M. Kilbride, an Administrative Law Judge of the Division of Administrative Hearings (DOAH), in Bradenton, Florida, on
March 4-5, 2010.
For Petitioner: Brian C. Ussery, Esquire
Erin G. Jackson, Esquire Thompson, Sizemore, Gonzalez
and Hearing, P.A.
For Respondent: Richard G. Groff, Esquire
Whether there was “just cause” for the termination of Respondent’s employment, as that term is referred to in section
On September 21, 2009, the Superintendent of the Manatee County School District recommended to the School Board that Respondent be suspended without pay and that Respondent’s employment be terminated. Respondent timely requested an administrative hearing. Petitioner referred the matter to DOAH to conduct an administrative hearing on September 30, 2009, and discovery followed. Petitioner was granted leave to file an
amended petition on two occasions and the final hearing on the matter was continued until March 4, 2010. An Amended Joint Pre- hearing Stipulation was filed on February 22, 2010.
At the hearing, Petitioner presented the testimony of Respondent as an adverse witness, and five witnesses: Debra Horne, Rebecca Keefer, Jessica Vieira, Valerie Hosier and Matthew Guhl. Seven exhibits were admitted into evidence for Petitioner. Respondent testified in her own behalf, and presented the testimony of one witness, Scott Cooper. Six exhibits were admitted into evidence for Respondent.
The two-volume Transcript was filed on March 26, 2010.
Each party timely filed Proposed Recommended Orders, which have been carefully considered in the preparation of this Recommended Order.
The School Board of Manatee County, Florida, is the duly-authorized entity responsible for providing public education in Manatee County, Florida.
Respondent, Tammy M. Johnson, has been employed with the School District of Manatee County since February 8, 2000. She was most recently employed as the senior secretary at BCMS. As the senior secretary to the principal of BCMS, Respondent served as the point person for the principal of the school, working hand-in-hand with the principal. Her duties included
screening the principal’s mail and phone calls, handling substitute teachers, performing payroll duties, handling leave forms, coordinating clerical office staff, and handling emergency situations as they arose within the school.
Respondent was exposed to confidential school information on a regular basis, such as complaints regarding faculty and staff and policy changes being considered within the district.
Respondent was employed on an annual contract basis, which was renewed from year to year. Her employment contract was for a term of 11 months and lasted typically from early August to June of the following year.
While employed full-time as the senior secretary, in the fall of 2008 and the spring of 2009, Respondent organized a trip to Europe through the student-based educational travel company EF. Respondent sought to recruit BCMS students and their family members to sign up for the trip by placing fliers on campus, posting a sign-up board at the incoming students’ open house, and placing a notice about the trip in the school newsletter. Respondent routinely included a signature line in her school-assigned email address that identified her not only as a Senior Secretary but as an EF tour guide in every email that she sent from her school account. Announcements about informational meetings related to the EF trip were made over the
school intercom and these meetings occurred on school property in the evenings.
Respondent made fliers at BCMS advertising the EF trip on at least two occasions using school equipment. On one occasion, she made 750 fliers using school paper.
During the time Respondent was conducting these activities, her principal was Scott Cooper. Cooper knew of Respondent’s activities in promoting the trip, and that she was using school resources to accomplish it. He did not object or tell Respondent to stop doing so; in fact, he encouraged such trips.
Respondent ultimately recruited 10 student participants for the EF trip, all of whom were students at BCMS. The trip also included 15 adult participants, all of whom were family members of BCMS students.
In exchange for her work organizing, promoting and chaperoning the EF European trip, Respondent was to receive, and did receive a free spot on the trip to Europe.
Respondent served as the group leader for the EF group of BCMS students and parents. Three other BCMS teachers became involved in the EF trip as chaperones: Joseph Baker, Malissa Baker and Jessica Vieira. They also used school resources to promote the trip.
The EF trip to Europe took place from June 22, 2009, to July 1, 2009.
On June 17, 2009, the Office of Professional Standards (OPS) received a complaint that Respondent was misusing school resources for personal gain. OPS opened an investigation into these allegations.
Shortly before Respondent left for Europe, Scott Cooper was replaced as principal. The newly-appointed BCMS Principal Matt Gruhl, met with Respondent to discuss his concern that she included an EF tagline in the signature block of all of her school emails. Gruhl asked Respondent to remove the EF tagline from her email, take the EF poster off of her door, make any necessary copies at a non-school location, and pay standard rates in the future for any advertising done in the school newsletter. Respondent complied with the directive.
On June 22, 2009, the flight for the EF trip left from Tampa. Prior to the flight’s departure, Respondent purchased several small bottles of vodka in the airport duty-free shop. Several students observed Respondent doing so. Respondent drank two vodka-and-cranberry drinks on the flight to Europe in the presence of BCMS students and parents.
Upon arrival in London, Respondent went with several other parents to a pub across the street from the hotel. While there, Respondent had too much to drink that evening and became
intoxicated. Several BCMS students said that Respondent was speaking so loudly that they were able to hear her all the way across the street and up to the fifth story of the hotel. These students were upset by Respondent’s behavior. Respondent was very loud when she returned from the pub. BCMS parents had to help Respondent into the lobby, as she was falling over and laughing loudly. The adults tried to persuade Respondent to go to bed, but she insisted on ordering another drink in the lobby. Respondent was finally coaxed to go upstairs to bed, and she began banging on all the doors to the hotel rooms in the hallway. Respondent had to be physically restrained from banging on the doors.
On more than four occasions Respondent was observed mixing vodka-and-cranberry juice drinks in a Styrofoam to-go cup before leaving the hotel with students for the day.
The BCMS students on the EF trip commented on multiple occasions about Respondent’s drinking on the trip. The students did not want to go off alone with Respondent because they did not feel safe with her. The students also made observations that Respondent was drunk and stumbling around.
On the return plane ride from Europe to Tampa, Respondent again was drinking alcoholic beverages to excess and exhibiting loud and boisterous behavior.
While Respondent was in Europe with the EF trip, she had received a text message notifying her that she may be under an OPS investigation.
Shortly after Respondent returned, she approached Gruhl and asked him whether there was an investigation concerning her being conducted by OPS. When Gruhl declined to comment on any pending OPS investigations, Respondent then called Debra Horne, specialist in the Office of Professional Standards, and asked whether there was an investigation being conducted. Horne confirmed that there was an open investigation and told Respondent that it might not be resolved until after school started because it involved students and parents.
After speaking to Horne, on or about July 20, 2009, and being made aware that she was involved in an open investigation, Respondent called Vieira and told her that they needed to get their stories straight. Respondent also left messages for Joe and Malissa Baker stating that she heard that there was an OPS investigation and wanted to know if they had any information or had heard anything about the investigation.
Respondent was only partially aware of a School Board rule which prohibited contacting potential witnesses during an investigation, although she was aware that she was expected to abide by all School Board rules.
Gruhl spoke to Horne and reported Vieira and Malissa Baker’s concerns.
Horne expanded her open investigation to include the allegations about Respondent’s behavior on the trip.
Effective August 3, 2009, Respondent was removed from her position and placed on administrative leave with pay pending the completion of an investigation of her conduct by the Petitioner’s Office of Professional Standards. During the time of paid leave she was required to report daily to her principal and could not travel outside the country without permission.
After Respondent was placed on paid administrative leave, she came to the BCMS campus on August 14, 2009, to pick up her belongings from her office. She met Gruhl and Assistant Principal Nancy Breiding at the school. Gruhl observed that Respondent smelled strongly of alcohol. She had difficulty keeping her balance and ran into walls, ran into doorways and almost fell when she tried to adjust her flip-flop. Respondent also had great difficulty following the line of conversation when she was speaking with Gruhl and repeated herself numerous times. Concerned, Gruhl permitted Respondent to leave campus after observing that her husband was driving her. He did not seek to send her for drug or alcohol testing, as provided in school board rules.
Respondent testified that she had “just one” vodka and grapefruit drink at lunch earlier that day. She denied that Gruhl’s observations were accurate, but also alleged that she was on a prescription medication, Cymbalta, and stated that it caused her to be increasingly emotional and somewhat dizzy. However, she testified that she was completely unaware that combining the medication with alcoholic beverages would have an adverse effect on her. Respondent’s testimony in this regard is not credible.
Gruhl’s observations of Respondent’s behavior on August 14, 2009, were incorporated into the OPS investigation.
Horne interviewed Respondent on August 20, 2009, regarding the allegations made prior to the trip and the allegations made concerning her behavior on the EF trip.
On September 1, 2009, the results of the OPS investigation was presented within the chain-of-command, who recommended to Superintendant Tim McGonegal that Respondent’s employment be terminated.
The Superintendant concurred with their recommendation, and on September 21, 2009, the Superintendant notified Respondent that he intended to seek termination of her employment, or, should she request an administrative hearing, suspension without pay pending the outcome of that hearing. Respondent requested an administrative hearing. At their
meeting on October 13, 2009, the School Board suspended Respondent without pay.
While on unpaid suspension, Respondent had no duties, was not required to report to anyone, and was not limited in her ability to travel. However, she was still a School District employee.
On December 7, 2009, while on suspension without pay, Respondent returned by car to the BCMS campus while school was in session to check her son out early for a doctor’s appointment. Aware that she was under investigation for excessive drinking, Respondent admitted that she nonetheless had a drink at lunchtime before going to pick up her son from school around 2 p.m. While on campus, Respondent’s eyes were glassy, she smelled of alcohol, and she was unkempt, which was out of keeping with her usual appearance.
When Gruhl learned of the incident on December 7, 2009, he recommended to the Superintendant that Johnson not be permitted to return to the BCMS campus
On December 7, 2009, the OPS opened an addendum investigatory file on Respondent concerning the events of December 7, 2009. The addendum OPS investigation alleged that, on December 7, 2009, Johnson entered the BCMS campus while under the influence of alcohol.
The testimony of Horne, Keefer, Vieira, Hosier and Gruhl is credible. Respondent’s testimony is found to be unreliable.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the parties and the subject matter of these proceedings, pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2009).1
The Superintendent of the District has the authority to recommend to the School Board that educational support employees be suspended and/or dismissed from employment.
§ 1012.27, Fla. Stat. The School Board of Manatee County has the authority to terminate and/or suspend without pay educational support employees. § 1012.22(1)(f), Fla. Stat.
The statute and rules which provide grounds for termination of Respondent's employment are penal in nature; therefore they must be construed in favor of the employee. Rosario v. Burke, 605 So. 2d 523, 524 (Fla. 2d DCA 1992).
The burden of proof applicable to this proceeding is preponderance of the evidence. McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Dileo v.
School Board of Dade County, 569 So. 2d 883 (Fla. 3rd DCA 1990). A “preponderance of the evidence” is the “greater weight of the evidence,” or evidence that more likely than not tends to prove
a certain proposition. Gross v. Lyons, 763 So. 2d 276, 280 n.1 (Fla. 2000).
Respondent is subject to Section 6.11(1) of the Policies and Procedures Manual of the School Board of Manatee County, Florida, which provides:
Any employee of the School Board may be temporarily suspended, with or without pay, or permanently terminated from employment, for just cause including, but not limited to, immorality, misconduct in office, incompetence, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude, violation of the Policies and Procedures Manual of the School District of Manatee County, violation of any applicable Florida Statute, violation of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida.
Petitioner has the burden of establishing just cause by a preponderance of the evidence. McNeill v. Pinellas County School Board, supra.
The petition sets forth the specific conduct and violations upon which Respondent's proposed discipline is based. Respondent cannot be disciplined for conduct or violations that are not set out in the Petition. Respondent is entitled to fair notice and an opportunity to be heard on each of the charges against her. Pilla v. School Board of Dade County, Florida, 655 So. 2d 1312, 1315 (Fla. 3d DCA 1995); Florida State University v. Tucker, 440 So. 2d 37, 38 (Fla. 1st DCA 1983).
Respondent is a senior school secretary. Secretaries are defined as "educational support employees" in Subsections 1012.40(1)(a) and 1012.01(6)(c), Florida Statutes.
As a senior school secretary acting as a close assistant to the principal, Respondent is further classified as a “confidential employee,” defined in Subsection 447.203(5), Florida Statutes. Confidential employees are specifically exempted from Subsection 1012.40(1)(a), Florida Statutes. Accordingly, that section does not apply to Respondent. The section of the Florida Education Code which defines Respondent’s job is Subsection 1012.01(6)(c), Florida Statutes.
Prior cases before DOAH involving school boards have held that the boards can construe by implication, regulations applicable on their faces to instructional personnel, to apply to educational support employees. Those holdings were based on a finding that the employees in question were educational support employees defined in Subsection 1012.40(1)(a), Florida Statutes. Lee County Board vs Strawder, Case No. 08-5085 (DOAH April 13, 2009) (adopted in toto) (educational support employee held to standards applicable to instructional personnel “to the extent they are applicable.”) See also Lee County School Board v. Balogh, Case No. 07-5130 (DOAH March 18, 2008) (adopted in toto) (bus operator); Lee County School Board v. Denson,
Case No. 06-4995 (DOAH April 18, 2007) (adopted in toto) (lawn maintenance worker).
The rationale for those holdings is that Subsection 1012.40(1)(a), Florida Statutes, includes in the definition of “educational support employee,” two classes of non-certified instructional personnel (teacher assistant, and education paraprofessional) arguably justifying the extension of “instructional personnel” regulations to “educational support employees” of all job descriptions contained in Subsection 1012.40(1)(a), Florida Statutes.
In addition to Respondent’s being exempt from Subsection 1012.40(1)(a), Florida Statutes, the definition of educational support employee in Subsection 1012.40(1)(a), Florida Statutes, applies only to that section. It is not applicable across the entirety of Chapter 1012, or any regulations applicable thereto.
To the contrary, however, the definitions in Subsection 1012.01(6)(c), Florida Statutes, apply to the entire chapter, and to Respondent.
The maxim expressio unius est exclusio alterius
prohibits applying the definition of an educational support employee found in Section 1012.40(1)(a), Florida Statutes, to any other statute in Chapter 1012, Florida Statutes, by analogy or otherwise. The law clearly requires that the legislative
intent be determined primarily from the language of the statute because a statute is to be taken, construed and applied in the form enacted. The reason for this rule is that the Legislature must be assumed to know the meaning of words and to have expressed its intent by the use of the words found in the statute. Thayer v. State, 335 So. 2d 815, 817 (Fla. 1976).
Unlike the definitions in Subsection 1012.40(1)(a), Florida Statutes, the definition of “educational support employee” in Subsection 1012.01(6)(c), Florida Statutes, includes no instructional personnel, certified or non-certified. The non-certified instructional jobs referenced in Subsection 1012.40(1)(a), Florida Statutes, are included in Subsection 1012.01(2)(e), Florida Statutes, a sub-section distinct from the definition of educational support employees in Subsection 1012.01(6)(c), Florida Statutes. Accordingly, the rationale advanced in the cases cited above does not apply to Respondent in this case.
Accordingly, any statute, regulation or rule that by its terms applies to instructional personnel does not apply to Respondent.
In the Amended Complaint, paragraphs 11, 14 and 18 allege violations of Florida Administrative Code Rule 6B-4.009. This regulation states in part:
The basis for charges upon which dismissal action against instructional personnel may be pursued are set forth in Section 231.36, Florida Statutes. The basis for each of such charges is hereby defined: . . . .
This section defines the criteria for dismissal set forth in Section 231.36, [now § 1012.33] Florida Statutes. Respondent cannot violate this rule as it merely contains definitions. See Lamar of Tallahassee v. DOT, DOAH Case Nos. 08-1136 and 1137 (July 16, 2008) (adopted in toto) (a statute that lists definitions cannot be violated). In addition, it applies by its terms to instructional personnel. Therefore, as stated above, this regulation cannot be extended to apply to Respondent.
Petitioner has not shown by a preponderance of the evidence that Respondent is instructional personnel subject to this rule, and has failed to meet its burden as to paragraphs 11, 14 and 18 of the Amended Complaint.
Amended Complaint paragraphs 12 and 17 allege violations of Florida Administrative Code Rule 6B-1.006. This regulation states in part:
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.
“Educator” is not defined in the Florida Administrative Code or statutes, although its context throughout the Florida Education Code and the Florida Administrative Code clearly implies a certified teacher.
Petitioner introduced no evidence that Respondent is a member of the education profession or has an educator’s certificate. Thus, Petitioner has not shown by a preponderance of the evidence that this section applies to Respondent and has failed to meet its burden as to paragraphs 12 and 17 of the Amended Complaint.
Moreover, the penalty for violation of this section is revocation or suspension of the individual’s educator’s certificate. Termination from employment is not an authorized penalty. Because she is not instructional personnel, Respondent has no educator’s certificate to revoke.
Amended Complaint paragraphs 13 and 15 allege violations of Florida Administrative Code Rule 6B-1.001. This regulation states:
The educator’s primary professional concern will always be for the student and for the development of the student’s potential. The educator will therefore strive for professional growth and will seek to exercise the best professional judgment and integrity.
Petitioner introduced no evidence that Respondent is an educator or that this section otherwise applies to her. Petitioner has not shown by a preponderance of the evidence that this section applies to Respondent and has failed to meet its burden as to paragraphs 13 and 15 of the Amended Complaint.
Amended Complaint paragraph 10 alleges Respondent’s actions constitute just cause under Manatee County School Board Policy 6.11, which states, in part:
Any employee of the School Board may be temporarily suspended, with or without pay, or permanently terminated from employment, for just cause including, but not limited to, immorality, misconduct in office, incompetence, gross insubordination, willful neglect of duty, drunkenness, or conviction of any crime involving moral turpitude, violation of the Policies and Procedures Manual of the School District of Manatee County, violation of any applicable Florida statute, violation of the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida.
Although Respondent argues that there is no allegation that Respondent violated this section, and that the terms “immorality, misconduct in office, incompetence, gross insubordination, willful neglect of duty, drunkenness,” are not defined in the policy, the contents of the Amended Complaint itself put Respondent on notice of the conduct to which she was expected to conform. In addition, these terms are not so vague and indefinite as to cause this allegation to be dismissed.
The policy states “drunkenness” is cause for discharge. Although it does not define drunkenness, the School Board can look to the Florida Administrative Code for guidance. Florida Administrative Code Rule 6B-4.009(5) defines, in pertinent part, drunkenness as “[t]hat condition which exists when an individual publicly is under the influence of alcoholic beverages or drugs to such an extent that his or her normal faculties are impaired.”
The testimony of the credible witnesses establishes that Respondent’s faculties were impaired both on the European trip and when she arrived at school on August 14, 2009 (and also on December 7, 2009) as she was observed stumbling, bumping into things, and having difficulty carrying on a coherent conversation.
Additionally, Respondent was drunk in front of both students and parents on the EF European trip, which undermined her authority in their eyes. And, although the trip to Europe was not strictly a school function, her conduct prior to departure made it appear to be a school endorsed trip, and Respondent had an obligation to conduct herself accordingly.
More seriously, after her return from the trip, Respondent arrived at school intoxicated on two separate occasions. On both occasions, Respondent was aware that she was under investigation and had been placed on administrative leave
from her position as Senior Secretary. In fact, on December 7, 2009, Johnson elected to drive onto campus while school was in session after she had been drinking earlier that day. This occurred while she was admittedly aware that the investigation into her actions concerned her excessive use of alcohol. This placed the safety of BCMS students, parents, faculty and staff in jeopardy.
In addition, Petitioner has established by a preponderance of evidence that Respondent violated Section 2.20 of the Policies and Procedures Manual of the School Board of Manatee County, Use of Alcohol, Mood-Modifying Substances and Tobacco Products in School Board Facilities, which provides that employees are expected to be free of the influence of, use of, possession, selling and dispensing of drugs and alcohol while on duty or while on School Board property. Respondent was in clear violation of this policy when she entered School Board property while under the influence of alcohol on August 14, 2009, and December 7, 2009.
A person serving in the position of senior secretary is essentially the gatekeeper to the principal of the school. She is often the first person that parents and students go through when trying to reach the principal and serves as his liaison to the BCMS community. By compromising her reputation with these parents and students, Respondent impaired her
effectiveness in the position. Additionally, the position is one of a confidential employee and the level of trust between a principal and the Senior Secretary is critical to effectiveness in the position. Here, Respondent’s actions impaired this relationship to the point that Principal Gruhl no longer trusted her. With this trust destroyed, it would have been impossible for Respondent to effectively perform the position of Senior Secretary.
Petitioner has established by a preponderance of evidence that Respondent engaged in immorality, as contemplated in Manatee County School Board Policy 6.11. Immorality is conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned into public disgrace or disrespect and impair the individual’s service to the community. Here, not only was Respondent’s conduct sufficiently notorious to bring her into disrespect and disgrace, there is testimony that she lost the respect of those who observed her excessive drinking and lost respect by attempting to interfere with the investigation.
Petitioner has established by a preponderance of evidence that Respondent violated School Board Policy 6.13(3)(a), which states that any employee who is the subject of an investigation shall not directly or indirectly contact,
intimidate, threaten, harass or retaliate against any witness or complaining person related to or associated with the investigation, or in any way interfere with an investigation.
Petitioner contacted at least three potential witnesses after she was aware that she was involved in an investigation. In her conversation with one of them, she attempted to persuade her that “nothing happened.” This attempt to coax a witness’s testimony presents a very real chance of interfering in the OPS investigation and is a violation of the policy.
Petitioner has established by a preponderance of evidence that Petitioner violated Manatee County School Board Policy 6.11, which requires that the individual shall not use institutional privileges for personal gain or advantage, by using school resources to promote the EF European trip, where through this promotion she received a free trip through the EF tour company.
Respondent’s violations collectively constitute just cause for her termination pursuant to Chapter 6.11 of the Policies and Procedures Manual of the School Board of Manatee County, Florida Statutes (2008).
Based on the foregoing proposed Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Manatee County School Board enter a final order that:
DONE AND ENTERED this 9th day of June, 2010, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 9th day of June, 2010.
1/ All statutory references are to Florida Statutes (2009), unless otherwise noted.
Richard G. Groff, Esquire 1506 Scarlet Oak Lane Bradenton, Florida 34209
Erin G. Jackson, Esquire
Thompson, Sizemore, Gonzalez & Hearing, P.A. Post Office Box 639
Brian C. Ussery, Esquire
Thompson, Sizemore, Gonzalez & Hearing, P.A.
Deborah K. Kearney, General Counsel Department of Education
Dr. Eric J. Smith Commissioner of Education Department of Education
Tim McGonegal, Superintendent Manatee County School Board Post Office Box 9069 Bradenton, Florida 34206-9069
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.
