vs.
Case No. 14-1278TTS
Respondent.
This case came before Administrative Law Judge Todd P. Resavage for final hearing on December 2 and 3, 2014, in West Palm Beach, Florida.
Law Office of Thomas L. Johnson
Whether just cause exists to terminate Respondent's employment as a teacher with the Palm Beach County School District for the reasons alleged in the Petition ("Complaint").
On December 6, 2013, E. Wayne Gent, Superintendent for the School District of Palm Beach County ("District"), Florida, notified Respondent that he would recommend a 15-day suspension without pay and termination of Respondent's employment with the District at the scheduled January 8, 2014, School Board Special Meeting. On January 8, 2014, the School Board accepted the recommendation of termination from employment following a 15-day suspension without pay.
Respondent timely requested a formal administrative hearing.
On March 18, 2014, Petitioner issued the Complaint, and on the same date, referred the matter to the Division of Administrative Hearings ("DOAH"), where it was assigned to the undersigned.
Petitioner's Complaint alleges that just cause exists to terminate Respondent's employment based upon Respondent's arrest and subsequent adjudication of guilt concerning several criminal charges. Petitioner contends that the same violates Florida Administrative Code Rules 6A-5.506(1) and (2), 6A-10.080(3); and School Board Policies 1.013(1), 3.10(6), 3.27, 3.96(4)(b) and (2)(v), 3.02(4)(b) and (5)(h)(iv).
The final hearing initially was set for June 9, 2014.
Thereafter, the final hearing was continued, upon motion, several times, and ultimately conducted on December 2 and 3, 2014. Both parties were represented by counsel. The final hearing
Transcript was filed on December 19, 2014. The identity of the witnesses and exhibits and the rulings regarding each are as set forth in the Transcript.
On January 6, 2015, the parties filed a Joint Agreed Motion for Extension of Time to File Proposed Recommended Orders. The motion was granted and the parties were ordered to file proposed recommended orders on or before February 6, 2015. Thereafter, Respondent filed an Unopposed Motion for Extension of Time to File Proposed Recommended Order. The motion was granted and the parties were ordered to file proposed recommended orders on or before February 16, 2015. The parties timely filed proposed recommended orders, which were considered in preparing this Recommended Order. Unless otherwise indicated, all rule and statutory references are to the versions in effect at the time of
the alleged violation.
Petitioner is the entity charged with the duty to operate, control, and supervise the public schools within Palm Beach County, Florida.
At all times pertinent to this case, Respondent was employed as a math teacher at Palm Springs Middle School, a public school in Palm Beach County, Florida.
Stipulated Facts
The Collective Bargaining Agreement between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association was in effect at all times pertinent to this proceeding.
Pursuant to the parties' Joint Pre-Hearing Stipulation, the facts contained in paragraphs 5 through 10 below are admitted and required no proof at final hearing.
On January 13, 2013, Respondent was arrested for the following criminal charges: (1) hit and run—leaving the scene of a crash involving damage to property; (2) resisting an officer without violence; (3) DUI-unlawful blood alcohol—refusal to submit to DUI test; (4) knowingly driving with a suspended license; and (5) bribery of a public servant (two counts).
On July 22, 2013, Respondent was adjudicated guilty of the following charges: (1) driving under the influence causing injury to person or property in violation of section 316.193, Florida Statutes; (2) leaving the scene of a crash involving damage in violation of section 316.061, Florida Statutes; and
(3) resisting an officer without violence in violation of section 843.02, Florida Statutes.
Respondent's arrest resulted in media attention, with headlines including: (1) "Mary Maloney: Palm Springs teacher offers police sexual favor after DUI arrest, police say";
(2) "Police: Teacher offers sexual favors to officer to avoid DUI arrest. Mary Maloney accused of leaving scene of hit-and-run crash"; (3) "Mary Maloney, Fla. Teacher, offers sexual favor to cop after DUI arrest, police say"; and (4) "Mary Maloney, Teacher, Allegedly Offers Oral Sex to Police Officer After Hit- and-Run Charge."
Respondent was reassigned from her position teaching students on February 25, 2013, and remained on this assignment out of the classroom until January 8, 2014, when the School Board voted to terminate her employment.
On December 15, 2006, Respondent signed a Drug Free Workplace Policy acknowledgement stating that she had reviewed the policy and that compliance was mandatory.
Respondent's discipline history revealed a prior violation of the Drug Free Workplace policy. She received a written reprimand on October 12, 2009, for violating School Board Policy 3.96 Drug and Alcohol Free Workplace when she was under the influence of a prohibited substance while off duty which resulted in a conviction under section 316.193, Florida Statutes-
-driving under the influence. Non-Stipulated Facts
As a result of her adjudication of guilt on July 22, 2013, Respondent was sentenced to 12 months of probation, 30 days in the Palm Beach County Jail, 60 days house arrest (during which
she was required to wear a Scram monitor), 150 hours of community service, court costs and fines. Respondent testified that she was permitted to work while she was serving her 60-day period of house arrest.
Anthony D'Orsi, a police officer for the City of Greenacres, provided unrefuted testimony that while he was transporting Respondent from the scene of the DUI arrest to the police station, Respondent advised him that she was a school teacher and implied that she wanted to perform oral sex on Officer D'Orsi and allow him to "play with her breasts" in exchange for her release.
On January 13, 2014, Matthew Stockwell was employed as a police officer with the City of Greenacres. Officer Stockwell provided unrefuted testimony that, after he placed Respondent in his patrol car, she made numerous statements regarding that she was sorry for what had occurred and inquired as to how much it would cost for Officer Stockwell to release her.
Respondent's arrest was reported on the Channel 5 News program under the headline of "Middle School Teacher Arrested On DUI, Hit And Run—Greenacres Police Say She Tried To Bribe Them With Sex." The coverage included her photograph, and among other statements, her name, age, and position at Palm Springs Middle School.
Prior to the subject incident, Respondent received satisfactory evaluations as a teacher. Respondent was rated as either effective or highly effective for the 2011-2012 school
year.
CONCLUSIONS OF LAW
DOAH has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes. Pursuant to section 120.65(9), Petitioner has contracted with DOAH to conduct these hearings.
Petitioner seeks to terminate Respondent's employment.
In order to do so, Petitioner typically must prove by a preponderance of the evidence that Respondent committed the violations alleged in the Petition. McNeill v. Pinellas Cnty. Sch. Bd., 678 So. 2d 476 (Fla. 2d DCA 1996); Allen v. Sch. Bd. of
Dade Cnty., 571 So. 2d 568, 569 (Fla. 3d DCA 1990). Where, as here, through the collective bargaining process, the school board has agreed to bear a more demanding standard, it must honor, and act in accordance with, its agreement. Hillsborough County Government Employees Association v. Hillsborough County Aviation
Authority, 522 So. 2d 358, 363 (Fla. 1988). In the instant case, the Collective Bargaining Agreement ("CBA") between the School District of Palm Beach County, Florida, and the Palm Beach County Classroom Teachers Association provides that Petitioner has the
burden of proving by clear and convincing evidence just cause for disciplining Respondent.
Regarding the standard of proof, in Slomowitz v.
Walker, 429 So. 2d 797, 800 (Fla. 4th DCA 1983), the Court developed a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards."
The Court held that
[C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking confusion as to the facts at issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Id.
The Florida Supreme Court later adopted the Slomowitz
court's description of clear and convincing evidence. See In re
Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the
interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v. Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991),
rev. denied, 599 So. 2d 1279 (Fla. 1992)(citations omitted).
Any member of the instructional staff in a district school system may be suspended or dismissed at any time during the term of his or her employment contract for just cause, as provided in section 1012.33(1)(a). § 1012.33(6)(a), Fla. Stat.
The term "just cause":
ncludes, 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 s. 1012.34, two annual performance evaluation ratings of unsatisfactory within a 3-year period under
s. 1012.34, three consecutive annual performance evaluation ratings of needs improvement or a combination of needs improvement and unsatisfactory under
s. 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.
§ 1012.33(1)(a), Fla. Stat.
In its Petition, Petitioner avers two grounds for terminating Respondent: "immorality" and "misconduct in office." Whether Respondent is guilty of these charges, which are discussed separately below, is a question of ultimate fact to be decided in the context of each alleged violation. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v.
Jamerson, 653 So. 2d 489, 491 (Fla. 1st DCA 1996).
Section 1001.02(1), Florida Statutes, grants the State Board of Education authority to adopt rules pursuant to sections
120.536(1) and 120.54 to implement provisions of law conferring duties upon it.
Misconduct in Office
As noted above, Petitioner contends that Respondent has committed "misconduct in office." Florida Administrative Code Rule 6A-5.506(2) provides as follows:
"Misconduct in Office" means one or more of the following:
A violation of the Code of Ethics of the Education Profession in Florida as adopted in Rule 6B-1.001, F.A.C.;
A violation of the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule 6B- 1.006, F.A.C.;
A violation of the adopted school board rules;
Behavior that disrupts the student's learning environment; or
Behavior that reduces the teacher's ability or his or her colleagues' ability to effectively perform duties.
In its Complaint, Petitioner fails to specifically plead which subsection of the rule Respondent has violated. Reviewing the Complaint as a whole, the undersigned construes the Complaint as alleging violations of subsections (a) and (c).
Florida Administrative Code Rule 6B-1.001, renumbered as rule 6A-10.080, is entitled "Code of Ethics of the Education Profession in Florida," and provides as follows:
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.
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.
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.
The undersigned concludes that Petitioner failed to establish by clear and convincing evidence that Respondent violated the aspirational goals set forth in rule 6A-10.080.
Petitioner alleges that Respondent violated several School Board Rules addressed separately below. Petitioner charges Respondent with a violation of Policy 3.96, entitled "Drug-and Alcohol-Free Workplace." Section 3.96(4)(b) provides as follows:
Prohibited Conduct.—The following types of conduct are expressly prohibited for all employees, applicants, and volunteers and shall result in disciplinary action up to and including termination of employment (or termination of volunteer services),
consistent with the applicable collective- bargaining agreement, if any.
* * *
b. Off-the Job.—Off-the-job use or involvement with illegal drugs, alcohol, or other controlled substances may subject an employee to disciplinary action under applicable Board Policies such as 3.12 and 3.13; applicable State Board of Education Rules such as 6B-4.009(2), (5); and the applicable collective bargaining agreement, if any.
Section 3.94(2)(v), entitled "Second Offense," provides that, "[a]ny violation of this drug-free workplace Policy (whether by alcohol or other drugs) following the initial violation, whether either violation involves alcohol or other drugs, constitutes the second offense."
Respondent has stipulated that she was adjudicated guilty of the following charges: (1) driving under the influence and causing injury to person or property in violation of section 316.193, Florida Statutes; (2) leaving the scene of a crash involving damage in violation of section 316.061, Florida Statutes; and (3) resisting an officer without violence in violation of section 843.02, Florida Statutes. Respondent further stipulated that she was previously convicted of driving under the influence, in violation of section 316.193, Florida Statutes. Accordingly, Petitioner has established by clear and convincing evidence (and Respondent concedes in her Proposed
Recommended Order) that Respondent violated School Board Policy 3.96(4)(b) and 3.96(2)(v), and, therefore, is guilty of misconduct in office.
Petitioner further charges Respondent with a violation of Policies 3.02(4)(b) and 3.02(5)(h)(iv). Section 3.02(4)(b) provides as follows:
4. Accountability and Compliance Each employee agrees and pledges:
* * *
b. To obey local, state and national laws, codes and regulations.
Section 3.02(5)(h)(iv) provides as follows:
h. Criminal Acts-We are committed to reporting criminal conduct, and other conduct that damages the integrity or reputation of the School district. Employees should abide by federal, state and local laws. Unethical conduct includes but is not limited to:
* * *
iv. Committing or being convicted of criminal acts as provided in School Board Policy 3.13 (Self Reporting of Arrests and Convictions by School District Employees).
As discussed above, Respondent was adjudicated guilty of several criminal acts. The undersigned concludes, and Respondent concedes in her Proposed Recommended Order, that the same constitutes a violation of School Board Policy 3.02, and, therefore, Respondent is guilty of misconduct of office.
Petitioner further avers that Respondent violated School Board Policies 1.103(1) and 3.10(6), which provide as follows:
Policy 1.103 Responsibilities of School District Personnel and Staff
1. It shall be the responsibility of the personnel employed by the district school board to carry out their assigned duties in accordance with federal laws, rules, state statutes, state board of education rules, school board policy, superintendent's administrative directives and local school and area rules.
Policy 3.10 Conditions of Employment With the District
* * *
6. The District requires its employees to carry out their responsibilities in accordance to School Board Policy 1.013 (As may be amended), their job descriptions and reasonable directives from their supervisors that do not pose an immediate serious hazard to health and safety or clearly violate established law or policy.
The undersigned concurs with Respondent that the above- cited School Board rules apply to the performance of assigned duties while at work. It is undisputed that the conduct at issue in the instant proceedings occurred off-duty, and, therefore, Petitioner has not established a violation of School Board Policies 1.103(1) and 3.10(6).
Immorality
As noted above, Petitioner contends that Respondent has committed "immorality." Florida Administrative Code Rule 6A- 5.506(1) defines "immorality" as "conduct that is inconsistent with the standards of public conscience and good morals. It is conduct that brings the individual concerned or the education profession into public disgrace or disrespect and impairs the individual's service in the community."
Petitioner did not offer any persuasive evidence establishing the applicable "standards of public conscious and good morals." In the instant case, however, the undersigned concludes that it is axiomatic that, by virtue of their leadership position, teachers are traditionally held to a high moral standard in the community. See Adams v. Prof'l Practices
Council, 406 So. 2d 1170, 1172 (Fla. 1st DCA 1981). Respondent acted contrary to the high moral standards for teachers when she chose to drive under the influence and assert unbecoming remarks to law enforcement during her arrest.
This does not end the inquiry, however, as Petitioner must establish that Respondent's conduct brought her or the education profession into public disgrace or disrespect and impaired her service in the community. Here, Petitioner presented sufficient evidence to establish the public nature of her arrest which resulted in media attention. The undersigned
concludes that her conduct at issue brought her into public disgrace or disrespect.
Petitioner presented sufficient evidence to establish that her arrest and subsequent conviction impaired her service in the community. Indeed, following her conviction, Respondent was sentenced to one year of probation, 30 days in jail, and was placed on house arrest for 60 days. Accordingly, Petitioner has established by clear and convincing evidence that Respondent's conduct constituted immorality as defined in rule 6A-5.056.
Respondent contends application of the progressive disciplinary policy of the operative CBA mandates a sanction less severe than termination. The undersigned is unaware of and has not been cited to any authority for the proposition that DOAH is authorized to adjudicate alleged violations, misinterpretations, or misapplications of the CBA. Any claim that Petitioner violated the progressive discipline requirements of the CBA should have been addressed utilizing the grievance procedure contained in the CBA, rather than in this proceeding.1/
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order finding Mary Maloney guilty of misconduct in office and immorality, and terminating her employment.
DONE AND ENTERED this 30th day of March, 2015, in Tallahassee, Leon County, Florida.
TODD P. RESAVAGE
Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 2015.
1/ Accordingly, the undersigned has not included in the Findings of Fact section of this Recommended Order any facts concerning progressive discipline. Notwithstanding, the School Board's recommendation of termination is not inconsistent with the exception contained in the CBA that allows for skipping professional discipline steps where the actions or inactions of the employee constitute clearly flagrant and purposeful violations of reasonable school board rules and regulations.
Nicholas Anthony Caggia, Esquire Law Office of Thomas L. Johnson
E. Wayne Gent, Superintendent Palm Beach County School Board 3300 Forest Hill Boulevard, C-316
Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244
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.
