STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PALM BEACH COUNTY SCHOOL BOARD,

vs.

Petitioner,

Case No. 16-6862

ROSA HARRELL,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G. Van Laningham for final hearing by video teleconference on January 27 and February 15, 2017, at sites in Tallahassee and West Palm Beach, Florida.

APPEARANCES

For Petitioner: Helene K. Baxter, Esquire

Palm Beach County School Board Office of the General Counsel

3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239

West Palm Beach, Florida 33416

For Respondent: Dedrick D. Straghn, Esquire

Dedrick D. Straghn, Attorney & Counselor at Law

26 Southwest 5th Avenue Delray Beach, Florida 33444

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent, who swung a belt at or near a student while disciplining the student for

unacceptable behavior on a school bus, gave Petitioner——her employer, the district school board——just cause to dismiss Respondent from her position as a bus driver.

PRELIMINARY STATEMENT

At its regular meeting on October 19, 2016, Petitioner Palm Beach County School Board voted to approve the superintendent's recommendation that Respondent Rosa Harrell be terminated from her employment as a school bus driver. The reasons for this action had been spelled out in an Amended Notice of Recommendation for Termination of Employment dated October 10, 2016. In that charging document, Ms. Harrell is accused of misconduct in office "based upon allegations of policy violations related to Ethical Misconduct, Failure to Safeguard Student(s), and Failure to Follow Policy, Rule, Directive, or Statute."

Ms. Harrell timely requested a formal administrative hearing to contest Petitioner's intended action. Shortly thereafter, Petitioner filed a formal Petition with the Division of Administrative Hearings, which opened a file on November 18, 2016.

The final hearing took place over the course of two days, January 27 and February 15, 2017. At the start of the hearing, the undersigned granted Petitioner's outstanding Motion to Amend Petition and accepted the proposed Amended Petition as the

operative pleading. During the evidentiary phase of the proceeding, Petitioner called the following witnesses: Matthew Baxter, Gregory Burrus, Marquis Hargrove, Pam Ambrose, M.M., Ms. Harrell, Valentino Harvey, Dianna Weinbaum, and Jodi Cummings. Petitioner's Exhibits 1, 2A, 2B, 3, 6, 17 through 20, and 31 were admitted into evidence, and the undersigned took official recognition of Petitioner's Exhibits 23, 24A, and 25 through 28.

Respondent returned to the stand during her case to give additional testimony, and she brought back Valentino Harvey for a second appearance, this time as a witness for the defense.

She did not offer any exhibits.

The final hearing transcript, comprising four volumes, was filed on March 2, 2017. Each party timely filed a Proposed Recommended Order on March 17, 2017, the deadline established in the Order Granting Extension of Time entered on March 9, 2017.

Unless otherwise indicated, citations to the official statute law of the state of Florida refer to Florida Statutes 2016, except that all references to statutes or rules defining disciplinable offenses or prescribing penalties for committing such offenses are to the versions that were in effect at the time of the alleged wrongful acts.

FINDINGS OF FACT

1. The Palm Beach County School Board ("School Board" or "District"), Petitioner in this case, is the constitutional entity authorized to operate, control, and supervise the Palm Beach County Public School System.

2. At all relevant times and as of the final hearing, the District employed Respondent Rosa Harrell ("Harrell") as a bus driver, a position she has held since 1998. To date, her disciplinary record as a District employee is clear.

3. The events in dispute occurred on the afternoon of April 27, 2016, as Harrell drove students home from Christa McAuliffe Middle School. During the run, Harrell noticed that a student was eating on the bus, which is specifically described as "unacceptable behavior" on page 31 of the District's School

   Bus Drivers and Bus Attendants Handbook (the "Handbook"), as is drinking any beverage on the bus.

4. State law mandates that a "school bus driver shall require order and good behavior by all students being transported on school buses." § 1006.10(1), Fla. Stat. To this end, drivers are invested with "the authority and responsibility to control students during the time students are on the school bus . . . ." § 1012.45(2), Fla. Stat. The Handbook likewise requires that drivers "maintain order and appropriate student

   
   

   behavior while on the school bus at all times." Handbook, at 28.1/

5. Faced with unacceptable student behavior, which drivers have a duty to subdue, Harrell demanded that the student or students bring her their "crackers" and "soda too," immediately. At the time Harrell gave this order, the bus was stopped, probably at a red light. The student(s) did not promptly comply, and Harrell repeated the command, urging them, multiple times, to "come on!" The student(s) still failed to obey, and after about a half-minute, Harrell stepped on the gas pedal, causing the bus to accelerate——presumably because the light had turned green. Finally, a student came forward and handed Harrell some food, which she tossed out the driver's open window. The student then returned to his seat.

6. Harrell, driving, again ordered the student who had been seen drinking to "bring [the soda] here." Eventually a boy came forward and handed Harrell a soda can, which she threw out the window. This boy tattled on another student, M.M., who had been eating and drinking on the bus, too. There is no dispute that M.M., a sixth-grader at the time, engaged in this unacceptable behavior. The informant suggested that Harrell slam on the brakes and deal with M.M. right away, but Harrell indicated that she would take care of M.M. at the next stop.

   
   

7. True to her word, after coming to a complete stop at the next light, Harrell engaged the parking brake, unstrapped her seat belt, and headed to the rear of the bus to confront

   M.M. As she walked back, one of the students removed his cloth belt, as others shouted, "Take it!" Harrell said to M.M., "You drinking on the bus with your big ol' self." She took the belt when it was offered to her.

8. The District argues that Harrell meant to embarrass

   
   

   M.M. by drawing attention to his size, and M.M. testified that the driver's remark about his "big ol' self" had made him feel uncomfortable. The undersigned rejects the argument, finding instead that Harrell in fact used the slangy adjective "big ol'" not to tease the student about his weight,2/ but to intensify the reference to M.M.'s "self." She was not calling him fat; she was calling him self-important. The approximate meaning of her statement, in other words, was: You think you're such a big shot, drinking on the bus. The undersigned is not convinced that this comment caused M.M. the discomfort he currently claims to have experienced.3/

9. When Harrell reached M.M., who was sitting by himself on the bench seat, she took his hand, raised his arm, and swung the belt in M.M.'s direction, striking the side of the seat five times. The parties sharply dispute whether Harrell intended to

   
   

   hit M.M. with the belt, and also whether she did so, either on purpose or by accident.

10. Having considered all of the evidence, including the videos, the undersigned finds that, most likely, Harrell did not intend to strike M.M. The event took place in an atmosphere of boisterous laughter, suggesting to the undersigned that the students did not regard Harrell as a genuine threat to M.M. The student himself did not react as though he were in fear of being struck, as he continued to hold up and view his cellphone throughout the incident. Finally, had Harrell intended to hit

    M.M. with the belt, she almost certainly would have landed solid blows, for he was a sitting duck at close range. Such blows likely would be plain to see on the available videos. But the videos in evidence do not unambiguously show the belt striking the student, giving additional grounds for doubting that Harrell intended to hit M.M.

11. The best description the undersigned can give for Harrell's conduct during the "whupping" of M.M. is that it was one part pantomime, one part burlesque, and one part horseplay, a kind of show whose purpose was to discipline M.M., to be sure, but with parodic violence, not with real violence, discharging her duty to maintain acceptable student behavior while winking, metaphorically, at the students. Harrell did not act, the undersigned believes, with malice or cruelty or the intent to

    
    

    cause M.M. harm. She intended to hit the seat in close enough proximity to M.M. that it would look like she was "whupping" the student.

12. Just because Harrell did not intend to hit M.M. with the belt, however, does not mean that she missed him when she swung in his direction. M.M. testified that Harrell caught him on the leg. The video evidence is inconclusive but does not clearly contradict M.M.'s testimony. Ultimately, based on the totality of the evidence, including the videos, the undersigned cannot find without hesitation that Harrell struck M.M. with the belt. While evidence of such contact is less than clear and convincing, a preponderance of the evidence persuades the undersigned that the belt, more likely than not, clipped M.M. on one of its passes. Fortunately for all concerned, M.M. was not injured.

13. Although Harrell's intentions were good, or at least not bad, her judgment in this instance was very poor. M.M.'s hands were not clean, of course, because he had engaged in unacceptable student conduct, but a driver should not swing a belt at a student——even without the intent to impose actual corporal punishment——just for eating on the bus. Harrell's actions created an indefensible risk of accidental harm that outweighed all reasonable disciplinary justifications. Thus, even without clear and convincing proof that Harrell hit a

    
    

    student, the District has convinced the undersigned to determine, without hesitation, that Harrell engaged in misconduct affecting the health, safety, or welfare of M.M., in contravention of a written District policy.

14. Had Harrell's actions clearly constituted a real and immediate danger to the District, the District would have had a factual basis not to administer progressive discipline, which is otherwise generally a requirement under the applicable collective bargaining agreement. Her actions, however, immediately affected, not the District as a whole, but only one person, M.M., and even he was not placed in real and immediate danger. To explain, while Harrell unreasonably exposed M.M. to a risk of accidental harm, which is just cause for disciplinary action, she did not intend to hurt him: harm was foreseeable, but not imminent. If Harrell had intended to cause injury (which she did not), then harm would have been, not only foreseeable, but nearly inevitable. In that hypothetical case, her conduct would have constituted an immediate danger to M.M. In the event, it did not.

15. Nor did Harrell's actions constitute a clearly flagrant and purposeful violation of any District policies or rules, which ultimate fact, were it true, would have supplied an alternative basis for skipping progressive discipline. A veteran driver with a previously spotless disciplinary record,

    
    

    Harrell suffered a momentary lapse of judgment and, in a misguided effort to discipline a student for engaging in unacceptable behavior, committed a disciplinable offense herself. Her conduct was ill-advised but not obviously and willfully contumacious.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 1012.40(2)(c), 120.569, and 120.57(1), Florida Statutes.

17. A district school board employee against whom a disciplinary proceeding has been initiated must be given written notice of the specific charges prior to the hearing. Although the allegations "need not be set forth with the technical nicety or formal exactness required of pleadings in court," Jacker v. School Board of Dade County, 426 So. 2d 1149, 1150 (Fla. 3d DCA

    1983), the charging document should "specify the rule the agency alleges has been violated and the conduct which occasioned the violation of the rule," id. at 1151 (Jorgenson, J. concurring).

18. Once the school board, in its notice of specific charges, has delineated the offenses alleged to justify suspension or termination, those are the only grounds upon which such action may be taken. See Lusskin v. Ag. for Health Care

    Admin., 731 So. 2d 67, 69 (Fla. 4th DCA 1999); Cottrill v. Dep't

    
    

    of Ins., 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996); Klein v.

    
    

    Dep't of Bus. & Prof'l Reg., 625 So. 2d 1237, 1238-39 (Fla. 2d DCA 1993); Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967

    (Fla. 5th DCA 1992); Willner v. Dep't of Prof'l Reg., Bd. of Med., 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied, 576

    So. 2d 295 (Fla. 1991).

    
    

19. In an administrative proceeding to suspend or dismiss an employee, the school board ordinarily bears the burden of proving, by a preponderance of the evidence, each element of the charged offense(s). See, e.g., McNeill v. Pinellas Cnty. Sch.

    Bd., 678 So. 2d 476, 477 (Fla. 2d DCA 1996). If the school board has agreed, through collective bargaining, to a more demanding standard, however, then it must act in accordance with the applicable contract. See Chiles v. United Faculty of Fla.,

    615 So. 2d 671, 672-73 (Fla. 1993).

    
    

20. Article 17, paragraph 1, of the applicable Collective Bargaining Agreement ("CBA") provides that "disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action." The School Board's burden, accordingly, is to prove the facts alleged as grounds for terminating Harrell's employment by clear and convincing evidence at a hearing before the Division of

    
    

    Administrative Hearings, if timely requested. Art. 17, ¶ 8,

    
    

    CBA.

    
    

21. 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:

    clear 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 in confusion as to the facts in 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)(citation omitted).

    
    

22. Pursuant to section 1012.40(2)(b), Florida Statutes, the employment status of an "educational support employee" such as Harrell4/ must continue "from year to year unless the district school superintendent terminates the employee for reasons stated in the collective bargaining agreement . . . ." (Emphasis

    added).

    
    

23. As mentioned above, the CBA prohibits the District from taking disciplinary action against an employee without just cause. The CBA does not define "just cause," but the term is well-known in Florida education law. The definition provided in section 1012.335(5), which governs directly in matters concerning contracts with instructional personnel but is applicable here as persuasive authority, states that "just cause includes, but is not limited to:"

    1. Immorality.

    2. Misconduct in office.

    3. Incompetency.

    4. Gross insubordination.

    5. Willful neglect of duty.

    6. Being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.

       
       

24. The District did not, in its Amended Petition, identify which of the foregoing offenses it contends Harrell committed, but instead charged Harrell with violations of numerous state rules and District policies. This prosecutorial focus implies that the District must have had in mind

    
    

    "misconduct in office" because the regulatory definition of this offense includes, as relevant here, acts which constitute "[a] violation of adopted school board rules." Fla. Admin. Code

    R. 6A-5.056(2)(c).

    
    

25. Among other things, the District charged Harrell with a violation of School Board Policy 3.02(5)(a)(vii), which makes it a violation of the District's ethical standards to engage "in misconduct which affects the health, safety and welfare of a student." The driver's guilt or innocence is a question of ultimate fact to be decided in the context of each alleged violation. Cf. McKinney v. Castor, 667 So. 2d 387, 389 (Fla. 1st DCA 1995); Langston v. Jamerson, 653 So. 2d 489, 491 (Fla.

    1st DCA 1995). As found above, Harrell did, in fact, commit the referenced ethical violation, which makes her guilty of misconduct in office, an offense constituting just cause for disciplinary action.

26. The remaining alleged violations will be addressed in abbreviated fashion. The District accused Harrell of violating School Board Policy 1.013(1), which states: "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 areal rules." This policy is

    
    

    not independently violable, at least as a general rule, because it merely prohibits the violation of other laws.5/ In other words, all it says, in effect, is that an employee must obey applicable laws while on the job——a proposition that would be no less true in the absence of this policy. To take disciplinary action against Harrell, the District must allege and prove a violation of the underlying applicable law, not this anodyne policy which merely articulates a truism.

27. School Board Policy 3.02(4) deals with "accountability and compliance" and contains a list of obviously aspirational goals to which each employee "agrees and pledges," such as "[t]o provide the best example possible" and "[t]o treat all students and individuals with respect and to strive to be fair in all matters." These are best practices as opposed to minimum standards of conduct. The undersigned doubts that the District takes seriously the notion of punishing an employee for, e.g., failing to provide the best possible example. To the extent that it is aspirational in nature, this policy cannot reasonably be regarded as independently violable for purposes of determining just cause to take disciplinary action. The undersigned concludes that policy 3.02(4) does not define a disciplinable offense relevant to any conduct alleged in the Amended Petition.

    
    

28. School Board Policy 3.02(5)(a)(i) and (5)(a)(ii) proscribe, respectively, "any act of child abuse" and "any act of cruelty to children or any act of child endangerment." The District failed to prove, as a matter of fact, that Harrell committed any such prohibited act.

29. School Board Policy 3.21(3)(1) requires bus operators "to safely drive all district school buses." The District neither alleged nor proved that Harrell failed to safely drive her school bus.

30. School Board Policy 3.21(3)(6) requires drivers to observe all the procedures set forth in the Handbook. The District failed to prove by clear and convincing evidence that Harrell violated any such procedure.

31. School Board Policy 3.21(3)(12) provides that drivers "have the responsibility to study and observe all laws and state board of education rules relating to the safe operation of school buses." The District failed to prove by clear and convincing evidence that Harrell abdicated this responsibility.6/

32. The District charged Harrell with violating several provisions of Florida Administrative Code Rule 6A-3.0171(2)(g)3. This rule, however, directs school districts to adopt policies setting forth the responsibilities of bus drivers, among other personnel, and prescribes minimum requirements for such

    
    

    policies. It does not regulate the conduct of drivers and hence cannot be violated by a driver.

33. Because Harrell is guilty of misconduct in office, the District's progressive discipline policy must be consulted to determine the appropriate penalty. In pertinent part,

    Article 17 of the CBA provides as follows:

    
    

    1. Where just cause warrants such disciplinary action(s) and in keeping with the provisions of this Article, an employee may be reprimanded verbally, reprimanded in writing, suspended without pay, or dismissed upon the recommendation of the immediate supervisor to the Superintendent and final action taken by the District. Other disciplinary action(s) may be taken with the mutual agreement of the Parties.

       
       

    2. Except in cases which clearly constitute a real and immediate danger to the District or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable School Board rules and regulations, progressive discipline shall be administered . . . .

    
    

34. The progression of penalties, from least to most severe, is: (A) verbal reprimand with written notation;

    (B) written reprimand; (C) suspension without pay; and

    
    

    (D) termination of employment. The plain language of the CBA circumscribes the District's discretion to impose the ultimate penalty, dismissal, restricting its use to only those cases where an employee has (i) previously been suspended without pay, or (ii) is found guilty of an offense which clearly constituted

    
    

    a real and immediate danger to the District or involved conduct that constituted a clearly flagrant and purposeful violation of reasonable District policy (hereafter, an Exceptionally Serious Violation or "ESV"). If neither of those conditions is met, dismissal is not an available disciplinary action.

35. This means that a first offender such as Harrell cannot be dismissed unless he or she has committed an ESV.7/ The question of whether an employee's conduct falls within the definition of an ESV is a matter of ultimate fact for the undersigned to determine based upon competent substantial evidence. This is the teaching of Quiller v. Duval County School Board, 171 So. 3d 745 (Fla 1st DCA 2015), where the court

    of appeal reversed a final order rejecting an Administrative Law Judge's recommendation that an employee be suspended without pay, instead of dismissed. This recommendation was based on findings that the employee in question had not previously been suspended without pay pursuant to the progressive discipline policy, and that there was "no evidence of 'severe acts of misconduct'" warranting a departure from the prescribed progression of penalties. Id. at 745. The court noted that under section 120.57(1)(l), the school board could increase the recommended penalty (suspension without pay) if it stated with particularity, in the final order, its reasons for doing so——as it appeared to have done. Id. at 746. But the board was bound

    
    

    by the finding of ultimate fact that the employee's use of profanity in front of students (the wrongdoing at issue) was not a severe act of misconduct.8/ In view of this fact, the board did not have the authority, under its progressive discipline policy, to dismiss the employee, which meant that the board could not increase the penalty to dismissal. Id. Thus, the final order was reversed with instructions to adopt the recommended penalty. Id.

36. As found above, Harrell is not, in fact, guilty of an ESV. Therefore, the District is without authority under the CBA to terminate her employment in this proceeding.

37. The question remains whether, under the CBA, the District is limited to imposing no more serious penalty than a verbal reprimand, or whether the several penalties short of dismissal (up to and including suspension without pay) are cumulative depending on the circumstances. Paragraph 6 states that "disciplinary action(s)" may be taken in accordance with article 17, which leads the undersigned to conclude that the District retains the discretion to impose two or more penalties in the progression, as appropriate, to match the severity of the sanction to the gravity of the offense.

38. The undersigned believes that Harrell's offense, while not an ESV under the CBA, is yet too serious to receive a mere verbal reprimand or even a combination of verbal and written

    
    

    reprimands. Swinging a belt at a student, even without the intent to cause harm; even when done in a good-faith, albeit

    ill-advised, attempt to reprimand the student lightheartedly for unacceptable conduct on the bus, poses an unreasonable risk of accidental injury and thus deserves a stiff penalty.

39. The undersigned recommends that Harrell receive verbal and written reprimands, plus a 30-day suspension without pay.

RECOMMENDATION

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 Harrell guilty of misconduct in office and imposing the following penalties therefor:

(a) verbal reprimand; (b) written reprimand; and (c) 30-day suspension without pay.

DONE AND ENTERED this 11th day of April, 2017, in Tallahassee, Leon County, Florida.

S

JOHN G. VAN LANINGHAM

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 11th day of April, 2017.

ENDNOTES

1/ Pursuant to School Board Policy 3.21(3)6, drivers must "observe" "[a]ll procedures" set forth in the Handbook.

2/ It should perhaps be noted that at hearing M.M. did not appear, at least to the undersigned, to be particularly heavyset, much less obese, or uncommonly large.

3/ The undersigned has not fully accepted M.M.'s testimony, especially as it relates to wholly subjective matters such as his feelings, because a hint of unseemly calculation taints M.M.'s credibility, arising from the undisputed facts that

(i) this young student and his friends began, almost immediately after the incident, precociously to discuss the opportunity M.M. now had to sue the District, and that (ii) M.M. and his parents actually initiated such a lawsuit, which was pending at the time of the hearing. It is not the lawsuit, per se, that gives the undersigned pause about M.M.'s truthfulness, but rather the obvious financial incentive it provides M.M. to paint Harrell in the worst possible light wherever possible.

4/ The term "educational support employee" includes any person employed by a school board as a member of the district's transportation department. See § 1012.40(1)(a), Fla. Stat.

5/ Perhaps policy 1.013(1) might be independently violable in the unlikely event that the violation of an underlying applicable law is not, itself, the gravamen of a misconduct in office charge. Such is not the case here, however, because a violation of the substantive norm, policy 3.02(5)(a)(vii), constitutes misconduct in office. A violation of policy 3.02(5)(a)(vii) necessarily violates policy 1.013(1), for the latter prohibits the violation of any District policy. But it would be impermissibly duplicative to punish an employee for misconduct in office based on such a violation of policy 1.013(1), which would rest on the very same facts that established the violation of policy 3.02(5)(a)(vii).

6/ In its Proposed Recommended Order, the District argues that Harrell violated section 403.413, Florida Statutes (the Florida Litter Law), by throwing food and a soda can out the window of

the bus while driving. The District, however, does not have jurisdiction to enforce the Florida Litter Law; violations thereof must be established elsewhere. The District can, of course, adopt its own rule forbidding drivers from throwing trash from their busses if it wants to make littering a disciplinable offense in situations, such as this, where the driver has not been cited for, and convicted of, a violation of section 403.413.

7/ Because there is no penalty to progress to following termination of employment, the exception set forth in paragraph 7——not to mention the concept of progressive discipline itself——would be eviscerated if a first offender were subject to dismissal for committing an offense other than an ESV.

8/ The court unfortunately referred to this finding as a "conclusion of law"——perhaps because it had been so labeled in the Recommended Order and had been adopted as such by the school board. Clearly, however, the court treated the dispositive determination as a matter of fact, as it obviously was, for otherwise the school board probably would not have been so tightly bound by it, as conclusions of law are relatively vulnerable to agency modification. (Although, it might be debated whether a school board has jurisdiction to authoritatively construe the ambiguous terms of a collective bargaining agreement, where the meaning of its relevant provisions is genuinely in dispute, given that contract interpretation is typically regarded as a fundamental judicial function reserved for the courts; that issue was not addressed in Quiller, however, and need not be reached here.) To be clear, an explanation of the meaning or interpretation of the term "severe acts of misconduct" would be a conclusion of law.

But a determination——made after applying the law to the historical facts——that an employee's conduct was or was not a "severe act of misconduct" is a finding of ultimate fact.

COPIES FURNISHED:

Helene K. Baxter, Esquire Palm Beach County School Board Office of the General Counsel

3300 Forest Hill Boulevard, Suite C-323 Post Office Box 19239

West Palm Beach, Florida 33416 (eServed)

Dedrick D. Straghn, Esquire Dedrick D. Straghn, Attorney

& Counselor at Law

26 Southwest 5th Avenue Delray Beach, Florida 33444 (eServed)

Dr. Robert Avossa, Superintendent Palm Beach County School Board

3300 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406-5869

Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)

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: 16-006862

Orders for Case No: 16-006862