Ms. Colemen an unsworn written statement regarding the lunch invitations on June 5, 2002. That statement did not include any reference to the "lingerie incident" discussed below or the incidents described above involving the bra comment or the hug that Respondent gave to Nichole on the last day of school.

   14. Nichole provided Ms. Coleman another unsworn written statement on June 6, 2002. That statement referenced Respondent's comments about the source of Nichole's back pain, but it did not mention the lingerie incident or the other incidents described above.

   15. After speaking with Nichole, Ms. Coleman spoke with Respondent. Respondent admitted that he had invited Nichole to lunch off-campus. He further admitted that he did not have permission from Nichole’s parent(s) to take her off-campus and that he did not obtain permission from the SHS administration.

   16. Respondent told Ms. Coleman that he did not realize that such permission was necessary. Respondent had taken a male peer counselor to lunch off-campus in the past without receiving approval from the student's parents or the SHS.

   17. After Ms. Coleman's conversations with Nichole and Respondent, she contacted John Reichert, the School Board's director of human resources. Mr. Reichert directed John Byerly, the School Board’s internal affairs investigator, to conduct a formal investigation.

   18. Mr. Byerly interviewed Nichole on June 10, 2002, at SHS. Nichole did not mention the lingerie incident, the bra comment, or the hug to Mr. Byerly during that interview.

   19. Mr. Byerly also interviewed Respondent and Mr. Williams as part of his investigation.

   20. The results of Mr. Byerly's investigation were presented to the Executive Professional Standards Review Committee (Review Committee) on June 27, 2002.

   21. Among other functions, the Review Committee is used to make disciplinary recommendations to Mr. Reichert. The Review Committee’s recommendation was characterized at the hearing as "preliminary," and it is apparently not binding on Mr. Reichert when he formulates his recommendations to the Superintendent regarding employee disciplinary actions.

   22. The Review Committee recommended that Respondent be suspended for three days and/or be reassigned or transferred to another school. That recommendation was based only upon Respondent’s lunch invitations to Nichole and comments regarding the source of her back pain; it did not take into account the lingerie incident, the bra comment, or the hug because those incidents had not been disclosed by Nichole or Natalie at that point.

   23. Mr. Reichert and/or the Superintendent apparently did not accept the Review Committee’s recommendation because the Superintendent's July 26, 2002, letter recommended termination of Respondent's employment.

   24. At the hearing, Mr. Reichert testified that the reason for the change in the recommended discipline was the subsequent discovery of the lingerie incident, which he characterized as the "major driving factor" behind the termination recommendation. However, the preponderance of the credible evidence demonstrates that the lingerie incident was not disclosed to School Board staff until after the July 26, 2002, letter.

       1. Alleged Gift of Lingerie

1. The lingerie incident was first disclosed by Natalie on August 2, 2002, when she was interviewed by Mr. Byerly.1 Natalie had given an unsworn written statement to Ms. Coleman on

   that same date, but that statement did not mention the lingerie incident.

2. Based upon the "new information" from Natalie,

   
   

   Mr. Byerly interviewed Nichole again on August 15, 2002. The interview occurred at Lyman High School (LHS), where Nichole had transferred for her senior year.2

3. After the interview, Mr. Byerly had Nichole prepare a sworn written statement. The statement included the following account of the lingerie incident, which was consistent with Nichole's testimony at the hearing:

   When I was a peer counselor for Mr. Reeder, I had walked into class on[e] afternoon in 7th period and we were talking and he said ["]oh here I got something for you.["] He handed me a white plastic bag and through the bag I could see a black thing and I knew it was the langera [sic]. I then just put it on the floor and went on with my work.

   When the bell rang I picked up my belongings including the white plastic bag. When I got on the bus I showed Natalie it. It was a black see[-]through spagatie [sic] strap shirt and black thongs. When I got off the bus I walked home and through [sic] it away. That was the last time anything was ever said about it.

   
   

4. Mr. Byerly interviewed Natalie again on August 16, 2002. Natalie's told Mr. Byerly that the lingerie incident occurred "a couple months before the end of the regular school year" and that Nichole showed her the lingerie on the bus. However, the sworn written statement she prepared after the

   interview indicated that the incident occurred "[a]bout the day before school was over" and that she learned of it "on the bus/car."

5. Nichole told Natalie that the lingerie was from Respondent. Natalie had no independent personal knowledge that it was from him.

6. There were some inconsistencies in Natalie's and Nichole's descriptions of the lingerie, but those inconsistencies were not material. They consistently described the lingerie as having a black see-through top and black panties.

7. Nichole did not report the incident to the SHS administration around the time that it allegedly occurred. Nor did she tell her mother about the incident, even though she considered the lingerie gift to be more inappropriate than the lunch invitations which she did immediately tell her mother about. Nichole testified that she was somewhat embarrassed by the gift and she did not want her mother to think she "led into

   it."

   
   

8. Respondent unequivocally denied that he gave Nichole

   
   

   any lingerie or other clothing, and Nichole's and Natalie's testimony relating to the lingerie incident was not credible. Thus, the School Board failed to prove that Respondent gave Nichole the lingerie.

9. It is undisputed that Respondent never engaged in any type of sexual contact (e.g., kissing, inappropriate touching) with Nichole. Nichole made that point clear in both of her interviews with Mr. Byerly and in her testimony at the hearing.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2002), Section 231.3605(2)(c), Florida Statutes (2001),3 and Article VII, Section 5.E. of the SECA Agreement.

11. The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining Respondent. See, e.g., McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter County

    School Board, 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v. School Board of Dade County, 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. School Board of Dade County, 569 So. 2d 883, 884 (Fla. 3d DCA 1990). Accord Seminole County School Board v.

    Tillmon, DOAH Case No. 02-3775, Recommended Order, at 8 (Apr. 17, 2003), adopted in toto, School Board Case No. 02-011 (May 27, 2003).

12. Section 231.3605(2)(b), Florida Statutes (2001), provides that educational support employees such as Respondent

    may be terminated only "for reasons stated in the collective bargaining agreement."

13. The Petition and the Superintendent's July 26, 2002, letter recommending termination of Respondent's employment cite Article VII, Section 5 and Article VIII, Section 1 of the SECA Agreement as the legal basis for the recommendation of termination. The letter also cited district policy "Section G., File GBCB," which is the district-wide sexual harassment policy that is part of the SHS Handbook.4 The pertinent provisions of the SECA Agreement and the SHS Handbook are quoted above.

14. On December 13, 2002, in response to Respondent's request for a more definite statement regarding the charges against him, the School Board identified the following alleged actions as the "factual basis for the recommendation for termination of Respondent:"

    1. Verbal invitations to [Nichole] to have lunch off campus by Respondent without notice to or permission of her parents, as admitted by Respondent.

       
       

    2. Comments to [Nichole] with intimated reference to her large breasts.

       
       

    3. Gift of clothing of an inappropriate nature (black see through blouse and black thong) from Respondent to [Nichole].

       
       

    4. Incident in which Respondent asked [Nichole] what she had done to earn the beads. Respondent then held up beads [and] told her that she could earn the beads. The intimation of the act was that if [Nichole]

       would flash her breasts, he would give her the beads.

       
       

    5. Admitted conversations with [Nichole] about her breasts.

       
       

    6. Respondent was observed to place an object in his pants, letting it stick out his fly, and standing to display it to [Nichole] when she entered his office.

       
       

    7. Inappropriate physical conduct (hug and placing arm around waist[)] and inappropriate comments about [Nichole's] bra and the bra of another student. Incident occurred on the last day of 2001-2002 [school year].

    
    

15. No evidence was introduced at the hearing related to allegations four (beads) and six (object sticking out of pants). Therefore, the School Board failed to prove those allegations.

16. The School Board proved allegations one (lunch invitations) and seven (hug and comment regarding students' bras on last day of school).

17. With respect to allegations two and five (conversations regarding breasts), the School Board proved that Respondent's comment to Nichole regarding the source of her back pain was a reference to her breast size and that Respondent and Nichole also indirectly discussed her breasts in connection with the problems that she was having with other students and teachers not looking her in the eye. No other breast-related conversations between Respondent and Nichole were proven.

18. Although Respondent may have exercised poor judgment by inviting Nichole to lunch and by engaging in conversations related to her breasts (even if she initiated the conversations), the preponderance of the credible evidence and the totality of the circumstances fail to establish that Respondent's actions (either individually or collectively) rise to the level of sexual harassment as defined in the SHS Handbook and School Board policy. Specifically, the credible evidence fails to demonstrate that Respondent's actions had "sexual or demeaning implications" or that they created a "intimidating, hostile, or offensive . . . school environment" for Nichole or any other student. Similarly, the credible evidence fails to establish that Respondent's actions constitute "misconduct," as referenced in Article VII, Section 1 of the SECA Agreement, and defined in Rule 6B-4.009(3), Florida Administrative Code.5

19. The School Board failed to prove allegation three (lingerie incident). No lingerie was introduced at the hearing, and there is no credible evidence to corroborate Nichole's story that she received lingerie from Respondent. Natalie, the only other person who claimed to have seen the lingerie, was told by Nichole that the lingerie was from Respondent, but she had no independent knowledge that the lingerie was from him.

20. There were numerous inconsistencies and incongruities in Nichole's and Natalie's testimony regarding the lingerie

    incident, the most significant of which is the date that the incident allegedly occurred. Nichole and Natalie each initially told Mr. Byerly that the incident occurred about two months prior to the end of school, but their written statements and testimony at the hearing placed the incident on the day before school was over, the last day of school, "towards the end of the [school] year," and even after the lunch invitation during summer school.

21. Nichole's story regarding the lingerie incident also lacks credibility because she did not mention it to her mother immediately after it happened as she did with the lunch invitations. Indeed, if the reason Nichole immediately told her mother about the lunch invitations was because she "thought she should know" about the invitations, then it defies logic why Nichole would not have told her mother about the lingerie, particularly since Nichole testified that she considered the lingerie more significant and troubling than the lunch invitations.

22. Moreover, the lingerie incident did not even come to light until more than two months after Nichole first spoke with Ms. Coleman and Mr. Byerly regarding Respondent's comments and behavior towards her. At the time she first spoke with

    Ms. Coleman less than two weeks had passed since the lingerie incident allegedly occurred, and it defies logic why Nichole

    would not have mentioned it to Ms. Coleman in connection with their discussion and Nichole's written statement regarding the lunch invitations. It also defies logic why Nichole would not have mentioned the lingerie incident to Mr. Byerly when he first interviewed her since they discussed matters relating to Respondent in addition to the lunch invitations.

23. Because Respondent failed to demonstrate that Respondent's actions contravene the School Board's sexual harassment policy or constitute misconduct, it failed to prove a violation of the provisions of the SECA Agreement cited in the Petition and the Superintendent's July 26, 2003, letter, i.e., Article VII, Section 5 and Article VIII, Section 1. Therefore, it has no basis to discipline Respondent under the SECA Agreement.

24. Respondent also failed to prove that Respondent engaged in "conduct unbecoming a School Board employee" because the record fails to demonstrate that the School Board has a policy prescribing the specific conduct engaged in by Respondent. Absent such, the School Board may not discipline Respondent for that conduct under that catch-all charge. See Seminole County School Board v. Redding, DOAH Case No. 02-3103, at 12-13 (Oct. 10, 2002) (rejecting argument that School Board can discipline employee for "conduct unbecoming a School Board employee" where employee's drug-related conduct was not

    prescribed by the School Board's specific drug policy); Seminole County School Board v. Robinson, DOAH Case No. 02-075, at 11 (May 24, 2002) ("Conduct unbecoming a public employee is conduct that falls below a reasonable standard of conduct prescribed by the employer.") (emphasis supplied). Compare Bell v. School Board of Dade County, 681 So. 2d 843, 844 n.2 (Fla. 3d DCA 1996) (quoting School Board rule which prescribed general employee conduct and therefore provided the basis for the "conduct unbecoming" charge).

25. Finally, even if it was determined that the conduct Respondent was proven to have engaged in was inappropriate or "unbecoming," the discipline sought by the School Board – i.e., termination of Respondent's employment – is disproportionate to that conduct, particularly since there is no evidence that Respondent has engaged in similar conduct in the past or that he has any prior disciplinary history with the School Board. See Collins v. School Board of Dade County, 676 So. 2d 1052, 1053 (Fla. 3d DCA 1996) (remanding case to School Board for imposition of a penalty proportionate to the employee's conduct based, in part, on the employee's lack of prior disciplinary problems). Indeed, the School Board’s Review Committee recommended only a three-day suspension based upon the circumstances known to it at the time, which are essentially the same as those proven by the School Board in this proceeding.

RECOMMENDATION

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

RECOMMENDED that the Seminole County School Board issue a final order which dismisses the Petition for Termination and provides Respondent the remedial relief that he is entitled under the collective bargaining agreement.

DONE AND ORDERED this 17th day of July, 2003, in Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II 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 17th day of July, 2003.

ENDNOTES

1/ Although Mr. Byerly's investigative report reflects that Natalie told Ms. Coleman about the lingerie incident on June 10, 2002, that date cannot be correct because it is undisputed that the Review Committee was unaware of the lingerie incident when it met on June 27, 2002, and Ms. Coleman testified that she did not learn of the incident until after the Superintendent's

July 26, 2002, letter.

2/ Nichole's transfer to LHS was unrelated to Respondent's alleged conduct. The transfer was based upon her mother's efforts to get Nichole away from the "bad crowd" that she was hanging around with at SHS. Nichole did not graduate from LHS. As of the date of the hearing, she was enrolled in an adult education program at Seminole Community College where she was pursuing her high school equivalency degree or "G.E.D."

3/ This provision was moved to Section 1012.40(2)(c), Florida Statutes (2002), as part of the substantial reorganization of the Education Code in Chapter 2002-387, Laws of Florida. That act did not become effective until January 1, 2003, so the substantive provisions of the 2001 version of the Education Code govern this proceeding.

4/ The letter also cites district policy "Section J., File JFC." That policy was not introduced at the hearing and its substance is unknown. The School Board makes no reference to that policy in its PRO, so it has apparently abandoned that policy as a ground for disciplining Respondent.

5/ Rule 6B-4.009(3), Florida Administrative Code, applies to instructional personnel, not educational support employees such as Respondent, but the definition of "misconduct in office" in that rule is instructive since the SECA Agreement does not define "misconduct." The rule provides:

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.

(Emphasis supplied).

COPIES FURNISHED:

Ned N. Julian, Jr., Esquire Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Thomas L. Johnson, Esquire Chamblee, Johnson & Haynes, P.A.

215 West Verne Street, Suite D Tampa, Florida 33606

Honorable Jim Horne Commissioner of Education Department of Education Turlington Building, Room 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Daniel J. Woodring, General Counsel Department of Education

Turlington Building, Room 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Paul J. Hagerty, Ph.D. Superintendent

Seminole County School Board

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

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: 02-003465

Orders for Case No: 02-003465