STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE COUNTY SCHOOL BOARD,

Petitioner,

vs.

WILKIE L. JEWETT, JR.,

Respondent.

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) Case No. 05-3814

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RECOMMENDED ORDER

This matter was assigned to Lawrence P. Stevenson, the designated Administrative Law Judge of the Division of Administrative Hearings. The parties stipulated that the Division of Administrative Hearings has jurisdiction over this matter and waived a hearing. The parties submitted Stipulated Facts on January 5, 2006, and submitted Proposed Recommended Orders on February 6, 2006.

APPEARANCES

For Petitioner: Robert Dodig, Jr., Esquire

School District of Lee County 2055 Central Avenue

Fort Myers, Florida 33901

For Respondent: Robert J. Coleman, Esquire

Coleman & Coleman Post Office Box 2089

Fort Myers, Florida 33902-2089

STATEMENT OF THE ISSUE

The issue is whether Petitioner may terminate Respondent's employment as an educational paraprofessional, based upon the conduct alleged in the Petition for Termination of Employment.

PRELIMINARY STATEMENT

On September 13, 2005, Petitioner, Lee County School Board (the "School Board"), filed a Petition for Termination of Employment (the "Petition") of Respondent, Wilkie L.

Jewett, Jr., setting forth the allegations justifying the termination of Respondent's employment as an educational paraprofessional. The Petition specifically charged that Respondent "engaged in a sexual relationship with a female student. Said relationship resulted in the student becoming pregnant and the birth of a child, of which Respondent is the father. This occurred while the student was enrolled in the District. This conduct constitutes just cause for his termination." On September 20, 2005, Respondent's counsel filed a letter contesting the charges and requesting a formal hearing. On October 17, 2005, the School Board referred the matter to the Division of Administrative Hearings ("DOAH") for the assignment of an Administrative Law Judge and the conduct of a formal hearing. As noted above, the parties waived a formal hearing and agreed that the Administrative Law Judge would base his

Recommended Order on a set of stipulated facts to be jointly filed by the parties' counsel.

FINDINGS OF FACT

Based upon the facts stipulated by the parties, the following findings are made:

1. The School Board is the governing body of the local school district in and for Lee County, Florida. The School Board is located at 2055 Central Avenue, Fort Myers, Florida 33901. The School Board's Florida Administrative Code identification code is 6GX-36. The School Board has the authority to terminate and/or suspend educational support personnel without pay and benefits pursuant to Subsections 1012.22(1)(f) and 1012.40(2)(c), Florida Statutes (2005).1

2. Respondent has been employed by the School Board since August 27, 1998, with the exception of a break in service during the period from February 24, 1999, through September 27, 2000. Currently, Respondent is employed as an educational paraprofessional at Alternative Learning Center ("ALC") High School. He was previously employed as a bus attendant. Respondent has always received satisfactory performance assessments and has never before been the subject of discipline by the School Board. Respondent's current home address is

   3971 Wheaton Court, Fort Myers, Florida 33905.

3. Respondent is an "educational support employee," as defined by Subsection 1012.40(1)(a), Florida Statutes, and is a member of the support personnel bargaining unit ("SPALC") that is covered by a collective bargaining agreement between SPALC and the School Board. The standard for discipline of support personnel is "just cause" pursuant to Article 7 of the SPALC Agreement.

4. On or about August 12, 2005, David LaRosa, the principal of ALC High School, contacted Gregory Adkins, executive director of Human Resources and Employee Relations, to report two recent conversations regarding Respondent. Both conversations concerned alleged inappropriate interaction by Respondent with two female students.

5. On the basis of the information reported to Mr. LaRosa, an investigation into the matter was conducted. During the course of the investigation, the District became aware that Respondent had fathered a child and that the child's mother was a senior at Cypress Lake High School at the time the child was conceived. The child was born on December 10, 2002.

6. Respondent denied knowing that the mother was a student when they met at a Dr. Martin Luther King celebration in January 2002, or when they met again on February 14, 2002. The mother of the child turned 18 on February 14, 2002. Respondent was 23 years old at the time.2

7. On September 7, 2005, the School Board determined that probable cause existed to impose disciplinary action against Respondent for engaging in a sexual relationship with a student. Also, on September 7, 2005, a certified letter was sent to Respondent, advising him of the probable cause determination and that a recommendation would be made to the superintendent that Respondent be terminated.

8. The School Board did not, during the time in question, have a policy or regulation specifically prohibiting a sexual relationship between an employee and a student. The School Board provided no notice to employees that a sexual relationship with a student could result in disciplinary action.

9. No evidence was presented that Respondent's alleged misconduct had any adverse impact on the School Board or on Respondent's work performance. Respondent continued to work for the School Board for more than two and a half years after his child's birth without incident and with satisfactory performance evaluations.

10. Respondent's child was born ten months after the mother's eighteenth birthday, meaning there is no evidence that Respondent engaged in sexual relations with the mother when she was a minor. No evidence was presented to contradict Respondent's claim that he was unaware that the woman was a high school student at the time they had sexual relations.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding pursuant to Section 120.569 and Subsections 120.57(1) and 1012.40(2)(c), Florida Statutes.

12. 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).

13. As an educational paraprofessional, Respondent is an "educational support employee" as defined by Subsection 1012.40(1)(a), Florida Statutes.

14. Subsection 1012.40(2)(b), Florida Statutes, provides that educational support employees such as Respondent may be terminated only "for reasons stated in the collective bargaining agreement."

15. The SPALC Agreement provides that any discipline "that constitutes a reprimand, suspension, demotion or termination shall be for just cause." SPALC Agreement at § 7.09. The SPALC

    Agreement does not define "just cause" or provide for a plan of progressive discipline.

16. Just cause for discipline is a reason which is rationally and logically related to an employee's conduct in the performance of the employee's job duties and which is concerned with inefficiency, delinquency, poor leadership, lack of role modeling or misconduct. State ex rel Hathaway v. Smith, 35

    So. 2d 650 (Fla. 1948); In re: Grievance of Towle, 665 A. 2d 55 (Vt. 1995).

17. In a previous case, the School Board adopted the following Conclusion of Law, which is hereby adopted as the rule for the instant case:

    27. The School Board construes "just cause" in [then] Section 7.094 of the SPALC Agreement in the same manner as that phrase is used in Section 1012.33 relating to instructional staff. That statute provides in pertinent part that:

    
    

    Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: misconduct in office, incompetency, gross insubordination, willful neglect of duty, or conviction of a crime involving moral turpitude.

    
    

    Section 1012.33(1)(a). See also Rule 6B-

    4.009 (defining the terms used in Section 1012.33(1)(a)).

    Lee County School Board v. Simmons, Case No. 03-1498 (DOAH July 15, 2003)(adopted in toto by Final Order dated August 12, 2003). See also Lee County School Board v. Kehn, Case No. 04- 1912 (DOAH February 21, 2005) (adopted in toto by Final Order dated March 10, 2005).

18. The School Board contends that Respondent's dismissal is justified because his actions reached the level of "moral turpitude" as defined by Florida Administrative Code

    Rule 6B-4.009(6):

    
    

    Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

19. Leaving aside the obvious objection that Respondent has committed no "crime," it still must be concluded that Respondent's actions do not merit the label of "moral turpitude." Respondent had sexual relations with an adult woman five years his junior and had a child with this woman. The only record evidence indicates that Respondent did not know the woman was still in high school. By the accepted standards of the time, Respondent's action may merit disapproval but certainly cannot be labeled base, vile, or depraved.

20. The School Board has not met its burden to prove that it has "just cause" to terminate Respondent's employment for misconduct in office. Nothing in the record of this case establishes that Respondent's actions had any effect on his job performance or on the operations of the School Board. The facts of the case do not establish that Respondent committed a crime or any act at all involving "moral turpitude." Had the facts established that Respondent knew the woman was a high school student, or that the woman was a minor, or that Respondent engaged in a pattern of inappropriate conduct with more than one student, the result would be different.

RECOMMENDATION

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

RECOMMENDED that Petitioner, Lee County School Board, issue a final order dismissing the Petition, reinstating the employment of Respondent, and awarding him back pay and benefits.

DONE AND ENTERED this 30th day of May, 2006, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 30th day of May, 2006.

ENDNOTES

1/ Unless otherwise indicated, all citations are to Florida Statutes (2005).

2/ Respondent's age is not disclosed in the stipulated facts. The School Board's proposed recommended order states that Respondent is 23 years old. This statement is treated herein as an admission by the School Board.

COPIES FURNISHED:

Robert J. Coleman, Esquire Coleman & Coleman

Post Office Box 2089

Fort Myers, Florida 33902-2089

Robert Dodig, Jr., Esquire School District of Lee County 2055 Central Avenue

Fort Myers, Florida 33901

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 Department of Education Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. James W. Browder, III, Superintendent Lee County School Board

2055 Central Avenue

Fort Myers, Florida 33901-3988

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: 05-003814

Orders for Case No: 05-003814