STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DUVAL COUNTY SCHOOL BOARD,
Petitioner,
vs.
STEVEN MAKOWSKI,
Respondent.
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) Case No. 11-0638TTS
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RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on July 20, 2011, in Jacksonville, Florida, before Lawrence P. Stevenson, the designated Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: David J. D'Agata, Esquire
Office of the General Counsel
117 West Duval Street, Suite 480 Jacksonville, Florida 32202
For Respondent: David A. Hertz, Esquire
Duval Teachers United 1601 Atlantic Boulevard
Jacksonville, Florida 32207 STATEMENT OF THE ISSUE
The issue is whether Petitioner, the Duval County School Board, may terminate Respondent's employment as an instructional employee based upon the conduct alleged in the letter titled "Notice of Termination of Employment Contract and Immediate
Suspension Without Pay" (the "Notice") from Superintendent of Schools Ed Pratt-Dannals to Respondent dated January 28, 2011.
PRELIMINARY STATEMENT
On or about January 28, 2011, Respondent Steven Makowski received a copy of the Notice, which set forth the following charge and factual allegations in support thereof:
CHARGE I: Violation of regulations relating to the public school system, those violations being:
Code of Ethics:
Florida Statutes:
[1012.795(1)(g)][1/]-- Upon investigation has been found guilty of personal conduct that seriously reduces that person's effectiveness as an employee of the district school board.
Duval School Board Policy:
SUMMARY OF NATURE AND SPECIFICATION OF CHARGE:
From August 23, 2010, through August 31, 2010, the Duval County Public Schools' IT Department received alerts on the District software filters that your District-issued computer was being used to conduct inappropriate website searches during work hours on school property. The searches were of a sexual nature including adult pornography.
The Notice informed Mr. Makowski of his right to a formal hearing to contest the factual allegations recited in the Notice, and, should he invoke his right to a formal hearing, that the Duval County School Board (the "School Board") would act to suspend him from employment without pay as of February 2, 2011, pursuant to section 1012.33, Florida Statutes. On
January 31, 2011, Mr. Makowski timely invoked his right to a formal hearing via an email from his counsel to Vicki Reynolds, the School Board's chief human resources officer.
On February 8, 2011, 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. The matter was scheduled for final hearing on May 19, 2011. The case was continued once before the final hearing was held on July 20, 2011.
At the hearing, the School Board presented the testimony of James Culbert, the School Board's information security manager;
John McCallum, an investigator in the School Board's Professional Standards Office; Ms. Reynolds; and Mr. Makowski. The School Board's Exhibits 1 through 14 were admitted into evidence without objection. Respondent presented no direct testimony on his own behalf and called no witnesses. Respondent offered no exhibits into evidence.
The one-volume Transcript of the hearing was filed at DOAH on August 8, 2011. Petitioner's motion to extend the time for filing proposed recommended orders was granted on August 5, 2011. In compliance with the order granting extension, Petitioner filed its Proposed Recommended Order on August 24, 2011. Respondent's Proposed Recommended Order was filed in compliance with the order granting extension on August 25, 2011.
FINDINGS OF FACT
Respondent Steven Makowski has been employed by the School Board as a speech therapist since September 2008. He had previously been employed by the School Board from 2002 until January 2008, when he resigned to relocate to Broward County. Mr. Makowski is a certified instructional employee covered by the Duval County Teacher Tenure Act, Chapter 21197, Laws of Florida (1941), as amended ("Tenure Act") and the Collective Bargaining Agreement ("CBA") between Duval Teachers United and the School Board for 2009-2012. At the time of the events at issue in this proceeding, Mr. Makowski was an itinerant speech
therapist assigned to Chaffee Trail Elementary School and Dinsmore Elementary School.
James Culbert is the information security manager for the School Board. His department operates the School Board's Internet content filter, which monitors the entire school district's internet access according to the IP addresses of individual users. The content filter separates the internet content into 180 separate content categories.
Every Monday morning, the content filter generates a report that Mr. Culbert scans for activity in violation of the School Board's "Staff Network and Internet Acceptable Use and Security Policy and Guidelines," commonly referred to as the "Acceptable Use Policy." Pursuant to direction from the School Board, Mr. Culbert looks for activity in three of the 180 content categories: pornographic materials; "R-rated" sexual materials; and "obscene and tasteless" materials.2/ Mr. Culbert emphasized that he searches for a large number of hits on forbidden sites, not merely a one-time hit that could be accidental.
The report of Monday, August 30, 2010, showed that Mr. Makowski had used his employer-issued laptop computer to access or attempt to access a large number of inappropriate web sites over the past week. This finding caused Mr. Culbert to run a more detailed history of Mr. Makowski's internet use.
Mr. Culbert found that Mr. Makowski had conducted many internet searches using terms such as "boners in public," "casual erection," "hard on," "male anal intercourse," and "penis size," as well as searches for nude photos of various celebrities. These searches led to the display of web sites containing photos and videos ranging from fully clothed men on a fashion runway, to shirtless male celebrities, to nude men displaying erect penises or buttocks in full close-up. None of the photos depicted sex acts or approached the legal definition of obscenity, nor did they involve children.3/
After reviewing the history and satisfying himself that Mr. Makowski's internet searches were not accidental,
Mr. Culbert contacted John McCallum, an investigator with the School Board's Office of Professional Standards.
On the morning of August 31, 2010, Mr. McCallum and Mr. Culbert drove to Dinsmore Elementary School to interview
Mr. Makowski about the internet filter report. Mr. Makowski was at the school but was not yet conducting classes because he was still setting the schedule for his speech therapy sessions with Dinsmore students.
Upon arriving at the school, Mr. McCallum and
Mr. Culbert first met with Dinsmore principal Christina Gribben. Mr. McCallum asked Ms. Gribben about Mr. Makowski's job performance. Ms. Gribben made positive comments, particularly
regarding Mr. Makowski's initiative in performing his own duties and in assisting other employees at the school. Mr. McCallum explained to Ms. Gribben why he was there, but refrained from giving her graphic details of the internet filter report.
Mr. McCallum requested that Ms. Gribben accompany
Mr. Culbert to Mr. Makowski's classroom to quietly ask him down to the principal's office for a meeting. At the hearing,
Mr. McCallum stressed that his concern is to avoid embarrassing or humiliating the teacher in these situations by causing a disruption in the hallway or creating a scene that resembles a "perp walk."
Mr. Makowski came to the principal's office.
Ms. Gribben did not attend the meeting. After introductions were made, Mr. Culbert asked Mr. Makowski about his Internet usage. He asked first about innocuous searches found on the filter report, such as "Bank of America" and "Emmy awards." Mr. Makowski agreed that he had made those searches.
Mr. Culbert then began to question Mr. Makowski about his inappropriate searches.
Mr. Makowski denied knowing anything about the inappropriate searches. He stated that he kept his user name and password on a Post-it note in his computer case, and that someone else must have used his laptop to make those searches.
Mr. McCallum explained that this could not be the case because the searches to which Mr. Makowski had admitted were intermingled with the inappropriate searches. It was very unlikely that Mr. Makowski was looking at the Emmy awards site one minute, and the next minute someone else was looking at an inappropriate site on the same laptop.
Mr. McCallum urged Mr. Makowski to be honest.
Mr. Makowski declined to say anything further and asked to speak to his union representative. Mr. McCallum suggested that a lawyer would be more help at that point than a union representative. Mr. McCallum gave Mr. Makowski the name and phone number of Duval Teachers United's general counsel. He told Mr. Makowski that he and Mr. Culbert were not law enforcement officers and this was not a police investigation.
Mr. Makowski nonetheless declined to answer any further questions. Mr. McCallum decided not to press the matter. The meeting ended after about fifteen minutes.
Mr. Makowski surrendered his laptop computer to
Mr. Culbert, who later used EnCase forensic software to create an image of the laptop's hard drive and from that create a 41- page report containing a representative snapshot of the inappropriate material found on Mr. Makowski's laptop. The report covered the period from August 23 through August 30, 2010. In addition to the photos and videos4/ described in
Finding of Fact 5, supra, the report contained numerous pages from Craigslist in which men in the Jacksonville area solicited sex with other men. Many of the listings included nude photos, presumably of the authors of the solicitations. The report also contained recovered fragments of emails in which Mr. Makowski appeared to be arranging meetings with other men for the express purpose of engaging in sexual activity. None of the emails appeared to have been sent during school hours.
On September 27, 2010, Mr. McCallum submitted his investigative report to John Williams, who was then the director of the Office of Professional Standards. In his report,
Mr. McCallum concluded that Mr. Makowski had used his computer to conduct inappropriate website searches of a sexual nature. Mr. McCallum expressly noted that "none of these sites displayed children nor were the search terms used related to children.
All of the sites were adult oriented." Mr. McCallum further noted that the timeframe of the improper searches was confined to the first ten days of the 2010-2011 school year, and that Mr. Makowski had never before been detected by the School Board's filtering software as engaging in inappropriate internet searches.
Mr. McCallum's report concluded as follows:
On Monday, September 20, 2010, after
Mr. Culbert concluded his report, the report was reviewed by HR Chief Vicki Reynolds,
Director John Williams, Culbert and McCallum. It was determined that his use of the DCPS Network and Laptop computer was inappropriate and a serious exercise of poor judgment, a violation of DCPS Policy regarding the Computer Acceptable Use Policy as well as the 2000 Federal Children's Online Privacy Protection Act.
The Principals of both schools were contacted. Both Ms. Gribben and [Beverly Walker, principal of Chaffee Trail Elementary] agreed that students had not been assigned to Makowski during the times these sites were accessed. They both spoke highly of his attitude; Ms. Walker cited him for his helpful attitude and volunteering to help during the morning student arrival process. This reinforces the finding of this investigation that elementary students were neither targeted in his searches nor exposed to them in the school setting.
Based upon the foregoing, it was determined that there was substantial evidence to sustain the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students against Steven J. Makowski for his role in this incident.
The Professional Standards Office sustains the charges of the exercise of poor judgment and inappropriate Web-Site Access by accessing pornography and/or sexually explicit material not appropriate for students.
Steven J. Makowski will receive Step III Progressive Discipline from the Office of Professional Standards as a result of these charges.
"Step III Progressive Discipline" under the CBA is suspension without pay. Despite the definitive nature of the
disciplinary statement in Mr. McCallum's report, the evidence established that in a case involving suspension without pay or termination of an employee, the Office of Professional Standards makes only a recommendation to the School Board, which makes the final decision. Mr. McCallum and Ms. Reynolds testified that their recommendation to the School Board was that Mr. Makowski should receive a ten-day suspension without pay.
Ms. Reynolds testified that she appeared at a School Board workshop prior to the formal meeting at which the recommendation would be considered. Ms. Reynolds stated that each of the seven School Board members voiced objections to the leniency of the recommendation. She characterized the members as "reading me the riot act for not taking this more seriously." After the workshop, Superintendant Ed Pratt-Dannals issued the Notice that is at issue in this proceeding.5/
At the hearing, Mr. McCallum testified that he had not reviewed Mr. Culbert's full report at the time he recommended a suspension for Mr. Makowski, hinting that he might have recommended termination had he fully reviewed the report.
Mr. McCallum conceded that the full report was available to him and was in fact attached to his own investigative report. He offered no explanation for his failure to review Mr. Culbert's report in full prior to completing his own investigative memorandum.
Ms. Reynolds testified that prior to making her recommendation she had only seen excerpts of Mr. Culbert's report selected by Mr. McCallum and Mr. Culbert to give her a feel for the subject at hand. She testified that if she had seen the entire report including the email fragments, she would have recommended termination.
Ms. Reynolds believed that Mr. Makowski's behavior had crossed the line into "gross immorality" because he was performing inappropriate internet searches in a place where there were small children. She believed that if Mr. Makowski had made these internet searches "on his own time in his own home, this may not be gross immorality."
During a deposition that was admitted into evidence at the hearing, Mr. Makowski admitted that he lied during the meeting with Mr. McCallum and Mr. Culbert when he denied having made the inappropriate searches. He attributed his lack of candor to "shock" at being suddenly confronted with evidence of his own "bad judgment."
Mr. McCallum, who had approximately 35 years' experience as a police officer and detective prior to joining the Office of Professional Standards in January 2009, testified that it is "more the rule than the exception" for a person in Mr. Makowski's position to initially deny any wrongdoing.
At the hearing, Mr. Makowski conceded that he made the Internet searches in question, that the searches were made using his School Board laptop computer, and that the searches were made during regular working hours on days when Mr. Makowski was present at one of the two schools to which he was assigned.
Mr. Makowski admitted that he has used Craigslist to find men with whom to engage in sexual relations, but he credibly denied having done so at work. There was no proof that Mr. Makowski originated any of the Craigslist postings in
Mr. Culbert's report. Mr. Makowski was merely browsing these very explicit solicitations, and conceded that he should not have been doing so on school grounds during school hours with equipment issued by the School Board.
At the hearing, the School Board was able to establish the negative proposition that Mr. Makowski at times did not know whether the men he was observing on YouTube and Craigslist were under 18 years of age; however, the School Board did not establish that Mr. Makowski was seeking out images of minor children. Mr. Makowski credibly denied any such intention.
No children were present when Mr. Makowski performed these inappropriate searches, and no children saw anything improper on Mr. Makowski's computer.
Ms. Reynolds testified that the allegations against Mr. Makowski resulted in an article in the local newspaper. The
article was not produced at the hearing. Therefore, it is not possible to make findings as to its impact.
Ms. Reynolds testified that she was approached by one mother who was concerned that Mr. Makowski was still at the school attended by her son. Ms. Reynolds did not know whether other parents had contacted the schools to which Mr. Makowski was assigned.
Mr. Makowski has not been subject to discipline by the School Board prior to this case.
In a two-count Administrative Complaint dated May 11, 2011, the Education Practices Commission ("EPC") initiated a disciplinary proceeding, Case No. 101-1344, against Mr. Makowski based on the same events at issue in this case. On June 9, 2011, Mr. Makowski executed a settlement agreement with the EPC in which he agreed to accept a letter of reprimand and a two- year probation period during the first year of which he would take a college level course in ethics. He neither admitted nor denied the allegations of the Administrative Complaint. As of the date of the hearing, the EPC had yet to ratify the settlement agreement.
The evidence established that Mr. Makowski used his District-issued computer to conduct inappropriate website searches during work hours on school property, and that these searches were of a sexual nature.
However, the evidence also established: that this is Mr. Makowski's first offense of any kind; that he appeared to be a valued employee at both schools to which he was assigned; that his inappropriate Internet activity was confined to a single
ten-day period at the beginning of the 2010-2011 school year; that no children were exposed in any way to the contents of Mr. Makowski's internet searches; that Mr. Makowski presents no danger to the children placed in his care; that it is extremely unlikely that Mr. Makowski will ever repeat the extremely bad
judgment he used in the events that led to this proceeding; and that, pursuant to the Notice, Mr. Makowski has been suspended without pay since February 2, 2011.
In light of these considerations, it is recommended that the School Board exercise its discretion to approve a lesser penalty than the proposed termination, and impose a suspension without pay covering the period from February 2, 2011 through the date of the Final Order in this case.
CONCLUSIONS OF LAW
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 1012.33(6)(a), Florida Statutes.6/
The School Board has the burden to establish by a preponderance of the evidence the grounds for disciplining
Mr. Makowski. See, e.g., McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Sublett v. Sumter Cnty.
Sch. Bd., 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995); Allen v.
Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990); Dileo v. Sch. Bd. of Dade Cnty., 569 So. 2d 883, 884 (Fla. 3d DCA 1990).
Under the Tenure Act, Mr. Makowski is a tenured teacher whose employment can be terminated only for "cause." Section 4 of the Tenure Act provides that causes for the discharge of a teacher include "immoral character or conduct, insubordination or physical or mental incapacity to perform the duties of the employment" and "persistent violation of or willful refusal to obey the laws of the State of Florida or regulations adopted by authority of law, relating to the public schools or the public school system."
Mr. Makowski is an instructional employee as defined by subsection 1012.01(2), Florida Statutes. The School Board has the authority to suspend or terminate instructional employees pursuant to subsections 1012.22(1)(f) and 1012.33(6)(a), Florida Statutes.
In the Notice, the School Board correctly stated that Mr. Makowski's suspension without pay and his right to subsequent hearing were pursuant to section 1012.33, Florida Statutes. However, in the substantive allegations, the School
Board charged Mr. Makowski with violations of section 1012.795(1)(d),(g), and (j), Florida Statutes. Section 1012.795(1) provides as follows, in relevant part:
The Education Practices Commission may suspend the educator certificate of any person as defined in section 1012.01(2) or
(3) for up to 5 years, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for that period of time, after which the holder may return to teaching as provided in subsection (4); may revoke the educator certificate of any person, thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students for up to 10 years, with reinstatement subject to the provisions of subsection (4); may revoke permanently the educator certificate of any person thereby denying that person the right to teach or otherwise be employed by a district school board or public school in any capacity requiring direct contact with students; may suspend the educator certificate, upon an order of the court or notice by the Department of Revenue relating to the payment of child support; or may impose any other penalty provided by law, if the person:
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(d) Has been guilty of gross immorality or an act involving moral turpitude as defined by rule of the State Board of Education.
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(g) Upon investigation, has been found guilty of personal conduct that seriously reduces that person's effectiveness as an employee of the district school board.
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(j) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules....
By its terms, section 1012.795 authorizes the EPC to take disciplinary action against an educator's certificate. It confers no disciplinary authority to local school boards. Therefore, the School Board erroneously charged Mr. Makowski with violations of section 1012.795, a statute that the School Board is without authority to enforce. However, the School Board's allegations are cognizable under section 1012.33, Florida Statutes, as discussed below.
The standard for termination of instructional personnel is "just cause," pursuant to subsection 1012.33(1)(a), Florida Statutes.7/ In the Notice, the School Board correctly cited section 1012.33 as its authority for suspending
Mr. Makowski pending an administrative hearing, and as authority for the hearing itself.
Subsection 1012.33(1)(a), Florida Statutes, 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, two consecutive annual performance evaluation ratings of unsatisfactory under section 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under
section 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under section 1012.34, 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.
The School Board in this case has not cited a specific aspect of the statutory "just cause" definition as the basis for Mr. Makowski's termination. However, the facts alleged in the Notice would, if proven, amount to "immorality" and/or "misconduct in office" constituting just cause to terminate his employment or impose some lesser penalty.
Florida Administrative Code Rule 6B-4.009(2) provides:
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 or disrespect and impair the individual's service in the community.
Florida Administrative Code Rule 6B-4.009(3) provides:
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.
By the definition quoted above, "immorality" consists of conduct "sufficiently notorious" to "impair the individual's
service in the community." "Misconduct in office" consists of a violation "so serious as to impair the individual's effectiveness in the school system." Impairment may be established by direct evidence or may be inferred from the nature of the violation itself. Purvis v. Marion Cnty. Sch.
Bd., 766 So. 2d 492, 498 (Fla. 5th DCA 2000).
The evidence established that Mr. Makowski used his District-issued computer to conduct inappropriate website searches during work hours on school property, and that these searches were of a sexual nature. The images introduced into evidence at the hearing were highly inappropriate in a school setting. None of them was "obscene" under current legal standards,8/ but many could be termed pornographic. The very nature of Mr. Makowski's actions-- searching for pornographic images while he sat in the classroom of an elementary school-- show such a failure of good judgment as to permit the inference that his effectiveness in the school system and his service in the community have been impaired.
To magnify this point, counsel for the School Board cites Miami-Dade Cty. Sch. Bd. v. Epstein, Case No. 03-4041 (DOAH May 26, 2004; Miami-Dade Sch. Bd. July 19, 2004) as authority for the proposition that downloading pornography to a district-owned computer during work hours so impairs the individual's effectiveness as to require his dismissal.
However, in Epstein, the teacher in question had been downloading pornography (including explicit images of women performing oral sex on men) on his school computer for a period of seven months, had intentionally bypassed the school district's internet filter to access pornographic web sites, had stored the pornographic images in folders on his computer, and on fifteen to twenty occasions had masturbated in his classroom during work hours. None of these factors was present in
Mr. Makowski's case.
Smith v. Weiss, Case No. 08-3476 (DOAH Nov. 14, 2008; EPC Apr. 6, 2009), an EPC licensure case, is also distinguishable. In Weiss, the teacher was using his school computer to view pornographic websites when he knew that students were likely to use his computer, and then attempted to blame the students for accessing the pornographic websites.
Mr. Makowski took no actions that threatened to expose children to the images on his computer. In the first flush of discovery, he attempted to deny responsibility, but then owned up to his actions.
Counsel for the School Board also cites Orange County
Sch. Bd. v. Deshay, Case No. 08-1596 (DOAH Dec. 19, 2008) as authority that the mere downloading of pictures of "scantily clad women" and "female modeling photos" supports dismissal. In fact, the Administrative Law Judge in Deshay did not recommend
dismissal but the lesser penalty of upholding the suspension to date and requiring training concerning professionalism and the proper use of school property. Such a penalty would be appropriate for Mr. Makowski.
The School Board specifically charged Mr. Makowski with violating Florida Administrative Code Rule 6B-1.001(3), which provides:
Aware of the importance of maintaining the respect and confidence of one's colleagues, of students, of parents, and of other members of the community, the educator strives to achieve and sustain the highest degree of ethical conduct.
While Mr. Makowski's actions met the definitions of "immorality" and "misconduct in office," the undersigned does not conclude that they were "unethical" in the sense of affecting the professionalism with which Mr. Makowski approaches the substance of his duties as a speech therapist and a School Board employee. Both principals who worked with Mr. Makowski spoke highly of him as an employee.
Finally, there is no question that Mr. Makowski's conduct violated the School Board's Acceptable Use Policy, which provides in relevant part:
There are various forms of electronic communications available on computer networks, including the Internet. All
computers, networks, electronic mail and voice mail are to be used for district business and educational purposes.
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Access to the Internet provides opportunities for staff and students to explore thousands of resources outside the walls of their school or office. The district acknowledges the fact that inappropriate materials exist and will do everything it can to actively avoid them, including the use of filtering software.
The district has implemented technology protection measures that filter Internet access to block visual displays that are obscene, pornographic or harmful to minors, but this technology is not 100% effective. No software can filter out all of the materials that are unacceptable for academic purposes and it should be clearly understood by all staff and all students and their parents/guardians that intentional access to such material, in any form, is strictly forbidden. The network is designed to achieve and support the district’s business and instructional goals and any information that does not support the goals is to be avoided. The district wants staff and students to use this valuable tool, but at the same time cannot condone the use of inappropriate information or unauthorized access.
If a staff or student unintentionally accesses such information while doing legitimate research, he/she should contact the teacher or the person responsible for technology at his/her site for appropriate action.
It is the responsibility of all users, staff and students to ensure that at all times while in the Duval County Public Schools,
the computers, the network and the Internet are being used primarily for educational or district business purposes.
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Staff members are responsible for appropriate behavior on the district's computers, business systems, network and the Internet and should adhere to all relevant federal, state, and local laws; district policies, guidelines, standards, procedures and controls; and the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida. Users who disregard the federal, state and local laws and codes, district policies, guidelines, standards, procedures and controls may have their privileges suspended, revoked, and disciplinary action taken against them, including termination. Users granted access to the network through the district's computer systems assume personal responsibility and liability, both civil and criminal, for uses of the network not authorized by this policy and the district’s guidelines. Employees should only use the information from business systems or the network in the performance of their duties/responsibilities with the school system. Information should not be shared with any other person in or out of the school system unless that is a direct responsibility of the employee.
The district does not sanction any use of its computer systems or the Internet that is not authorized by or conducted strictly in compliance with this policy and the district's guidelines, standards, procedures and controls. Users who disregard this policy and the district's guidelines, standards, procedures and controls may have his/her privileges suspended or revoked and disciplinary action taken against them.
Users granted access to the network through the district's computers assume personal responsibility and liability, both civil and criminal, for uses of the network not authorized by this policy and the district’s guidelines, standards, procedures and controls.
The district retains the right to remove from its information systems any material it views as offensive or potentially illegal.
The district declares unethical and unacceptable behavior as just cause for disciplinary action, the revocation of network access privileges, termination and/or the initiation of legal action for any activity through which an individual:
uses the district's computers and/or network for illegal, inappropriate, or obscene purposes, or in support of such activities.
Illegal activities shall be defined as a violation of local, state and/or federal laws. Inappropriate use shall be defined as a violation of the intended educational use of the network.
Obscene activities shall be defined as a violation of generally accepted social standards for use of a publicly owned and operated communication vehicle. . . . (Emphasis added).
In summary, the School Board has met its burden of establishing, by a preponderance of the evidence, that
Mr. Makowski is guilty of immorality, misconduct in office, and violation of the School Board's Acceptable Use Policy. However, the extent of Mr. Makowski's misconduct and its impact on his
effectiveness as a teacher, in light of the many extenuating factors present in his case, does not warrant dismissal.
Based on the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the School Board enter a final order finding Respondent guilty of immorality and misconduct in office and imposing the following sanctions: uphold Respondent's suspension from February 2, 2011 through the date of the final order, and require Respondent to complete remedial training concerning professionalism and the proper use of school property.
DONE AND ENTERED this 21st day of November, 2011, 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 21st day of November, 2011.
ENDNOTES
1/ The Notice actually referenced "1012.795(g)" and "1012.795(j)," which do not exist. However, the Notice correctly quoted subsections (1)(g) and (1)(j), leaving no doubt as to the statutes under which Mr. Makowski was being charged.
However, as more fully discussed in the Conclusions of Law below, section 1012.795, Florida Statutes, sets forth the criteria by which the Education Practices Commission may discipline an individual's educator's certificate. Its provisions grant no authority to local school boards to discipline teachers.
2/ Mr. Culbert also referenced a possible fourth category, child pornography. However, it was unclear from the testimony whether this constituted a stand-alone category or was subsumed within the general category of pornography. In any event, there was no evidence that Mr. Makowski accessed materials involving persons under the age of 18.
3/ A few of the photos were of young men who may or may not have been less than 18 years old. However, the School Board presented no evidence that Mr. Makowski was intentionally seeking images of minors.
4/ The report contained still screenshots of YouTube videos, including shirtless male celebrities, rugby players losing their pants, and medical examinations of male genitalia. Mr. Makowski could not recall whether he actually watched any of the YouTube videos in the report.
5/ At some point prior to issuance of the Notice, the recommendation changed from a ten day suspension to a thirty-day suspension without pay, to which Mr. Makowski informally agreed. However, neither of the suspension options was ever officially placed before the School Board for a vote.
6/ Unless otherwise indicated, references to the Florida Statutes are to the 2011 edition.
7/ The CBA, excepts of which were entered as the School Board's Exhibit 14, provides at Article V. C. that employees may be "suspended without pay only for just cause and only by action of the School Board." Article V.D.7 provides that an employee "may be suspended without pay only for just cause and only by action
of the School Board." Though the agreement appears to be silent as to the standard for termination, it stands to reason that "just cause" would be required for the ultimate sanction as well as for the quoted lesser penalties.
8/ They did, however, likely meet the definition of "obscene activities" set forth in the Acceptable Use Policy: "Obscene activities shall be defined as a violation of generally accepted social standards for use of a publicly owned and operated communication vehicle."
COPIES FURNISHED:
David A. Hertz, Esquire Duval Teachers United 1601 Atlantic Boulevard
Jacksonville, Florida 32207
David J. D’Agata, Esquire Office of the General Counsel
117 West Duval Street, Suite 480 Jacksonville, Florida 32202
Ed Pratt-Dannals, Superintendent Duval County School Board
1701 Prudential Drive 6th Floor, Room 642
Jacksonville, Florida 32207
Gerard Robinson, Commissioner Department of Education Turlington Building, Suite 1514
325 West Gaines Street Tallahassee, Florida 32399-0400
Charles M. Beal, 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.
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 28, 2012 | Agency Final Order | |
| Nov. 21, 2011 | Recommended Order | School speech therapist is guilty of immorality and misconduct in office. In addition to suspension, remedial training is recommended. |
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION vs ROBERT E. WEISS, 11-000638TTS (2011)
OKALOOSA COUNTY SCHOOL BOARD vs JEROME MCINTOSH, 11-000638TTS (2011)
ORANGE COUNTY SCHOOL BOARD vs JAMES DESHAY, 11-000638TTS (2011)
BROWARD COUNTY SCHOOL BOARD vs FREDERICK WILLIAMS, 11-000638TTS (2011)
DR. ERIC J. SMITH, AS COMMISSIONER OF EDUCATION vs ADRIAN JACKSON, 11-000638TTS (2011)
