STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MONIQUE VEAZEY,

Petitioner,

vs.

ESCAMBIA COUNTY SCHOOL BOARD,

Respondent.

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) Case No. 10-2339

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RECOMMENDED ORDER

An administrative hearing was conducted in this case on December 14, 2010, in Pensacola, Florida, before James H. Peterson, III, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: James M. Burns, Esquire

4501 Twin Oaks Drive Pensacola, Florida 32506

For Respondent: Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

Whether there is just cause to terminate the employment of the Petitioner as a teacher with the Escambia County School Board.

PRELIMINARY STATEMENT

By letter dated February 15, 2010, the Superintendent of Escambia County Schools notified Petitioner that he would recommend to the Escambia County School Board (School Board or Respondent) that Petitioner be terminated from her position as a classroom teacher effective February 17, 2010. The letter further advised Petitioner that the recommendation was based upon Petitioner's misconduct involving an inappropriate sexual relationship with a male student “in violation of State law, School District Code of Conduct and/or Code of Ethics for the Education Profession, Rules 6B-1.001 and 6B-1.006, [Florida Administrative Code].” The letter also informed Petitioner of her right to challenge or contest the decision of the School Board within 21 days of its decision on the Superintendent's recommendation.

Following her receipt of notice that the School Board had approved the Superintendent’s recommendation, Petitioner timely filed a request for an administrative hearing.1/ On April 23, 2010, counsel for the School Board forwarded Petitioner’s request to the Division of Administrative Hearings for the assignment of an administrative law judge to conduct an administrative hearing.

At the administrative hearing held on December 14, 2010, the School Board acknowledged that it had the burden in this

case to show by a preponderance of the evidence that there is just cause to justify the termination of Petitioner’s employment. The School Board presented the testimony of

Dr. Alan Scott, Assistant Superintendent for Human Resource Services, and submitted the following exhibits received into evidence without objection: Exhibit SB-1 (School Board letter dated February 15, 2010, notifying Petitioner that the Superintendent was recommending termination of her employment); Exhibit SB-2 (Letter from School Board advising Petitioner that the Superintendent’s recommendation had been approved); Exhibit SB-3 (Petitioner’s waiver of any claim for back pay); Exhibit SB-4 (Transcript of deposition of Investigator Ronald Ross with attached transcript of Petitioner’s taped interview); and Exhibit SB-5 (Copy of the Code of Ethics for the Education Profession). Petitioner did not call any witnesses or submit exhibits.

The proceedings were recorded and a Transcript was ordered. The parties were given 30 days from the filing of the Transcript within which to submit their Proposed Recommended Orders. The one-volume Transcript was filed on December 20, 2010, and the parties timely filed their respective Proposed Recommended Orders, which have been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all relevant times to these proceedings, Petitioner Monique Veazey has been employed by the School Board as a classroom teacher.

2. The School Board is responsible for the public education of students in grades K through 12 in Escambia County, Florida.

3. Following allegations that Petitioner had engaged in an inappropriate sexual relationship with a male student, on January 22, 2010, Escambia County Sheriff’s Office Investigator Ron Ross conducted a taped interview with Petitioner in the Dean’s office at Escambia High School.

4. Investigator Ross did not read Petitioner her Miranda Rights prior to conducting the interview. Neither Petitioner nor her counsel, however, objected to the introduction of evidence of Petitioner’s statements or admissions made during that interview. A transcript of the taped interview attached to the deposition of Investigator Ross was received into evidence in this proceeding without objection.

5. During the taped interview, Petitioner admitted to Investigator Ross that she had an inappropriate relationship with a male student that she taught in a reading class at Escambia High School. She described buying the student

   
   

   cigarettes and that, while on campus, they kissed and “made out.”

6. Although initially denying it, after being reassured by Investigator Ross that he would not arrest her and that it would be best for her if she would admit the allegation, Petitioner admitted that she performed oral sex on the student at a location away from school.

7. According to Petitioner, the oral sex act she performed on the male student occurred in the state of Alabama. There is no contrary evidence and Petitioner’s recollection of the incident is credited.

8. Pensacola, Florida, is located near the Alabama state line. The male student resided in Alabama but was authorized to attend Escambia High School in Escambia County, Florida.

9. The student, with whom Petitioner was involved, was enrolled in Petitioner’s reading class at Escambia High School and was either 15 or 16 years-of-age at the time.

10. As a result of Petitioner’s alleged conduct with the student, a civil liability claim is currently pending against the Escambia County School District (School District).

11. It is the School District’s policy and practice to terminate teachers who engage in a sexual relationship with a student. It is irrelevant to the School District’s policy and practice whether the sexual acts occurred in Florida or

    
    

    Alabama,2/or whether criminal charges are brought against the teacher.

12. While not seeking to suppress Petitioner’s statements or admissions made to Investigator Ross, at the final hearing, Petitioner’s counsel suggested that the credibility of Petitioner’s statements should be questioned considering the circumstances of Petitioner’s taped interview with Investigator Ross.

13. While Investigator Ross used some persuasion during the taped interview of Petitioner, considering the transcript of the interview, and the circumstances of the interview as more fully detailed in the deposition transcript of Investigator Ross admitted into evidence in this proceeding, it is found that Petitioner’s statements and admissions made during the taped interview are credible.3/ Those statements and admissions were not otherwise rebutted.

14. In sum, based upon the undisputed evidence, it is found that the School Board has demonstrated by a preponderance of the evidence that Petitioner engaged in an inappropriate sexual relationship with a 15 or 16-year-old student whom Petitioner taught in a reading class she was teaching as an employee for the School Board.

    
    

15. It is further found that Respondent’s actions violated School Board policy, subjected the School District to possible civil liability, and constituted a dismissal offense.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.4/

17. In this proceeding, the School Board seeks to terminate the Petitioner’s employment. The School Board bears the burden of proof, and the standard of proof is by preponderance of the evidence. See Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883 (Fla. 3d DCA 1990).

18. The lawful basis for dismissal of instructional personnel with the public schools of the State of Florida is set forth in section 1012.33(6), Florida Statutes, which provides that instructional staff may be terminated for “just cause”.

19. Section 1012.33(1)(a) provides in pertinent

    
    

    part:

    
    

    Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of

    
    

    adjudication of guilt, any crime involving moral turpitude.

20. Florida Administrative Code Rule 6B-4.009 recites criteria for dismissal of instructional personnel and provides at subparts (2) and (3):

    1. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace of disrespect and impair the individual’s service in the community.

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

21. Generally, “in order to dismiss a teacher for immoral conduct the factfinder must conclude: a) that the teacher engaged in conduct inconsistent with the standards of public conscience and good morals, and b) that the conduct was sufficiently notorious so as to disgrace the teaching profession and impair the teacher’s service in the community.” McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996).

22. It is not necessary, however, that there be specific testimony regarding impairment of the teacher’s effectiveness in

    
    

    the school system where impaired effectiveness in the school system can be inferred from the misconduct at issue. See Walker

    v. Highlands Cnty. Sch. Bd., 752 So. 2d 127 (Fla. 2d DCA 2000)(evidence of impaired effectiveness not necessary where misconduct “spoke for itself”).

23. In this case, there is no question that Petitioner’s misconduct was inconsistent with the standards of public conscience and good morals, or that it was sufficiently notorious to bring disgrace upon the teaching profession. Further, the manner in which Petitioner’s misconduct impaired her effectiveness as a teacher “speaks for itself.”

24. Florida Administrative Code Rule 6B-1.001(3), from the Code of Ethics of the Education Profession, provides that the educator must strive to achieve and sustain the highest degree of ethical conduct.

25. The Principles of Professional Conduct For the Education Profession in Florida found at rule 6B-1.006(3), recites the obligation of a teacher to protect the student from conditions harmful to learning or the student’s mental or physical health and safety, and provides that a teacher shall not exploit a relationship with the student for personal gain or advantage.

26. In addition to violating the School Board’s policy and practice as found in the Finding of Fact 15, above, considering

    
    

    the unrebutted evidence that Petitioner engaged in a sexual relationship with a 15 or 16-year-old student in light of the provisions of the rules recited above, it is concluded that Petitioner’s conduct violated Petitioner’s obligation to protect the student from harm and constituted exploitation of the student for Petitioner’s personal gain or advantage. See Fla.

    Admin. Code R. 6B-1.001(3) and 6B-1.006(3) (recited above).

    
    

27. It is further concluded that Petitioner’s actions constituted “just cause” for her termination as provided by Florida Law. See § 1012.33(1)(a) & (6), Fla. Stat., supra.

RECOMMENDATION

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

RECOMMENDED that the Escambia County School Board enter a Final Order terminating Petitioner from her employment with the School Board.

DONE AND ENTERED this 24th day of February, 2011, in Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2011.

ENDNOTES

1/ Although the School Board in its letter of transmittal of Petitioner’s request stated that Petitioner’s request for hearing was untimely, the School Board’s Proposed Recommended Order concedes that Petitioner timely requested a hearing.

2/ Consistent with the School Board’s policy and practice, pursuant to which it is irrelevant whether the sexual acts occurred in Florida or Alabama, Florida case law provides that proof of a teacher’s impaired effectiveness in the school system does not turn on whether the misconduct occurred on school grounds. Pervis v. Marion Cnty. Sch. Bd., 766 So. 2d 492 (Fla. 5th DCA 2000).

3/ The admissibility of Petitioner’s statements made during the taped interview is not at issue because at the final hearing, Petitioner’s counsel specifically allowed the statement to be admitted into evidence and, although given several opportunities during the final hearing to address the issue, did not ask for the statements to be suppressed. The Fifth Amendment privilege against self-incrimination is “not a self-executing mechanism;

it can be affirmatively waived or lost by not asserting it in a timely fashion.” Maness v. Meyers, 419 U.S. 449, 466 (1975).

4/ Unless otherwise indicated, all references to the Florida Statutes are to the 2010 version. All references to Florida Administrative Code are to their current, effective versions.

COPIES FURNISHED:

Joseph Hammons, Esquire The Hammons Law Firm, P.A.

17 West Cervantes Street Pensacola, Florida 32501

James M. Burns, Esquire 4502 Twin Oaks Drive Pensacola, Florida 32506

Malcolm Thomas, Superintendent

The School District of Escambia County

215 West Garden Street Pensacola, Florida 32502

Lois Tepper, Acting General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Dr. Eric J. Smith, Commissioner Department of Education Turlington Building, Suite 1514

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: 10-002339TTS

Orders for Case No: 10-002339TTS