STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

POLK COUNTY SCHOOL BOARD, )

)

Petitioner, )

)

vs. ) Case No. 06-1654

)

JAMES NEAL, III, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride, Administrative Law Judge of the Division of Administrative Hearing, on October 17, 2006, in Lakeland, Florida.

APPEARANCES

For Petitioner: Donald H. Wilson, Jr., Esquire

Boswell & Dunlap, LLP

245 South Central Avenue Bartow, Florida 32830

For Respondent: Mark Herdman, Esquire

Herdman & Sakellarides, P.A.

29605 U.S. Highway 19 North, Suite 110

Clearwater, Florida 32761 STATEMENT OF THE ISSUES

Whether Respondent’s conduct on February 17, 2006, on the Lake Gibson Middle School campus constitutes misconduct in office, failure to protect a student from conditions harmful to learning, and/or intentionally exposing a student to unnecessary embarrassment or disparagement and whether there is just cause for termination/discipline.

Whether Respondent's prior acts of misconduct, which resulted in discipline, constitute moral turpitude and child endangerment, such that they may be considered just cause for termination.

PRELIMINARY STATEMENT

This matter arose when James Neal, III (Respondent), was notified by letter, dated May 1, 2006, from the Superintendent that she would recommend to the School Board of Polk County (Petitioner) that Respondent be terminated for misconduct in office and other violations of the standards of professional conduct. Petitioner agreed with the Superintendent's recommendation and Respondent requested a formal administrative hearing on May 6, 2006. This matter was referred to the Division of Administrative Hearings (DOAH) on May 9, 2006. Discovery ensued, and a continuance was granted at the request of the parties. The formal hearing was conducted on October 17, 2006.

At the hearing, Petitioner called five witnesses to testify: Gail F. McKinzie, Superintendent of Schools; A.H., a student; S.A., her parent; John Barber, principal of Lake Gibson Middle School; and José Farinas, acting assistant superintendent for Human Resource Services. Petitioner offered 11 exhibits, which were admitted in evidence, several of them over objection.

Respondent testified in his own behalf. One exhibit, the Teacher Collective Bargaining Agreement 2005-2007 (CBA), was received as a joint exhibit. A transcript was prepared and was filed on

October 30, 2006. The parties' proposed recommended orders were each timely filed. Both proposals have been given careful consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a political subdivision and an administrative agency of the State of Florida charged with the duty to operate, control, and supervise all public schools and personnel in the Sarasota County School District. Gail F. McKinzie is the Superintendent of Public Schools for the Sarasota County, Florida, School District.

2. Respondent has been employed by Petitioner as a teacher of science and social studies since 1982, and holds a professional services contract. Since the beginning of the 2005- 2006 school year, Respondent has been working as a teacher at Lake Gibson Middle School.

3. The employment relationship between Petitioner and Respondent is subject to the terms and conditions of the CBA between the School Board and the Polk Educational Association, Inc., for the period July 1, 2005, through June 30, 2007. The applicable collective bargaining agreement requires progressive discipline as a predicate to termination for a teacher holding a professional services contract.

4. In the recommendation for termination, the Superintendent sent Respondent a letter on May 1, 2006, which alleged in pertinent part:

   At various times during your employment with the Polk County School Board, you have engaged in conduct which we deem to constitute moral turpitude and child endangerment. As our investigation reports, the most recent incident involves your licking your hand and attempting to force a student to shake hands with you in the presence of the student's parent.

   
   

   The letter further advised Respondent that the Superintendent would recommend to the School Board that he be terminated.

5. The incident leading to the recommendation for termination occurred on February 9, 2006. A.H. is a student in Respondent's class at Lake Gibson Middle School. Respondent attended a meeting after school with the student and the student’s mother. The purpose of the meeting was to discuss a way for A.H. to do projects for extra credit to improve her grade in Respondent's class. The meeting was pleasant and went well.

6. However, at the end of the meeting, the mother shook hands with Respondent, and directed A.H. to shake Respondent's hand as well. A.H. resisted shaking Respondent's hand and stated that she was sure that Respondent would do something unpleasant to her before he shook her hand. A.H. continued to resist, but her mother insisted that she shake hands with Respondent. As Respondent went to shake A.H.'s hand, he simulated licking his own hand before he shook hands with A.H. She pulled her hand back. Respondent held her wrist with his other hand and shook it with his right hand. A.H. and her mother were certain that Respondent had actually licked his hand before he shook hands

   with A.H. Whether or not Respondent actually licked his hand or only simulated it, Respondent’s action was completely inappropriate and unprofessional. A.H. and her mother were reasonably repulsed by Respondent's actions and became upset.

7. Respondent's conduct was reported to the principal of the school, and an investigation was initiated.

8. Respondent is a large man with a deep, booming voice.

   
   

   He has an intimidating presence, especially with children. To offset that impression, Respondent tries to use humor to make his students more comfortable with him. One method he has used previously, in class, is to simulate licking his hand before he shakes hands with a student. He behaves in ways that some students find funny, and others do not.

9. A. H. agrees that Respondent tries to bring humor into his classroom. She has seen Respondent seemingly lick his hand before, but she is not certain whether he actually licks his hand or just pretends to lick it. She acknowledged, however, Respondent does try to create a fun atmosphere in the classroom.

10. After Respondent learned that A.H. and her mother were upset about the incident he asked the principal if he should call the mother to explain and apologize. The principal directed him not to pursue the matter.

11. Respondent firmly believes that the hand-licking incident was not an attempt to embarrass A.H., and that it caused no harm. Respondent believes that his conduct was nothing more

    than an unappreciated attempt at humor. Respondent apparently does not comprehend when his attempts at humor are inappropriate and unprofessional.

12. Regardless of the fact that Respondent thought that his prank was harmless, Respondent's conduct on February 9, 2006, was unprofessional, a cause for embarrassment of the student, A.H., and impaired his effectiveness as a teacher.

13. In the area of prior discipline, only two incidents, both of which occurred within the last three years, will be considered for the purpose of determining if just cause exists for termination.

14. On January 28, 2004, Respondent received a five-day suspension for telling a student to "Get your ass out of my class." Respondent stated that the student was out of control, jumping across desks, disrupting the classroom, and that Respondent could not get him under control. Respondent candidly acknowledged that he did tell the student to leave the classroom, using the words quoted above. He acknowledged that he had made a mistake and did not contest the discipline.

15. On May 23, 2003, Respondent received a written reprimand for using poor judgment in supervising students on a field trip. Allegedly, a boy made inappropriate advances toward a female student. Respondent advised the principal and the school resource officer that he had not witnessed inappropriate actions on the part of the boy. However, Respondent allowed the

    mother of one of the students to question and take written statements about the incident from his students. This violated school procedure. The discipline regarding this incident was not grieved.

16. Petitioner offered evidence relating to 16 events that occurred between 1983 and 2003, involving formal letters of concern, written reprimands, suspensions, and teacher quality performance observations. After examination of each of the exhibits offered by Petitioner, it is determined that none of the reported incidents constitute acts of moral turpitude and/or child endangerment. Therefore, under the provisions of Section 4.5-1 of the CBA, they cannot be used against a teacher for the purpose of imposing discipline.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.569 and Subsections 120.57(1) and 1012.33(3), Florida Statutes (2006).

18. The burden of proof is on the Petitioner to establish by a preponderance of the evidence that the disciplinary action it proposes is justified. McNeill v. Pinellas County School Board, 678 So. 2d 476 (Fla. 1996); and Sublett v. Sumter County School Board, 646 So. 2d 1178 (Fla. 5th DCA 1995).

19. Subsection 1012.33(1)(a), Florida Statutes (2006), relating to contracts with instructional staff, reads as follows:

    (1)(a) Each person employed as a member of the instructional staff in any district school system shall be properly certified pursuant to s. 1012.56 or s. 1012.57 or employed pursuant to s. 1012.39 and shall be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. 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.

    
    

20. Florida Administrative Code Rule 6B-4.009(3) defines "misconduct in office" as:

    A violation of the Code of Ethics of the Education Profession as adopted in Rule 6B- 1.001, F.A.C., and the Principles of Professional Conduct of the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C., which is so serious as to impair the individual’s effectiveness in the school system.

    
    

21. Florida Administrative Code Rule 6B-1.006 provides, in pertinent part:

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

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

    3. Obligation to the student requires that the individual:

       1. Shall make reasonable effort to protect the student from conditions harmful

          to learning and/or to the student’s mental and/or physical health and/or safety.

          
          

          * * *

          
          

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

          
          

22. Respondent, as a teacher in Petitioner’s school district, may be terminated or otherwise disciplined, but only for just cause. Section 4.4 of the CBA.

23. 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).

    
    

24. Sections 4.4-1 and 4.5-1 of the CBA provide:

    
    

    4.4-1 Progressive discipline shall be followed, except in cases where the course of conduct or the severity of the offense justifies otherwise. Unusual circumstances may justify suspension with pay. Progressive discipline shall be administered in the following steps: (1) verbal warning in a conference with the teacher. (A written confirmation of a verbal warning is not a written reprimand); (2) dated written reprimand following a conference; (3) suspension without pay for up to five days by the Superintendent and (4) termination.

    
    

    * * *

    
    

    4.5-1 Any report of disciplinary action or derogatory report which has been in the file longer than three years, or any reference in the file to an incident that occurred more

    than three years ago, may not be used as evidence or testimony against a teacher. Cases of disciplinary action which was [sic] the result of moral turpitude or a pattern of allegations of child endangerment that results in disciplinary action by the district or professional practice services are exempted from the three-year moratorium.

    
    

25. Subsection 120.569(2)(g), Florida Statutes (2006), relating to the Florida Administrative Procedures Act, provides:

    Irrelevant, immaterial or unduly repetitious evidence shall be excluded, but all other evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible, whether or not such evidence would be admissible in a trial in the courts of Florida.

    
    

26. Subsection 120.57(1)(c), Florida Statutes (2006), provides:

    Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.

    
    

27. In the superintendent’s charging letter, it is alleged Respondent has engaged in conduct constituting moral turpitude and child endangerment. In Denmore v. Kim, 538 U.S. 510, 123 S. Ct. 1708 (2003), the Court held moral turpitude refers to conduct that shocks the public conscience as being inherently base, vile or depraved. The CBA defines moral turpitude as a gross violation of standards of moral conduct, vileness. An act involving moral turpitude is considered intentionally evil, making the act a crime. Nothing in the record in this case

    suggests Respondent has engaged in an act involving moral turpitude. Similarly, there is no evidence in the record that Respondent has engaged in any conduct that has endangered a child.

28. Therefore, under the provisions of Section 4.5-1 of the CBA, incidents occurring more than three years prior to

    February 7, 2006, cannot be considered for the purposes of imposing discipline.

29. Since the facts relating to incidents which occurred prior to February 7, 2006, are not to be considered in this proceeding, whether the documents submitted related to those incidents should be considered under various exceptions to the hearsay rule are irrelevant.

30. Regarding the February 7, 2006, incident, Petitioner contends that Respondent, by his actions, violated the Code of Ethics and Principles of Professional Conduct for the Education Profession in Florida by failing to make reasonable efforts to protect students from conditions harmful to learning and/or to the students’ mental and/or physical health and/or safety, and intentionally exposing students to unnecessary embarrassment and disparagement. The evidence only supports one of these contentions: Respondent’s inappropriate attempt at humor was not appreciated by A.H. or her mother. Attempted humor that is clearly repugnant and inappropriate is not equivalent to failing to protect students’ mental or physical health, but does

    constitute intentionally subjecting them to unnecessary embarrassment or disparagement.

31. Beyond that, a conclusion that Respondent intentionally exposed A.H. to unnecessary embarrassment or disparagement requires evidence that Respondent made a conscious decision not to comply with the rule. Langston v. Jamerson, 653 So. 2d 489 (Fla. 1st DCA 1995). Since Respondent admitted to behaving this way in the past with other students, regardless of the fact that he thought this behavior was funny, the evidence supports the conclusion that Respondent intentionally exposed the student to unnecessary embarrassment and is a violation of the Principles of Professional Conduct.

32. Termination is not justified under the facts of this case, since only the two prior incidents of discipline can be considered.

33. Following the progressive discipline requirements in Section 4.4-1 of the CBA, Respondent’s conduct justifies suspension without pay for five days by the Superintendent.

RECOMMENDATION

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

RECOMMENDED that the Polk County School Board enter a final order:

1. Finding Respondent guilty of violating the Principles of Professional Conduct by subjecting a student to unnecessary embarrassment.

2. Finding Respondent not guilty of conduct that would be just cause for termination.

3. Suspending Respondent for five days without pay. DONE AND ENTERED this 18th day of December, 2006, at

Tallahassee, Leon County, Florida.

S

DANIEL M. KILBRIDE

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 18th of day December, 2006.

COPIES FURNISHED:

Honorable John Winn, Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Gail F. McKinzie, Superintendent Polk County School Board

Post Office Box 391

Bartow, Florida 33831-0391

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

245 South Central Avenue Bartow, Florida 32830

Mark Herdman, Esquire Herdman & Sakellarides, P.A.

29605 U.S. Highway 19, North, Suite 110

Clearwater, Florida 32761

Daniel J. Woodring, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 06-001654

Orders for Case No: 06-001654