STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BROWARD COUNTY SCHOOL BOARD,

Petitioner,

vs.

MARK JAMES,

Respondent.

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) Case No. 11-3785TTS

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RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to sections 120.569 and 120.57(1), Florida Statutes, before Jessica E. Varn, a duly-designated administrative law judge of the Division of Administrative Hearings (DOAH). The hearing was held on March 26 and 27, 2012, by video teleconference at sites in Lauderdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Charles T. Whitelock, Esquire

Charles T. Whitelock, P.A. Suite E

300 Southeast 13th Street

Fort Lauderdale, Florida 33316

For Respondent: Melissa C. Mihok, Esquire

Kelly and McKee, P.A. Suite 301

1718 East 7th Avenue Post Office Box 75638

Tampa, Florida 33675-0638

STATEMENT OF THE ISSUE

Whether there exists just cause to terminate Respondent from his employment with the Broward County School Board.

PRELIMINARY STATEMENT

By Administrative Complaint dated June 8, 2011, the Superintendent of the School Board of Broward County (School Board) notified Mark James (James) of the School Board's intent to terminate his employment. James timely requested an administrative hearing, and the School Board referred the matter to DOAH on July 28, 2011. The hearing was originally scheduled for September 12 through 14, 2011. Based upon requests by the parties, the hearing was rescheduled for November 14 through 16, 2011; then rescheduled for January 3 through 5, 2012. Over objection, the School Board filed an Amended Administrative Complaint on December 12, 2011, and the hearing was rescheduled for March 13 through 15, 2012.

The Amended Administrative Complaint charged James with violations of section 1012.33, Florida Statutes and Florida Administrative Code Rule 6B-4.009(2), alleging that James's acts constitute acts of immorality; rule 6B-4.009(3), alleging that James's acts violate the Code of Ethics and the Principles of Professional Conduct and therefore constitute misconduct in office; rule 6B-4.009(6), alleging that James's acts constitute

acts of moral turpitude; and violation of School Board policies 3320, 3411, 6301, and 4008.

Based in part on the new charges, Respondent's Unopposed Motion for Continuance was granted, and the hearing was rescheduled for March 26 through 29, 2012. At the hearing, the School Board presented the testimony of Christopher Edden, the owner of Edden Clothing Company; Patrick Reilly, a Chief Auditor for the School Board; Debra McLune, a bookkeeper for the School Board; Rayfield Henderson, past Principal of Boyd Anderson High School (Boyd Anderson); Errol Evans, Assistant Principal at Boyd Anderson; Edna Pollock, an investigator with the School Board; and Libby VanLandingham, a retired auditor for the School Board. School Board Exhibits 1-17, 20, 24, 26, 28-37, and 42-43 were admitted into evidence. James testified on his own behalf; Respondent's Exhibits 1 and 4 were admitted into evidence.

A seven-volume Transcript of the proceedings was filed on May 21, 2012. The parties requested an extension of time to file Proposed Recommended Orders, which was granted. The parties timely filed Proposed Recommended Orders on June 29, 2012, which were considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. The School Board is responsible for the operation, control, and supervision of all public schools (grades K through

   
   

   12) in Broward County, Florida, and for otherwise providing public instruction to school-aged children in the county.

2. James had been employed by the School Board for 11 years prior to being placed on unpaid leave in June of 2011. During the time relevant to the instant case, he was employed as a Behavior Specialist and as the head football coach at Boyd Anderson. He also served as the Athletic Director at Boyd Anderson for the 2009-2010 school year.

   Edden Merchandise

   
   

3. During the 2007-2008 school year, Christopher Edden (Edden), owner of Edden Clothing Company, began to call local schools to develop some business in the Broward County schools. He spoke with James at Boyd Anderson because he was the head football coach, and made his sales pitch.

4. James spoke with Rayfield Henderson (Henderson) and Joan Ferguson, the co-principals at Boyd Anderson, and explained that Edden could create spirit gear for the students. Ferguson and Henderson thought it was a good fundraising idea, because James told them that Edden was producing the spirit gear on a consignment basis. James told Henderson that Edden would produce the gear, and Boyd Anderson would only have to pay for the gear as they sold it. Henderson thought it would be a good idea to set up a "spirit gear store" at the school, and for any profit to go into the athletic department.

   
   

5. Henderson approved the spirit gear project, and because of his belief that the spirit gear was being given to the school on a consignment basis, and no money needed to be put forth to purchase the items, he did not instruct James to complete a purchase order.

6. Edden and James exchanged e-mails regarding the colors and design for the logo and mascot. James indicated the items he was interested in ordering, placed the order with Edden, and signed the order form. Edden told James that he required full payment within 30 days after delivery; Edden invoices state "due on receipt." James knew that payment would be due within thirty days of receipt of the items; Edden made the terms of payment clear to James.

7. Edden created the merchandise, and delivered 30 to 40 boxes of clothing and other spirit gear to Boyd Anderson. The amount ordered totaled approximately $32,000.00.

8. After invoices were sent and remained unpaid, James informed Edden that he was not receiving payment for the merchandise because Henderson was not willing to pay the amount due. Edden then started to communicate with Henderson directly, and Henderson maintained that he would somehow pay Edden the amount owed to him.

9. In the Spring of 2008, Edden wrote letters to Henderson, indicating that he had yet to be paid, that he had tried numerous

   
   

   times to contact James with no response, and that he demanded payment in full.

10. The school made many efforts to sell the merchandise, but those efforts were largely ineffective. Ultimately, Edden hired an attorney, and sued the School Board. The School Board settled the case, paying Edden approximately $25,000.00.

11. James misled Henderson when presenting the terms of the agreement with Edden. Henderson approved a fundraising project that was flawed from its inception, due entirely to James's misrepresentations.

12. Due to the misrepresentation made to Henderson, School Board policy 3320, which mandates a specific process for purchases over $5,000, was not followed.

    Basketball game

    
    

13. In November 2010, when James was the acting Athletic Director, he was approached by the Bank Atlantic Center about having the Boyd Anderson basketball team play Monarch High School after two collegiate games on the evening of December 18, 2010.

14. On November 29, 2010, James submitted a Project Approval Form, which is used when any member of the faculty or administration is seeking approval of a project or event. The form was approved and signed by both Assistant Principal Evans, and the principal at that point, Mr. Almanzar.

    
    

15. The athletic event was intended to be a fundraiser for Boyd Anderson. Boyd Anderson would purchase 150 tickets to the event for $17.75 each, and then re-sell the tickets to the student body and Boyd Anderson families and faculty for $22.75 each. Half of the tickets were to be given to Monarch High School to sell to their school community.

16. James entered into the contract on behalf of Boyd Anderson, signing the contract with Bank Atlantic Center.

17. Unfortunately, while the two high schools were attempting to sell these tickets, the Orange Bowl Committee was simultaneously providing free tickets to the Broward County schools. Thus, it became very difficult to sell tickets. Only a few tickets were actually sold, and Boyd Anderson ultimately paid for 136 tickets, totaling approximately $2,399.00.

18. There is no evidence that James kept any money from the sale of the tickets, or that he stole or lost any tickets.

    Transcripts

    
    

19. On June 7, 2011, a letter of reprimand was issued to James. It accused James of having asked the school registrar to enter transcripts into the school system, and bypass the process by which transcripts are validated.

20. There was no direct evidence establishing that James committed the acts he was accused of in the reprimand letter.

    
    

    Ultimate Findings

    
    

21. The greater weight of the evidence establishes that James is guilty of immorality and of misconduct in office, by failing to maintain honesty in his professional dealings and by violating the Code of Ethics. His misrepresentations led to a violation of School Board policy 3320, as the proper procedure for purchasing merchandise that totaled approximately $32,000.00 was not followed.

22. The greater weight of the evidence establishes that James is not guilty of moral turpitude, or of violations of School Board policy 3411, or 6301.

    CONCLUSIONS OF LAW

    
    

23. DOAH has jurisdiction over the subject matter of this proceeding and of the parties hereto pursuant to chapter 120.

24. District school boards have the authority to operate, control, and supervise all free public schools in their respective districts and may exercise any power except as expressly prohibited by the State Constitution or general law.

    § 1001.32(2).

    
    

25. Such authority extends to personnel matters and includes the power to suspend and dismiss employees. See §§ 1001.42(5), 1012.22(1)(f), and 1012.23(1).

26. At all times material to the instant case, district school boards have had the right, under section 1012.33(6)(a), to

    
    

    suspend or dismiss, for "just cause," classroom teachers and other instructional personnel having professional service contracts.

27. "Just cause" has been defined to include, but not be limited to, 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.

    § 1012.33(1)(a).

    
    

28. "Immorality" has been defined in Florida Administrative Code Rule 6B-4.009(2) as follows:

    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.

    
    

29. "Moral turpitude" has been defined in Florida Administrative Code Rule 6B-4.009(6)) as follows:

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

    
    

30. "Misconduct in office" has been defined in Florida Administrative Code Rule 6B-4.009(3)) as follows:

    
    

    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.

    
    

31. The Code of Ethics of the Education Profession is set forth in Florida Administrative Code Rule 6B-1.001, and provides:

    1. The educator values the worth and dignity of every person, the pursuit of truth, devotion to excellence, acquisition of knowledge, and the nurture of democratic citizenship. Essential to the achievement of these standards are the freedom to learn and to teach and the guarantee of equal opportunity for all.

       
       

    2. 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.

       
       

    3. 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.

       
       

32. Florida Administrative Code Rule 6B-1.006, which contains the Principles of Professional Conduct for the Education Profession in Florida, provides:

    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.

          
          

       2. Shall not unreasonably restrain a student from independent action in pursuit of learning.

          
          

       3. Shall not unreasonably deny a student access to diverse points of view.

          
          

       4. Shall not intentionally suppress or distort subject matter relevant to a student's academic program.

          
          

       5. Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          
          

       6. Shall not intentionally violate or deny a student's legal rights.

          
          

       7. Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

          
          

       8. Shall not exploit a relationship with a student for personal gain or advantage.

          
          

       9. Shall keep in confidence personally identifiable information obtained in the course of professional service, unless disclosure serves professional purposes or is required by law.

          
          

    4. Obligation to the public requires that the individual:

       
       

       1. Shall take reasonable precautions to distinguish between personal views and those of any educational institution or organization with which the individual is affiliated.

          
          

       2. Shall not intentionally distort or misrepresent facts concerning an educational matter in direct or indirect public expression.

          
          

       3. Shall not use institutional privileges for personal gain or advantage.

          
          

       4. Shall accept no gratuity, gift, or favor that might influence professional judgment.

          
          

       5. Shall offer no gratuity, gift, or favor to obtain special advantages.

          
          

    5. Obligation to the profession of education requires that the individual:

       
       

       1. Shall maintain honesty in all professional dealings.

          
          

       2. Shall not on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition if otherwise qualified, or social and family background deny to a colleague professional benefits or advantages or participation in any professional organization.

          
          

       3. Shall not interfere with a colleague's exercise of political or civil rights and

          
          

          responsibilities.

       4. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

          
          

       5. Shall not make malicious or intentionally false statements about a colleague.

          
          

       6. Shall not use coercive means or promise special treatment to influence professional judgments of colleagues.

          
          

       7. Shall not misrepresent one's own professional qualifications.

          
          

       8. Shall not submit fraudulent information on any document in connection with professional activities.

          
          

       9. Shall not make any fraudulent statement or fail to disclose a material fact in one's own or another's application for a professional position.

          
          

       10. Shall not withhold information regarding a position from an applicant or misrepresent an assignment or conditions of employment.

           
           

       11. Shall provide upon the request of the certificated individual a written statement of specific reason for recommendations that lead to the denial of increments, significant changes in employment, or termination of employment.

           
           

       12. Shall not assist entry into or continuance in the profession of any person known to be unqualified in accordance with

           
           

           these Principles of Professional Conduct for the Education Profession in Florida and other applicable Florida Statutes and State Board of Education Rules.

           
           

       13. Shall self-report within forty-eight

           (48) hours to appropriate authorities (as determined by district) any arrests/charges involving the abuse of a child or the sale and/or possession of a controlled substance. Such notice shall not be considered an admission of guilt nor shall such notice be admissible for any purpose in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. In addition, shall self-report any conviction, finding of guilt, withholding of adjudication, commitment to a pretrial diversion program, or entering of a plea of guilty or Nolo Contend[e]re for any criminal offense other than a minor traffic violation within forty-eight (48) hours after the final judgment. When handling sealed and expunged records disclosed under this rule, school districts shall comply with the confidentiality provisions of Sections 943.0585(4)(c) and 943.059(4)(c), Florida Statutes.

           
           

       14. Shall report to appropriate authorities any known allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes.

           
           

       15. Shall seek no reprisal against any individual who has reported any allegation of a violation of the Florida School Code or State Board of Education Rules as defined in Section 231.28(1), Florida Statutes.

           
           

       16. Shall comply with the conditions of an order of the Education Practices Commission imposing probation, imposing a fine, or restricting the authorized scope of practice.

           
           

       17. Shall, as the supervising administrator, cooperate with the Education Practices Commission in monitoring the probation of a subordinate.

           
           

           (emphasis added).

           
           

33. School Board Policy 3320 states, in pertinent part:

    
    

    C. Purchases from $5,000 to $50,000 which require written solicitations that are not available from a contract awarded or approved for use by the school board requires a minimum of three (3) written quotations, unless an exemption to this requirement is established herein. A requisition or approved active P-card shall be utilized for the purchase of goods and services included in a contract awarded or approved for the use by the school board and for any expenditure approved by an Agenda Item. At least three

    (3) suppliers shall be contacted for written quotations. At least two (2) certified Minority/Womens Business Enterprises ("M/WBE") vendors will be contacted where certified M/WBE vendors have been identified by the school board as offering the product or service being purchased.

    
    

34. School Board policy 3411 states, in pertinent part:

    
    

    All monies collected or disbursed by school personnel or by students within a school, in connection with the school program, for the benefit of that school, class, club, department, employer or student shall be recorded in the school's internal funds. All funds generated from a profit-making business operating on a continuous basis on school grounds must be deposited in the school's internal account. All of the aforementioned funds shall be administered and accounted for in accordance with existing law, Florida State Board of Education Administrative Rules and Board Policies.

    
    

35. School Board policy 6301 states, in pertinent part:

    
    

    The principal shall be responsible for all monies collected and deposited within his/her school by school personnel and shall submit an accounting of such monies to the office of the Superintendent in accordance with accepted business procedures.

    
    

    1. The principal, or individual whom he/she may designate, shall be fully responsible for maintaining an accurate record as to whom Department Receipt Books, reports of monies collected, ticket sales reports, cash reports, etc., are issued.

    
    

36. School Board policy 4008 states, in pertinent part:

    
    

    All employees of the Board who have been issued contracts as provided by Florida Statutes, or annual work agreements as provided by the Board shall comply with provisions of the Florida School Code, State Board regulations and regulations and policies of the Board.

    
    

    . . .

    
    

    1. DUTIES OF INSTRUCTIONAL PERSONNEL The members of instructional staff shall perform the following functions:

       
       

       1. Comply with the Code of Ethics and the Principles of Professional Conduct of the Education Profession in Florida.

    
    

37. Petitioner has the burden of proving the material allegations by a preponderance of the evidence. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990).

38. The preponderance of the evidence standard requires proof by "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); see also

    Williams v. Eau Claire Pub. Sch., 397 F.3d 441, 446 (6th Cir. 2005) (holding trial court properly defined the preponderance of the evidence standard as "such evidence as, when considered and compared with that opposed to it, has more convincing force and produces . . . [a] belief that what is sought to be proved is more likely true than not true").

39. As detailed in the findings of fact above, the evidence establishes that James is guilty of immorality, and misconduct in office, by failing to maintain honesty in his professional dealings. James made misrepresentations to Principal Henderson as to the terms of the agreement with Edden, a business owner in the community. These misrepresentations, which violate School Board policy 4008, the Code of Ethics of the Education Profession, and Florida Administrative Code Rule 6B-1.006 (5)(a), began a chain of events that violated school board policy 3320, and ultimately cost the School Board approximately $25,000.00.

40. Respondent's acts do not rise to the level of moral turpitude, and did not violate School Board policy 3411 or 6301.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Broward County School Board terminate Respondent's employment.

DONE AND ENTERED this 31st day of July, 2012, in Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

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 31st day of July, 2012.

COPIES FURNISHED:

Charles T. Whitelock, Esquire Charles T. Whitelock, P.A. Suite E

300 Southeast 13th Street

Fort Lauderdale, Florida 33316 charles@ctwpalaw.com

Patrick A. Santeramo Broward Teachers Union

6000 North University Drive Tamarac, Florida 33321

Melissa C. Mihok, Esquire Kelly and McKee, P.A. Suite 301

1718 East 7th Avenue Post Office Box 75638

Tampa, Florida 33675-0638 mcm@kellyandmckee.com

Gerard Robinson, Commissioner Department of Education

Suite 1514 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

Lois Tepper, Interim General Counsel Department of Education

Suite 1244 Turlington Building

325 West Gaines Street Tallahassee, Florida 32399-0400

Robert Runcie, Superintendent Broward County Public Schools 600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

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: 11-003785TTS

Orders for Case No: 11-003785TTS