STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WENDY L. TELLONE, SUPERINTENDENT OF SCHOOLS IN AND FOR HERNANDO COUNTY, FLORIDA,
Petitioner,
vs.
MICHAEL C. RANSAW,
Respondent.
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) Case No. 05-2351
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RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held in this case on November 1, 2005, through November 8, 2005, in Brooksville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative
Hearings.
APPEARANCES
For Petitioner: Karen O. Gaffney, Esquire
Karen O. Gaffney, P.A.
221 West Main Street, Suite D Inverness, Florida 33450
For Respondent: Willie Jones, Esquire
Law Offices of Willie Jones Lake Ida Plaza, Suite 420 600 North Congress Avenue Delray Beach, Florida 33445
STATEMENT OF THE ISSUES
Whether Respondent is guilty of "misconduct in office" as defined in Florida Administrative Code Rule 6B-4.009(3).
Whether Respondent is guilty of "gross insubordination" as defined in Florida Administrative Code Rule 6B-4.009(4).
Whether Respondent's actions constitute "just cause" and further constitute "good and sufficient reason" to terminate Respondent's contract of employment with the Hernando County School Board for the 2004-2005 academic year.
PRELIMINARY STATEMENT
This case has had a long and torturous procedural history, having begun a final hearing before the Hernando County School Board, and then, by agreement of the parties, having been referred, on or about June 30, 2005, to the Division of Administrative Hearings for a de novo disputed-fact hearing, pursuant to Sections 120.57(1), 120.569, and 120.65, Florida Statutes, and a contract between the Hernando County School Board and the Division.
The case before the Division is restricted to the issues set forth in the Amended Administrative Complaint filed July 29, 2005.
At the disputed-fact hearing, Petitioner Superintendent of Schools presented the oral testimony of Richard Mijon via
telephone, and the live oral testimony of Morgan Thompson, Emerson Stephen Richardson, Sonia Rivera, Jason Edwards, Berry Crowley, David Schoelles, Margaret Schoelles, David Dannemiller, Walter Joseph Paschke, Mary-Celeste Estridge, Dana Lynn Proeger, Wanda Seabol, Thomas David Langley, Richard Sanders, Sonya Jackson, Barbara Ann Kidder, Kenneth Pritz, Superintendent Wendy Lee Tellone, Edward Poore, Joseph Clifford, and Heather Martin. Petitioner had 61 multi-page exhibits admitted in evidence.
Respondent testified on his own behalf and presented the oral testimony of Ruben C. Ransaw, Jr., Cecelia Solomon, Carmine Rufa, Susan Murphy-Hammond, John Sweeney, Ginny Wright, William Brooks, Thomas Earl Deen, Jr., Nettie Ransaw, and Stephanie Monahan. Respondent had 13 multi-page exhibits admitted in evidence.
A Transcript of 11 volumes, totaling 1209 pages, was filed on November 28, 2005.
As stipulated by the parties, Petitioner timely filed a Proposed Recommended Order on December 16, 2005. Thereafter, Respondent filed several versions of his Proposed Recommended Order, which were addressed via a variety of motions and responses by each party. Each series of motions and responses delayed the case further, as described in Orders entered herein on December 22, 2005, and January 6, 2006. However, ultimately, Petitioner's Proposed Recommended Order and Respondent's
proposal filed December 19, 2005, have been considered in preparation of this Recommended Order.
FINDINGS OF FACT
Petitioner is the duly appointed Superintendent of Schools in and for Hernando County, Florida.
The School Board of Hernando County, Florida, is a duly-constituted school board charged with the responsibility to operate, control, and supervise all free public schools within the School District of Hernando County, Florida, pursuant to Section 1001.31, Florida Statute.
Petitioner is responsible for the operation and supervision of all the public schools in Hernando County, Florida, and is further responsible for making recommendations to the School Board for the hiring and discipline of school principals.
As of November 2004, Respondent was employed by the School Board of Hernando County as principal of Powell Middle School, pursuant to an annual contract for the period of July 1, 2004, to June 30, 2005.
Pursuant to the annual contract and the educator's certifications issued by the Department of Education (DOE) to Respondent, he was, at all times material, subject to the rules and regulations of the Hernando County School Board and to Florida law, including Sections 1012.23 and 1012.33, Florida
Statutes and Florida Administrative Code Rules 6B-1.001, 6B- 1.006, and 6B-4.009.
Respondent's duties as a school principal were defined by Sections 1001.32, 1001.54, 1012.28, Florida Statutes and by the Hernando County School Board-approved job description for principals.
Prior to his employment with the Hernando County School Board, Respondent was employed by the Broward County School Board from 1993 until 2002. His personnel file in evidence shows that by a letter dated June 11, 2001, Respondent was appointed "interim assistant principal" of Deerfield Beach Middle School commencing in August 2001.
On or about October 17, 2001, the Broward County Superintendent of Schools presented formal charges for a finding of probable cause to the Broward County School Board against Respondent, alleging that Respondent had committed misconduct in his office as an assistant principal of Deerfield Beach Middle School on August 25, 2001, when Respondent pawned a school lap top computer. Petitioner was given an opportunity to appear and make a presentation.
On November 16, 2001, the Broward County School District referred the same charges to the DOE, Bureau of Professional Practices (BPP). A school district is required by law to make such referrals to DOE but is free to proceed on its
own against an educator under its own annual contract with him. It is up to DOE's BPP to determine if DOE will file DOE's independent administrative complaint for purposes of disciplining the same individual's state educator's certificate, which certificate (license) is issued by DOE.
On November 16, 2001, DOE sent a letter by certified mail to Respondent at the address he had provided to DOE's BPP as his permanent address. That letter provided, in pertinent part:
This is to advise you that a complaint has been filed against you with the Office of Professional Practices Services of the Department of Education, which alleges that you misused school property.
This matter has been assigned to Henry Mixon, Consultant for the purpose of conducting an investigation. If founded, such allegations could lead to disciplinary action taken against your Florida Educator's Certificate. (emphasis supplied)
Despite the clear wording of the foregoing letter, Morgan Thompson, a current DOE-BPP investigator for such complaints, testified that DOE-BPP considers that "action is pending" against an individual educator's certificate as soon as the certificate holder is notified that a complaint has been filed with DOE-BPP and an investigation is occurring, regardless of whether there ultimately is a finding of "probable cause" or "no probable cause," to file a formal administrative complaint
by that Agency.
DOE-BPP did not immediately file a formal administrative complaint against Respondent's educator's certificate concerning the pawned laptop computer.
The "permanent address" Respondent had provided to both DOE-BPP and to the Broward County School Board was "1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311."
As set forth hereafter in greater detail, Respondent received all correspondence from the Broward County School Board and its Superintendent regarding their actions preliminary to Broward County's administrative complaint at 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311. (See Finding of Fact 26.)
Between 2001 and October 2002, Respondent utilized the following address for all purposes regarding his employment with the Broward County School Board: 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311.
Between 2001 and January 2003, Respondent utilized the following address for all purposes regarding DOE: 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311.
Between 2001 and November 17, 2004, Respondent utilized the following address for purposes of correspondence with DOE-BPP: 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311.
Between August 2001 and November 17, 2004, Respondent utilized the same address for purposes of correspondence
regarding the Equal Employment Opportunity Commission (EEOC), DOE-BPP, and the Broward County School Board.
Respondent did not reside at 1860 NW 132nd Avenue, Ft.
Lauderdale, FL 33311, at any time between 2001 and November 8, 2005.
As of the November 1-8, 2005, dates of hearing herein, Respondent still utilized the 1860 NW 132nd Avenue, Ft. Lauderdale, FL 33311, as a valid, permanent address.
DOE-BPP's November 16, 2001, letter (see Finding of Fact 10), was received and signed for by one of Respondent's family members. Respondent has consistently maintained that his brother, Rueben C. Ransaw III, signed for this correspondence; that his brother is incompetent; and that his brother did not forward this particular item to Respondent. The evidence presented at hearing indicates that the brother has been incarcerated and involuntarily committed at various times, but not that he was determined legally incompetent in the time frame crucial to this issue.
The School Board of Broward County proceeded formally against Respondent under its annual contract by an administrative complaint, dated January 30, 2002, alleging that he had misused institutional privileges for personal gain or advantage, in violation of Florida Administrative Code Rule 6B- 1.006(4)(c); committed immorality, in violation of Section
231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B-4.009; and committed misconduct in office through violation of various provisions of the Code of Ethics of the Educational Profession, in violation of Section 231.36(1)(a), Florida Statutes, and Florida Administrative Code Rule 6B- 4.009(3). The School Board of Broward County sought to discipline Respondent with a penalty of 10 days' suspension without pay and transfer to an instructional guidance position, in the sole discretion of the Superintendent of Schools in and for Broward County, for a period of three years, after which, if Respondent completed three years of satisfactory evaluations, he would be eligible to return to an administrative position.
On February 19, 2002, the Broward County School Board approved the penalty requested by its Superintendent in the administrative complaint.
On March 5, 2002, Broward County received Respondent's request for a disputed-fact hearing before the Division of Administrative Hearings on the Broward County administrative complaint.
Effective March 6, 2002, pending resolution of the Broward County School District's administrative complaint, Broward County's Superintendent involuntarily transferred Respondent to the position of guidance counselor at Lyons Creek Middle School. In the Broward County School District, the
position of guidance counselor has fewer duties and less authority than the position of assistant principal, which position Respondent had previously held at Deerfield Beach Middle School. The paperwork suggests that the position of guidance counselor in Broward County is not even an administrative position, but an instructional one. (See Finding of Fact 22.) Thus, it is clear that Respondent's March 6, 2002, involuntary transfer included a demotion, even though his Broward County disciplinary case was still pending.
On April 17, 2002, a disputed-fact hearing on Broward County School District's administrative complaint was heard by a Division of Administrative Hearings Administrative Law Judge. Respondent and a lawyer representing him participated in that evidentiary proceeding, so it is certain that Respondent knew about the Broward County School Board's actions since
October 17, 2001, and knew about the prosecution of its administrative complaint against him.
On May 17, 2002, before learning the result of his April 2002 disputed-fact hearing on the Broward County disciplinary case (see Finding of Fact 39), Respondent submitted a Letter of Interest and Formal Resume to the Hernando County School Board, seeking employment in the position of assistant principal at Hernando County's Nature Coast Technical High School. Within his resume, Respondent reflected, under
"Professional History" that he was then currently employed as an assistant principal at Deerfield Beach Middle School in Broward County, Florida. His resume specifically stated, under "Professional History" that he held that position, "March '01 to Pres." This statement was patently false.
In making the foregoing finding of fact as to falsity, the undersigned has carefully considered all the evidence with regard to the issue, including but not limited to when, and under what conditions, Respondent took a voluntary leave of absence without pay from Lyons Creek Middle School on October 3, 2002 (see Finding of Fact 49), and the information that Broward County official records were not finalized until the end of the 2002-2003 school year, to reflect backwards and classify Respondent as an "involuntary transfer" and "terminated" as opposed to using the more accurate words, "demoted" and "not re-appointed." (See Finding of Fact 66.) Respondent's testimony that in applying to Hernando County he mistakenly relied on a "form resume" which was "outdated" is not persuasive that he was being honest in that resume. His testimony that he merely made an "error" as to his "work site" (showing Deerfield Beach Middle School instead of Lyons Creek Middle School) likewise is not persuasive. It is particularly noted that all of Respondent's other entries on this resume under "Professional
History" are actual job titles within the Broward County School District.1/
On May 28, 2002, Respondent completed and submitted a Formal Application for Employment to the Hernando County School Board.
Within his May 28, 2002, Formal Application to the Hernando County School Board, Respondent reflected that from March 2001 through March 2002, he was an assistant principal at Deerfield Beach Middle School and his then-current employment (position unspecified) was located at Lyons Creek Middle School.
On his May 28, 2002, application, instead of specifying a position that he held at Lyons Creek Middle School, Respondent requested that the potential employer, Hernando County School Board, not contact Lyons Creek Middle School's principal at that time.
This Formal Application also reflected that Respondent was transferred from Deerfield Beach Middle School to Lyons Creek Middle School.
Respondent knew of his transfer and of his Broward County demotion to the position of guidance counselor on
March 6, 2002, which was prior to his May 28, 2002, application to the Hernando County School Board.
The statement made by Respondent on his May 28, 2002, application for employment to the Hernando County School Board
that he was "transferred" to Lyons Creek Middle School was true, but it did not volunteer that he also was demoted to guidance counselor.
Within this application to the Hernando County School Board, Respondent also certified "to the best of [his] knowledge and belief" that he had never been "not re-appointed." Because the Recommended Order in his Broward County contract disciplinary case was not entered until July 2002 (see Finding of Fact 39), and because Broward County re-appointments did not come out until August 2002, Respondent may have, at this point, legitimately believed that he had not ever been "not re- appointed."
However, during Respondent's interview for the position of assistant principal at Nature Coast Technical High School, in Hernando County, Respondent held himself out as a then-current assistant principal in Broward County, Florida.
The overall effect of Respondent's May 17, 2002, and May 28, 2002, materials and subsequent interview was to mislead Hernando County officials.
Respondent was not recommended for appointment to the position he sought as assistant principal at Nature Coast Technical High School in Hernando County.
The Administrative Law Judge entered his Recommended Order in Respondent's Broward County contract disciplinary case
on July 2, 2002. Therein, he found, as fact, that Respondent had pawned a school-owned laptop computer; signed a document that represented that he owned the computer; received $350.00 for the computer in pawn; had gone to the pawn shop to redeem the computer not knowing that the Broward County School authorities or law enforcement had discovered the wrongful pawning; and that Respondent had not attempted or intended to deprive the School District of its laptop computer permanently. Citing mitigating circumstances, that Recommended Order concluded, as a matter of law, that Respondent was guilty only of misconduct in office and recommended that the School Board of Broward County enter a final order also only concluding that Respondent was guilty of misconduct in office and only imposing a 10 days' suspension without pay, but no demotion.
At that point, the Broward County School Board could have accepted rejected, or modified, via its final order, the Administrative Law Judge's recommendation, but no final order has ever been entered by the Broward County School Board.
Respondent remained in the demoted position of guidance counselor at Lyons Creek Middle School until October 3, 2002, when he took a leave of absence for family illness. (See Finding of Fact 49.)
` 42. Paperwork produced by Broward County in 2002 omits Respondent's name from the list of those re-appointed or re- assigned to Deerfield Beach Middle School.
Respondent was not re-appointed to the position of assistant principal at Deerfield Beach Middle School in August 2002, for the beginning of the 2002-2003 school year. In August 2002, Respondent knew that he had not been reappointed to that position.
In August 2002, Respondent also knew that he was beginning the 2002-2003 school year as a guidance counselor at Lyons Creek Middle School.
On September 4, 2002, Respondent submitted a Letter of Interest and Formal Resume to the Hernando County School Board, seeking the position of assistant principal at Pine Grove Elementary School. Within this resume, Respondent reflected under "Professional History" that from "March '02 to Present" his employment with the Broward County School District was that of "Guidance/Administrative Support" at Lyons Creek Middle School, and that he was "Interim Assistant Principal" of Deerfield Beach Middle School from "March '01 to Feb. '02."
On September 4, 2002, the Broward County School District did not, and it does not now, have a position titled "Guidance/Administrative Support," and on September 4, 2002, Respondent knew he was not employed in such a position. (See
Finding of Fact 44.) Moreover, his dates for "Interim Assistant Principal" of Deerfield Beach Middle School" remained problematic for the reasons set out in Findings of Fact 27-28.
Respondent's testimony that his first application (see Findings of Fact 27-32) could have remained on file in Hernando County for a year; that no one requested that he amend it; and that he amended his first application voluntarily on September 4, 2002, is accepted. However, the statements in his "voluntarily amended" resume continued to be intentionally false and misleading to the extent that he was "padding" his purely instructional guidance counselor position with administrative experience.
In making the foregoing finding of fact as to false and misleading statements in the September 4, 2002 resume, Respondent's explanation that Broward County had appointed and paid him as an assistant principal in February 2001 to begin taking three years of "Interim Assistant Principal" classes, on how to be an assistant principal and to create a portfolio at the end of the three years has been considered. However, Respondent's explanation that he thought he had amended his resume to show his current employment work site (Lyons Creek Middle School) and to show his professional history, prior responsibilities, and prior functions, and not to provide his job titles, is not credible because all his other entries under
"Professional History" are job titles and because classes to transition into an assistant principalship are not the same as being an assistant principal.
At all times during the interview process for the position of assistant principal of Pine Grove Elementary School, Respondent represented to Hernando County that he was either an assistant principal or an interim assistant principal (filling- in for a permanent assistant principal) in Broward County, Florida.
On or about September 23, 2002, Respondent sought a leave of absence from his position as guidance counselor at Lyons Creek Middle School in Broward County, effective
October 3, 2002, for the whole remainder of the 2002-2003 school year, to care for his mother, whom he alleged was ill. Broward County granted this leave, effective October 3, 2002.
Respondent also sought, and received, permission to be employed outside the Broward County School District.
On October 7, 2002, unaware of the factual misrepresentations made by Respondent within his resume of
May 17, 2002, his application of May 28, 2002, and his resume of September 4, 2002, the Hernando County School Board hired Respondent for the position of assistant principal at Pine Grove Elementary School.
On October 10, 2002, Respondent completed and submitted the required Hernando County School Board Security Background Check document. On this document, he was asked, "Have you ever had a teaching certificate revoked, suspended, or denied? If yes, in what state and when?" Respondent answered "No."
Also on this document, Respondent was asked "Have you ever had sanctions placed on your teaching certificate for any reason?" He answered "No."
Also on this Security Background Check document, Respondent was asked the question, "Is disciplinary action currently pending anywhere against your teaching certificate?" He answered "No."
Respondent then signed beneath the form's statement that: "By signing this document, I certify that I have carefully read and fully understand each question and all information contained herein is true and accurate and includes no falsifications, omissions, or misrepresentations of the information requested."
While employed in Hernando County between 2002-2005 Respondent used several local addresses, all of which were his legitimate residences.
On or about October 25, 2002, Respondent was engaged with the EEOC in challenging his Broward County "demotion" on
grounds of racial discrimination, using his Ft. Lauderdale address. (See Finding of Fact 18.) Respondent's EEOC charge (complaint) reflects that Respondent represented to the EEOC that the Broward County School Board had "given no valid reason for its actions" in demoting him. Respondent testified that he intended to use the EEOC complaint to force the Broward County School Board into entering its final order so as to adopt the Administrative Law Judge's July 2, 2002, Recommended Order in Broward County's disciplinary action against him, and that he later dropped the EEOC action.
Respondent is not charged here with any falsehoods to the EEOC. Indeed, Respondent's choice of words on his EEOC complaint that no "valid" reason had been given him by the Broward County School Board is, at worst, ambiguous. However, his EEOC complaint and testimony otherwise clearly demonstrate that Respondent knew on October 25, 2002, that he had already been demoted in Broward County and that no final order had been entered by the Broward County School Board altering that demotion.
On January 21, 2003, Respondent submitted his application for certification in an additional subject matter area to the Hernando County School Board for forwarding to DOE. Within this application, under the heading "29. REVOCATION," Respondent was asked the question,
Have you ever had a teaching certificate revoked, suspended, or denied by any state, or is there any action pending against your certificate or application?" (A determination of academic ineligibility is not considered a denial of a certificate.) If YES, "you must give the state, reason, and year in which your certificate was revoked, suspended, denied or in which action is pending against your certificate or application. (boldface in original; underlining supplied for emphasis)
Respondent answered, "No," to the foregoing question.
Petitioner signed this application for certification stating, "I further certify that all information pertaining to this application is true, correct, and complete."
The address Respondent used on this application was located in Hernando County. He received his additional certificate from DOE's Certifications Section in 2003 at that Hernando County address.
Both the Hernando County School Board Security Background Check document and the DOE Application for Florida Educator's Certificate warned the applicant of severe consequences should the information contained therein be untruthful. However, the first of the warnings on the Background Check document addresses only failure to make full disclosure of prior criminal offenses.
On January 16, 2003, Respondent submitted to the Hernando County School Board a Letter of Interest and Resume, seeking the position of principal of Powell Middle School. This
time, his resume reflected under "Professional History" that "3/02 to 9/02" Respondent was "Administrative Support/Guidance" at Lyons Creek Middle School and "2/01 to 3/02" was "Interim Assistant Principal" at Deerfield Beach Middle School, both positions in Broward County, Florida.
The Broward County School Board did not then, and does not now, have a position titled Administrative Support/Guidance."
Respondent's January 16, 2003, resume and application are false and/or misleading for all the reasons previously cited in Finding of Fact 46.
On or about April 29, 2003, the Broward County School Board terminated Respondent, due to his failure to advise Lyons Creek Middle School and the Board of his intentions about returning to Lyons Creek Middle School for the 2003-2004 school year. At that point, Respondent was officially classified in Broward County School Board records as "involuntarily transferred" and "terminated." He certainly was not reappointed as a guidance counselor.
On July 1, 2003, unaware of Respondent's misrepresentations, and based on Petitioner Superintendent's recommendation, the Hernando County School Board appointed Respondent to the position of principal of Powell Middle School.
On May 20, 2004, DOE-BPP sent a letter to Respondent at his permanent address on file with DOE-BPP: 1860 NW 32nd Avenue, Ft. Lauderdale, Florida 33311. The certified mail receipt was signed for by Respondent's mother. This letter was similar to DOE-BPP's letter of November 16, 2001, (see Finding of Fact 10). It stated:
This is to advise you that a complaint has been filed with the Department of Education, Office of Professional Practices Services, alleging that you misused school property. The circumstances leading to the complaint are being investigated by our office. If founded, these allegations could subject you to disciplinary action by the Education Practices Commission as described by Section 1012.79, Florida Statutes, copy enclosed.
You are not required to respond at this time; however, in accordance with Sections 120.60(6) and 1012.796, Florida Statutes, you are provided with an opportunity to submit documents or statements which refute, explain or mitigate the allegations of misconduct listed above. You or your representative may present written materials to become a part of the record which will be reviewed by the Commissioner of Education.
You may present these materials in person or through the mail.
An informal conference has been scheduled for you with the Office of Professional Practices Services consultant assigned to your case on Thursday, June 10, 2004 at 10:45 a.m. If you wish to attend the conference in person or mail materials, the address is Turlington Building, Suite 224-E, Tallahassee, Florida 32399. If you wish to conduct the conference by telephone,
the number is (850)245-0438. (emphasis supplied)
Respondent's mother forwarded DOE's May 20, 2004, letter to him. Respondent received the May 20, 2004, DOE materials. He personally responded to DOE on June 3, 2004. For purposes of his response to DOE, Respondent utilized his permanent address of 1860 NW 32nd Avenue, Ft. Lauderdale, Florida 33311, instead of his then-current Hernando County residence, and acknowledged his receipt of the May 20, 2004, correspondence from DOE. The content of Respondent's reply to DOE clearly demonstrates his familiarity with all stages of Broward County's correspondence with, and prosecution of, Respondent in 2001-2002. (See Findings of Fact 23, 26.)
On October 25, 2004, DOE filed its formal administrative complaint, based on the pawned laptop computer, against Respondent's educational certificate, and sent the administrative complaint, written notice that probable cause for the complaint had been found, and an election of rights form to Respondent at his permanent Ft. Lauderdale address that Respondent had used for his June 3, 2004, response to DOE. (See Finding of Fact 69.) Because of the laptop pawning, DOE's administrative complaint charged Respondent with gross immorality or an act involving moral turpitude pursuant to Section 1012.795(1)(c), Florida Statutes; with violation of the
Principles of Professional Conduct for the Education Profession, pursuant to Section 1012.795(1)(i), Florida Statutes; and with use of institutional privileges for personal gain or advantage, pursuant to Florida Administrative Code Rule 6B-1.006(4)(c).
On November 6, 2004, DOE's administrative complaint, written notice, and election of rights form were delivered by certified mail and signed for by a family member of Respondent at the Ft. Lauderdale address Respondent had used in his June 3, 2004, response to DOE.
On November 16, 2004, the Hernando County School Board received from DOE a copy of DOE's October 25, 2004, letter, notifying Respondent of the filing of DOE's administrative complaint against Respondent. The actual administrative complaint and other documents were not enclosed.
At no time had Respondent advised the Hernando County Superintendent that he was being investigated by DOE. When asked, on November 16, 2004, to explain what was going on, Respondent told Petitioner Superintendent that he knew nothing about any investigation by DOE. He told the Hernando County School Board's Human Resources Officer that he had received no election of rights form. He also told her that he did not know that Broward County had not submitted a final order in the case it had brought against him in 2002. The Superintendent asked Respondent to give her a written statement.
On November 17, 2004, Respondent wrote the Superintendent in pertinent part, as follows:
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Please be advised that I am not aware of any investigation conducted by the Commissioner or the Office of Professional Practices.
Also be advised that I never took part nor was I ever involved in any dialogue with the Commissioner or the Office of Professional Practices regarding this recent finding of probable cause.
As a point of information I was not informed of any complaint filed against me by Broward County Public School or anyone until this year. This recent notification is approximately three years after an isolated incident that occurred in Broward County, Florida, which resulted in an formal hearing with the Department [sic.] of Administrative Hearings. As a result of the hearing the appropriate disciplinary action was recommended by the Administrative Law Judge for my offense.
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Respondent's theory of the instant case, and at least some of his frequently vacillating testimony, was to the effect that he had not received the November 6, 2004, package from DOE, containing DOE-BPP's October 25, 2004, administrative complaint and election of rights form, at his residence in Hernando County by November 16, 2004, when he spoke with the Superintendent and Human Resources Officer, and still had not received the DOE package by November 17, 2004, when he wrote his statement for the Superintendent, and therefore, his statements as related in
Findings of Fact 73-74, were not false. By way of further explanation, Respondent contended that without interrogating him, DOE could not be "dialoguing" or "investigating" charges against him. To the contrary, it is found that Respondent's November 16-17, 2004, oral and written representations to Hernando County representatives were largely false, and were made knowing they were false, as evidenced by Respondent's need to redefine "dialogue" and "investigation" in his own terms, in order to defend his written statement.
Giving Respondent the benefit of the doubt, some parts of Respondent's November 17, 2004, written statement are ambiguous,2/ but clearly, Respondent was, prior to November 16, 2004, aware that DOE-BPP was currently investigating him (see Findings of Fact 68-69) and denied it to the Superintendent. Likewise, he clearly knew that no final order had been entered by Broward County in its disciplinary action against him (see Findings of Fact 56-57), and denied that to the Human Resources Officer. Therefore, his November 16-17, 2004, statements to the Superintendent, with the exception of the statements that he had not yet received DOE's formal administrative complaint, finding of probable cause, and election of rights form, were false. It is noted also that Respondent had only failed to receive these items because they were sent to the permanent address
Respondent, himself, had used for correspondence with DOE about its disciplinary investigation of him.
At a meeting of Petitioner, the Superintendent, and the Human Resources Officer on November 19, 2004, Respondent again denied any knowledge of the DOE investigation, despite having been given three separate direct orders November 16-19, 2004, by the Superintendent to be truthful with her. That day, Petitioner provided Respondent with an Employee Conference Report notifying him of charges against him by the Hernando County School Board. Respondent has stated some complaints about the specificity and detail of these charges, which complaints are not material to the instant proceeding.
On November 22, 2004, Respondent was suspended with pay, pending investigation of Hernando County School Board's charges against him. Respondent has stated some procedural complaints about the specificity and detail of these charges, which complaints are not material to the instant proceeding.
On November 30, 2004, and again on December 2, 2004, Petitioner Superintendent requested that Respondent return all items of Hernando County School Board equipment in his possession to the Hernando County School Board.
At the time of Respondent's suspension with pay on November 22, 2004, Respondent was in possession of the following items of Hernando County School Board-owned equipment: two
laptop computers; two palm pilots; one facsimile (FAX) machine; one laser printer; two cellular phones; one school walkie- talkie/radio; and one portable stereo/cassette player.
Respondent's explanation for why he had so many pieces of equipment was that he and his family had begun to have concerns for his safety if he worked at Powell Middle School late into the evening, so he had begun to work more at home than at school in his off-hours. He claimed to be working on his portfolio and school matters, consulting advisors and mentors, and recruiting teachers.
Other principals and educators testified more credibly that they could not conceive of any reason a principal would require that much equipment, much of it duplicative, to do School Board-related work at home.
In the Hernando County School District, school principals are normally issued, for take-home usage, only the following items of equipment owned by the Hernando County School District: one cellular telephone; one laptop computer (if requested), and one palm pilot (if requested). Respondent had been issued one of each of these three types of equipment.
On December 2, 2004, Respondent returned all the Hernando County School Board equipment in his possession.
Respondent had two laptop computers in his possession because a new one had become available to him; Respondent had
asked the Powell Middle School technology coordinator to transfer all files in the "my documents" folder from Respondent's old laptop to the new laptop; and Respondent had told the technology coordinator that Respondent wanted to transfer his "confidential" folder himself, and to leave those confidential files alone. The technology coordinator copied the files requested from the old laptop computer to the new laptop computer and gave both laptops to Respondent to check. Checking the transfer should have taken Respondent about two hours, but Respondent retained both laptop computers in excess of three months, despite the technology coordinator's occasional requests for the return of the old laptop computer for recycling.
At the hearing in this cause, Respondent admitted that on December 1, 2004, the evening immediately prior to his return of the foregoing Hernando County School Board-owned equipment to the District, he had deleted all files from the two laptop computers owned by the Hernando County School Board. He represented that the same material had existed on his office desktop computer at Powell Middle School when he turned in the two laptop computers, and if it were no longer on the desktop computer, the material (School Board documents) had been compromised by someone other than himself.
However, in December 2004, immediately after Respondent returned the two laptop computers, computer
technicians for the School Board had determined that no files were deleted from Respondent's desk top computer and none were transferred to the desktop computer on or about December 1, 2004. At that time, only about 12 files existed on the principal's office desk top computer which coordinated, even by their file names, with the deleted material on the two returned laptops.
There exists no method or mechanism by which the data deleted by Respondent from the two laptop computers owned by the Hernando County School Board can be recreated or restored from the machines. Knowing a file name does not equate with determining the contents of the file, itself.
At the disputed-fact hearing in the instant case, Respondent offered no explanation or justification for his deletion of data from the two laptop computers. Indeed, he specifically denied that he had deleted only "personal files." He testified that he had downloaded all the material from each laptop onto floppy disks and had produced at the hearing all that material in hard copy for each respective machine. (Exhibits R-4A and R-4B).
Respondent's testimony further revealed that he had kept the knowledge of the existence of any floppy disks secret from the Superintendent and School Board from December 2, 2004, until approximately 10 months later, when he produced six floppy
disks, pursuant to a discovery order in the instant case. At that time, a School Board computer technician determined that the hard copies which were eventually admitted as Respondent's Exhibits R-4A and R-4B, had been printed on September 8, 2005, well after December 2, 2004, when Respondent had relinquished the laptops. The computer technician further determined that all the files, at least by file name, from both laptops were not on the six floppy disks produced by the Respondent.
A computer technician also testified competently and credibly that for each item printed from the six floppy disks produced by Respondent and represented by Respondent as the floppy disks he had used to store the entire contents of both laptops on December 1, 2004, the "created" date was September 8, 2005; that this "created date" demonstrated that the disks produced by Respondent were copied from another source on September 8, 2005; and that therefore, the floppy disks produced by Respondent during discovery were not copied from the laptops on December 1, 2004, as Respondent had represented.
When he was reminded of the foregoing technical testimony, Respondent then testified that he had supplied in discovery to the School Board and its technicians only copies of his original floppy disks, which "floppy copies" were created by him on September 8, 2005, during discovery, and that the hard
copy material also had been printed on September 8, 2005, from the copies of the September 8, 2005, "floppy copies."
Therefore, the undersigned infers from the evidence as a whole, that on December 1, 2004, Respondent anticipated being charged by the Superintendent with personal use of the School Board's two laptop computers and that Respondent therefore deleted all the material from both laptops in order to remove any "confidential" and personal material (see Finding of Fact 85), with the intent to not provide the Superintendent with any self-incriminating evidence of his personal use of the laptop computers.
A review by the undersigned of the hard copy material presented by Respondent (Exhibits R-4A and R-4B) reveals that the material in each exhibit is identical and that each may be considered school-related material. However, none of the hard copy material produced by Respondent is clearly material protected by Chapter 119, Florida Statutes.
The Hernando County School Board has duly adopted Board Policy 8.60, which provides in pertinent part:
Use of information resources shall be limited to legitimate educational purposes. Programs for personal, commercial, or illegal purposes, including games, are not authorized.
E-mail, world wide web pages, and other forms of electronic documentation.
* * *
(b) Will require the same handling as other public records.
* * *
(5) Users shall not take unauthorized actions which . . . deny access or attempt to deny access to, disrupt, change, or destroy the data or service of the computer or network systems.
By deleting all data from the two laptop computers owned by the Hernando County School Board, Respondent deleted electronic data located on Hernando County School Board computers. The material he has produced is related to school matters. Giving Respondent the benefit of the doubt that the items he produced are, in fact, at least most of the contents of the two laptops, then he intentionally denied the school authorities access to these records from December 2004 forward, as well as eliminated his personal work from the laptop computers.
When Respondent returned the two School Board palm pilots on December 2, 2004, they had no data memory chips.
These palm pilots can also store data without memory chips. All that memory was also blank when Respondent returned the palm pilots to the District. Although Respondent's former office assistant/secretary also testified that she had regularly "hot- sync-ed" material from Respondent's palm pilot to his desktop
computer, no palm pilot content (calendars and material related to student schedules) could be found on Respondent's desktop computer. However, the same material on the palm pilots probably could be found in other locations. Respondent had no clear explanation for what became of the memory chips from either palm pilot, but maintained he had not removed the chips or erased the other memory. There is no persuasive evidence that he erased or removed memory from the palm pilots. Credible testimony by other educators was that all the material any principal needed could be contained on one palm pilot, so Respondent's having two working palm pilots was clearly excessive and unnecessary for Respondent's job performance.
The Hernando County School Board has duly adopted Policy 7.72 to deal with acquisition, use, and exchange of school property. It provides as follows:
Acquisition
All property purchased with District funds, internal funds, or funds received from outside sources shall be acquired using District purchasing procedures.
All property, including vehicular equipment, shall be under the full control and name of the School Board.
All property with a value consistent with the provisions of the policy manual, acquired through internal accounts or donation, shall be reported immediately by the principal or work site supervisor to
the designated property records office on the prescribed forms.
Principals and work site supervisor shall be responsible for determining that all property is identified and accounted.
Exchange
Each principal and work site supervisor shall determine the property needs for his/her school or department. The principal or department head shall declare any property which is not needed, upon approval of the designated property control office, and may requisition additional property through proper procedures.
Surplus property shall be reported on proper forms to the designated Property Records Office which shall be responsible for acquiring and storing the surplus property.
Property item with a value as established in (1)(c) above may be exchanged between and [sic.] District departments when when approval is granted by the designated Property Records Office and subsequently by the appropriate department head. Notification of each approval shall be filed in writing with the designated Property Records Office to adjust property records of schools and departments.
School Board equipment may be used by employees away from School Board property under certain conditions when prior approval is obtained from the principal or department head. These conditions include familiarization with the equipment for instructional purposes or improvement of job performance.
School Board equipment shall not be used for gainful outside employment or
private use of employees for personal gain, or by any outside group or organization.
The foregoing policy requires only that the principal account for all property in his/her school. It probably works well where a principal is overseeing administrative and instructional staff, but it contains no clear oversight or accountability for equipment checked out by principals themselves. It is also less than specific as to how a record is to be kept or what "forms" are necessary for items that are taken off-campus.
For instance, the policy does not, contrary to some testimony herein, specifically require the use of a "loan of district equipment form" (Petitioner's Exhibit 40, herein), for home use. That is, the policy does not specifically mandate the use of Petitioner's Exhibit 40, which Respondent admittedly did not use, and the form itself makes no reference to Policy 7.72.
Since 1997, the Athena system has been the automated computer system used at Powell Middle School to account for property (equipment, books, software, and audiovisual materials). The system is used the same way district-wide. It is based on signing out property to a particular room number within the school itself. Since instructional and administrative personnel are assigned to specific rooms, it is assumed that the computer system knows that people, not rooms,
have custody of the assigned equipment and that people are mobile.
Respondent appropriately used the Athena system to check out two laptops, a FAX machine, his issued palm pilot, his issued cell phone, the principal's office's cell phone, and the principal's office's walkie talkie/radio.
Additionally, an assistant principal confirmed that Respondent had borrowed his palm pilot with his permission, but it remained properly checked out in the Athena system to that assistant principal's room/office. A more accurate procedure would have been to check it out through Athena to Respondent's office, but the second palm pilot was accounted-for and the assistant principal was accountable for it.
A stereo/cassette player assigned to a music teacher's room by the Athena system was loaned by the music teacher to Respondent about a week before December 2, 2004, in much the same way as the assistant principal's palm pilot had been. The stereo/cassette player also probably should have been transferred in the Athena system to Respondent's office, but the item was accounted-for and the music teacher was accountable for it.
A FAX machine assigned to Respondent's office by the Athena system became obsolete for use as a FAX machine, in that location, when Powell Middle School's phone lines were changed.
Although the FAX machine could still be used in the principal's office and in other locations as a printer, Respondent wanted a FAX to use at home; so, Respondent, with the agreement of the school's technology coordinator, took the FAX machine home to work with as a FAX, and it remained on the Athena system as assigned to Respondent's office.
A used laser printer, which had been donated to Powell Middle School, had not yet been assessed by the school's technology coordinator to determine whether it could/should be used at Powell Middle School or re-cycled through the School District. Respondent had asked to use it, and the technology coordinator gave it to Respondent to try out. The laser printer worked, and Respondent kept it for home use. Through inadvertence, the technology coordinator never got around to registering it in the Athena system as assigned to Respondent's office.
The Hernando County School Board's duly-promulgated Policy 8.61, regarding telephones is as follows:
In order to promote efficiency and economy, the Superintendent or designee shall develop a uniform system for implementing effective telephone service systems, including use of telephone lines to support technology. School personnel shall be informed of this system.
The system shall encourage use of SUNCOM networks or equivalent services. Logs shall be maintained of long distance
calls by work location. Logs shall be in a uniform format. Staff shall not utilize the School Board telephone system for conducting personal business.
Telephone service billings and long distance logs shall be subject to periodic review and audit. No person shall charge personal calls to the School Board.
Prior to his return of all items to the District on December 2, 2004, Respondent had in his possession, off-site from School Board property, both the cell phone issued to him and the Powell Middle School Office cell phone, as well as the Powell Middle School walkie-talkie/radio.
Principals in the Hernando County School District are required to have their School Board-issued cell phones with them
24 hours a day, seven days per week.
However, there was also credible testimony from other educators that if Respondent were, indeed, working at home nights and weekends, he could be reached via his home land line phone in an emergency and that he therefore did not need a cell phone then, despite the requirement that he have a cell phone with him at all times.
Respondent claimed to have two cell phones because his issued phone had been damaged approximately August 2, 2004, when Shamu, the SeaWorld whale, splashed him during an administrators' field trip, and he had to use the office emergency phone while he was awaiting a new one being provided
to him by the School Board. Contrariwise, a witness testified that Respondent had handed-off his issued cell phone before the Shamu incident so that it would not get wet or damaged. Because Respondent made phone calls on both phones on the same days during the period of time he had them both, it is more credible that he did not have any legitimate need of the office phone at least part of the time he had it in his possession off-campus.
Tracking of Respondent's phone calls shows that he made numerous phone calls to his parents, friends, and acquaintances on both phones, but because all these people are current or former educators, mentors, or school program advisors, it is impossible to say Respondent's phone calls were purely for personal reasons or gain.
Further giving Respondent the benefit of the doubt and assuming that his issued cell phone was, in fact, damaged at some point in time, and that the office cell phone had been used in the past by an assistant principal for up to five weeks, as testified-to by Respondent and that assistant principal, and that the office cell phone had been used by other educators when their cell phones also had been damaged, as testified-to by Respondent, Respondent still should have gotten his issued cell phone fixed and not deprived Powell Middle School of a necessary piece of equipment (the office cell phone) for as long as he did. Respondent's testimony that he ultimately changed out the
good SIM card from the office phone to his bad cell phone does not modify the foregoing finding. Because the office cell phone was rendered inoperable by the removal of the SIM card, it was still not available for use in the school office, due to Respondent's actions.
All testimony that other cell phones and radios were available elsewhere on campus and that occasionally the principal's office cell phone had to be used by instructional and administrative personnel when their own issued cell phones were not working is accepted. However, the office cell phone is a vital piece of equipment and is intended for fire drills, bomb threats, athletic events, away field trips, and emergency management situations. One can also assume that in its drawer in the principal's office, it may be the only lifeline a school has in a hostage or terrorist situation. Respondent's deprivation of the office of this item for an extended period of time during school hours was inappropriate.
All testimony that occasionally all educators in the school who use a walkie-talkie/radio inadvertently walk off campus with one attached to their belts is accepted as valid, as is Respondent's testimony that this was why he had the radio on December 2, 2004, and that the radio would be no good for personal use because it is ineffective more than a mile from the campus.
That said, Respondent's simultaneous retention of both the office cell phone and the walkie-talkie/radio created a potentially dangerous situation at the school by depriving office personnel of these backup items.
On January 10, 2005, Petitioner recommended to the Hernando County School Board that Respondent's employment with the Hernando County School Board be terminated and provided Respondent with specific and detailed notice of all charges against him. Respondent has stated some complaints about the specificity and detail of these charges, which are not material to the instant proceeding.
Respondent had full and complete notice of all charges in the instant case prior to hearing via the Amended Administrative Complaint herein.
Respondent knew or should have known the Code of Ethics of the Education Profession in Florida, codified in Florida Administrative Code Rule 6B-1.001.
Respondent knew or should have known the Principles of Professional Conduct for the Education Profession in Florida as codified in Florida Administrative Code Rule 6B-1.006.
Respondent knew or should have known the content of all Hernando County School Board Policies.
Respondent knew or should have known the established procedures to remove equipment from School Board property.
Hernando County School Board Policy 6.301 provides as follows:
All School Board employees, because of their responsibility as role models to the children of the Hernando County community, shall be held to a high moral and ethical standard of conduct, both in their everyday employment and in their roles within the community.
All employees shall familiarize themselves with the "Code of Ethics of the Education Profession in Florida," located in the State Board of Education Rules. All employees shall abide by the Code at all times, and shall be held to the standards of the Code in all matters related to their employment with the Hernando County School Board.
The School Board of Hernando County supports strong internal control in its procedures and practices. All incidents of suspected improprieties should be reported using the Board approved Complaint Policy.
If the provisions of this policy are found to be inconsistent with the clear language of any employee collective bargaining agreement, the terms of the collective bargaining agreement shall prevail.
Three principals and five district administrators, all of whom are former principals or assistant principals, testified competently and credibly that in the event the charges herein are proven against Respondent he could not be effective in the Hernando County School System. To the extent that any of these individuals' testimony was couched in terms of
ineffectiveness arising from mere accusations, newspaper coverage, and/or the filing of an administrative complaint, it has been discounted. Moreover, it is noted that as of
August 24, 2005, Respondent was appointed to the Hernando County Ordinance Review Board, to review County ordinances and make recommendations for or against their repeal. This appointment suggests that the citizens of Hernando County are interested only in Respondent's guilt or innocence and will not judge him ineffective merely upon accusations.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1), 120.569, and 120.65, Florida Statutes.
Respondent is specifically charged in paragraph 38 of the Amended Administrative Complaint as follows:
Within his request for employment to the Hernando County School Board and Application to the Hernando County School Board, Respondent failed to disclose his then current position in Broward County. Such violated Hernando County School Board Policy 6.301 and F.A.C. 6B-1.006(4)(b) and 6B- 1.006(5)(a), 6B-1.006(5)(g) and 6B- 1.006(5)(i).
Within his request for a position in Hernando County and his Formal Application therefor, Respondent represented his current position as Assistant Principal of Deerfield Beach Middle School. Such was not correct.
Such violated Hernando County School Board Policy 6.301 and F.A.C. 6B-1.006(4)(b), 6B-
1.006(5)(a), 6B-1.006(5)(g) and 6B-
1.006(5)(i).
Within the Hernando County Security Background Check form completed by Respondent on October 10, 2002, Respondent failed to disclose pending action against his certificate. Such violated Hernando County School Board Policy 6.301 and F.A.C. 6B-1.006(4)(b), 6B-1.006(5)(a), 6B- 1.006(5)(g) and 6B-1.006(5)(i).
Within his Application for Additional Certification of January 21, 2003 to the Department of Education, Respondent failed to disclose pending action against his certification. Such violated Hernando County School Board Policy 6.301 and F.A.C. 6B-1.006(4)(b), 6B-1.006(5)(a), 6B- 1.006(5)(g) and 6B-1.006(5)(i).
When interviewed by the Petitioner on November 16, 2004, and thereafter, in writing on November 17, 2004, Respondent failed to honestly disclose his prior knowledge of the action pending against his Florida Educator's certificate. Such violated Hernando County School Board Policy 6.301 and F.A.C. 6B-1.006(4)(b), 6B- 1.006(5)(a), 6B-1.006(5)(g) and 6B- 1.006(5)(i).
Respondent removed several items of District Equipment without properly checking them out or signing receipts for the same. Such violated Hernando County School Board Policy 7.72.
Respondent was in possession of more HCSB-owned equipment than necessary for his job performance and therefore, Respondent used District Equipment for personal matters. Further, Respondent's off-site possession of the Powell Middle School official emergency cellular telephone and
radio deprived the school of necessary pieces of equipment. Such violated Hernando County School Board Policy 7.72 and 8.61.
Respondent's deletion of all data files located on the two (2) laptop computers and
2 palm pilots in Respondent's possession and returned to the District on December 2, 2004, destroyed Hernando County School Board records, as well as records deemed to be public records under Florida Law. Such violated Hernando County School Board Policy
8.60 and Chapter 119, Florida Statutes.
Petitioner Superintendent has the duty to go forward and prove, by a preponderance of the evidence, the charges contained in the Amended Administrative Complaint.
Findings of Fact 95, 98, 107, and 123, are adopted and incorporated herein as Conclusions of Law.
Section 1012.33(6)(b), Florida Statutes, provides in pertinent part as follows:
Any member of the district administrative or supervisory staff, including any principal but excluding an employee specified in subsection (4), may be suspended or dismissed at any time during the term of the contract; however, the charges against him or her must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude, as these terms are defined by rule of the State Board of Education. Whenever such charges are made against any such employee of the district school board, the district school board may suspend the employee without pay; but, if the charges are not sustained, he or she shall be immediately reinstated, and his or her back salary shall be paid. In cases
of suspension by the district school board or by the district school superintendent, the district school board shall determine upon the evidence submitted whether the charges have been sustained and, if the charges are sustained, shall determine either to dismiss the employee or fix the terms under which he or she may be reinstated. If such charges are sustained by a majority vote of the full membership of the district school board and such employee is discharged, his or her contract of employment shall be thereby canceled. Any such decision adverse to the employee may be appealed by him or her pursuant to s.
120.68, provided such appeal is filed within
30 days after the decision of the district school board. (emphasis supplied)
Florida Administrative Code 6B-4.009(3) defines "misconduct in office" as follows:
Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-
1.001 FAC, and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 1.006, FAC, which is so serious as to impair the individual's effectiveness in the school system.
Florida Administrative Code 6B-4.009(4) defines "gross insubordination" as follows:
Gross insubordination or willful neglect of duties as a constant or continuing intentional refusal to obey a direct order, reasonable in nature, and given by and with proper authority.
Florida Administrative Code Rule 6B-1.001 provides, in pertinent part, as follows:
* * *
. . . The educator will therefore strive for professional growth and will seek to exercise the best professional judgment of integrity.
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, or parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
Florida Administrative Code Rule 6B-1.006 reads, in pertinent part as follows:
The following disciplinary rule shall constitute the Principles of Professional conduct for the Education Profession in Florida.
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.
* * *
Obligation to the public requires that the individual:
* * *
(b) Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.
* * *
Obligation to the profession of education requires that the individual:
* * *
Shall maintain honesty in all professional dealings.
* * *
(g) Shall not misrepresent one's own professional qualifications.
* * *
(i) Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.
Petitioner has proven by a preponderance of the evidence the charges under sub-paragraphs 38 a) and b) of the Amended Administrative Complaint, that within his request for employment and application, Respondent failed to disclose his then-current position in Broward County and represented his current position as assistant principal of Deerfield Beach Middle School. To wit: On May 17, 2002, Respondent submitted a letter of interest and resume to the Hernando County School Board. On this item, Respondent's representation of his present employment as an assistant principal at Deerfield Beach Middle School was patently false as to job title and employment location. (See Findings of Fact 27-28.) On his May 28, 2002, application to Hernando County and during his interview for the
assistant principal position at Nature Coast Technical High School, Respondent gave incomplete information so as to camouflage his demotion to guidance counselor. (See Findings of Fact 28-37.) On his September 4, 2002, letter of interest and formal resume to Hernando County, Respondent misrepresented his then-current position in Broward County. (See Findings of Fact 45-48.) Respondent's January 16, 2003, resume and letter of interest were also false and/or misleading. (See Findings of Fact 63-65.) Therefore, Respondent is guilty of both counts 38
a) and b) of violating Hernando County School Board Policy 6.301 and Florida Administrative Code Rules 1.006 (4)(b), (5)(a), (5)(g), and (5)(i).
Petitioner has not proven the charges brought pursuant to paragraphs 38 c), d), and e), of the Amended Administrative Complaint.
Specifically, with regard to paragraph 38 e), a preponderance of the evidence shows that Respondent lied to the Superintendent and Human Resources Officer when he said and/or wrote that he knew of no investigation by DOE and when he said that he did not know that a final order had never been entered in Broward County against him, but this does not rise to a constant or continuing intentional refusal to obey a direct order. (See Findings of Fact 73-77.)
Respondent did not, at any time on any of the occasions listed in paragraphs 38 c), d) or e), "fail to honestly disclose his prior knowledge of the action pending against his Florida educator's certificate" because the October 25, 2004, DOE administrative complaint and election of rights form had not reached him by November 16-17, 2004. (See
Findings of Fact 75-76.)
There can be a DOE action pending against an educator's teaching certificate or action pending against an educator's employment contract with a particular school board. Although Respondent certainly did not volunteer to Hernando County officials information about the contract disciplinary action against him in Broward County, there was no mechanism or question posed which required him to reveal this information. Respondent was only asked whether there were a "pending action" against his teaching certificate on the October 10, 2002, Background Security Check document [see charge 38 c)]; on the January 21, 2003, application for additional certification [see
charge 38 d)]; and at his November 16-17, 2004, interactions with the Hernando County Superintendent and Human Resources Officer [see charge 38 e]. On each of these occasions, he truthfully answered that he knew of no "action pending" against his educator's certificate, because no action was, in fact, pending against his educator's certificate until October 25,
2004, when DOE sent him an administrative complaint and election of rights form, and he had no official DOE notice of a DOE "action" until after November 17, 2004.
Petitioner concedes that no statute or rule specifically states when a DOE "action" against an educator's certificate begins and relies on Shelly v. State of Florida,
Department of Banking and Financial Services, 846 So. 2d 577 (Fla. 1st DCA 2003).
The sole issue in that case was whether initiating an administrative proceeding by sending certified mail to an address furnished to a state agency by or on behalf of the subject of the proceeding offended due process requirements, where the initial correspondence was returned unclaimed (after the proceeding concluded), but subsequent (uncertified) correspondence sent to the same address reached the addressee uneventfully. The effect of the majority opinion in Shelly is a very narrow holding that use of mailed notice meets state and federal due process requirements. The decision approved of the state's attempt to provide actual notice without requiring it to provide actual notice, by relying on the presumption that mailed notice is reasonably calculated to inform the intended recipient. On that basis, Petitioner relies on the November 16, 2001, DOE letter herein to have put Respondent on notice forever
after that date that an action "was pending" against his certificate. Petitioner's analysis is not persuasive.
Respondent denied ever actually receiving DOE's November 16, 2001, letter. Yet, it is not material for purposes of the instant case whether Respondent may be presumed to have received the November 16, 2001, DOE letter or not, because DOE's November 16, 2001, letter (see Finding of Fact 10), only provided the same information, as did the May 20, 2004, DOE letter which Respondent clearly did receive (see Finding of Fact 68), that someone had made a simple "complaint" (oral or written) against him, and that if an Agency investigation determined the complainer's "allegations" to be founded, then, and only then, would "disciplinary action" against his certificate occur. DOE's letters' use of the words, "complaint," with a small "c," "allegations," and "disciplinary action," comport with standard usage of those terms in administrative, and even general, legal practice. Even if it did not, the language DOE elected to use in these letters clearly told Respondent that no "action" against his certificate had yet begun. He was entitled to rely on that written representation by DOE. The content of DOE's letters themselves present a satisfactory and accepted defense that Respondent did not lie about whether or not an "action" was "pending" against his certificate on the three occasions set out in charges 38 c),
d), and e), and no gross insubordination was demonstrated by his statements in response to the Superintendent's exhortations to "be truthful."
Although the First District Court of Appeal has, in Shelly, created, for procedural purposes, a presumption that Respondent had already received on November 6, 2004, DOE's October 25, 2004, formal administrative complaint against his educator's certificate when he met with the Hernando County Superintendent and Human Resources Officer on November 16, 2004, (see Finding of Fact 71), Respondent has affirmatively shown that he had not physically received notice of the actual DOE "action" at the time he met with them. The procedural presumption of receipt, as created by case law solely for the convenience of state agencies in serving defendants was affirmatively refuted by testimony, and that narrow presumption cannot be expanded to hold that Respondent lied when he denied knowing that an action was "pending" until he was actually confronted with DOE's formal administrative complaint.
Respondent is not guilty of charges 38 c), d), and
e).
With regard to the charge contained in paragraph 38
f), Petitioner has not proven by a preponderance of the evidence that Respondent removed several items of School Board property without properly checking them out and signing receipts for
them. The Athena system may be a less-than-perfect method for keeping track of equipment going off campus, but absent a clear mandate that a principal must use a particular hard copy form (see Findings of Fact 98-106), Respondent cannot be held accountable to use that particular form.
Charge 38 g) is composed of two distinct elements.
It alleges first, that because Respondent was in possession of more Hernando County School Board-owned equipment than necessary for his job performance, he must have been using the equipment for personal use, and secondly, alleges that Respondent's off- site possession of the Powell Middle School official emergency cell phone and walkie-talkie/radio deprived Powell Middle School of necessary pieces of equipment. The preponderance of the evidence shows that Respondent's possession of the radio was, at worst, mere inadvertence, and that his possession of the office cellular phone did, in fact, deprive the school of necessary equipment, but neither situation constitutes a specific offense against School Board Policy 7.72 and/or Policy 8.61.
It was proven by a preponderance of the evidence that Respondent was in possession of more School Board equipment than necessary for his job performance. Normally, that fact alone would not, of itself, simultaneously establish that Respondent was using the equipment for personal purposes, but here the credible evidence as a whole, including but not limited to the
fact that many of the items (FAX, printer, extra cell phone and extra palm pilot) were unnecessary for any principal to use at home; Respondent's deliberate deletion of records he previously had declared to the school technical coordinator to be "confidential"; and the inability of skilled computer technicians to recreate all the files Respondent deleted from the two laptops, leads to the conclusion that it is more probable than not that at least the laptops were used by Respondent for reasons of personal gain. "Personal gain" need not be proven to be strictly financial gain. Therefore, a violation of just Policy 7.72, has been proven, and Respondent is guilty of that portion of charge 38 g).
Charge 38 h) alleges that Respondent's December 1, 2004, deletion of all data files located on the two laptops and two palm pilots resulted in Respondent's destruction of School Board records in violation of Hernando County School Board Policy 8.60 and Chapter 119, Florida Statutes.
A preponderance of the evidence shows that the palm pilot material was most probably copies of calendars and student records kept elsewhere by the School Board, so deletion of material from the palm pilots was not a complete destruction of any record covered by Chapter 119, Florida Statutes, and likewise did not deprive the School Board of the material. It
was also not proven that it was Respondent who deleted this material.
It has been determined that there is no way to corroborate or refute Respondent's testimony that the hard copies of material he presented at hearing (Exhibits R-4A and R- 4B) were files on the two laptops on December 1, 2004; that the hard copies he produced were more school business than not; that the hard copies were not clearly covered by Chapter 119; and that the deleted items which Respondent did not produce in hard copy were more likely than not deleted by Respondent to cover-up his personal projects. (See Finding of Fact 93.) Therefore, it also is concluded that the Superintendent has proven by a preponderance of the evidence that Respondent's deletion of the materials which he ultimately produced in hard copy from data files located on the two laptops resulted in Respondent's depriving the School Board for 10 months of those records he both produced and has testified constitute school business records. His deprivation, or denial of School Board access, with or without permanent destruction, is a violation of just Policy 8.60.
A school principal is charged with significant responsibility under Florida law and Hernando County School Board Policy. A school principal has authority over school district personnel, reporting, budgeting, student supervision,
leadership and general management of the school. §§ 1001.32; 1001.54; and 1012.28, Fla. Stat.
Because of the unique powers and duties afforded school principals under Florida law, school principals must maintain the highest degree of ethics, integrity, and honesty.
The Hernando County School Board's duly-adopted policies constitute a direct order, reasonable in nature given by and with proper authority in accordance with Florida Administrative Code Rule 6B-4.009(4), and as stated previously Respondent has violated Policy 7.72 per charge 38 g) and Policy
8.60 per charge 38 h).
Petitioner also has proven by a preponderance of the evidence that Respondent is guilty of misconduct in office as defined in Florida Administrative Code Rule 6B-4.009(3), in charges 38 a) and b), and is guilty of gross insubordination in charges 38 g), and h), as defined in Florida Administrative Code Rule 6B-4.009(4).
The definitions of "misconduct in office" and "gross insubordination" are broad and are intended to maintain a high moral standard for members of the education profession. Ford v. Bay County School Board, 253 So. 2d 728 (Fla. 1st DCA 1971); Adams v. State Professional Practices Counsel, 406 So. 2d 1170 (Fla. 1st DCA 181); and Negrich v. Dade County Board Public Instruction, 143 So. 2d 498 (Fla. 3rd DCA 1960).
Herein, it is clear from the record and direct evidence that the misconduct and insubordination of the Respondent is so serious as to impair his effectiveness in the Hernando County School System, warranting his termination.
Respondent is guilty of the charges contained in paragraphs 38 a), b), g), and h) of the Amended Administrative Complaint as set out above and should be terminated for misconduct in office and insubordination upon just cause and upon good and sufficient reason.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED that the School Board of Hernando County enter a final order concluding that Respondent is not guilty of the charges in paragraphs 38 c), d), e), and f) and is guilty of the charges contained in paragraphs 38 a), b), g), and h) of the Amended Administrative Complaint and approving the Superintendent's recommendation to terminate Respondent's 2004- 2005 contract.
DONE AND ENTERED this 23rd day of March, 2006, in Tallahassee, Leon County, Florida.
S
ELLA JANE P. DAVIS
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 23rd day of March, 2006.
ENDNOTES
1/ During the same period, specifically on April 26, 2002, and May 17, 2002, Respondent submitted two resumes to the Citrus County School Board in which he also represented that his position from "2001 to Pres." was that of an assistant principal in Broward County, Florida. Respondent is not charged in this proceeding with any falsehood to Citrus County, but this evidence go to Respondent's state of mind and to his knowledge of the content he was submitting to the Hernando County School Board in the instant case.
Also, at the disputed-fact hearing in the instant cause, Respondent produced two additional resumes, prepared in 2004, that identified two positions with the Broward County School District for the period of March 2001 through September 2002, as "Assistant Principal" at Deerfield Beach Middle School, Broward County, Florida, and "Guidance Counselor/Administrative Support" at Lyons Creek Middle School. The notation suggests he was serving simultaneously in both positions and camouflages his demotion on March 6, 2002. In fact, Broward County had no position of "Guidance Counselor/Administrative Support" at that time, and did not consider guidance counselor an administrative
position. (See Findings of Fact 22 and 25.) There is no clear evidence that these two additional 2004 resumes were ever submitted to any school district at all, and Respondent is not charged in the instant cause with a violation of any rules or statute as a result of these resumes. However, they do go to his state of mind and to his knowledge of the content he was submitting to the Hernando County School Board in the instant case.
2/ For instance, in saying that he knew of no complaint by Broward County, Respondent probably meant that he knew of no complaint to DOE by Broward County, and not that he did not know that Broward County previously had filed an independent disciplinary action against his contract there, because the remainder of Respondent's written statement discusses the Broward County unilateral action/hearing.
COPIES FURNISHED:
Dr. Wendy Tellone Superintendent
Hernando County School Board 919 North Borad Street Brooksville, Florida 34601-2397
Daniel J. Woodring, General Counsel Department of Education
Turlington Building, Suite 1244
325 West Gaines Street Tallahassee, Florida 32399-0400
Honorable John Winn Commissioner of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Karen O. Gaffney, Esquire Karen O. Gaffney, P.A.
221 West Main Street, Suite D Inverness, Florida 33450
Willie Jones, Esquire
Law Offices of Willie Jones Lake Ida Plaza, Suite 420 600 North Congress Avenue Delray Beach, Florida 33445
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 |
|---|---|---|
| Apr. 18, 2006 | Agency Final Order | |
| Mar. 23, 2006 | Recommended Order | Respondent is not guilty of misleading with regard to "pending DOE action," but otherwise he is guilty of misconduct and gross insubordination. |
